The motion was opposed by the respondent, John Joseph Cahill.
6 In Matter Nos IRC 1390 and 1391 of 2006 it was alleged, inter alia, that:
There was an actual risk of a teacher's aide special ("TAS") suffering physical and/or psychological injury due to being subject to or witnessing actual violence or anti social behaviour by any detainee, being subject to or witnessing threatened violence or anti social behaviour by any detainee, or having to control or restrain any detainee involved in violence or anti social behaviour. The violence or anti social behaviour might be detainee to detainee, detainee to teacher, detainee to TAS or detainee to juvenile justice officer.
7 In Matter Nos IRC 1392 of 2006 it was alleged, inter alia, that:
There was an actual risk of the absence of or inadequate management support increasing the potential danger of an individual teacher's aide special ("TAS") developing occupational stress, namely, post traumatic stress disorder, major depression, adjustment disorders and/or anxiety related clinical disorders.
8 Schmidt J found that the particular of the charges referred to above was made out and that psychological injuries suffered by two teachers aides special ('TAS') were a manifestation of the risk.
9 In Matter No IRC 1392 of 2006 her Honour at [635] noted that it was the prosecutor's case that if a psychologically unsafe place of work existed, an employer had failed to ensure employees' safety at work, as s 8(1)(c) of the OHS Act required. At [636] her Honour observed:
[636] In resisting this approach to the construction of the section, the defendant relied upon common law concepts of 'known susceptibility' or 'vulnerability', 'in the sense that the risk of psychological injury to a person could be reasonably said to be known or within the knowledge of the employer'. It argued that this charge was novel in this jurisdiction and that in truth, the particulars of the charge could best be described as 'vocational dissatisfaction' felt by TAS Mary and TAS Su, in relation to the Principal, rather than being causative factors of occupational stress.
10 At [638] Schmidt J found:
[638] The duty imposed by the section does not envisage that before an offence is committed, an employer must be aware that a particular employee is at risk of suffering a psychological injury. The statutory duty requires an employer to be proactive in ensuring that no employee suffers such an injury, whether or not the employer is aware that a particular employee has a particular susceptibility or vulnerability to such an injury, although that might be a matter relevant to a defence.
11 The appellant, at first instance, relied on the statutory defences. At [773]-[774] Schmidt J observed:
The defendant here argued that in order to understand the scope of the concept of 'reasonable foreseeability', arising in the context of the s 28(a) defence, that it was not reasonably practicable to comply with the obligation imposed by s 8(1) to ensure safety in a case of psychological injury, 'one perforce is required to consider what the common law has said that expression means, particularly in the light of common law claims arising out of negligent conduct which caused a known psychiatric illness or injury.'
To advance this argument it was submitted that it was not possible that the reach of the occupational health and safety legislation in New South Wales is such that every workplace where there is a person who might be at risk, or is at risk, of suffering occupational stress, meant that the OHS Act was being breached by the employer. The risk of psychiatric injury had to be put in its proper place, in order to strike a balance between the prosecutor, defendants and the public interest. It followed that a 'control mechanism' in relation to 'reasonable foreseeability' in the case of psychiatric injuries, as applied in common law cases, must be accepted by the Court, in determining whether a s 28(1) defence had been made out in the circumstances in question.
12 After reviewing a number of common law authorities and the appellant's reliance on them, Schmidt J observed at [785] that the proceedings were not concerned with common law duties or obligations, but with a statute which imposed an absolute duty on the defendant to ensure the health, safety and welfare of its employees at work subject to the defences provided by s 28(a) of the Act.
13 The questions raised on the appeal include:
(i) whether her Honour erred in her determination of the extent of an employer's liability for an employee's psychological welfare pursuant to s 8 (1) of the Occupational Health and Safety Act 2000;
(ii) whether there was the necessary causal nexus between the acts and omissions of the Appellant and the alleged risk and injuries sustained;
(iii) whether her Honour erred in her determination of the defences pursuant to s 28 of the OHS Act;
(iv) whether her Honour erred in her determination that the common law relating to psychological injury was not relevant to a defence pursuant to s 28 of the OHS Act; and
(v) whether the construction placed on s 8(1) of the OHS Act by her Honour made it impossible of an employer to comply with the provision.
14 In relation to this last question, ground 22 of the appeal stated:
Whether her Honour fundamentally misconstrued the obligations imposed on an employer pursuant to s 8(1) of the Occupational Health and Safety Act 2000 (NSW) by assuming that it was possible to create a work environment that was risk free, with the effect that the provision is impossible of compliance and as a result fell into error.
15 Whilst this ground of appeal (and others) leads to a somewhat perverse situation of New South Wales asserting that the Court misconstrued the obligations under s 8(1) such as to make it impossible of compliance, whereas before the High Court in Kirk New South Wales contended precisely the opposite, the appellant, nevertheless, contended there was a clear intersection between the questions that arise on the appeal and the issues that the High Court has been asked to determine in Kirk. For instance, in addition to ground 22 the appellant challenges the finding of Schmidt J, made in the context of the statutory defences, that the proceedings were not concerned with common law duties or obligations. The appellant noted that in Kirk it was submitted by the appellant in those proceedings that the Industrial Court should have regard to the common law in construing the nature of the obligations created by s 15 of the Occupational Health and Safety Act 1983. The appellant in the present proceedings submitted that:
It is to be expected that the High Court will deal with this submission in deciding Kirk and it is likely that the High Court will rule upon the appropriateness of having regard to the common law. It is therefore likely that the reserved judgment will inform, among other matters, on the issue of the extent to which it is permissible to have regard to common law principles concerning the features of recognised psychological/psychiatric injury when construing the obligation to ensure health and safety.
16 Section 15 of the 1983 Act was the predecessor of s 8(1) of the 2000 Act, which has been held to be in similar terms to the repealed Act: see, for example, Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123; (2008) 182 IR 124 at [291].
17 There is no doubt that in Kirk the appellant raised for consideration the application of common law principles when construing the obligation to ensure health and safety. Because the application of the common law was a pivotal feature of the appellant's case in Kirk it is likely that the High Court will address that issue. Kirk was not concerned with psychological/psychiatric injury, but if the High Court were to consider the application of common law principles it is likely to do so in a context that includes the issue of reasonable foreseeability, which was a matter addressed in Kirk, and that would have implications for any decision the Industrial Court may make on appeal in these present proceedings, given the statutory defences were raised by the appellant and rejected by her Honour. What is more, if the High Court does consider the application of common law principles in the context of s 15 of the 1983 Act and pronounces on them, it will have important implications for the Industrial Court's jurisprudence: either the long settled jurisprudence will be confirmed or it will be overturned.
18 The principles to be applied in adjournment applications such as the present were recently considered by the Full Bench in Masterton Homes Pty Limited v WorkCover Authority of NSW (Inspector Batty) [2009] NSWIRComm 91. In that case the adjournment was sought on the basis that special leave had been granted in Kirk but no hearing dates had been set. Kirk was subsequently heard by the High Court on 29, 30 September and 1 October 2009 and the decision reserved.
19 In Masterton Homes the Full Bench observed that there was no question that the Court had power to grant the adjournment sought if justice required that outcome (see s 162 of the Industrial Relations Act 1996). The Full Bench noted that it was well settled that courts should act upon the law as it is; they should not speculate upon future alterations to the law (see Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd [1935] HCA 75; (1935) 54 CLR 230 at 253).
20 The Full Bench also observed at [24] that in City of Sydney Council v Satara [2007] NSWCA 148, the Court of Appeal emphasised that adjournment of a hearing pending determination of other proceedings in the High Court will not be the course ordinarily taken, but may be what justice requires in a particular case, where there is a 'level of certainty that the point will be addressed' and the 'knowledge that if and when it is, the decision of the Court higher in the appellate chain will declare the law on the relevant topic with retrospective effect.'
21 In Masterton Homes, the Full Bench found at [35]:
It follows that while there are by no means an identity of issues between the two proceedings, there is sufficient intersection for it to be concluded in this case, that the High Court's judgment in Kirk will be of some importance to the resolution of the matters which here arise on appeal.
22 At [39] the Full Bench stated:
The Court of Appeal accepted in Satara that there are cases where justice demands that the parties not simply be left to pursue their appeal rights, but where instead, the proper course is to adjourn to await the High Court's decision. That is, in cases where the High Court's decision will have a critical impact on the case under consideration by the other Court. In those cases, justice requires that the hearing be adjourned, unless there is some other particular reason for the trial proceeding, such as was found in Re Yates' Settlement Trusts , where it was concluded that there might be an injustice to the parties, if the settlor died before the matter was heard.
23 The is undoubtedly an intersection, although by no means complete, between the matters the High Court has been asked to determine in Kirk and the issues raised on appeal. It is likely that the High Court will deal with those intersecting issues or some of them and in doing so that may well have profound implications for the nature of the duty under s 15 of the OHS Act and, in particular, the application of the reasonable foreseeability test in relation to the statutory defences.
24 In Masterton Homes the Full Bench observed:
[40] In a prosecution brought under the OHS Act, there does not seem to be anything more critical than the question of the nature of the duty imposed by the statute on the defendant and consequently, what the prosecutor has to establish at trial, in order to prove that the offence charged was committed. That is the question before the High Court in Kirk, albeit in the context of the 1983 Act….
25 The Full Bench held justice required that the hearing of the appeal be adjourned. Further, that there were no countervailing reasons which would dictate that justice required that the hearing of the appeal proceed. In that last respect, the Full Bench stated:
[43] A delay of the hearing and a delay in the payment of the fine and the appellant's receipt of the moiety ordered below, if the appeal ultimately fails cannot amount to a 'special circumstance' such as that considered in Re Yates' Settlement Trusts , which could lead to a refusal of the adjournment, notwithstanding 'the general public interest not to decide another case on the same lines until the result of the case under appeal has become known' (at 621).
26 A similar objection was taken by the respondent in these proceedings: that the vacation of the hearing dates would cause delay and that the respondent was entitled to the remainder of its costs and the moiety. It is apparent from Masterton Homes these matters do not constitute a special circumstance that justifies a refusal of the adjournment.
27 I consider myself bound by the decision in Masterton Homes given the intersection of issues. Kirk has been heard by the High Court and one would not expect an inordinate delay before judgment is given. Accordingly, the Court makes the following orders:
(1) The proceedings, being IRC No 1072 of 2009, are stayed;
(2) The hearing set down for 15, 16, 17 and 18 February 2010 are vacated;
(3) New hearing dates will be fixed after the decision of the High Court in Kirk v Industrial Relations Commission of NSW and Anor is handed down.
___________________________________________