…workplace injury – psychiatric injury reasonably foreseeable – whether respondent breached duty of care – reasonable steps to avoid the risk
The applicant was an experienced secondary woodwork teacher who had worked at Wiliamstown High School since 2006.
He sustained a psychological injury during the course of his employment which was attributed to unreasonable and excessive workloads.
- In March 2010 the applicant lodged an EduSafe report, raising concerns that he was allotted too many ‘six on’ days per week – that is, days with six back-to-back classes. Following this complaint, the school offered to give the applicant more humanities subjects and also offered leave for a term. It was considered by the applicant and the school that this issue had been resolved.
- Between 2010 to 2013, the applicant worked with Mr Mattheral, a part-time teacher, sharing much of the workload in running the woodwork room. Mr Mattheral retired at the start of 2014 and was not replaced.
- In 2014 the school sought to increase class sizes from 22 to 25 for budgetary reasons. In November 2013, before the increase had been implemented, the OH&S representative sent a memo to the school consultative committee outlining her concerns for practical classes – such as woodwork – if numbers were increased.
- The Teachers Union challenged the increase to 25 students, however, the industrial agreement was not amended.
- The woodwork classrooms could only accommodate enough work benches for 22 students. The school made some modifications to the classroom to accommodate 25 students and also provided the applicant with an additional preparation period each week, installed extra classroom storage and noise cancelling panels, and offered assistance from the school groundsman.
- By November 2014 the applicant was feeling very depressed and had attended on his general practitioner.
- In November 2014, the OH&S representative sent an email again outlining her concerns regarding student numbers in the technology classes and the health and safety of the teachers.
- On 29 May 2015 an EduSafe Report was lodged by the applicant (2015 EduSafe report) wherein he raised concerns about his psychological symptoms caused by having 25 students and the lack of promised assistance. The response to this report was that the applicant could replace half his woodwork classes with humanity classes.
- On 29 October 2015 the applicant sent an email to the school principal raising concerns over classroom numbers and workload.
At first instance, the trial judge considered that the central question was, whether in all the circumstances, the risk of a plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable.
Following the High Court decision in Koehler, the trial judge looked to identifying warning signs of psychiatric injury which might enliven a duty of care. Until the duty of care was enlivened, the employer was entitled to proceed on the basis that the plaintiff could do the work he was assigned without risk of psychological injury.
The trial judge held that the duty of care arose in May 2015 when the 2015 EduSafe report was lodged, and not before. At this point in time, the trial judge was satisfied that the respondent had taken practical and reasonable steps to address parts of the applicant’s concerns.
The class numbers and teaching hours were in accordance with the relevant industrial agreement. Further, it was held that the financial pressures on the school and the way that classes were timetabled meant that it was not realistic to reduce the number of students in the applicant’s classes.
The applicant sought to appeal this decision.
Leave for appeal was granted but appeal was dismissed.
The Court of Appeal considered the following:
- When was a psychiatric injury reasonably foreseeable?
- Was the response of the respondent reasonable?
In relation to the first question, the Court of Appeal unanimously disagreed with the trial judge that the psychiatric injury only became reasonably foreseeable from May 2015.
It was held that the applicant’s psychiatric injury was reasonably foreseeable from the start of 2014. Increasing student numbers from 22 to 25 was not immaterial and, after receiving the November 2013 memo, “it took no imagination” (at ) that this had consequences for health and safety in a woodwork classroom. This was also against the background of the applicant already having difficulties with increased workloads in the past when he raised issues in 2010.
However, in relation to the second question, the Court of Appeal agreed with the trial judge and concluded that the employer’s response was not unreasonable. The employer had worked through various steps to see what was manageable. They modified the room, offered extra preparation time and assistance from other staff members, and offered alternative non-practical subjects. The Court of Appeal noted that the financial rationale for keeping classes at 25 students was justified.
The applicant submitted that the duty of care existed from the outset of employment and sought to rely on the recent High Court decision in Kozarov which was handed down after the trial. Based on this decision, the applicant argued there wasn’t a need to identify particular warning signs.
The Court of Appeal discussed the decisions in both Kozarov and Koehler and concluded that the principles espoused in Koehler were not altered by the decision in Kozarov. In Kozarov, the risk of injury to the plaintiff was appreciated by the employer from the outset of her employment due to the nature of her work.
However in this case, like Koehler, the work the applicant was required to do was not inherently dangerous and therefore, in the absence of “evident signs”, a psychiatric injury was not reasonably foreseeable.
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Beth Rolton, is a Partner. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.