Whistleblower protections and claims for breach of statutory duty

With thanks to Associate Professor Neil Foster for highlighting this matter, in which the Court of Appeal (South Australia) supported the recognition of a right on the part of a whistleblower to sue for breach of statutory duty so as to recover damages. Although the background to this particular matter did not arise in the health system (a medical practitioner was mentioned), the principles may apply more broadly to health system whisteblowers.

In Morgan v Workcover Corporation [2013] SASCFC 139, Ms Morgan contended that WorkCover breached the Whistle Blowers Protection Act 1993 (SA) section 7 by disclosing a “whistleblower” letter she had written. In that letter to Workcover she said that she had been told that a doctor who provided a report for WorkCover received a commission from WorkCover, by another employee that this was not so and she did not know what the true position was but, if it was the case, it was unfair. Other allegations were also raised.

Upon receipt of the letter, despite section 7, the Chief Executive Officer immediately provided a copy to the person complained of. This resulted in the persons complained of instituting defamation proceedings against Ms Morgan in the Magistrates Court. A Magistrate upheld the defamation claim in part. Ms Morgan incurred costs defending the claims and was obliged to pay half legal costs as well as damages of $10,000.

On appeal the Court held that it was not necessary for WorkCover to disclose either the letter or Ms Morgan’s identity to the persons complained of, in order to ensure that the matters to which the information related were properly investigated.

Among other findings, the court held that section 7 manifested an intention to provide a ground of civil liability when breach of the obligation imposed by the section causes damage and hence a cause of action for breach of statutory duty by Workcover was available to Ms Morgan.