The unseen struggle: Identifying and responding to the risk of psychiatric injury

Charles Power and Fiorella Chiavetta HOLDING REDLICH

Employers have a non-delegable duty of care to their employees to provide a safe system of work and to take reasonable steps to prevent reasonably foreseeable injuries. This paramount duty arises under both statute and common law and extends beyond physical safety to encompass psychological well-being.

However, the risk of psychiatric injury is often less apparent than in cases of physical injury.

Employees often keep their struggles to themselves until symptoms become prominently visible. Therefore, the critical questions are:

• when does this duty come into play?
• what reasonable measures can employers adopt to effectively fulfil their obligation to the psychological well-being of their workforce?

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In a recent decision, Bersee v State of Victoria (Dept of Education and Training) (Bersee), the Victorian Court of Appeal (VSCA) provides a comprehensive analysis of the legal principles governing the duty of care in the context of a negligence claim for a psychiatric injury arising from the performance of work.

It sheds light on the legal principles governing duty of care in the context of a negligence claim for a psychiatric injury at work.

The case of Bersee highlights that, even if the risk is foreseeable, the duty of care may not be breached if the nature of the work itself is not intrinsically hazardous to mental health and suitable measures are in place to manage the potential risk of psychiatric injury.

Bersee v State of Victoria (Dept of Education and Training)

The decision concerned a 68-year-old woodworking secondary school teacher who claimed his employer subjected him to unreasonable and excessive workloads, resulting in significant psychiatric injuries.

The facts

Decision at first instance in the Supreme Court of Victor

At first instance, the judge considered the principles set out in the cases of Koehler v Cerebos (Aust) Ltd (Koehler) and State of Victoria v Kozarov (Kozarov), in which negligence claims for psychiatric injury arose.

Koehler in the High Court

In Koehler, the High Court held that the relevant duty of care in cases of psychiatric injury is only engaged when the risk of injury of a particular employee is reasonably foreseeable and that in the absence of evident warning signs of a possible psychiatric injury, the employer is entitled to assume that the employee can perform the job without risks of psychiatric injury in the course of their employment.

Therefore, the High Court noted that the “central inquiry” remains whether, in all of the circumstances, the risk of a plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable in the sense that it is not far-fetched or fanciful.

Kozarov in the Supreme Court of Appeal Victoria

In Kozarov, the principles set out in Koehler were upheld by the SCA.

Applying these principles, the trial judge found that duty of care arose in May 2015 when the teacher first raised concerns about the increased class size to 25 students. The judge found that the school’s response was reasonable, taking into account the following factors:

• the number of students and face-to-face teaching hours were in accordance with the industrial instrument
• the school was facing financial pressures to keep the class sizes at 25, and maintaining the class sizes at 22 students for the woodwork class was not a realistic option
• the school had made specific arrangements to address crowding and noise
• the school gave him extra preparation time and assistance from another teacher
• the school offered the teacher some less demanding classes
• the teacher did not seek to take leave (other than his long service leave).

Ruling in Bersee at first instance

The judge concluded there was no breach of the school’s duty of care owed to the teacher and dismissed the application.

Appeal in Bersee to the High Court — arguments

The teacher appealed this decision in the High Court.

In the appeal, the teacher sought to rely on the recent High Court ruling in Kozarov v State of Victoria. The employee had appealed the Kozarov decision discussed above to the High Court and the judgment was issued after the trial in Bersee). In its ruling, the High Court held that evident signs of distress or vulnerability are not a precondition that must be satisfied for the duty to be triggered, and found that the employers’ duty to prevent such psychiatric injuries emerged at the onset of employment and demanded ‘active steps’ from that point onward.

The teacher in Bersee relied on the Kozarov ruling to contend that the school owed him a duty of care from the beginning of employment and not when specific warning signs arose.

Decision of VSCA on appealAnalysis of Koehler and Kozarov

The VSCA analysed the decisions in both Kozarov and Koehler and determined that the principles outlined in Koehler remained unaffected by the decision in Kozarov.

The Court considered the factual circumstances in each case and explained that although there were different outcomes, there was not any divergence in principle.

In particular:

• the plaintiff’s claim in Koehler was unsuccessful because the employer had no grounds to suspect that the performance of the duties she had consented to carry out was leading to her psychiatric injury. The nature of the duties did not raise any concerns, and there were no ‘evident signs’ suggesting a risk of illness or vulnerability
• in Kozarov, the employer had acknowledged the vicarious trauma and therefore the psychiatric injury was an obvious consequence of exposure to trauma. Having regard to the context and the intrinsically hazardous nature of the work, the High Court determined that the foreseeability of harm was evident, and the employer’s assumption was irrelevant.

The VSCA further noted that the notion of foreseeability is not to be used to erect too high a barrier.

When was psychiatric injury foreseeable?

The VSCA concluded that there was no error of principle in the judge’s finding, although it disagreed with the trial judge’s position that the psychiatric injury only became reasonably foreseeable in May 2015. Rather, the VSCA considered the psychiatric injury was reasonably foreseeable from the start of 2014, when the teacher’s workload changed.

Did the school take reasonable steps to prevent the psychiatric injury?

The VSCA then considered whether the school had breached its duty of care. In other words, whether the school took reasonable steps to prevent the psychiatric injury. The VSCA emphasised that this requires an objective assessment of what a reasonable employer would have done in the circumstances.

Despite the foreseeability of the risk of psychiatric injury, the VSCA concluded that the school had not breached its duty of care as it implemented suitable measures to manage the teacher’s injury. A compelling factor was that the workload assigned to the teacher was not intrinsically hazardous to his mental well-being. Given these circumstances, it was within the limits of the duty of care for the school to decline the request to reduce the teacher’s class size back to 22 students.

The VSCA dismissed the appeal.

Lessons to learn for employers

• Take a proactive approach: To effectively fulfil the obligation of maintaining a safe work environment, employers should assess if the undertaken tasks pose a foreseeable risk of causing psychiatric injury. If the risk cannot be reasonably reduced or removed, or if the industry itself inherently threatens the employee’s psychiatric well-being, employers should take proactive steps to minimise these psychiatric injury risks so far as reasonably possible.
• Train your staff: Employers should provide adequate training to their staff and managers to equip them with the skills and knowledge needed to recognise early signs of psychological strain and take appropriate measures to address and mitigate these risks.
• Draft your policies carefully: Policies referring to workplace psychiatric injury risks must be carefully drafted as these policies may be relied upon to show that employers are aware of foreseeable psychiatric injury risks.
• Review your risk management system: Employers should adopt a robust and proactive risk management approach, especially when the industry itself may inherently threaten an employee’s mental well-being. This approach involves identifying, assessing, eliminating (or reducing) potential risks and monitoring and reviewing.
• Open commutation channels: By fostering an environment where employees feel comfortable discussing their mental health concerns, employers can more effectively identify and address unseen struggles, minimising the risk of liability for psychiatric injuries.