Introduction

It is over seventy years since the House of Lords decided in Donoghue v Stevenson1 that it was reasonable to require the manufacturer of a product, intended for human consumption, to have in contemplation the safety of consumers of the product. As Gleeson CJ has said2 "To a modern lawyer that does not sound revolutionary, but it was the principle upon which the decision rested that represented a major legal development." Case law has evolved the tort of negligence beyond what was reasonably foreseeable by the House of Lords in 1932 but there have been some aspects of the law of negligence where evolution has not been as rapid as in others areas. Today's topic deals with one of those areas, the recovery of damages for psychological injury.
Prior to Donoghue v Stevenson, the Privy Council in Victorian Railways Commissioners v Coultas3 in 1889 held that nervous shock, unaccompanied by physical injury, was too remote a consequence of a negligent accident to sound in damages. It was considered that permitting recovery for psychiatric injury would increase the difficulty in determining what results flowed from a negligent act and would open a wide field for imaginary claims. This doctrine recognized only bodily ills as compensable by damages and made a rigid difference between ills of the mind and hurts to the body.

Tame’s case

In the early part of the 20th Century, the courts came to permit the recovery of damages for psychological injuries caused by sudden shock but rationalised this departure from the earlier doctrine on the plaintiff's proximity to physical harm. The High Court of Australia took the opportunity to consider the basic principles involved in awarding damages for psychiatric injury in Tame v New South Wales and Annetts v Australian Stations Pty Ltd 4 decided in September 2002.  1 [1932] AC 562. 2 Tame v New South Wales and Annetts v Australian Stations Pty Ltd (2002) 76 ALJR 1348 3 (1888) 13 App Cas 222 4 (2002) 76 ALJR 1348.

These two cases, heard together, concerned psychiatric injury unassociated with any other form of injury suffered by the plaintiffs resulting from allegedly tortious conduct. The law of tort concerns duties as well as rights, and responsibilities of defendants as well as entitlements of plaintiffs. In Tame's case, the plaintiff sought findings that the defendant was vicariously liable for the conduct of a police officer who made a clerical error in filling out a report about a traffic accident.  
The allegedly tortious act was that of the police officer in erroneously completing the accident report. He had no contact with the appellant and made no communication to her. He entered some information about her in a routine form. That information was incorrect. The error was obvious. It was soon corrected and it was never acted on by anybody. The police officer's conduct consisted in recording and communicating to third parties incorrect information about the appellant. He made a careless misstatement but nobody relied on it.   

In Annett's case, it was alleged that there had been a failure by an employer to provide an employee with a safe system of work. The employee was a minor. His parents, the plaintiffs, had agreed to permit their son to work for the defendant in a remote part of outback Australia, with assurances that he would be well cared for. It is alleged that he was not well cared for and the son died of thirst in remote desert country. The parents suffered psychiatric injury.  
In both cases, the central question was whether the defendants were under a duty to take reasonable care to avoid psychiatric injury to the victims. In each case, the answer to that question depended on the nature of the activity in which the defendant was engaged and on the nature of the harm suffered by the victims.

At the outset of his decision, Gleeson CJ stated that there is a tendency to assume that physical injury to person or property is the paradigm case for the application of the law of negligence, and that, in the case of any other kind of harm, the application of the same general principles ought to produce the same practical results. This overlooks the concern of the law, not only with the compensation of injured plaintiffs, but also with the imposition of liability on defendants, and the effect of such liability on the freedom and security with which people may conduct their ordinary affairs.

Gleeson CJ considered that Tame's case provided a good example of the practical consequences that would ensue if the law recognized a general duty to take care not to cause emotional disturbance to other people. It was common ground in that case that, save in exceptional circumstances, a person is not liable, in negligence, for being a cause of distress, alarm, fear, anxiety, annoyance, or despondency, without any resulting recognised psychiatric illness. If causation is satisfied if a defendant's conduct is a cause of the damage complained of, there are a manifold of circumstances in which one person's conduct may be a factor in inducing an emotional response in another, and the consequence of imposition of legal responsibility would be to impose an unacceptable burden on ordinary behaviour.

In Tame's case, it was recognized that there is an increasing awareness, both in the medical profession and in the community generally, of the emotional fragility of some people, and the incidence of clinical depression resulting from emotional disturbance. Gleeson CJ posed the question "What would be the consequence, for the way in which people conduct their lives, of imposing upon them a legal responsibility to have in contemplation, and guard against, emotional disturbance to others? Considerations of that kind are not "floodgates arguments". They go directly to the question of reasonableness, which is at the heart of the law of negligence. Reasonableness is judged in the light of current community standards."

At the same time, it is established following Tame's case that the common law of Australia does not limit liability for damages for psychiatric injury to cases where the injury is caused by sudden shock or to cases where a plaintiff has directly perceived a distressing phenomenon or its immediate aftermath. Rather liability is to be determined on the question whether it is reasonable to require one person to have in contemplation injury of the kind that has been suffered by another and to take reasonable care to guard against such injury.  

The Justices of the High Court expressed the relevant principles in subtly different ways. Gummow and Kirby JJ delivered a joint judgment which contained the following statement of the underlying rationale of the law of negligence:

"A fundamental objective of the law of negligence is the promotion of reasonable conduct that averts foreseeable harm…it is the assessment, necessarily fluid, respecting reasonableness of conduct that reconciles the plaintiff's interest in protection from harm with the defendant's interest in freedom of action. So it is that the plaintiff's integrity of person is denied protection if the defendant has acted reasonably. However, protection of that integrity expands commensurately with medical understanding of the threats to it. Protection of mental integrity from the unreasonable infliction of serious harm, unlike protection from transient distress, answers the general public sentiment underlying the tort of negligence that, in the particular case, there has been a wrongdoing for which, in justice, the offender must pay."

Gummow and Kirby JJ looked at four principal reasons that have been expressed for the limiting the recovery of damages for psychiatric injury, namely (i) psychiatric harm is less objectively observable than physical injury and is therefore more likely to be trivial or fabricated and is more captive to shifting medical theories and conflicting expert evidence, (ii) that litigation in respect of purely psychiatric harm is likely to operate as an unconscious disincentive to rehabilitation, (iii) that permitting full recovery for purely psychiatric harm risks indeterminate liability and greatly increases the class of persons who may recover, and (iv) that liability for purely psychiatric harm may impose an unreasonable or disproportionate burden on defendants.

These concerns were not considered cogent enough to require a general rule against recovery of damages for psychiatric injury. It was noted that the concerns underlying propositions (i), (ii) and
(iv) apply, to varying degrees, in cases of purely physical injury, yet it is not suggested that they justify denying recovery of damages for physical injury. Secondly, these concerns recede if the distinction between emotional distress and a recognisable psychiatric illness is maintained as a basis for recovery of damages.

The High Court was mindful to adopt what may be considered a conservative approach when defining the circumstances in which it is reasonable to require a person to have in contemplation, and take steps to guard against, emotional disturbance that may result in clinical depression. The concept of normal fortitude was not considered to be necessarily a barrier to establishing liability but more a concept which assists in the assessment, at the stage of breach, of the reasonable foreseeability of the risk of psychiatric harm. Whether the plaintiff was or was not a person of normal fortitude should not distract attention from the central issue which is whether the risk of injury was reasonably foreseeable.

As Gleeson CJ stated, there may be something about the vulnerability or susceptibility of a particular plaintiff that makes it unreasonable to require a person to have in contemplation the kind, or perhaps the degree, of injury suffered; an objective criterion of duty. The variety of degrees of susceptibility to emotional disturbance and psychiatric illness has led courts to refer to "a normal standard of susceptibility" as one of a number of "general guidelines" in judging reasonable foreseeability.  

This does not mean that there is a "normal" person with whose emotional and psychological qualities those of any other person may readily be compared. It is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them. Such people might include those who, unknown to a defendant, are already psychologically disturbed. That idea is valid and remains relevant, even though "normal fortitude" cannot be regarded as a separate and definitive test of liability.  

According to Hayne J, reasonable or normal fortitude is a control mechanism the application of which will require consideration of what, as a matter of general community expectation, could reasonably be foreseen to be the reaction of the reasonable or ordinary person to a particular kind of stressful event. Although expert psychiatric evidence may be relevant to the inquiry about how a reasonable or ordinary person might react, the test requires reference ultimately to what the lay member of the community may be expected to foresee.  

Distance in space and time from a distressing phenomenon, and the means of acquisition of knowledge concerning that phenomenon, are not themselves decisive of liability but may be relevant to assessing reasonable foreseeability, causation and remoteness of damage in an action for negligently inflicted psychiatric injury.    

The following comment by Brennan J5 in Jaensch v Coffey will resound with personal injuries lawyers, particularly plaintiff lawyers:

"In my opinion, the exigencies of proof of the elements of the cause of action impose the appropriate limits upon the scope of the remedy. Those limits are likely to be at once more flexible and more stringent than limits imposed by legal rules which might be devised to give effect to a judicial policy of restraining the remedy within what are thought to be acceptable bounds."

On the other hand, in Tame's case, McHugh J was concerned to redress what he saw was a tendency of courts to find too readily that liability was established once there was an affirmative answer to the question as to whether injury was reasonably foreseeable and reasonably preventable. He considered that once these two questions are answered favourably to the plaintiff, there was a slide ­virtually automatic -into a finding of negligence and at times courts were not asking the decisive 5 (1984)155 CLR 549 at 571. question in a negligence case: did the defendant's failure to eliminate this risk show a want of reasonable care for the safety of the plaintiff? The courts tend to overlook that it does not follow that the failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence.

Mc Hugh J considered:

"So far as possible, the issue of reasonable foreseeability of risk in breach of duty situations should no longer be determined in isolation from the issue of reasonable preventability and the ultimate issue of what reasonable care requires….. Whether the creation of the risk was unreasonable must depend on whether reasonable members of the community in the defendant's position would think the risk sufficiently great to require preventative action. This is a matter for judgment after taking into account the probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, the expense, difficulty and inconvenience of avoiding the risk and any other responsibilities that the defendant must discharge."

McHugh J pointed out that the notion of reasonable foresight in Lord Atkin's speech in Donoghue v Stevenson is a compound conception of fact and value. What is foreseeable is a question of fact but reasonableness is a value.

Hayne J also examined the rational for permitting recovery of damages for psychiatric injury. He acknowledged death, disaster, shock and disappointment are an inevitable part of life that everyone encounters throughout life. Each will have its effect on the individual. He queried whether a defendant should bear entire responsibility for a psychiatric injury of which the defendant's negligent conduct may have been only one cause among many others encountered by the plaintiff in life.  

He queried what assumptions are to be made about the reactions of others to tragic or stressful events? If emotional distress is not to be compensable, but psychiatric injury is, what kinds of event can reasonably be foreseen to bring on psychiatric injury?

If reasonable foresight encompasses all that is not far-fetched or fanciful, the difficulties of predicting the likelihood of a person sustaining psychiatric injury present obvious difficulties. The magnitude of risk in question (serious psychiatric injury) may be very large. Orthodox principle would then require consideration of breach of duty by reference to the degree of probability of occurrence of the risk, taken with the expense, difficulty and inconvenience of taking alleviating action and any conflicting responsibilities of the defendant.  

Does it come down to ascertaining in effect what knowledge of psychiatry is to be imputed to the reasonable person in the position of the defendant in order to make some assessment of how probable the risk of injury is? That seems to be a central question that the High Court suggests must be considered in determining whether a breach of duty has occurred.

Sutherland v Hatton

Apart from the very interesting judgements in the Tame and Annetts case, there was a very useful decision handed down by the Court of Appeal in the United Kingdom about 6 months before the Tame decision in which the legal principles involved in establishing an entitlement to damages for a stress related psychiatric injury were discussed. These principles do not in themselves involve any new development in the law and are in the main consistent with the law as it is presently applied in Australia. The Court of Appeal heard four appeals and handed down a combined decision referred to in this paper as Sutherland –v- Hatton.6

Each of the cases involved are claims for damages based on a psychiatric illness. At the very commencement of the judgment, the members of the Court of Appeal considered what was a psychiatric illness. A Law Commission report in 19957 had commented on the divergence views often expressed about psychiatric illness:

"We are aware from our preliminary consultations that there are strongly held views on this topic. On the one hand, there are those who are skeptical about the award of damages for psychiatric illness. They argue that such illness can easily be faked; that, in any event, those who are suffering should be able to pull themselves together; and that, even if they cannot do so, there is no good reason why defendants, and through them, those who pay insurance premiums should pay for their inability to do so….On the other hand, medical and legal experts working in the field, who are the people who most commonly encounter those complaining of psychiatric illness, have impressed upon us how life-shattering psychiatric illness can be and how, in many instances, it can be more debilitating than physical injuries."

6 [2002] 2 All ER 1 7 The Law Commission, Liability for Psychiatric Illness (LCCP No 137, 1995), para 1.9:

The Court recognised that there is a dividing line between a normal but unpleasant state of mind or emotion and a recognised psychiatric illness or disorder. Some assistance in drawing the line can be obtained from professionally recognized manuals that classify mental disorders and their diagnostic criteria, ie: the Diagnostic and Statistical Manual of Mental Disorder (DSM-IV) and the Classification of Mental and Behavioural Disorders of the World Health Organization (ICD-10).
Many of the most common psychiatric disorders will have complex causes and will depend on the interaction between the patient's personality and a number of factors in the patient's life. It is not easy to predict who will fall victim, how, why or when.

The Court also recognised that there had been a divergence of views on the approach the law should take for psychiatric injury. At one end of the scale are those who argue that the same principles that apply to liability for physical injury should be applied to liability for psychiatric illness. At the other extreme are those who argue that liability for psychiatric illness should be abandoned altogether. The Court of Appeal found that in practice courts had adopted both courses whereby some cases had treated a recognized psychiatric illness as no different in principle from a physical injury while other cases had imposed control mechanisms so that liability for these types of injuries did not extend too far.

Occupational Stress

The case involved a claim that occupational stress had caused a psychiatric injury. The Court examined what was the nature and extent of occupational stress. There are several recognized definitions of the meaning of stress in this context but none had been authoritatively adopted by the courts. As with many words used in a living language, the word stress has acquired a catch all meaning, used by different people to mean different things. It is used to describe both physical and mental conditions and the pressures which cause those conditions. It is also used to describe an effect which can be beneficial and harmful both in its sources and in its consequences.
Many authorities have defined stress as demands made on an individual in excess of that person's ability to cope. A similar definition provides that stress is a process that can occur when there is an unresolved mismatch between the perceived pressures of a work situation and an individual's ability to cope.

Courts have a great deal of difficulty in evaluating occupational stress as there was no such thing as a pressure free job. Every job brings its own sets of tasks, responsibilities and day to day problems and the pressures and demands that these place on a worker are an unavoidable part of working life.  After all, workers are paid to work and to work hard and to accept the reasonable pressures that go with that concept. Some pressures can in fact be a good thing. It is often the tasks and challenges that we face at work that keep us motivated and are the keys to a sense of achievement and job satisfaction. At the same time, it is recognised that a person's ability to deal with pressure is not limitless.  Excessive workplace pressure and the stress to which it can lead can be harmful.

The Court also recognised that stress is not the same as ill health. Stress is usually short lived and can be expected to cause no lasting harm. When the stress recedes, there is a quick return to normal functioning. When pressures are intense and continue for some time, the effects of stress can be more sustained and far more damaging, leading to longer term psychological problems and physical ill health.

The Court accepted that there are fundamental differences between psychological injury caused by work stress and other kinds of work related harm such as physical injuries sustained in accidents or illnesses caused by exposure to harmful physical conditions at work. The most significant difference arises from the fact that an employer is usually aware of what is going on in a factory, school or office. The employer is much less aware of what is going on in the minds of the workers or in their lives outside work. It is common for a worker to minimise or conceal the true state of affairs from an employer – after all, no-one wants to be thought unable to cope with the pressures of work.  

An employer is usually in control of the workplace and in control of the equipment and physical conditions in which the work is performed. An employer is much less in control of the way in which many workers, especially professionals, choose to prioritise their work or choose to balance the demands of their work and life outside the workplace.

An employer can be expected to take responsibility for keeping the physical risks presented by a workplace to a minimum. Responsibility for doing something about its psychological risks is usually shared between many people, including the worker, the family of the worker as well as the employer. An individual who recognises that he is experiencing levels of stress which may be harmful to him has to make some decisions about how to respond to this. In many cases, the employer's options may be very limited. At the extreme, the only option may be to dismiss the worker who cannot cope with the job.   

Psychological pressures are inevitable in all jobs, although greater in some than in others. The Court was told that studies have found that it is difficult to identify which jobs are intrinsically so stressful that physical or psychological harm is to be expected more often than in other jobs. Some people thrive on pressure and are so confident of their abilities to cope that they rarely, if ever, experience stress even in jobs which many may find extremely stressful.  Others experience harmful levels of stress in jobs which many would not regard as stressful at all.    

How the law responds

The law of tort has an important function in setting standards for employers. But if the standard of care expected of employers is set too high, or the threshold of liability too low, there may also be unforeseen and unwelcome effects on the employment market. In particular, employers may be even more reluctant than they already are to take on people with a significant psychiatric history or an acknowledged vulnerability to stress related disorders. If employers are expected to make searching enquiries of employees who have been off sick, then more employees may be vulnerable to dismissal or demotion on ill health grounds.   

No-one can blame a worker who tries to continue on despite his own fears that he cannot cope. No-one can blame a worker for being reluctant to give clear warnings to his employer of the stress he is feeling. His very job, let alone his hopes of promotion, will be at risk. Few can blame a worker for continuing or returning to work despite the warnings of a doctor that he should give up work. There are many reasons why the job may be precious to that worker. At the same time, it would be difficult in those circumstances to blame the employer for failing to recognise the problem and for failing to take action to solve it.  

The key to solving the problem is often as simple as an employer offering help to a stressed worker on a completely confidential basis. The worker can then be encouraged to recognise the signs and seek help without fearing its effects on his job or future prospects. The employer need not make intrusive enquiries or over-react to problems that he does detect in the workforce. Responsibility for accessing this service can be left with the people who are best equipped to know what the problems are, ie: the worker, the worker's family and friends.   

As the Supreme Court established in Gallagher's8 case, an employer who has a system in place for confidential employee counselling is unlikely to be found in breach of a duty of care owed to the workers.

The Chief Justice in Gallagher's case stated: "The obvious issue is whether allowing for the existence of that counselling facility - to which the learned judge has not expressly referred - a reasonable man would still have foreseen this risk of injury: assessing the prospect of risk should not have ignored the matrix of surrounding circumstances, including the availability of this assistance which, if utilised, may well have forestalled problems of this character.  
… I find it difficult to accept that an employer, conducting a correctional centre, especially knowing of the availability of counselling and other support services offering adequate psychological and psychiatric care, should reasonably foresee a risk of injury to its managerial staff as involved in the sorts of circumstances found by his Honour in this case."

Koehler v Cerebos (Australia) Ltd

In examining the elements of the law of negligence as it applies to work caused psychiatric injury, the existence of a duty of care between an employer and a worker can be taken for granted. To say that an employer has a duty of care does not identify what the employer has to do or refrain from doing in any particular case. As has been discussed, the threshold question is whether psychiatric harm occurring to a particular worker was reasonably foreseeable. Because of the very nature of a psychiatric disorder, as a sufficiently serious departure from normal or average psychological functioning to be labelled a disorder, it is bound to be harder to foresee than is physical injury.   
It is probably not possible to prove that some occupations are in themselves dangerous to mental heath. It is not the job that causes harm but the interaction between the individual worker and the job. Stress is a subjective concept: the individual's perception that the pressures placed on him are greater than he may be able to meet. Adverse reactions to stress are equally individual, ranging from temporary minor physical or emotional distress to permanent major mental illness.

These comments should not displace attention on the fact that the foreseeability test must still focus on the particular worker whose damages claim is under consideration. The foreseeability question will depend on the inter-relationship between the particular characteristics of the worker concerned and the particular demands which the employer places on that worker. 8 Queensland Corrective Services v Gallagher [1998] QCA 426

This leads to an examination of the nature and extent of the work being done by the worker.  Should employers be more alert to picking up signs of developing injury from a worker who is being overworked in a demanding job than from a worker whose workload is no more than normal for the job or whose job which involves tasks that are not particularly demanding?

Before the decision of the High Court of Koehler v Cerebos (Australia) Ltd,9 most legal representatives for plaintiffs were able to argue successfully along the lines that injury would be a reasonably foreseeable consequence of an employer putting pressure on the individual worker which in all the circumstances of the employment is unreasonable. That argument is now more difficult to sustain.

I will assume that you are all familiar with the facts in Koehler's case. The High Court confirmed not just the underlying principle established in Tame's case that unless a psychiatric injury was reasonably foreseeable, an employer will not be held liable for psychiatric injury sustained by a worker but stated that liability in the employer may not always be established where a worker had contractually agreed to take on the onerous duties which were the cause of injury.    

The main judgement was delivered by Justices McHugh, Gummow, Hayne and Heydon. The judges commenced their discussion of the issues in the case with this comment: "Because the appellant's claim was framed in negligence, and because her claim was brought against her employer, it may be thought necessary to have regard only to the well-established proposition that an employer owes an employee a duty to take all reasonable steps to provide a safe system of work. From there it may be thought appropriate to proceed by discarding any asserted distinction between psychiatric and physical injury, and then focus only upon questions of breach of duty. Questions of breach of duty require examination of the foreseeability of the risk of injury and the reasonable response to that risk in the manner described in Wyong Shire Council v Shirt. But to begin the inquiry by focusing only upon questions of breach of duty invites error. It invites error because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account".

The judges went on to state: "The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations 9 (2005) 214 ALR 355 arising from that relationship which equity would enforce and, of course, any applicable statutory provisions…Consideration of those obligations will reveal a number of questions that bear upon whether, as was the appellant's case here, an employer's duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee."

The judges went on to state that the content of the duty of care, and what steps that the satisfaction of that duty may require, are not to be examined without considering the other obligations which exist between the parties. The judges rejected the proposition that the Court should hold that where an employee claims damages from an employer for negligently inflicted psychiatric injury, only one question need be considered, namely, whether this kind of harm to this particular employee was reasonably foreseeable.  

The judges considered that: "It is sufficient for the purposes of the present case to attribute only limited significance to the appellant's agreement to perform the duties which brought about her injuries. In this case it is enough to notice that her agreement to undertake the work runs contrary to the contention that the employer ought reasonably to have appreciated that the performance of those tasks posed a risk to the appellant's psychiatric health. It runs contrary to that contention because agreement to undertake the work not only evinced a willingness to try but also was not consistent with harbouring, let alone expressing, a fear of danger to health. That is why the protests the appellant made (that performance of the work within the time available seemed impossible) did not at the time bear the significance which hindsight may now attribute to them. What was said did not convey at that time any reason to suspect the possibility of future psychiatric injury."

The judges went on to consider the general principle underlying the content of the duty of care and observed: "An employer may not be liable for psychiatric injury to an employee brought about by the employee's performance of the duties originally stipulated in the contract of employment. In such a case, notions of "overwork", "excessive work", or the like, have meaning only if they appeal to some external standard. Yet the parties have made a contract of employment that, by hypothesis, departs from that standard. Insistence upon performance of a contract cannot be in breach of a duty of care."

The judges were not prepared to qualify their comments by incorporating a requirement that performance of the obligations is excused if performance would be beyond what is required by some external standard or may be injurious to health. To the contrary, the judges stated: "Within the bounds set by applicable statutory regulation, parties are free to contract as they choose about
the work one will do for the other. In particular, within those bounds, parties are free to stipulate that an employee will do more work than may be the industry standard amount. Often the agreement to do that will attract greater rewards than the industry standard. Developing the common law of negligence in a way that inhibited the making of such agreements would be a large step to take."

Post Koehler

Koehler's case involved facts where the Court accepted that a psychiatric injury was not readily apparent or reasonably foreseeable by the employer. Cases decided since Koehler's case confirm that liability can be found against an employer when the employer knows or ought to have known that there is an injury developing in a worker. It is important to distinguish between signs of stress and signs of impeding harm to health. Stress is merely the mechanism which may, but usually does not, lead to damage to health. If the worker or a doctor makes it plain that a worker is experiencing a pending breakdown in health, the employer is placed on notice and must discharge its duty of care.

In the case of State of New South Wales v Mannall 10 the NSW Court of Appeal a public servant claimed damages for a stress related injury. She claimed that she had been subjected to victimisation, harassment, humiliation and abuse in the workplace. The primary judge (after a retrial) found in favour of the worker. On appeal, the primary decision was attacked on several bases including the worker’s credibility, foreseeability issues, breach of duty issues and causation.   
On the foreseeability issue, it was contended that the line manager against whom the wrongdoing was alleged should have foreseen that the worker would have been subjected to stress, which is an inevitable concomitant of every day life for a person in the worker’s position but actual injury was not foreseen. This contention was rejected given the finding of fact that the line manager was on actual notice of the worker’s developing injury. The Court of Appeal acknowledged that the line manager’s capacity to detect stressors likely to result in psychiatric injury was not to be measured as if he were a medical specialist but there was sufficient evidence to find that he was on notice of injury as he knew at a crucial time in the case that the worker was giving the appearance of not coping with her work and that she needed and expected his assistance which was not provided.
Of particular interest if the following passage from the judgement of the President of the Court of Appeal: 10 [2005] NSWCA 367

“A conclusion of negligence in the present case does not suffer from the fallacy exposed in Koehler, where the primary judge in that case was found to have failed to give due regard to the particular contractual arrangements when finding negligence on the employer’s part. That was a case where a reasonable person in the position of the employer would not have foreseen the risk of psychiatric injury to the employee. In the present case there was the evidence of actual notice of the foreseeability of mental breakdown; and there was much more than a psychiatric breakdown stemming from the inevitable parameters of the contract of employment. Merely because the respondent took on the role of leader of this particular team did not exclude the employer’s general duty of care, nor did it exempt the employer (through its manager) from having any responsibility for the mental wellbeing of the employee as the pressures (expected and unexpected) of this particular job visibly began to take their toll. Tortious liability for psychiatric injury stemming from “workplace stress” will doubtless raise many difficult legal and factual issues, including issues of justiciability…One thing is however clear, namely that entry into a contract of employment does not in itself absolve the employer from the tortious duty to exercise reasonable care to prevent such injury.”

In most cases that come before the courts, the employer does not have actual knowledge of injury until it is too late. In general terms, the courts accept that unless an employer knows of the existence of some particular health problem or vulnerability, an employer is usually entitled to assume that his worker is up to the normal pressures of the job. It is only if there is something specific about the job or the worker or the combination of the two that the employer has to think harder.   

But, thinking harder does not necessarily mean that the employer has to make searching or intrusive enquiries. The employer is entitled to take what he is told by the worker at face value. The employer may not want to ask for the worker's permission to obtain information from his medical advisors out of fear that to do so would invite an allegation that there is an unacceptable invasion of the worker's privacy.

An employer may reasonably consider that a worker is fit to undertake the usual duties of his work when a worker returns to work after a period of sickness without making further disclosure or explanation to the employer. It would be reasonable for the employer to make that assumption unless he has other good reasons to think to the contrary. There may be a variety of indications before the employer has a duty to act.  

In view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury, the indications must be plain enough for any reasonable employer to realise that he should do something about it.   

Exploring the content of duty

The question still remains what is it reasonable to expect the employer to do. The employer's duty is to take reasonable care.  Using the balancing formula from Wyong Shire Council v Shirt11, what is reasonable depends on the foreseeability of harm, the magnitude of the risk of that harm occurring, the gravity of the harm which may take place, and the cost and practicality of preventing the harm.  

In stress claims, it is necessary to consider not only what the employer did, but also what the employer should have done to prevent that harm. The size and scope of the employer's operation will be relevant as will its resources and other demands placed the employer. Among those other demands are the interests of the other employees in the workforce. It may not be reasonable to expect an employer to re-arrange the work for the sake of one worker in a way that prejudices the other workers.   

Moreover, the employer can only reasonably be expected to take steps which are likely to do some good. In many cases, it would be very hard to know what would have done some good let alone enough good to prevent the harm from occurring.  The law does not say to an employer that it is his duty to sack a worker or demote him for the worker's own good. If there is no alternative solution, it has to be for the worker to decide whether or not to carry on in the same employment and take the risk of a breakdown in his health, or whether to leave that employment and look for work elsewhere before he becomes unemployable.   

I commend to you an excellent paper by David North SC presented at a Continuing Professional Development seminar for the Bar Association in June 2004 on inconsistence duties and the issue of coherence of the law when considering the application of common law duties and statute law on the same or related fact situations.

Causation

Apart from establishing in a case that a breach of duty has occurred, it is vital to prove that the particular breach of duty caused the injury.   It is not enough to show that occupational stress caused  11 (1980) 146 CLR 40  the harm as the mere existence of stress does not necessarily give rise to a reasonable foreseeability of injury. There may be several different factors contributing to the development of the injury, and the plaintiff may have difficulty proving that the employer's fault (as opposed to a stressful workplace) was one of them.   

The Court of Appeal in Queensland in Gallagher's case had some very relevant comments to make on the causative factors needed to establish an entitlement to damages.  Quoting again from the judgment of the Chief Justice:12

"I revert also now to the point made secondly above: it is of course not enough to found a reasonable, objective assessment of risk in these circumstances, that the respondent himself attributed his difficulties to the work environment, if that is what his Honour implied. The relevant consideration is objective, broader. The employee's subjective analysis may bear little if any relevance to the necessary objective determination.  
… Both at trial and before this court, the appellant submitted that the respondent had failed to demonstrate the necessary causal link between any arguable negligence on its part, and the injury suffered by the respondent. The need to establish that link is obvious enough, but it may nevertheless be useful to repeat the words of Vozza v. Tooth & Co Ltd (1964):

"For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment."

When the employer does unreasonably fail to take a precaution against danger, the plaintiff cannot succeed unless he satisfies the court that if that precaution had been taken the injury would probably have been averted, or, in other words, that the safety measures would have been effective and that he would have made use of them if available.”

The court in Gallagher’s case found that the evidence from the psychiatrists and other medical witnesses stopped at a link between the respondent's depression and the workplace generally, but did not establish any breach by the appellant in respect of the workplace system.
In the same case, Pincus JA gave a warning of the difficulties inherent in establishing either a breach of duty or causation for harm in stress related psychiatric claims:13 "It must commonly occur that the performance of those in managerial positions in organisations is open to criticism,
12 Queensland Corrective Services v Gallagher [1998] QCA 426 at [23] 13 Queensland Corrective Services v Gallagher [1998] QCA 426 Pincus J [4] justifiable or otherwise; no doubt managerial mistakes sometimes have an adverse affect on the contentment of those employees affected by them. In my opinion, the wisdom of courts readily accepting that when such a situation arises, those employees of the organisation who appear to have been psychologically stressed by it necessarily have a right of action in tort, is questionable. Courts are ill-equipped to conduct such an inquiry as that in the present case, into the correctness of the reactions of the appellant's managers to the difficulties with which they were faced over a substantial period of time, in the course of their work. Further, it is difficult to ascribe, with confidence, a precise cause to a complaint of stress or stress-related illness."

English Court of Appeal Treatment

In setting out these matters, the English Court of Appeal in Sutherland –v-Hatton14 has provided a handy ready reckoner of the issues involved in those cases where damages are sought for stress related injuries.  These are quickly summarised as: 

• There are no special control mechanisms applying to claims for psychiatric injury arising from the stress of doing the work the worker is required to do – the ordinary principles of employer's liability apply
• The threshold question is whether this kind of harm to this particular employee was reasonably foreseeable    
• Foreseeability depends on what the employer knows or ought reasonably to known about the individual worker
• Because of the nature of mental disorder, it is harder to foresee than physical injury; an employer is usually entitled to assume that the worker can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability
• There are no occupations that should be regarded as intrinsically dangerous to mental health
• Are the demands being made of this worker unreasonable when compared with the demands made of others in the same or comparable jobs
• Are there signs from the worker of impending harm to his health
• The employer is generally entitled to take what he is told at face value, unless there is a good reason to think to the contrary
• The employer is only in breach if he has failed to take steps that are reasonable in the circumstances and which are likely to do some good
• The breach of duty must be shown to have materially caused or contributed to the harm suffered
• An assessment of damages will take into account pre-existing disorders or vulnerabilities.

14 [2002] 2 All ER 1

Care must be taken since Koehler’s decision when using this ready reckoner in view of the comments made about Sutherland v Hatton: “A deal of reference was made in argument to the decision of the English Court of Appeal in the several appeals heard together and reported as Hatton v Sutherland. The appellant submitted that, consistent with what was said in Hatton, this Court should hold that where an employee claims damages from an employer for negligently inflicted psychiatric injury, only one question need be considered, namely, whether this kind of harm to this particular employee was reasonably foreseeable. That proposition should be rejected.”

The High Court warned that it is only when the contractual position between the parties (including the implied duty of trust and confidence between them) is explored fully along with the relevant statutory framework that it would be possible to give appropriate content to the duty of reasonable care on which a worker claiming damages for negligent infliction of psychiatric injury at work would seek to rely.

Conclusion

Apart from the few cases mentioned, there are numerous decisions of primary and appeal judges on claims for damages for psychological injuries. Time has prevented me from discussing interesting issues that arise from the decision of Calvert v Mayne Nickless Ltd15 and the interplay between the common law and the obligations on employers under the Workplace Health & Safety Act.  

This area of the recovery of damages for psychological injury is constantly developing after years of relative stagnation. In reality many claims are brought and settled without any court involvement leaving the state of the case law in Queensland somewhat sparse and possibly overrepresented by cases in which liability has not been established. It is interesting to read the conservative comments made by the judges of the High Court in Koehler’s case when at the same time there are calls being made by persons holding high judicial rank for governments to rein back on tort law reform to enable injured persons to be more readily compensated for their injuries.   
All I can say in conclusion is: to be continued.
15 [2005] QCA 263