We recently received several emails from injured workers suffering from primary, moderate to severe psychiatric injuries asking us whether they would be eligible to lodge a common law damages claim.
Injured workers in some jurisdictions (states) have the ability to sue their employers if they have been negligent.
In most jurisdictions where common law access is available there are restrictions on the heads of damage able to be sought, threshold tests (with respect to impairment) and/or caps on damages that can be awarded. For example, in NSW the injured worker must have at least 15% WPI (whole person impairment) to be eligible to lodge a common law claim. In Victoria, a 30% WPI psychiatric injury is required (or a serious injury certificate) to access common law, including pain and suffering, and the benefits are capped to a maximum of approximately $543.000 (see table below).
Compensation for psychiatric injury claims are different in our states and territories.
However, what many psych injured workers don’t know is that there are always ‘grey areas’ in the diagnosis (and treatment) of compensable psychiatric injuries, particularly when causation must be established, and-more importantly-employers are not necessarily liable for psychiatric harm to workers.
Common law claims for psychological injury injured workers often fail to establish breach of duty of care
In this article we’ll try to highlight the difficulties with claims of this type. There are some very real barriers to successful claims for pure (primary) psychiatric injury, often said to arise because of the inherent nature of the psychiatric illness and its impacts upon injured workers, the difficulty in discerning the existence of and/or the cause of psychiatric illness and, in turn from the latter proposition, the greater difficulty for the employer to take steps to prevent or not cause psychiatric illness. Realistically, the notion of reasonableness which one regularly confronts through the common law of negligence becomes more difficult to apply in many psychiatric injury claims
To recover damages (common law) for psychiatric injury the injured worker must demonstrate the following:
1. Duty of Care
That the defendant owed a duty of care to the injured worker because:
a. the psychiatric injury was reasonably foreseeable; and
b. of the degree of risk, on balance, that the injured worker would suffer a psychiatric injury.
It is this second limb of the evidential component of Duty of Care to be proved by the injured worker that goes beyond that ordinarily required in personal injuries cases. To meet this second limb, the injured worker must be able to demonstrate that the defendant knew that this particular injured worker’s circumstances were such that he/she was at risk, on the balance of probability, of developing the psychiatric injury.
That the duty owed was breached by the defendant’s negligence;
That the defendant’s breach was causative of the injured worker’s psychiatric injury
In separate decisions, two injured workers who sustained psychiatric injuries in the course of their employment in Victoria were denied damages in recent decisions of the Supreme Court of Victoria and the Victorian Court of Appeal.
Psychiatric harm not reasonably foreseeable
In two fairly recent cases, the injured workers failed to establish that their employers breached a duty of care to avoid psychiatric injury because it was found that it was not reasonably foreseeable that they would suffer psychiatric injury.
In Taylor v Haileybury  VSC 58, Haileybury College was found not to be liable for the psychiatric injuries suffered by a former teacher at the school as a result of overwork and stress. Taylor claimed that the school had responded inadequately to the risks of him developing a psychiatric injury and failed to develop an adequate treatment plan in order to prevent his foreseeable injury.
In Brown v Maurice Blackburn Cashman  VSCA 122, a salaried partner of Maurice Blackburn Cashman (MBC) claimed damages for psychiatric injury which she claimed to have developed as a result of being systematically harassed, undermined and bullied by a more junior salaried partner after returning from maternity leave. (For more information about this case please see Lawyer loses bullying claim appeal
Large teaching load and additional duties in Taylor v Haileybury
Taylor was employed at Haileybury between early 2005 and May 2007 as a French teacher. He ceased employment due to the “unreasonable and excessive stress and strain placed upon him by being given a weekly face-to-face teaching load which was too large as well as too many additional duties”. Taylor claimed that Haileybury breached the terms of his employment contract by requiring him to work more than the maximum hours stipulated.
Although Taylor had never consulted a psychiatrist for treatment, nor taken any psychotropic medication for his condition, at trial Haileybury did not dispute that since May 2007 Taylor had been suffering a major depressive illness.
Risk of psychiatric harm and employer’s duty of care
The principles governing the scope and content of the duty of care owed by employers to employees involving psychiatric harm are well settled in Australia. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.
The content of an employer’s duty in psychiatric harm cases is determined by asking the question whether, in all the circumstances, the risk of an employee sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful (Koehler v Cerebos (Australia) Ltd  222 CLR 44).
The duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable, having regard to the nature and extent of the work being done by the particular employee and signs given by the employee.
Employee did not communicate his health concerns sufficiently
In Taylor it was held that requiring Taylor to work a “full load” did not expose him to risk of injury where he had failed to indicate he was suffering any adverse heath effects. Taylor had sent Haileybury two emails regarding his workload concerns, in addition to verbal complaints made to other teachers. He argued that his communication to Haileybury of his concerns had required the school to take action to alleviate his risk of developing a psychiatric illness.
However, Justice Beach concluded that there were insufficient communications between Taylor and the school that would have placed them on notice that his workload was adversely affecting his psychiatric health. It was held that a retrospective approach to the emails (the fact Taylor now suffers from a psychiatric illness) cannot be read into the interpretation of the communications between Taylor and Haileybury.
Further, Justice Beach held that he was not satisfied that the risk of Taylor suffering psychiatric harm would have been alleviated by the creation or implementation of additional policies.
Complaints which did not mention health risk did not engage employer’s duty of care
The Court of Appeal in Brown (the leading judgment being delivered by Osborne JA, with whom McCaulay AJA and Harper JA agreed) found that the trial judge did not err in concluding that it was not reasonably foreseeable that Brown would suffer psychiatric injury as a result of the performance of her duties. It was not until October 2003 that Brown gave advice to MBC that workplace stress was causing her health problems.
The complaints made previously by Brown to MBC did not make such injury foreseeable as they did not make any allegation of a health risk. The advice to MBC on 30 October 2003 that Brown had been seeing a doctor and that her health was suffering was a material sign of a more serious situation than that which Brown had previously advised her employer. It followed that a relevant duty of care was not engaged until that point in time.
Work-related stress and the risk of psychiatric ailments
Ultimately, the question the courts will always need to answer in these psychiatric harm from employment cases is whether, having due regard to the contract of employment or through notice of an employee, it was reasonably foreseeable that a particular employee would develop a psychiatric ailment as distinct from merely feeling “stress” associated with their work.
In Taylor Justice Beach was not persuaded to conclude with the benefit of “litigious hindsight” (at 139) that the defendant knew or ought to have known that Taylor was under stress and therefore at risk of psychiatric harm. Justice Beach did not doubt that Taylor’s workload was heavy and he also accepted that teaching, like many professions and occupations, would have significant levels of stress associated with it, but without more, this was not sufficient basis for Haileybury to suspect that he was at risk of psychiatric injury.
No breach because psychiatric harm was not reasonably foreseeable
If psychiatric harm to a particular employee is established to have been reasonably foreseeable in the circumstances, the court will go on to consider whether there has been a breach of that duty of care and therefore negligence on the part of the employer. In so doing, the court will identify how a reasonable employer would respond to foresight of the risk of occurrence of psychiatric harm.
In Taylor, Haileybury was found not to have breached the duty of care owed because “[w]ithout the benefit of hindsight, there was no reason for [Haileybury] to suspect that the workload it required of [Taylor] placed him at any risk of psychiatric injury”.
Employer responded appropriately to injured worker’s complaint
Similarly, the Victorian Court of Appeal in Brown held that the trial judge was correct to find that Brown was not subjected to systematic harassment or bullying. The trial judge used the summary description of “trivial interoffice and interpersonal conflicts” to describe the objective seriousness of the acts of perceived harassment.
In the Court of Appeal’s view, this accorded entirely with the weight of the evidence (at –). Further, the Court of Appeal found that MBC responded appropriately to the complaint made by Brown by facilitating an attempt at mediation upon being made aware of the risk to Brown’s psychiatric health on 30 October 2003.
Outcome could be different if employers informed of risk to injured worker’s mental health
Adopting the reasoning in Brown and Taylor, the outcomes for an employee claiming psychiatric harm in the course of employment may well be different if evidence is adduced that the employer was provided with a medical certificate or told that a doctor had been consulted because the employment was adversely affecting the employee’s mental health.
Principles of Liability in Psychiatric Injury Claims
by Christopher Newton
(Extract of the article)
The difficulty faced by Courts and doctors alike when determining claims for pure psychiatric injury is that there will often be no readily ascertainable objective or organic evidence of the injury let alone evidence linking the psychiatric injury to the incident. In part this is because injured plaintiffs are commonly not good witnesses and their instructions and in turn their evidence, more often than not, is not particularly focused. They themselves have difficulty because of lack of insight from understanding the real causes of their problems and often they lack the capacity to give evidence. Add to that the common view of psychiatrists that psychiatric illness is almost invariably multifactorial and often these types of injuries occur in high achieving personnel whose obsessiveness can pre-dispose them to the development of the very anxiety orders and in turn major depressive disorders because of that reality.
Courts are then confronted with a further layer of evidential complexity when asked to determine what steps could have been taken by a defendant to prevent the psychiatric injury from occurring. Often prior to the relevant incident said to give rise to the psychiatric injury occurring the injured person themselves would have been hard pressed to identify their pre-disposition to, or risk of, sustaining the psychiatric injury.
This is further complicated by the very understandable reticence that most people have towards telegraphing to others that they might be experiencing signs or symptoms associated with a risk of psychiatric injury. This is particularly so in the workplace, but applies equally to the community at large, thus concealment of the distress and impending psychiatric injury is common.
Despite, or perhaps because of, these additional barriers to identifying both risk of psychiatric injury and the resultant injury itself, the evidentiary onus placed upon plaintiffs seeking to recover damages for pure psychiatric injury is higher than it would be if had they suffered a physical component to their injury.
As noted by Hayne J in Tame v State of New South Wales; Annett v Australian Stations Pty Ltd:
[A] plaintiff will not recover damages for an injury which psychiatric opinion recognises as a psychiatric injury by demonstrating only that such an injury was reasonably foreseeable and that the defendant’s negligence was a cause of the injury which the plaintiff sustained.
To recover damages for pure psychiatric injury the plaintiff must demonstrate the following:
1. Duty of Care
That the defendant owed a duty of care to the plaintiff because:
a. the psychiatric injury was reasonably foreseeable; and
b. of the degree of risk, on balance, that the plaintiff would suffer a psychiatric injury.4
It is this second limb of the evidential component of Duty of Care to be proved by the plaintiff that goes beyond that ordinarily required in personal injuries cases. To meet this second limb, the plaintiff must be able to demonstrate that the defendant knew that this particular plaintiff’s circumstances were such that he/she was at risk, on the balance of probability, of developing the psychiatric injury.
That the duty owed was breached by the defendant’s negligence;
That the defendant’s breach was causative of the plaintiff’s psychiatric injury.
The essence of this paper will be to address the three basic requirements.
Duty of care
The duty of care owed by an employer was clearly annunciated by the High Court in 2005 in Czartyrko v Edith Cowan University
An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.
In pure psychiatric claim cases, as in the general workplace obligation to report an injury, the plaintiff has an obligation to notify the defendant when stressors that may give rise to a money_stress.jpgpsychological injury have arisen. The barriers experienced by plaintiffs when meeting this requirement to notify include:
- the stigma associated with common stressors;
- a lack of capacity, as a consequence of the psychiatric injury, to complain about the stressors being experienced: for example:
- a. the plaintiff has no insight into their condition or circumstances;
- b. the plaintiff’s fear/anxiety associated with the condition preclude reporting as required.
- c. concern about having to disclose matters of a very personal nature, particularly if contributing stressors include personal factors such as financial distress and/or relationship breakdowns;6 and fear of retribution e.g. concern the plaintiff may lose their job or be demoted.
A failure to report these matters may result in the plaintiff’s claim failing, because a reasonable employer may have no knowledge of the issue.
Other difficulties plaintiffs confront when trying to establish whether a duty of care was owed to avoid pure psychiatric injuries include:
- loss of access to key evidence and witnesses ; and
- witnesses’ unwillingness to assist the plaintiff.
Both of these evidential hurdles are particularly relevant for plaintiffs injured psychiatrically in the workplace. Experience tells us they create their own problems in standard WorkCover cases. This becomes critically important in these types of cases where establishing breach of duty for the plaintiff often necessitates a need to call work mates and indeed some supervisors but often, of course, the plaintiff will have become estranged from his former colleagues at the workplace and of course the issue is whether that reflects the difficulties and personality conflicts arising out of the plaintiffs psychiatric illness or whether those personality conflicts were the genesis of the problem in the first place.
The difficulties faced by defendants as to assessing whether a particular person may be at risk of suffering from a psychological injury include:
- that the plaintiff may not have complained about the stressors he/she may be experiencing;
- a number of the stressors that can contribute to the development of a pure psychiatric injury may be personal and not related to employment.
Assuming one can overcome these pragmatic hurdles and establish that there clearly was a duty of care owed by a particular defendant to the plaintiff in a pure psychiatric claim one then confronts the difficulties of breach.
Breach of Duty
A reasonable starting point is to recall the specific provisions of sections 9 and 10 of the Civil Liability Act (CLA) which provide:
9 General principles
(1) A person does not breach a duty to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
10 Other principles
In a proceeding relating to liability for breach of duty happening on or after 2 December 2002—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.
I have started by restating these now well-known sections because, while in the broad sense there is no suggestion they dramatically change the common law, they do highlight the need to establish each component of the process of a breach of duty of care and that helps us to focus on the difficult issues which arise in pure psychiatric injury claims.
Defendants, and particularly defendant employers, will often have limited or no insight into the personal circumstances of each individual employee and therefore have limited or no insight into all of the stressors that may give rise to the risk (on the balance of probabilities) that the employee will suffer a psychiatric injury. This conundrum was discussed by Keane J in Hegarty v Queensland Ambulance Service
It may be accepted that a line commander of an ambulance officer must be vigilant for signs of dysfunction in ambulance officers because of the regular exposure of such officers to stressful situations, but that vigilance must respect, and be exercised in a context which recognises, the dignity of individual employees and their entitlement to privacy, at least where the only signs of possible dysfunction are equally explicable as the assertion of legitimate grievances about the terms and conditions of employment, and there is no suggestion that the officer’s performance at work has been or is likely to be adversely affected in any way, and the employee chooses not to convey information which would clearly signal a level of psychological distress.
The High Court in New South Wales v Fahy similarly expressed the difficulties that may be faced by the defendant in the context of a State employer protecting its police officers from the risk of psychiatric injury in circumstances where each individual’s response to a stressful situation may vary greatly. In their joint judgment Gummow and Hayne JJ observed that the best method of support can vary too. I highlight this issue for a couple of reasons: first not all problems confronting these types of cases are plaintiffs problems although they have by far the bigger hill to climb; second because it does highlight that there is a difference between pursuing a personal injury pure psychiatric case for an accepted group plaintiff (which may include police but less certainly ambulance officers and even less certainly perhaps warder type staff in a jail situation). Obviously this paper is more directed to those far more difficult cases where one is just dealing with a stock employment type situation and has to climb mountains with much less well established hurdles.
The key to addressing breach of duty in these psychological injury cases is to lead expert evidence that addresses:
- what stressors were or should have been divulged to the defendant to enable them to identify the risk of psychiatric injury;
- what actions or steps were or should have then been taken by the defendant to ameliorate the risk.
Of course this reverts to the reality that every case depends upon its own facts it is hoped these comments assist you to understand the importance of identifying precisely what is the breach and why the Defendant should have dealt with it. It will assist in this task if you address those particular items raised in section 9 CLA and direct your evidentiary pursuits to that and the subsequent provisions. One could resort to detailed examination of cases and show a litany of cases where plaintiffs have lost, at least in part, because of significant credibility issues on the part of the plaintiffs. Obviously one will go further to establishing a claim if one can establish some prior knowledge of a substantive nature about a plaintiff’s pre-disposition or pre-existing illness in the employer.12 One equally can show cases where there has been an overreach by plaintiffs with respect to what might amount to a reasonable response to a risk of injury on the employer’s part.
I will now turn to the causation issue.
Again, I commence by stating the relevant provisions set out in the CLA which helps one to focus ones attention as follows:
11 General principles
(1) A decision that a breach of duty caused particular harm comprises the following elements—
(a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation);
(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).
(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.
(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—
(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.
12 Onus of proof
In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Again, while not suggesting this dramatically changes the common law, it does focus our attention on the issue, the scope of liability in particular being a problem sometimes in these types of cases. The provisions generally certainly focus ones attention on the broad based approach which courts adopt in considering causation.
The key issues are:
- Whether the defendant’s negligence caused the psychiatric injury?;
- Whether the plaintiff would have suffered the psychiatric injury regardless of the defendant’s negligence?
As stated by Maxwell P in Findlay v Victoria:
When a plaintiff alleges a negligent failure to act, the causal link between the breach of duty and the claimed damage can only be established by means of a counter factual hypothesis. That is, the plaintiff must propound an alternative state of facts premised upon the defendant’s having exercised reasonable care and, specifically, upon there having been no relevant failure to act. The plaintiff’s counterfactual hypothesis must identify:
(a) what the defendant would have done had reasonable care been exercised; and
(b) how the taking of that action (or those actions) would have averted the loss or damage which the plaintiff in fact suffered.
If a number of separate events are said to have had a cumulative effect upon the causation of the injury, it is important that the evidence supports the allegation. Medical evidence should address all of the following propositions:
- whether any of the separate events on their own could have caused the injury; or
- whether each and every one of the alleged events would have to have occurred in order for the injury to have been caused, on balance, by the defendant;
- whether any subset of the events alleged could have caused the injury.
This, of course, creates enormous evidential difficulties, particularly for plaintiffs.
A genuinely held belief on the part of a plaintiff is insufficient to establish causation for injury arising from that belief. In absence of evidence that the genuinely held belief was true or correct, the plaintiff cannot establish that the injury arose from the defendant’s negligence.  It will be recalled in any event that section 11(3)(b) CLA provides any statement made by the Plaintiff about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
In addition to the matters outlined, in the context of WorkCover claims, the cause of the injury must be established to be the causative event/s:
- for which compensation is obtained; and
- described in the notice of claim.
It will be recalled that the NOCD in Sayers asserted psychiatric illness in consequence of witnessing (as a security guard) a guest having fallen from height at a block of apartments causing his death but the Statement of Claim sought to include events being interactions between the plaintiff and his employer over the subsequent days and these parts of the Statement of Claim were struck out because they were not canvassed in the NOCD. This highlights the importance of understanding and appreciating the precise case to be run at the outset.
Section 32(5) of the Workers Compensation and Rehabilitation Act 2003 relevantly provides the following exemption:
injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
(b) the worker’s expectation or perception of reasonable management action being taken against the worker;
(c) action by the Authority or an insurer in connection with the worker’s application for compensation.
Examples of actions that may be reasonable management actions taken in a reasonable way—
action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment.
The explanatory notes indicate that the exemption was inserted to exclude psychiatric injuries which resulted from reasonable management action to improve a worker’s poor performance.
Whether management action is reasonable is an objective test. The onus rests upon the plaintiff to establish that the exemption does not apply i.e. that the management action was unreasonable or taken in an unreasonable way. one can illustrate the difficulties in the following scenario.
Applicant commenced employment as a spray painter.
Six weeks later she witnessed her foreman, Mr Foreman, verbally abusing her co-worker. She reported the abuse to her manager, Mr Manager.
Mr Manager conducted an investigation into the incident. The investigation revealed that Mr Foreman had been abusive and intimidating towards all the staff in the workshop.
Mr Manager issued Mr Foreman with a formal warning.
Mr Foreman retaliated against the Applicant by verbally abusing her and sabotaging her work.
The Applicant made several reports regarding abuse and harassment towards her by Mr Foreman but requested that no action be taken in relation to those reports.
The Applicant became very stressed and eventually left work.
She was subsequently diagnosed with schizophrenia.
Q-Comp rejected her claim for compensation on the basis that:
- The Applicant’s psychiatric condition did not arise out of or in the course of her employment;
- Employment was not a significant contributing factor to the development of the condition.
On appeal to the Industrial Magistrates Court, the Industrial Magistrate found:
- The Applicant had shown signs of developing a schizophrenia type illness prior to commencing employment at the workshop;
- Mr Foreman’s bullying was a significant contributing factor to the aggravation of her developing schizophrenic condition.
- The Applicant complained that the employer’s management action against Mr Foreman was unreasonable.
- The Industrial Magistrates Court found that the lack of further action against Mr Foreman despite the reports of further abuse and harassment was reasonable because the Applicant had requested that no further action be taken.
These findings were not disturbed on subsequent appeal to the Supreme Court (The failed appeal was made on the grounds of jurisdictional error). This is a line ball case, the outcome of which seems a little harsh, but it highlights the difficulties.
Read full article: Principles of Liability in Psychiatric Injury Claims