Plaintiff v Defendant

Plaintiff v Defendant - [2013] VSC 58 - VSC 2013 case summary — Zoe

[30]

"The Plaintiff identifies the following as giving rise to knowledge by the Defendant of a risk of psychiatric illness which was not far fetched or fanciful. Elaboration is then set out below.

- Comments made in the Defendant's document 'Haileybury: Managing the Risk Library' (PCB 367-415), said by the Defendant to have been created in 2005;

- Knowledge of the human resources and injury prevention/management industry as set out in the report of Ms Mellington (PCB 185-200);

- Oral complaints made by the Plaintiff to colleagues in 2006;

- The Plaintiff's emails of September 2006 and March 2007 (PCB 416 and 419 - 422);

- Complaints made at the LOTE meeting of 28.02.07 (PCB 417);

- The Defendant requiring the Plaintiff to teach excessive face-to-face classes.

- The Defendant imposing on the Plaintiff a workload which was excessive in all the circumstances;

- The Plaintiff's physical and psychological presentation in 2006 and 2007.

- Issues regarding the difficult behaviour of Year 8 boys at all times but in particular in 2006;

- Issues regarding the behaviour of X [a student] in 2007.

The 2005 'Haileybury: Managing Risk Library' document at PCB 367-415 identifies at PCB 396 that policies regarding stress management and workplace counselling were required. At PCB 396, the risk arising from a lack of the policies specified on that page is identified as level 4 (short-term damage to the school's reputation or serious injury or high financial loss). The likelihood of such risk was identified as level 2 (could occur at some time, unlikely). Compare a level 2 likelihood (rare, could occur under exceptionally rare circumstances). The Plaintiff submits a level 2 likelihood is likelihood greater than far fetched or fanciful.

No policies or processes for stress management or workplace counselling have been discovered. The Risk Library document was discovered by affidavit sworn on 13.01.12. Since then, the Plaintiff's solicitors have sought further discovery and further affidavits of documents have bee (sic) sworn by the Defendant, but no later versions of the Risk Library document or the Treatment Plan have been discovered or produced.

The Plaintiff's case is that during the course of the Defendant's employment of the Plaintiff, the Defendant responded inadequately to the identified risks and failed to develop an adequate treatment plan. This is a breach of the Occupational Health and Safety Act 2004.[5] In doing so, this is a breach of the Defendant's common law duty to the Plaintiff to take reasonable precautions to prevent foreseeable injury to the Plaintiff. These risks are identified at PCB 365-415 and the Treatment Plan is between PCB 375-402.

The Defendant holding the knowledge that such policies needed to be prepared in response to what is identified at PCB 396 as a risk, the Plaintiff submits must have given rise to knowledge in 2005 that its teaching staff were at risk of sustaining psychiatric injury due to the nature of their employment. Despite this, the Defendant imposed on the Plaintiff an excessive workload.

Having identified either 28 or 25 face to face class hours per week as a 'full load' - from which there would be deductions for extra duties and for Positions of Responsibility - it was a breach of the Defendant's duty to require the Plaintiff to undertake a workload and face to face teaching periods in excess of the identified 'full load'. Face to face teaching periods are just the beginning of the workload. Each additional face to face class creates additional out of class work, as demonstrated by Exhibit A.

In relation to the identification by the Defendant of a 'full load', duty to avoid or reduce the risk of psychiatric injury to the Plaintiff is invoked in the Koehler sense that it must be taken that it is reasonably foreseeable that by requiring a teacher to work significantly beyond a 'full load' it exposed him to the risk of injury.

Requiring the Plaintiff to continue working long hours, and/or undertake an unreasonably high face to face class load, after he had complained to his superiors (commencing in early 2006) that his workload was too high, was a breach of the duty owed by the Defendant to the Plaintiff.

By reason of the complaints made by the Plaintiff it was reasonably foreseeable that there would be a risk of the Plaintiff sustaining recognisable psychiatric injury if he was required to continue to perform a heavy workload with an unreasonably high number of face to face classes.

Given his verbal complaints commencing in early 2006 it must be taken, the Plaintiff submits, that the Defendant had at the very least knowledge that the Plaintiff was stressed and struggling with his workload and 'it is notorious that stress and disturbance of mind may lead to a psychological disability' (Nikolich v Goldman Sachs J B Were Services Pty Ltd [2006] FCA 784, per Wilcox J at [330]).

At the very latest the Defendant was on express notice in writing in emails of September 2006 and March 2007 that the Plaintiff was struggling with his work duties. Duty is again invoked in the Koehler sense in that, in the Plaintiff's submission, the content of each of those emails must give rise to reasonably foreseeability of the risk of the Plaintiff sustaining recognisable psychiatric injury, in the sense that following each of those emails it is clear that such risk to the Plaintiff is not far fetched or fanciful."

[73]

"Time and Working Conditions

The extended non-teaching period and the level of remuneration reflect the very substantial commitment required by staff during the teaching year, including commitments outside of normal class hours, on evenings and at weekends.

Notwithstanding the acknowledgment of the commitment required of staff, it is incumbent upon management to provide adequate levels of staffing in all parts of the School, to take cognisance of reasonable expectations by staff to commitments outside of work and the need for a viable home life, to provide adequate conditions and facilities for staff to be able to complete their functions and duties and to treat staff equitably with respect to the distribution of workloads and duties.

In general, working requirements and conditions should compare favourably with those in other APS schools and it is incumbent upon management to maintain these benchmarks.

Workloads

The workload arrangements require teachers to show a high degree of flexibility during the teaching year, but also aim at reasonable overall expectations on staff, conditions favourable when compared with similar schools and equity in the treatment of members of staff.

Where staff undertake Positions of Responsibility, a time allowance is normally made to reflect time required for the task. A responsibility allowance reflects level responsibility on a scale of eight bands.

While there is normally a balance of allowance and time, in circumstances where the level of responsibility is not significantly different from that of a classroom teacher, then either an allowance or time could be provided. This is particularly the case for instances of local arrangements for coordination.

Because of historical and structural factors, workloads and staffing arrangements are dealt with at three levels:

Early Learning Centres

...

Junior and Middle Schools and the Pre-Senior Program[12]

Teaching duties: 80-85% of class time for students (28 out of 35 periods for Middle School and Pre-Senior and 30 out of 35 periods for Junior School) including periods allocated for pastoral care, plus all out of class work that teaching entails (preparation, marking, reporting, excursions, extra assistance, discipline, etc).

Responsibility time-allowances:

Deputy Heads - 5-6 ppw

Area coordination (where this is in place at a local precinct level) - 2-3ppw

Major activity coordination (eg sport) - up to 2 ppw

Special ongoing duties (where this is in place at a local precinct level) (eg extra roster, emergency teaching) - up to 2 ppw.

Staff involved in the off-precinct program for Pre-Senior students will have a nightly allowance, and some time-off-in-lieu.

Senior School

...

Whole School

Teaching responsibilities involve:

[185]

"[21] 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 arising from that relationship which equity would enforce and, of course, any applicable statutory provisions. (This last class may require particular reference not only to industrial instruments but also to statutes of general application such as anti-discrimination legislation.) 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. At least the following questions are raised by the contention that an employer's duty may require the employer to modify the employee's work. Is an employer bound to engage additional workers to help a distressed employee? If a contract of employment stipulates the work which an employee is to be paid to do, may the employee's pay be reduced if the employee's work is reduced in order to avoid the risk of psychiatric injury? What is the employer to do if the employee does not wish to vary the contract of employment? Do different questions arise in cases where an employee's duties are fixed in a contract of employment from those that arise where an employee's duties can be varied by mutual agreement or at the will of the employer? If an employee is known to be at risk of psychiatric injury, may the employer dismiss the employee rather than continue to run that risk? Would dismissing the employee contravene general anti-discrimination legislation?

[22] No doubt other questions may arise. It is, however, neither necessary nor appropriate to attempt to identify all of the questions that could arise or to attempt to provide universal answers to them. What is important is that questions of the content of the duty of care, and what satisfaction of that duty may require, are not to be examined without considering the other obligations which exist between the parties.

[23] 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 Sutherland v Hatton. 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."[98]

[191]

"[30] At first sight, it may appear to be easy to read an employee's obligations under a contract, and an employer's rights to performance of those obligations, as subject to some qualification to the effect that performance of the obligations is excused if performance would be beyond what is required by some external standard, or is or may be injurious to health, or both injurious and beyond an external standard. But further examination of the problem reveals that there are difficulties in resolving the issue in this way.

[31] Giving content to what we have called an 'external standard' by which work requirements would be judged may not be easy. Presumably, it would be some form of industry standard. Assuming, however, that content can be given to that concept, its application would invite attention to fundamental questions of legal coherence. 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.

[32] Adopting a qualification that hinges upon whether psychiatric injury is or may be sustained from performance of the work would require consideration of questions that are closely related to issues of foreseeability and it is convenient to turn to those issues.

[33] In Tame v New South Wales, the Court held that 'normal fortitude' was not a precondition to liability for negligently inflicting psychiatric injury. That concept is not now to be reintroduced into the field of liability as between employer and employee. The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.

[34] It may be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress. It is, however, a further and much larger step to take to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. Yet it is that proposition, or one very like it, which must lie behind the Commissioner's conclusion that it required no particular expertise to foresee the risk of psychiatric injury to the appellant.

[35] The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.

[36] Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer's obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied."[105]

At a glance

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Judgment (281 paragraphs)

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Legislation Cited (2)

Cases Cited (7)