The Age Company Limited v YZ

1 Between 2003 and 2013, YZ, the plaintiff at trial and the respondent in this Court, was a journalist employed by the applicant, which publishes The Age newspaper.[1] The plaintiff worked on crime reporting and court rounds. As a result of being exposed to traumatic events in the course of her work, she developed post-traumatic stress disorder ('PTSD').

2 In March 2016, the plaintiff commenced proceedings against her employer in negligence, alleging that it had breached its duty of care by failing to put in place measures to identify and avoid psychological injury. A judge of the County Court upheld that claim and awarded general damages in the sum of $180,000. The Age seeks leave to appeal against the finding on liability.

3 By way of summary, it is convenient to sketch the architecture of the reasons for judgment and identify the critical conclusions reached by the judge.

4 First, the judge addressed the nature and extent of the plaintiff's exposure to traumatic events. His Honour found it to be substantial.

5 Next, the judge concluded that the risk of psychiatric injury to the plaintiff was foreseeable to her employer. In dealing with this issue, he set out the legal principles that apply in determining the circumstances in which psychiatric injury is reasonably foreseeable. Given the importance of knowledge to this question, the judge recorded his findings about The Age's general knowledge about the risk of psychiatric injury to journalists from exposure to trauma. His Honour then outlined his findings in regard to The Age's specific knowledge of the plaintiff's symptoms and complaints. In this discussion, the judge divided his findings according to the events that took place between 2003 and 2009 (when the plaintiff was a crime reporter), and those between 2010 and 2019 (when she was a court reporter).

6 The judge then addressed the nature and scope of the duty of care and identified the measures that could reasonably have been taken to avoid injury. Some of the factual and legal analysis on foreseeability was relevant to those matters.

7 The judge concluded that, in order to protect the plaintiff against injury, The Age should have:

(a) instituted training of managers and staff on: the relationship between trauma and psychiatric injury; the identification of signs and symptoms of injury; and on dealing with 'intrusions' (where a journalist is required to obtain comment from bystanders and relatives of victims, which can be particularly stressful);

(b) provided support in the form of trained peer support and immediate access to an Employee Assistance Program ('EAP');

(c) encouraged reporting of psychological symptoms and addressed a culture that repressed speaking up about them;

(d) considered rotating or removing an employee who showed symptoms, including distress and tearfulness, from duties involving contact with traumatic events; and

(e) not transferred the plaintiff in 2010 to court reporting after she had shown serious symptoms of injury and had voiced her reluctance to move on several occasions.

8 Turning to breach, the judge held that the employer failed to do these things and that this failure caused the plaintiff's injury. Essentially, he found that training and support would have ensured early identification of symptoms, resulting in either an offer for the plaintiff to move to another area or a compulsory decision to that effect.

9 Given the importance of rotation of duties as a means of avoiding exposure to trauma, it is convenient, at this point, to note that the plaintiff was a crime reporter between 2003 and 2009. Following a particularly traumatic event in 2009, the plaintiff had told her employer that she had 'had enough of death' and wanted a change. She was moved to sport, but in 2010, notwithstanding her expressed reluctance, she was allocated to court reporting. Her health then deteriorated markedly. As will appear, his Honour's conclusion did not distinguish between the periods when the plaintiff was on crime reporting,[2] and when she was on court reporting.[3]

10 Before this Court, The Age seeks to challenge the judge's formulation of the duty of care, contending that the elements were too vague and were not informed, as it says they should have been, by the important considerations of personal autonomy and privacy. It also contends that the findings on causation cannot be sustained on the evidence.

11 For the reasons that follow, we would grant the applicant leave to appeal and allow the appeal in part. We would overturn the finding that The Age breached its duty of care before 2010. We are not persuaded that, had the steps found by the judge to be necessary been taken, the plaintiff would have been moved from crime reporting before she, at her own request, was moved to sports reporting in 2009.

12 However, when the plaintiff was moved to court reporting in 2010, it was clear that she was reluctant to move and that she was obviously unable to cope with exposure to trauma. The decision to move the plaintiff caused a significant deterioration in her health and constituted a breach of duty. As the judge found, correctly in our view, the move to court reporting should not have occurred, consistently with the employer's duty of care. To the extent her claim related to the decision to transfer her and keep her in court reporting, it was correctly upheld by the judge. However, because the award of damages did not differentiate between the two periods of time, the order for damages should be set aside and the matter remitted to the trial judge for re-assessment in accordance with these reasons.

13 These reasons will, first, refer to the findings regarding the plaintiff's exposure to trauma. Secondly, we will refer to the findings as to The Age's knowledge about trauma and injury, both generally and specifically in respect of the plaintiff's symptoms and complaints. Thirdly, we will set out the judge's conclusions on foreseeability, duty of care and breach. We will then address the proposed grounds of appeal.

14 The judge concluded that the plaintiff's exposure to trauma was substantial. Between 2003 and 2009, when on crime rounds, she investigated, attended the scenes of and reported on more than 30 murders. As a court reporter between 2010 and 2013, she reported on a significant number of murder trials. The judge accepted that the scenes she observed, the people she interviewed and the material she reported on exposed her to a very high level of trauma, much of it the worst type of violence that can be inflicted by one individual upon another.[4]

15 The judge said that the plaintiff's evidence in relation to her exposure to trauma was 'chilling'. He noted that she was regularly distressed and, at times, unable to go on in her evidence. He recorded that neither his brief summary of the evidence, nor the transcript, properly reflected her description of the trauma she had observed and had written about, nor its impact upon her.[5]

16 Those conclusions were based on a substantial body of evidence, some of which was summarised by the judge. It is not necessary to rehearse all of those matters. The following gives the flavour of the traumatic events that the plaintiff was required to report upon.

17 In 1998, the plaintiff graduated from university with a degree in journalism. She commenced her employment with The Age in 2003 as a level 3 crime reporter, when she was 27 years' old. By that stage, she had five years' experience as a journalist with a regional newspaper.

18 In 2005, she spent about five days at Warrnambool reporting on the deaths of five members of a family who had drowned when they were washed off rocks. She attended the funeral, where she was expected to speak to relatives of the deceased. She also reported on the murder of a young mother who was shot in a driveway while her husband and son were inside. She attended the scene about an hour after the shooting and attempted to interview the neighbours.

19 In around 2007, the plaintiff's name arose in the course evidence given by police officers during an investigation by the Office of Police Integrity ('OPI'). As a result, she believed that her calls were being monitored. On a number of occasions, she received anonymous phone calls from people she presumed to be police officers. Those unknown persons told her to be careful because she was under surveillance.

20 The plaintiff reported on a significant number of underworld killings, many of which were associated with Carl Williams. She spoke to the victim of a shooting who told her that Williams was responsible for shooting him in the leg. She was directed by the news desk to go to Williams' apartment with a photographer. There, she spoke to Roberta Williams, who denied any involvement. Later, the plaintiff was told by senior police that she should not approach the Williams family as they were dangerous. Subsequently, Roberta Williams telephoned the plaintiff, saying 'you need to watch yourself girl ... I know people, I can have stuff happen to you, I'm going to have people follow you when you leave work today'. The plaintiff reported this to the then news editor, and was told to write a detailed account in the event that police had to be involved. She was concerned for own safety, and that of her parents.

21 As a crime reporter, the plaintiff covered a number of murders. They included the murder of a young mother, which involved her speaking with the victim's parents, husband and neighbours.[6] She reported on the murder of two sisters, who were raped and murdered. The plaintiff saw gruesome crime scene photographs and interviewed the parents and friends of the dead girls.[7] The plaintiff covered the horrific murder of a young mother and her 16 month old daughter by her husband. It involved going to a rubbish dump, where police were searching for body parts. In a number of murders she spoke to family and friends of victims, which she found intrusive and distressing.[8]

22 At various points, the plaintiff described the work as 'pretty horrible and draining',[9] 'awful',[10] and 'emotionally and physically tiring'.[11] She considered the requirement to track down and speak with parents and friends of the victims to be very intrusive. She was not given boundaries about who, or who not to, speak to, nor how to approach such people.

23 In 2009, the plaintiff reported on the murder of Darcey Freeman by her father, Arthur Freeman. When the plaintiff arrived at the scene, the four year old victim, who had been thrown from the Westgate Bridge, had just been pulled from the water. The plaintiff watched as ambulance officers performed CPR. She saw the body, from a distance, being placed into the back of an ambulance. She described the scene as 'horrific', with police and ambulance offices visibly distressed. She said it was the worst day of her life. She remained at the scene for several hours and described being in shock. She was then sent to the Federal Court, where Arthur Freeman had handed himself in to police.

24 After returning to the newsroom later that day, the plaintiff said 'I'm done, I can't do this anymore. I've had enough of death and destruction'. Although it is clear from her evidence that she found many of the occasions deeply distressing, by the time of the Freeman murder, she felt she was surrounded by death and misery. She was in tears in the newsroom as she completed writing the story of that particularly horrific murder. She said she was exhausted and numb.[12]

25 As a result of her response to the Freeman case, the plaintiff was transferred to sports journalism, where she worked from February 2009 until April 2010.[13] During her time as a sports reporter, she enjoyed the work, met deadlines and did not receive any negative criticism. She had felt supported by her colleagues.

26 In early 2010, the plaintiff was approached by the then deputy editor, Mark Baker, who told her that he wanted her to take over Supreme Court reporting as the incumbent had been reassigned.

27 The plaintiff said she was requested on three occasions by Baker to take up the role as court reporter and was persuaded on the third occasion, when she was offered a pay rise. She said she was shocked at the decision because she had made it abundantly clear that she did not want to go to that area of reporting. Her evidence was that she told Baker on the first occasion that she had had her fair share of death and destruction and had left crime reporting because she was not coping. She said she was enjoying being a sports reporter and did not want to go to having to deal with 'all of that stuff again'. The judge noted that Baker had a limited recollection of these conversations, but his impression was that the plaintiff was reluctant to move, although she was willing to do the work.

28 Baker said that he had no recollection of the plaintiff moving from crime reporting in 2009 or why she moved. He did not recall any mention of the reason why she had left crime reporting in the context of his discussions with her about moving to become a court reporter.

29 Baker understood that journalism can be stressful, but said that the vast majority of journalists cope with reporting on traumatic events. When giving evidence about traumatic events, he said:

yes, they are stressful but what I'm trying to say, I suppose, is are they traumatic and our people being damaged by them? Well, I think that's a big call, I can't make that judgement, I'm not qualified to make that judgement.

30 Baker said that he had not received any training at The Age that there was a risk to journalists from exposure to trauma, including vicarious trauma. Baker knew there were psychological counselling services available for employees who needed to avail themselves of them. He said it was well known amongst the staff and it was promoted that those services were available and could be accessed with a high degree of confidentiality.

31 When Baker asked the plaintiff to become a court reporter, he told her she was like 'a fish out of water in sport'. The plaintiff declined, telling Baker that she had seen her fair share of death and destruction. Baker persisted, suggesting that she consider it. He later followed up with an email, asking again for her to take up the court reporting rounds. She replied that she had not changed her mind and was happy in sport. A short time later, she was asked to go and speak to him, and was again asked to take over the Supreme Court rounds. As described by the judge:

[The plaintiff] said 'they' told her 'it was going to happen'. She said she was shocked and she made it clear that she did not want to go back to that area. She was offered an 'upgrade'. That meant a pay rise. Mr Baker gave her a date to start. She eventually accepted the position and commenced in April 2010.[14]

32 As a court reporter, the plaintiff was exposed to videos and photographs of crime scenes and autopsies, which she found confronting. In her experience, it was not uncommon for families to be weeping and hysterical in court.

33 As things transpired, the plaintiff reported on the murder trial of Arthur Freeman. The judge's finding in relation to that event was set out in the following paragraph:

[The plaintiff] had reported on the death of Darcey Freeman. She also covered the trial. She listened to evidence about what had occurred in the lead up to the child's death, including what some of the emergency workers observed. The triple zero emergency calls were played. There was video footage of Mr Freeman in the foyer of the Federal Court sobbing. The police video of Darcey's brothers was played. One brother was six years old and explained to the police what had happened. He described what his father had done and how he had pleaded with his father to turn back, as Darcey could not swim. [The plaintiff] described the testimony as awful. There were jurors and journalists in tears. She said she felt traumatised after reporting on the trial. The trial judge offered counselling to the jurors who were visibly upset. She was able to obtain family photographs and personal information. For the first time she received an email from someone at The Age asking how she was bearing up, given the material involved in the trial. She took several weeks off after the trial to go to New Zealand. She said she felt physically and emotionally spent at the end of the trial. The problems that she had with sleep continued. She said she became jumpy, with a short fuse. She was abusing alcohol.[15]

34 Other significant trials that the plaintiff covered included the murder trial of Robert Farquharson, who was convicted of killing his three children by driving a car into a dam and Donna Fitchett, who killed her two sons.

35 The plaintiff said the cases which had the greatest impact upon her were those that involved children. They included the murder trials of Freeman, Farquharson, and Fitchett and the sentencing of a Christian brother who had admitted to molesting and raping many young boys. She said that she never forgot the stories of the victims, some as young as seven or eight at the time of the offending.[16]

B.1 The Age's state of knowledge of the plaintiff's symptoms and complaints from 2003 to 2009

36 The extent to which The Age was on notice that the plaintiff was suffering psychological ill-health as a result of her exposure to trauma was a matter of contest at trial. The Age submitted that it was unaware that the plaintiff was exhibiting any specific symptoms of ill-health that were attributable to work.

37 The plaintiff gave evidence that she broke into tears regularly, perhaps four or five times a year. On one occasion, some colleagues, including editors and senior writers, spoke to the deputy editor Simon Mann, because the plaintiff had covered a fatal shooting, causing her to be very distressed. Mann called the plaintiff to his office, acknowledged that she had been doing it 'pretty tough' and paid for her and her husband to go out to dinner.[17]

38 The plaintiff said she did not make a secret of the fact that she was accessing the EAP in 2007 and in 2009. At that time of her first attendance, she was stressed and struggling as a result of having been caught up in the OPI hearing. She said she told her colleagues that she was going to speak to someone within The Age about how stressed she was concerning OPI investigations.

39 The judge accepted that the plaintiff regularly presented as upset and exhausted, particularly when she was required to cover confronting crimes.

40 According to the judge, of most significance was the plaintiff's reaction to the Freeman murder in January 2009. After reporting on that particularly confronting murder, she told the news desk that she was done and that she had enough of death and destruction. She said this to Fergus Shiel, an editor in the law and justice team, and about 10 other people. She told them:

I just can't deal with death and destruction anymore, I've just done too much, I'm just not sleeping, I'm not coping. I just need to write about something good for a change.[18]

41 As a result, the relevant editors then transferred the plaintiff to sports reporting.

B.2 The Age's state of knowledge of the plaintiff's symptoms and complaints from 2010 to 2013

42 The judge found that the plaintiff refused, on at least two occasions, to fill the position of Supreme Court reporter. Baker, who was the relevant editor responsible for the move, could not recall the detail of those discussions. However, the then training editor, Colin McKinnon, whose evidence the judge accepted, said that he probably would not have transferred the plaintiff given her earlier complaints.

43 The plaintiff said that it was traumatic to sit in court; hear evidence; watch re‑enactments; and look at photographs of death scenes.

44 Shiel understood from discussions with the plaintiff that she was displaying some significant psychological symptoms. On 24 November 2011 he wrote to Paul Ramadge, saying:

I had a chat with [the plaintiff] this afternoon.

She tells me that she is depressed, suffering nightmares from the Darc[e]y Freeman case, not sleeping, has serious stomach issues and is feeling totally unappreciated at work.

She says the reasons for this include the routine trauma of court reporting, especially the Freeman case; not having received a pay rise since 2007 despite repeatedly being told by senior managers, often in writing, that she was top of the list to receive an increase; and a litany of recent errors inserted into her copy by PageMasters.

I have told her that as far as the newsdesk [sic] is concerned she is hugely valued; that I would ask you to consider her for a pay rise; that she has our full support to take the time she needs to get well both physically and emotionally.

45 In an email sent that day from Ramadge to Stuart Cumming, an employee within Human Resources ('HR'), Ramadge forwarded Shiel's email, noting that the plaintiff was already receiving counselling from the EAP.

46 The plaintiff told Mark Fuller, the then state news editor, that the EAP was not of great assistance because of the time necessary to get an appointment. In 2011 and 2012, she told him about her distress at receiving telephone calls from people who were threatening suicide. The plaintiff also recounted that hearing the account of the rape of young boys by a Christian Brother left her a blubbering mess in the office.

47 In addition, in 2011, Lara O'Toole, a colleague and friend of the plaintiff, raised the matter directly with Baker after observing the significant deterioration in the plaintiff's health. By November 2011, senior staff at The Age were aware that the plaintiff was depressed, suffering nightmares from the Darcey Freeman case, not sleeping, had serious stomach issues and was feeling totally unappreciated at work.

48 In around November 2012, the plaintiff raised with Andrew Holden, a news editor, the lack of adequate welfare support for journalists reporting on crime in courts. Holden suggested accessing the EAP, to which she replied that it was inadequate because she could not get an immediate appointment.

49 In December 2012, she spoke to an HR representative. She said that she had been covering 'pretty awful stuff on a daily basis' and was not receiving adequate welfare support or debriefing.

50 While working as a court reporter, the plaintiff complained on several occasions to senior editors and management about the inadequacy of the EAP and the lack of welfare support.[19]

51 Baker, a former deputy editor of The Age, said reporters who are exposed to trauma, either directly or vicariously, could suffer psychiatric injury. He accepted that attending a murder or similar scene could be something particularly horrific.[20] Fuller, a deputy editor, and formerly a journalist at The Age, acknowledged that the types of cases the plaintiff was covering were distressing and capable of having an impact upon the journalists. He agreed the material to which the plaintiff was exposed was traumatic and stressful.[21] Ramadge, editor-in-chief of The Age from 2008 to 2012, acknowledged that journalists over this period were working in a stressful environment, covering big stories and that reporting on murder trials in the Supreme Court was at the higher end of traumatic exposure for a journalist.[22]

52 Eventually, as her symptoms worsened, the plaintiff was moved to the Sunday Age.

B.3 The judge's findings on injury and damages

53 The judge accepted that the plaintiff suffered from PTSD. PTSD is a condition where a person who has been exposed, either directly or indirectly, to one or more traumatic events, comes to suffer from re‑experiencing symptoms, avoidance, hyper arousal and psychological numbing. Symptoms associated with PTSD also include depression, substance misuse, somatic complaints, nervousness, anger, high distress, irritability and tearfulness.

54 The judge concluded that by April 2010, when the plaintiff commenced work as a court reporter, her PTSD was 'entrenched, although the symptoms fluctuated'.[23] By 2013, she was unable to continue in the role because of her reaction to the trauma.

55 The judge noted that, by November 2011, the plaintiff's health had taken a significant turn and she was suffering a range of significant psychological symptoms, including depression, nightmares, lack of sleep and serious stomach issues, as well as feeling unappreciated at work.

56 During her employment, the plaintiff received some treatment and medical support in respect of her symptoms. She attended the EAP on a number of occasions in 2007, 2011 and 2012.

57 At the time of her first attendance in 2007, the plaintiff was not sleeping well and had regular nightmares about death, was abusing alcohol and would become distressed and cry easily. The plaintiff said she described her symptoms to counsellors at the EAP service, although she said they did not understand the pressure of the newsrooms and the demands of her work. She was not encouraged to speak out about these matters. She said the environment was such that it was difficult to refuse to do the work.[24]

58 In 2011, the plaintiff again sought assistance from the EAP. Clinical notes from an appointment on 24 November 2011 record that the plaintiff had been reporting on crimes for six years, 'which have left her with PTSD and on antidepressants'. Recorded symptoms included flashbacks, feeling totally burnt out and feeling burdened by her constant exposure to trauma, horror and grief. The entry under the heading 'Treatment Goals & Plans' included 'setting limits[/] balance in my life'.

59 The trial judge found that, while the EAP was of benefit and involved trained psychologists, the trauma to which the plaintiff was exposed was so immediate and confronting that it was quite unsatisfactory for her to have to wait a number of weeks before being able to obtain the EAP's assistance.

60 The clinical notes for the next consultation on 1 December 2011 record the plaintiff feeling much better, and more 'in control' after a week off. On 15 December 2011, the psychologist recorded the plaintiff as 'doing great' and 'expressing her needs, meeting them and setting limits'. The notes record the plaintiff had 'started saying no at work, leaving early, introducing balance.' The notes for a consultation on 2 February 2012 record the plaintiff as 'doing great, presented as grounded, in control[,] with clarity on values and priorities. Has created balance at work through saying no, setting limits, now seeing friends, exercising, loving life'.

61 The plaintiff also sought assistance, including for mental health, from her General Practitioner ('GP') at the St Kilda Clinic, who referred her to the psychologist, Ms Joy Mott, in June 2009. GPs at the St Kilda Clinic also drew up a mental health plan for the plaintiff and she attended in relation to feelings of anxiety and depression on a number of occasions in 2009, 2010 and 2011. She first saw Ms Mott on 25 June 2009, and then on a further four occasions between July and September 2009. The plaintiff also attended an appointment with a GP at the Greensborough Road surgery in August 2013 to obtain a referral to see a psychiatrist 'for her ongoing nightmares attributed to PTSD'.

62 The clinical records include medical certificates which state that the plaintiff was unfit for her work duties for the following dates: 11-14 June 2009; 16-17 December 2009; and 25-28 January 2011. Those certificates did not specify the nature of the medical treatment being received. The plaintiff said that the records probably recorded 'the formal sick leave days where [she] went to a doctor and got a certificate', that she had 'so much time off after particularly harrowing trials', and that her editors knew when she took time off. Throughout her period of employment, the plaintiff took her usual six weeks of annual leave.

63 Records from consultations with Ms Mott and the GP note both work and private relationships as being a source of stress.

B.4 The Age's knowledge of the risk of psychiatric injury as a result of exposure to trauma

64 The plaintiff sought to establish that, by the time she commenced employment with The Age in 2003, it was aware, in at least four ways, of the risk of psychological injury from exposure to trauma.

65 First, the plaintiff relied on academic or industry related articles that would have been familiar to the newspaper community. Second, a copy of an article by Dr Cait McMahon, published in 2002, entitled 'Covering disaster: a pilot study into secondary trauma for print media journalists reporting on disaster' was provided to the then editor of The Age. Third, a risk management review was undertaken by The Age in 2002 by David Caple to assess occupational health and safety risks and which identified exposure to trauma as a risk. Fourth, workshops were conducted in 2002 and 2004, that referred to the relationship between trauma and injury.

66 Dealing first with the articles, the judge referred to 'Journalists and trauma: the need for counselling', an article authored by Nic Place and published in 1992, in the journal 'Australian Studies in Journalism'. The purpose of the article was to examine whether a journalist would find counselling, psychological debriefing and improved training beneficial after exposure to trauma. The article referred to 'intrusions', describing the practice of journalists, after attending traumatic scenes, door-knocking and interviewing relatives, friends and witnesses about what had occurred. The article noted that cadets spoken to from the Herald Sun and The Age had received no official guidance about how to approach police rounds, 'death knocks' and the like before undertaking the work. The judge regarded the conclusions of the author as to the deleterious effects upon journalists of exposure trauma to be clear and persuasive. The judge accepted that the article was something that would have been known within the newspaper community.

67 Dr McMahon, a psychologist with experience in trauma-related injury in journalism, gave evidence at the trial. She had been employed by The Age, originally in a pastoral or chaplain role and later again based on her professional and academic qualifications in psychology, with a particular interest in trauma related injury. Since 1994, she had been a registered psychologist. Since 2003, she had been the managing director of the Asia Pacific chapter of Columbia University's Dart Centre for Journalism and Trauma. The Dart Centre provides training and support for journalists and media organisations in relation to the coverage of trauma, conflict and tragedy.

68 Dr McMahon referred to a number of publications addressing the relationship between trauma and journalism, including 'Journalism and trauma: proposals for change', authored in 1999 by Philip Castle from the University of Queensland. Castle's paper suggested a peer support system which had been adopted by the Queensland Ambulance Service as a proposed model for journalists.

69 The judge concluded that Castle's article, and others, would have been available within the journalism profession at the relevant time and warned of the risk of psychiatric injury to journalists exposed to trauma.

70 More specifically, the judge accepted that, in 2001, Dr McMahon had provided a copy of her own article to a senior editor at The Age, where she was working at the time. The judge accepted that the article came to the knowledge of senior management at The Age. That article shows that journalists experienced significant levels of intrusive images and thoughts at the time of reporting on a traumatic story. The author identified avoidance behaviour, somatic symptoms, anxiety, insomnia, social dysfunction and depression as being exhibited by journalists. Coping mechanisms included depersonalisation, discussion with colleagues, consumption of alcohol, drug use and black humour.

71 The article noted that the typical journalist who reported trauma was a single woman of approximately 27 years of age, who had regularly reported on murder, rape and vehicle accidents. The article went on to record that journalists reporting on trauma had a significantly higher rate of somatic symptoms than journalists not covering traumatic events. They were marginally more susceptible to depression, social dysfunction, anxiety and insomnia. Symptoms were likely to decrease over time and a majority of journalists were reported to have liked debriefing or an opportunity to talk about traumatic experiences following exposure to trauma, tragedy and disaster.

72 Caple, in his 2002 risk assessment, identified the potential hazard of personal distress associated with witnessing confronting news stories. The report noted that the EAP was available for debriefing journalists, and identified, as a potential mechanism for future risk control, that the feasibility of introducing a peer support program should be discussed. This would involve journalists volunteering, and being trained to provide informal peer support and debriefing as an alternative to the service provided, under the EAP, by psychologists.

73 The Caple report was commissioned by McKinnon, the training editor at The Age. He gave evidence that, in 2002, the Fairfax organisation, which included The Age, was aware that reporters who were exposed to trauma, including vicarious trauma, were at risk of suffering psychological injury. McKinnon said the issue had emerged in the 1990s, was consolidated by 2002 and emphasised in the Caple risk management review and in a Peer Support Program undertaken by Professor Gary Embleton in 2002. The review by Professor Embleton recommended a peer support process and access to support from a mental health professional.

74 McKinnon said that from 2003 to 2009, there was no one within The Age who was trained in providing appropriate peer support to the crime desk. There was no induction training as to trauma exposure and the risks associated with it. Although he had recognised the need for the implementation of an appropriate program, this did not occur because of financial constraints and lack of interest.

75 In 2004, Gary Tippet, a long standing journalist at The Age and Sunday Age, attended the Dart Centre in the United States for a four day course related to trauma in journalism and self-care of journalists exposed to stress. He provided a report to Andrew Jaspan, the then editor-in-chief at The Age, and other senior executives.

76 Tippet's report noted that, in part as a result of traumatic events such as 9/11 and the Bali bombings, media organisations around the world had become more aware of the emotional impact these events had on journalists covering such tragedies. His report referred to studies that revealed symptoms of alcoholism, depression and PTSD in the journalists exposed to trauma. He noted that crime and court reporters were exposed to traumatic stress in journalism. In order to deal with this issue, he suggested:

(a) an internal training program for mid-career journalists involved in reporting traumatic incidents, addressing exposure to trauma, self-care and understanding the clinical side of trauma and stress;

(b) a similar intensive course for trainee journalists;

(c) a training and support program directed at editors, chiefs of staff and other senior staff to understand the issues outlined in (a) and how to identify staff who might be at risk. This would include supporting staff on assignment, conducting briefings and risk assessments; and

(d) maintaining a relationship with the Dart Centre as a resource for symposiums and conferences.

77 In addition to the above evidence, the judge referred to the evidence of editorial staff at The Age on the question of knowledge, some of which we have referred to above.[25] Ramadge said he was aware of reports by Tippet and had a broad awareness that journalists exposed to direct and vicarious trauma may suffer psychiatric injury. He acknowledged that reporting on crime would expose journalists to particular trauma and that the plaintiff would be at the forefront of risk of injury. He accepted that a journalist performing at a very high level may, at the same time, be suffering a severe psychiatric condition. He said serious consideration should have been given to McKinnon's recommendations.

78 In his evidence, Fuller said that he was aware of the possibility that journalists exposed to traumatic events were at risk of injury. He said he was mindful that the plaintiff, and possibly others exposed to traumatic crime and court reporting, might be exposed to the risk of a psychological injury, post-traumatic stress, anxiety and depression. He said that The Age was aware that the material those journalists would be exposed to could cause them some trauma and, by extension, they were at risk of injury.

79 Shiel, who was employed by The Age from 1997 to 2017 as a journalist and in various editorial roles, including national news editor, was aware that there was a risk of journalists suffering from psychiatric conditions when exposed to trauma in the course of their work. However, he qualified this somewhat, saying that the Dart report was in reference to journalists going to plane crashes or war zones, rather than court cases. He said he did not recall there being any training about court cases.

80 Baker, who was the deputy editor of The Age in 2008, accepted that exposure to trauma may have an impact on the emotional health of the journalist. He noted that the vast majority of journalists can work in highly stressful environments, and cover distressing stories, and it depended upon the individual as to the reaction.

81 The judge commenced by setting out his understanding of the general principles relating to the foreseeability of psychiatric injury.[26] After referring to some authority, the judge concluded:

On the basis of the case law to which I have referred, I am satisfied that I should approach my analysis of the issue of foreseeability by adopting the following principles:

(a) The duty of care which an employer owes is a duty to the individual employee and is engaged if psychiatric injury to the particular employee is reasonably foreseeable, that is a risk which is not farfetched nor fanciful;

(b) The starting point for any analysis as to the content of the duty of care in a case such as this involves consideration of the fundamental aspects of the employment relationship between the plaintiff and the defendant;

(c) In examining the employment relationship, factors which are relevant include:

(i) the presence of any signs from the employee, whether express or implicit, that he or she was at a risk of developing psychiatric injury;

(ii) the specific nature of the tasks required to be undertaken by the employee;

(d) All employers cannot be expected to recognise that all employees are at risk of psychiatric injury from work duties. The issue as to whether such a risk should have been recognised in any particular instance depends upon consideration of all the circumstances;

(e) The test of whether an employer acted reasonably involves an assessment of the degree of probability that the risk of psychiatric injury may occur, even when the reasonable foreseeability test has been satisfied. In making such a determination, it is appropriate to take account of the fact that in a case involving the infliction of psychiatric injury:

(i) the presence and/or significance of the risk of injury may be less apparent than in the case of physical injury;

(ii) whether a risk is perceptible at all may depend upon the vagaries and ambiguities of human expression and comprehension;

(iii) whether a response to a perceived risk is reasonably necessary to reduce or eliminate that risk, should take account of the fact that steps to reduce the risk of psychiatric injury are likely to produce a less certain outcome than the mechanical alteration of a physical environment in the case of physical injury;

(iv) the private and personal nature of psychological illness makes it difficult in many instances for an employer to discharge its duty;

(v) the dignity of employees and their entitlement to be free of prying enquiry and intimidation are relevant to the content of the duty;

(vi) complex issues arise as to when and how intervention by an employer to prevent mental illness should occur.[27]

82 Although the introduction to that paragraph indicates that the analysis is directed to foreseeability, in its terms it extends beyond that consideration. That is neither surprising nor erroneous, but simply a reflection of the factual overlap between the various elements that make up the relevant tort.

83 The judge then set out his findings as to The Age's knowledge about the risk of psychiatric injury from trauma,[28] and the knowledge of the plaintiff's symptoms.[29] Those findings have been set out above.

84 The judge concluded that the risk of psychiatric injury to the plaintiff was foreseeable to The Age. He identified three bases for that conclusion:

(a) the plaintiff was required to report on events, both as a crime reporter and a court reporter, that were of such a traumatic, violent and disturbing nature that it would have been relatively obvious to a reasonable employer that the cumulative effect of that exposure would create the distinct risk of psychological injury in the nature of PTSD or a similar disorder;

(b) The Age was on notice of that risk because of its knowledge of the various publications referred to above; and

(c) the plaintiff complained about and manifested real signs and symptoms of emotional distress on a sufficient number of occasions, both as a crime reporter and a court reporter, that it ought to have been relatively clear to her employer that there were signs of the development of a psychological disorder.[30]

85 The judge expanded on each. On the first matter, the judge noted that when the plaintiff commenced working at The Age in 2003, she was young, inexperienced and had received no training in how to deal with trauma. The judge highlighted that the subject matter of stories covered by the plaintiff were graphic and traumatic, especially those involving children. He concluded that seeing bodies being removed, undertaking 'intrusions' upon families and neighbours and attending funerals brought with it distress and discomfort to such a level 'that it was no great leap of logic to conclude, if the matter was ever sensibly examined, that her distress would result in the development of a significant psychological injury'.[31]

86 In relation to the second matter, the judge accepted the evidence of McKinnon that he knew there was a risk that reporters who were exposed to trauma might suffer psychological injury and that crime reporters were at the greatest risk. It was accepted that there was no peer support program in place, but that it should have been introduced as early as 2004 and that it was not available because there was no appetite for change and no funding.

87 As to the third matter, the judge noted that the plaintiff exhibited signs, symptoms and complaints of an emerging psychological disorder. This included that she was regularly in tears and presented in a distressed manner. She made no secret of the fact that she was attending the EAP for counselling. By 2008 or 2009, it was suggested to her that she take a holiday. By the time of the Freeman investigation, she had clearly expressed to her editors that she was no longer able to go on as she could not deal with the death and destruction.

88 The judge was satisfied that the plaintiff was exhausted, distressed and crying on a reasonably regular basis as a result of her exposure to the trauma in the course of her reporting. In those circumstances, the judge said it must have been obvious to management at The Age that something was wrong and that it was more than an isolated emotional reaction to a traumatic story, but a clear indication of the emergence of symptoms of an underlying psychological disorder. He said:

True it was an emerging pattern of behaviour, probably not patently obvious until the later years of her time as a crime reporter, but with the cumulative exposure to trauma, I am satisfied that by around 2007, the signs and symptoms were relatively obvious. They were not heeded. Things came to head in 2009. Intervention ought to have occurred before that time.[32]

C.2 The judge's conclusions on the scope of the duty of care

89 After setting out his findings in relation to foreseeability of psychiatric injury, the judge then turned to the scope of the duty of care owed by The Age and what measures could have been taken to avoid injury.

90 The judge accepted a submission that the duty owed by The Age was one which required 'proactive as well as reactive steps' to be taken. Armed with the knowledge about the relationship between trauma and injury, and the particular problems suffered by the plaintiff, the judge concluded that The Age should have taken proactive steps to protect the plaintiff against injury.

91 The judge commenced with an identification of the steps that The Age had already taken. These included:

(a) the establishment of the EAP to provide counselling advice from trained counsellors;

(b) informal peer support from other journalists and colleagues in the relevant department; and

(c) providing various training courses.

92 It is clear that the judge rejected the notion that the duty of care required no more than making available counselling services which employees, at their own instigation, could access. In a critical paragraph, the judge identified the following steps that ought to have been taken by The Age to protect the plaintiff against the risk of psychological injury. These were:

(a) training and instruction to all new journalists as to the nature of the trauma, suffering and distress to which they were likely to be exposed. This would include a checklist of signs and symptoms which might commonly arise when exposed to trauma, including tearfulness, distress, nightmares, sleeplessness and abuse of alcohol;

(b) training of senior staff in trauma awareness and the ability to detect symptoms in the reporters who worked in the area;

(c) recognition of the literature relating to the risk of the development of psychological injury from exposure to trauma;

(d) 'attention ought to have been paid' to the Caple risk management review, which suggested a peer support program to complement the EAP;

(e) providing staff with advice and training on how to deal with 'intrusions', including setting boundaries for journalists to go about the task, and debriefing those who undertook it to assist in dealing with associated distress;

(f) allowing for immediate access to trained professionals as part of the EAP;

(g) 'considering the possible implementation of' the programs undertaken at the BBC and the ABC;

(h) changing the organisational culture, which discouraged reporting of psychological symptoms and distress;

(i) 'careful consideration ought be given to' removing a reporter, such as the plaintiff, when they complain of symptoms, including distress and tearfulness, from the trauma; and

(j) in the plaintiff's specific circumstances in 2010 to 2013, it was clear that she ought to have been transferred given her previously expressed inability to deal with the material she was exposed to as a crime reporter.[33]

C.3 The judge's conclusions on breach and causation

93 The judge was satisfied that the steps identified by him as being required to avoid injury were not taken by The Age. Accordingly, he was satisfied there was a breach of the duty owed by The Age to avoid the risk of foreseeable injury. He then turned to determine whether the breach was causative of the psychological injury sustained by the plaintiff.

94 The judge noted the evidence of Dr McMahon that the rotation to the sports desk in 2009 was successful in alleviating the plaintiff's symptoms and that remaining in that role would no doubt have been beneficial to her mental wellbeing.

95 In a passage of her report cited by the judge, Dr McMahon concluded:

it would seem from ... [the plaintiff's] reports and those of her treating practitioners that The Age could have intervened and supported ... [the plaintiff] at numerous points. According to the research presented above, appropriate and ongoing management and organisational support, as well as a lessening of overall stressors, continued rotation to non-trauma assignments, referral and follow-up psychological support may have mitigated the impact and escalation of trauma symptoms reported by ... [the plaintiff].[34]

96 Dr McMahon expressed the opinion that, notwithstanding that the plaintiff had received psychological assistance, there should have been a reduction in her exposure to trauma. Dr McMahon accepted that there was no one single workplace program to enhance resilience or mitigate the effect of PTSD and that a combination of strategies and programs would be the most effective. In Dr McMahon's opinion, rotation should have been considered, along with follow-up support and a formal support program.

97 In answering the question of causation, the judge summarised, in point form, the steps The Age ought to have taken that he had set out earlier in his reasons, and concluded:

Had these steps been taken, then at the outset, with appropriate training, and the implementation of a formal peer support system, the plaintiff would have been aware that exposure to the sort of trauma she was likely to encounter as a crime reporter may lead to the development of psychological injury. Had she known, through proper training and advice, she could have taken steps at an earlier time either to move into another area, or to seek treatment from a health professional experienced in that area. Alternatively, trained peers, had they been available on a regular basis, could have identified that her tearfulness and distress was a harbinger of the development of psychological injury. Thus, again, allowing understanding and early treatment.

Likewise, early identification, either by the plaintiff, or trained peers, would, at the very least, have resulted in an offer for her to move to another area or, if her symptoms were sufficiently severe, for that to be a requirement. If proper protocols and boundaries were set in respect of "intrusion" and dealing with criminal elements, that would have resulted in less stress and concern to the plaintiff in how to deal with them. Further, a changed environment, more sympathetic to those who are struggling with emotional issues, would have encouraged early identification and treatment.[35]

1. In identifying the scope and content of the duty of care, or what was required of a reasonable employer, the learned trial judge failed to have proper regard to the need to respect the autonomy and privacy of employees, and imposed obligations that were too broadly defined and not sufficiently identified in the evidence.
2. The learned trial judge erred by finding that the applicant had breached its duty and that that breach had caused injury, in circumstances where the necessary counterfactual was not sufficiently identified or established on the evidence.
3. Alternatively, the learned trial judge failed to give adequate reasons for his conclusion that the applicant had breached its duty and that that breach had caused injury, by failing to identify the necessary counterfactual and the evidence supporting it.

99 Thus, the focus of the application rested on the content of the duty of care and causation. No separate submissions were advanced on ground 3 and we need not say anything more than record that the reasons were detailed, comprehensive and a model in clarity. The evidence and findings of fact made on the path of reasoning are all clearly revealed.

D.1 Scope and content of the duty of care: principles

100 In identifying general precepts that apply to an action in negligence brought by an employee against an employer, it is important to emphasise that, in assessing the content of the duty, the steps that would reasonably be required of an employer to address risk and causation are heavily fact dependent. There remains the inevitable risk that general concepts will be applied as if they are governing principles of law to be applied in every case.

101 With that caveat in mind, it is possible to identify a few general propositions. First, the content of the duty of care and what steps an employer ought reasonably to have taken to avoid an injury that was reasonably foreseeable are forward-looking. The question necessarily arises after the injury has occurred, but care should be exercised to avoid framing the content through the lens of litigious hindsight.

102 Secondly, the content of the duty and whether it has been breached must be identified and addressed in each particular case. The case will provide the facts, legislative and legal context of the relationship between the parties.[36]

103 Where the allegation is that the employer has failed to provide a safe system of work, it is necessary for the plaintiff to identify the elements of the system that he or she asserts is reasonably required to be put in place to meet the foreseeable risk of injury.[37]

104 Thirdly, in considering whether the employer breached its duty of care by failing to take those steps that the judge held were reasonable, it is necessary to apply the approach explained by Mason J in Wyong Shire Council v Shirt,[38] as follows:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.[39]

105 Fourthly, in the context of psychiatric injury, Koehler v Cerebos (Australia) Ltd ('Koehler')[40] established that it is wrong to frame the duty of care with the level of generality considered sufficient in respect of physical injury. It is necessary to have regard to more specific aspects of the nature and content of the duty. In such cases, it invites error to proceed immediately to questions of foreseeability and breach.

106 In Koehler, the plurality observed that '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.'[41] That question, 'invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned'.[42] Just as those matters inform the question of foreseeability of injury, they are also relevant to the identification of the steps that an employer ought reasonably take to avoid that risk.

107 Intermediate appellate courts have considered the nature and scope of the duty of care in the context of psychiatric injury arising from occupational exposure to trauma in a number of cases.[43] It is necessary to refer to two of them in some detail.

108 In Hegarty v Queensland Ambulance Service ('Hegarty'),[44] the plaintiff, an ambulance driver, sued his employer, the Queensland Ambulance Service, in negligence alleging that he had developed PTSD and obsessive-compulsive disorder as a result of occupational exposure to numerous traumatic events.

109 It was accepted there was a foreseeable risk that regular exposure to traumatic scenes could cause psychological stress and psychiatric injury to ambulance officers. In response, the Queensland Ambulance Service developed a program called 'Priority One'. The four key elements of this program were: critical incident stress debriefing; peer support; a telephone counselling service; and face-to-face counselling with a psychologist.

110 The plaintiff alleged that the employer's failure to ensure that supervisors were appropriately trained to identify signs of dysfunction in personnel regularly exposed to trauma and to recognise signs of stress meant that the plaintiff continued to be exposed to traumatic stimuli, leading to a clinical onset of PTSD. It was contended that the duty of care included appropriate training of supervisors and staff to identify risk factors and allow for early intervention.

111 The plaintiff had succeeded at trial, but the judgment was overturned by the Court of Appeal. The principal reasons of the Court were delivered by Keane JA, with whom Jerrard JA and Douglas J agreed.

112 Justice Keane held that the plaintiff's case failed because even if, on the balance of probabilities, the defendant had adopted the system of training advanced by the plaintiff, there was no factual basis to conclude that the supervisors would have identified potential harm and intervened.[45] That was because the plaintiff had not alerted his supervisors to the fact that he was suffering mental health issues, and his presentation would not have suggested to a relevantly trained supervisor that he was suffering from trauma related injury. In other words, the plaintiff failed on causation.[46]

113 However, earlier in his reasons, Keane JA identified some general considerations that apply to the scope and content of the relevant duty where an employee seeks damages for psychiatric injury. His Honour commenced by noting that the employer owes the 'same duty' to exercise reasonable care for mental health as it owes for physical wellbeing, but that special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. His Honour said:

In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension. Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works.[47]

114 It is apparent that the concerns expressed by his Honour relate to whether the injury is foreseeable, what responses might reasonably be required to ameliorate the risk and the likely efficacy of those responses. In other words, they extend to the content of the duty, foreseeability and causation.

115 In relation to the scope and content of the duty of care, the reasons of Keane JA focus on the extent to which an employer should be obliged to assess and intervene when an individual employee shows possible signs of deterioration in mental health, and whether staff should be trained to do so. Keane JA cautioned against imposing a duty of care of that kind because of the many variables that might be affecting mental health and that any intervention, whatever its intent, is likely to erode the autonomy and dignity of the employee. His Honour regarded it as not 'self-evidently necessary or desirable that employees' private lives should be subject to an employer's scrutiny'.[48]

116 After recognising the private and personal nature of psychological illness and the dignity of employees his Honour said:

In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer's intervention and the making of a decision to intervene. An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee's performance of his or her duties at work.[49]

117 The intrusive nature of any investigation or enquiry and difficulties in identifying harm led Keane JA to recognise that:

there are good reasons, apart from expense to the employer, why the law's insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee's mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.[50]

118 Hegarty reinforces the need for care in formulating the scope and content of the duty of care. One must take into account the difficulties in identifying the signs of psychiatric injury and the personal autonomy of the employee.

119 However, Hegarty does not stand for the proposition that an employer owes no duty of care to take steps to identify and respond to signs of psychological distress caused by occupational exposure to stress. As Keane JA noted:

It may be accepted that a line commander of an ambulance officer must be vigilant for signs of dysfunction in ambulance officers because of the regular exposure of such officers to stressful situations, but that vigilance must respect, and be exercised in a context which recognises, the dignity of individual employees and their entitlement to privacy, at least where the only signs of possible dysfunction are equally explicable as the assertion of legitimate grievances about the terms and conditions of employment, and there is no suggestion that the officer's performance at work has been or is likely to be adversely affected in any way, and the employee chooses not to convey information which would clearly signal a level of psychological distress.[51]

120 A similar approach was taken by Leeming JA (with whom Ward JA agreed) in State of New South Wales v Briggs ('Briggs').[52] Briggs was a police officer who sued his employer in negligence, seeking damages for PTSD caused by witnessing traumatic events. As in Hegarty, the allegation of breach of duty had, as a central theme, the contention that the employer had failed to effectively monitor the plaintiff's psychological health during his service as a police officer. Among other things, the plaintiff alleged that the employer had failed to have him psychologically assessed and treated, failed to ensure his psychological health was regularly reviewed or monitored, failed to educate or warn him as to the signs of psychological injury, failed to respond to requests for alternative duties and failed to establish and enforce an effective system for early detection and treatment of psychological injury.[53]

121 Justice Leeming observed that the obligation to determine breach prospectively in respect of the failure to provide a safe system of work meant that the system must extend to all comparable officers to address the foreseeable risk of mental illness. He further noted that the particulars did not articulate how the assessment or monitoring was to be effectively carried out.

122 In approaching the duty to monitor and respond to potential psychological ill-health, Leeming JA endorsed the concerns expressed by Keane JA in Hegarty. His Honour said 'a compelling case would be required before the private affairs of an employee are subjected to scrutiny by an employer'[54] and that it would be 'a large thing for an employer to direct an employee to be counselled'.[55] Further, any suggestion that an employee be counselled must take into account who might reasonably be in a position to direct such counselling and the consequences that would flow in the event the employee refused to accept counselling.

as presently advised I struggle to see how there can be a duty to enquire about private matters in ordinary cases, as an element of an obligation to take reasonable steps to reduce foreseeable risks to the mental health of officers or employees.[56]

124 His Honour upheld the employer's appeal on the narrower basis that the plaintiff had not established a system of work which should have been prescribed in response to an identified risk of psychiatric injury. His Honour concluded that the plaintiff was required, but failed, to identify some different, specified system of work which, if it had been implemented and maintained across the New South Wales police force as a whole, would have been a reasonable response to the foreseeable risk of psychological injury.

125 His essential conclusions were (a) the system of work of general application had not been specified with sufficient certainty; (b) the employer was not under a general duty to investigate and monitor the psychological health of its employees even where risk is foreseeable; and (c) the plaintiff, who was himself unaware of his illness, had not put his employer on notice that he was unwell due to his exposure to trauma at work.

126 Although agreeing with the result, McColl JA said that she did not join in Leeming JA's reasons concerning duty of care.[57] Her Honour traced through some aspects of history that demonstrated a strong inclination in the law to distinguish between recovery in negligence for physical and psychiatric injury. Her Honour referred to the judgment of Garling J in Benic v New South Wales[58] in which his Honour had cautioned against the making of categorical findings in relation to the diagnosis and prevention of PTSD.[59]

127 After referring to Hegarty, McColl JA noted that the courts cannot be timid about the need to ameliorate the risk of injury for employees who are constantly exposed to traumatising incidents.[60] Her Honour accepted that issues of dignity and autonomy are important, but said that so too is the proper discharge of an employer's duty to avoid foreseeable harm. Her Honour said:

the solicitude the 'employer' must exhibit concerns an actual, or potential, workplace injury. The fact that it entails a worker's mental health does not immunise it from the employer's responsibility to discharge the relevant duty of care. Nor, with respect, should it be characterised as an intrusion into an employee's private life.[61]

128 From the above, the following threads can be drawn together in relation to psychiatric injury.

129 First, whether psychiatric injury is reasonably foreseeable involves difficult questions because the risk of injury may be less apparent than in cases of physical injury and may depend on the vagaries and ambiguities of human expression and comprehension.[62]

130 Secondly, whether a response to a perceived risk to psychological health is reasonably necessary to ameliorate that risk may be uncertain, and the likely efficacy of responses more debatable than a mechanical alteration of the physical environment.[63]

131 Thirdly, the articulation of the content of the duty of care and the imposition of a positive duty to take active steps to prevent the risk of foreseeable injury must take into account the private and personal nature of psychological illness and the dignity of employees and their entitlement to undertake their chosen work free of harassment and intimidation.[64] Care must be taken to ensure that solicitude for an employee's privacy does not overwhelm those other considerations that give rise to a meaningful duty of care to avoid injury.

132 Finally, it may be difficult to establish that, had the proposed steps been taken by the employer, the injury would have been avoided.

133 The Age submitted that the formulation arrived at by the judge required the employer to go well beyond what ought to be required of a reasonable employer and required an unrealistic working environment.

134 The Age submitted that an employer ought not be required to inquire into an employee's private life and, as an aspect of privacy and personal autonomy, employees should make their own decisions about whether and when to seek medical treatment and, if so, what kind of treatment. It was submitted that intervention in an employee's psychiatric state necessarily conflicts with that employee's privacy and autonomy in a way that avoidance of physical harm does not.

135 During the course of oral argument, counsel for The Age submitted that the imposition of any duty to inquire into or monitor the mental health of employees, even where injury is reasonably foreseeable, would unreasonably interfere with the individual's autonomy and intrude into their private life. Similarly, it was submitted that it is not reasonable to require an employer to prophylactically remove an employee from exposure to traumatic events unless the employee asks to be removed.

136 It is sufficient that the employer provides access to counselling and acts in accordance with medical advice if the employee presents with medical incapacity. Having regard to the access to the EAP, the privacy considerations outlined above and the education levels of the journalists, The Age framed the duty of care as comprising the following elements. First, that the employer not add to the inherent stresses of employment by mistreating employees. Secondly, that employees have access to confidential medical treatment through the EAP. Thirdly, the employer respect any medical opinions it receives as to the employee's fitness to perform their duties and not force them to perform duties they are not willing to perform by reason of a communicated psychological condition.

137 The plaintiff submitted that the judge identified a suite of measures which, he concluded, were reasonable for The Age to take and which, on the balance of probabilities, would have avoided the injury had they been taken.

138 The plaintiff submitted that the judge identified a series of interconnected steps which would have given the plaintiff and her managers a better understanding of the relationship between trauma and psychological injury. This would have allowed the employer to observe a correlation between the plaintiff's exposure to trauma and her symptoms. Further, the judge identified supports that could have been in place, including peer support and immediate access to the EAP. Had those measures been in place, she would have been rotated and would certainly not have been returned to court reporting, with its inevitable association with traumatic events.

139 In answer to ground 1, the plaintiff submitted that the judge found that the steps identified by his Honour were reasonably capable of being adopted by the employer. The Age had already introduced training, although it had not been delivered to the plaintiff or her immediate managers, and this demonstrated both that it was reasonably available and identifiable in scope.

140 She submitted that the judge specifically took into account considerations of personal autonomy and privacy in formulating the relevant duty of care and had paid close regard to the matters identified by Keane JA in Hegarty.

141 The plaintiff disputed that the judge's findings on causation were based on impermissible speculation and unsupported by medical evidence. She submitted that it was not necessary to adduce medical evidence to establish that the steps identified by the judge would have avoided the injury and, in any event, to the extent that such evidence was required, it was provided by the evidence of Dr McMahon.

142 In oral submissions, the plaintiff accepted that the injury would only have been avoided if she had had reduced exposure to trauma. That would have required her to have been rotated away from crime reporting earlier than 2009 and not moved to court reporting in 2010.

143 It was not argued that, had training and peer support been provided, she would have attained a higher degree of resilience and been able to cope with the cumulative exposure to trauma. Nor was it argued that training on dealing with intrusions would have avoided the onset of PTSD. In other words, if the steps identified by the judge would not have ultimately resulted in the plaintiff no longer working on traumatic events, then causation would not be established. That approach meant that the absence of medical evidence as to whether training or formal peer support would have avoided injury assumed much less significance.

144 It was said that the critical findings made by the judge were findings of fact and that this Court should not disturb them unless they are demonstrated to be wrong by incontrovertible facts or uncontested testimony or they are glaringly improbable or contrary to impelling inferences.[65]

145 The judge found that psychiatric injury of the type sustained by the plaintiff was reasonably foreseeable. As previously mentioned, that unchallenged conclusion was based on three central propositions. First, the highly traumatic nature of the crime scenes covered by the plaintiff. Secondly, the general knowledge held by The Age of the relationship between the risk of exposure to trauma and psychological injury. Thirdly, the 'real signs and symptoms of emotional distress' displayed by the plaintiff both as a crime reporter and a court reporter.[66]

146 Those matters also inform the steps that might reasonably be taken to avoid the occurrence of the injury.

147 The critical findings of the judge were that the employer breached its duty to the plaintiff by not training staff, not providing formal peer support, not moving the plaintiff away from crime reporting before 2009 and, once she had been moved to sport, moving her back to a traumatic environment. Each of these matters were found to be reasonable steps that the employer could have taken, or in the case of the last item not taken, to avoid injury of the kind sustained by the plaintiff. The judge found that, had they been taken, the plaintiff would not have been injured.

148 The content of the duty of care found by the judge was expressed somewhat discursively in paragraph [162] of the Reasons, where his Honour lists a series of matters with varying degrees of specificity. For example, the judge said The Age ought to have 'given consideration' to adopting programs that had been implemented at the ABC and BBC;[67] 'steps' ought to have been taken to 'change the culture';[68] and there should have been a recognition from the literature about the risk of injury from exposure to trauma.[69]

149 Given the breadth and nature of the matters identified by the judge as being required, there is some force in the applicant's submission that the duty as expressed by the judge was too vague and unworkable. Similarly, to the extent that the judge accepted the submission of the plaintiff that her employer was required to take proactive steps,[70] there was a risk that the duty would be framed without proper regard for the caution expressed by Keane JA in Hegarty and Leeming JA in Briggs and would involve reasoning back from the fact of injury.

150 However, the judge was plainly conscious of those pitfalls. When his Honour turned to determine causation, the content of the duty was more focused and centred around training, peer support and rotation.[71] Subject to one qualification, those matters were reasonable steps for the employer to adopt and were neither too vague or unworkable. The qualification relates to whether managers were required to proactively investigate or assess the plaintiff's mental health status. If the judge's formulation of duty required that to occur, then we would respectfully disagree. However, ultimately we are not persuaded that the judge did formulate the duty of care so as to impose such a requirement. We would reject ground 1.

151 In concrete terms, the issues are as follows. Were training, formal peer support, immediate access to the EAP and a sympathetic rotation policy reasonable steps for the employer to take? Was there a breach of duty if it failed to take them, and, if they been had taken, would they have prevented or avoided the plaintiff's injury?

152 At the risk of repetition, it is important to identify some critical aspects of timing. The plaintiff commenced at The Age in 2003. From 2007, she regularly exhibited signs of tearfulness and distress and consulted the EAP for the first time. In January 2009, she asked to be moved away from crime reporting. By the time she commenced as a court reporter in 2010, her PTSD was entrenched. Her mental health deteriorated markedly during her time as a court reporter. She was moved to the Sunday Age in 2013.

153 The evidence established that the rotation of duties assigned to journalists was a relatively common occurrence. Journalists moved between areas and editorial staff often rotated. No doubt, the opportunity for movement was affected by the particular skills of the journalist and the overall needs of the newspaper. Nevertheless, when the plaintiff indicated that she could no longer cope with crime reporting, she was moved. Similarly, in 2013 she was moved from court reporting to the Sunday Age. Neither transfer appears to have caused any difficulties or unreasonable consequences for the operation of her employer.

154 It was not suggested that the terms of the contract of employment entered into between the plaintiff and The Age provided any meaningful inhibition on the reasonableness of rotating the plaintiff to different areas of work. The opportunity for transfer certainly existed.

155 The work of a journalist may be contrasted, for example, with that of an ambulance officer or police officer. As was discussed in Fahy and Briggs, there are aspects of the police or ambulance service that necessarily entail the capacity to direct members of the service to respond to situations which will inevitably involve exposure to traumatic scenes. That is not the case with journalists.

156 It follows that movement of staff within the organisation was not a significant burden and would have been a reasonable option where required. Of course, journalists and editors gain experience and expertise in particular areas. Movement of journalists from one area to another may not be desired, or in the best professional interests of the particular journalist. It may not be welcomed and it may be seen to be a punishment for or consequence of poor or inadequate performance. This was a matter recognised by the judge:

It would no doubt be a delicate discussion to have, protecting, on the one hand, the employee's right to privacy and to advance in her employment, and on the other hand, to ensure an employee's psychological wellbeing was protected. Nonetheless, I am satisfied careful management, perhaps with the assistance of trained professionals, would have assisted. The issue of rotating of reporting duties is not straightforward. A reporter might be committed and passionate about a particular area, as was the plaintiff in respect of crime reporting, at least in her early years.[72]

157 We accept that rotation of duties where required was a reasonable step for the employer to take to avoid injury. However, it was not the plaintiff's case that rotation was required as of course and regardless of whether the employee concerned had manifested any distress and regardless of the wishes of the employee. The plaintiff's case was that rotation away from crime reporting was required for her before 2009 and would have occurred had there been training and formal peer support.

158 The training which the judge said ought to have been provided had a number of dimensions. The critical aspects involved:

(a) Understanding the mechanism of injury, namely, that cumulative exposure to trauma may lead to psychological injury;

(b) Identifying incipient symptoms such as tearfulness, distress, avoidance and overuse of alcohol or drugs; and

(c) Responding by referral for professional assessment and treatment, investigation of symptoms and rotation to non-trauma reporting.

159 There was no suggestion that providing training represented an unreasonable financial burden or demand on the time of staff or managers. The Age can, and did, provide such training. There was no impediment in terms of resources, expense or availability, to providing journalists who were likely to be regularly exposed to trauma, and their editors and managers, with training of the kind given by Dr McMahon.

160 Nor is the requirement for relevant training too vague. The evidence of Dr McMahon demonstrated the content of available training modules which would have equipped staff with important knowledge on the relationship between occupational exposure to trauma and injury.

161 The evidence disclosed that The Age had conducted some training on the relationship between trauma and psychological injury, including a module titled 'News in conflict' which was designed for journalists working in hostile environments, including foreign correspondents and those covering natural disasters. The program was conducted over two days. The plaintiff attended only the first of the two days due to other work commitments.

162 In addition, Dr McMahon undertook training sessions at The Age in 2009, 2011 and 2012. The sessions covered the relationship between trauma and psychiatric or psychological injury. In those sessions, Dr McMahon explained, by way of a slideshow presentation, that trauma involved being exposed to an event that is outside the range of usual human experience and which is so seriously distressing as to overwhelm the mind's defences and cause significant emotional harm. It extended beyond exposure to war and included crime, accidents and violence.

163 The slides went on to say that journalists were at risk of trauma and identified the physical and psychological responses that may follow exposure to trauma. The slides emphasised the clear nexus between cumulative exposure to trauma and the development of psychological injury. The identified harm included anxiety, depression, overuse of drugs or alcohol and PTSD with associated symptoms of intrusive thoughts, avoidance, hyper arousal and numbing.

164 The slides identified risk factors, which included prior trauma exposure, previous mental health history, low perceived social support and isolation. The training identified the steps that could be taken by 'newsroom leaders' as resilient role models, allowing for 'after action' discussion, fostering a sense of team cohesion and encouraging active coping/problem-solving. The relevant slide included the following points:

• intervene early, not late
• proactive - not reactive
• build in recovery periods
• encourage peer support

165 We agree with the judge that training mangers to identify early signs of injury in staff who are exposed to trauma would have been a reasonable step to avoid injury of the kind sustained by the plaintiff. It would allow managers to ensure that staff are aware of the availability of counselling, it would make managers more informed in dealing with staff who request to be moved or rotated away from traumatic reporting and it might engender a work place that makes staff less reticent from speaking up about their concerns. Training staff in these matters would not have been unreasonable and the steps expected of trained staff would likewise not be unreasonable.

166 We shall return to whether training of this kind would have avoided the plaintiff's injury. Before doing so, it is necessary to address whether, as part of the employer's duty of care, managers and supervisors should be required to undertake a more 'proactive' assessment and monitoring of the plaintiff's mental health and have been trained to do so.

167 We do not consider that editors and managers faced with the circumstances of the plaintiff before January 2009 were required to actively investigate her mental health as a precursor to any decision as to the allocation of duties, nor that there was a duty to train staff to undertake such active investigation. In other words, there was no obligation, arising from the duty of care, to delve into the plaintiff's capacity for work and, having done so, rotate the plaintiff away from her duties as a crime reporter. Nor do we consider that there was a requirement to adopt a system of work that included assessment and active monitoring of employee's mental health.

168 That is so for the following reasons. First, the plaintiff was performing her duties well and liked her work.

169 Secondly, the symptoms, to the extent they were reflected at work, were not necessarily indicative of developing ill health or PTSD. Plainly, the work of a journalist involves significant stress. There are tight deadlines, crime reporting is associated with scenes of trauma and intruding upon people at times of suffering and pain is obviously stressful and difficult. Being upset and stressed in that context is likely to be an ordinary human reaction that may not suggest any emerging illness or inability to cope. Although some medical records reveal the plaintiff suffering from feelings of acute stress and nightmares prior to 2009, these specific symptoms were not conveyed to her employer.

170 In her evidence, the plaintiff said that before 2009, she would have been tearful 'maybe four or five times a year'. She identified being named in the OPI hearings as a source of particular stress, that she raised with her colleagues. She also recalled one occasion where Simon Mann had organised for The Age to pay for a meal as she had been struggling with a case. She identified the stresses of the job, including deadlines, as a cause of her short temper and making it difficult to cope with the scenes that she had observed.

171 Thirdly, for an employer to ascertain if there is anything emerging beneath the surface would require delving into matters that are inherently private and highly personal. In Hegarty, Keane JA emphasised the problems that would be associated with requiring an employer to actively investigate the existence and causes of psychiatric problems. An employee may not welcome such an intrusion, particularly if any underlying problems are having no adverse effect upon the employee's performance of his or her duties at work.[73] Privacy, autonomy and the ability of the plaintiff to work in a job that she was good at (and outwardly committed to) provided sound reasons why The Age was not required to inquire into the state of her mental health, at least for so long as the employer had no reason to think that she was incapable of voicing her concerns and had no reason to think that she was unable to obtain professional support.

172 Some of the difficulties experienced by the plaintiff in 2007 and 2008 related to problems associated with her relationships. When she was identified in the course of the OPI hearing, this placed strain on her relationship with her then partner who was a police officer. Relatedly, she expressed a desire for confidentiality in the EAP counselling service, and said she would not have attended had the records been available for her employer. This understandable concern on her part underscores the difficulty of an employer actively investigating the potential cause and extent of psychological symptoms.

173 Fourthly, the plaintiff was seeking professional assistance, a fact which, on the plaintiff's case, was known to her employer from 2007. She was able to obtain timely treatment for her psychiatric symptoms from clinical psychologists within the EAP, her treating GP and from a private psychologist. As indicated, the plaintiff first accessed the EAP in 2007. The records indicated that she was presenting with both work-related and private, relationship issues. An entry for December 2007 noted the plaintiff reporting nightmares and considering abandoning her career, although she noted her job to be a 'dream job'.

174 She said that she did not keep the fact that she was consulting the EAP to herself and that it would have been known to her employer. It is unrealistic to expect employers and their staff to be trained to the level of clinical acumen held by health professionals.

175 In the circumstances, before 2009, even accepting the emergence of some manifestations that were consistent with developing illness, we do not consider that the employer's duty of care entailed any higher degree of intervention than suggesting the plaintiff seek professional assistance and responding to requests of the employee to rotate duties.

176 To the extent that there was a duty to train managers and staff, it entailed no more than to ensure managers and editors were trained to identify and refer at risk employees to appropriate professional care. That training and its implementation would not have prevented the plaintiff's injury. That is because, from 2007, the plaintiff had access to and availed herself of treatment in the EAP, and from a private psychologist and medical care from her GP. The plaintiff's health professionals did not suggest to her that she should stop work as a crime reporter. The plaintiff did not ask to be moved.

177 It follows that any failure to train managers and editors did not cause the plaintiff's injury before 2009.

178 In our view, the position changed markedly in 2009. At that point, the plaintiff unequivocally indicated that she was unable to continue in her present duties and was unable to cope with the trauma that she had observed. A properly trained manager would have been in a position to respond to that obvious manifestation of symptoms and understand its relationship to exposure to trauma. As it happened, The Age was responsive to her plight and she was removed from crime reporting and placed on the sports desk.

179 However, a relatively short time later, when the decision was made to move her to court reporting, it is clear that The Age's decision-making was entirely uninformed by a reasonable understanding of the mechanics of the injury.

180 It may be accepted that, even after being moved to court reporting, some of the plaintiff's presentation was equivocal. In her September 2010 performance self-assessment, the plaintiff identified 'freedom and trust with responsibility' as things she most enjoyed in her current role. As to the future, she said she would continue to develop skills as a Supreme Court reporter and that she was not interested in moving at that point. In February 2012, when she was a court reporter, she sought a pay rise, complaining that she had not had a rise for some time 'despite my hard work and dedication to a job I love'.

181 The Age also submitted, correctly, that the plaintiff was receiving expert treatment in a confidential setting and that none of her treating professionals told her to change roles or to stop work.

182 Notwithstanding these matters, the plaintiff's risk of injury, should she be exposed to further trauma, was necessarily increased from 2009 and this would have been appreciated by a manager who was aware of her recent history and trained in the risk of injury. The foreseeability of injury was heightened. This meant that it was necessary to recalibrate what action might be reasonable in order to avoid further injury. By this point, the plaintiff had unequivocally expressed her inability to cope with reporting on very traumatic events. The Age was, therefore, not encumbered in taking positive steps to intervene because of privacy or autonomy considerations. To that extent, the fact that consideration of the plaintiff's mental health would necessarily touch upon very personal private stressors was of much less significance. The link between her mental state and her work was patent.

183 This case, at least from 2010 onwards, was very different to Hegarty and Briggs. A point of distinction is that, from that time, the issue became whether to transfer an employee to a traumatic environment, rather than a failure to transfer an employee away from a traumatic environment. The plaintiff's manifestations of distress following the Freeman case clearly demonstrated a link between the plaintiff's state of mind and her work. Her desire to move from crime reporting was not caused by some dissatisfaction about her work, and it was not simply a request for a change in duty. The connection that ought to have been reasonably apparent to The Age in 2009 was not broken by the effluxion of time in the period in which the plaintiff served as a court reporter. To paraphrase Keane JA in Hegarty,[74] The Age failed to be vigilant for signs of dysfunction in circumstances where the plaintiff had clearly identified her inability to cope and there were no other performance or other issues that suggested her reticence to become a court reporter was unrelated to the difficulty she experienced reporting on traumatic events.

184 It is clear that the move to court reporting was associated with a significant decline in the plaintiff's health. The evidence showed that her symptoms had abated during her time in sport reporting, but became worse when she was a court reporter. The evidence of Dr McMahon was that PTSD was caused by the cumulative exposure to trauma and that symptoms were associated with ongoing exposure.

185 The evidence supported the conclusion that, had the plaintiff not been assigned to court reporting, she would not have had the deterioration in symptoms that she suffered from 2010 until 2013.

186 In our view, had there been a better understanding by management and the plaintiff of the relationship between trauma and injury, she would not have been requested, or persuaded, to undertake work as a court reporter. We agree with the judge that the causative issue in respect of that period of employment is simple.[75]

187 What we have just addressed deals with the training of managers. In part, we have identified what we regard as crucial differences that distinguish the period before 2009 from 2010. Namely, in 2010, the plaintiff clearly expressed her need to avoid reporting of traumatic events and displayed unequivocal objective signs of distress.

188 It is also necessary to consider whether training of the plaintiff would have resulted in her seeking a rotation before she reached a crisis point in 2009 and thus would have presented a different factual context in which the employer was operating.

189 It is also necessary to take into account the nature of the environment in which the plaintiff worked, which was stressful. Those stresses included not only the subject matter reported on, but also internal staff disquiet from the increasing number of redundancies. Even though it was a stressful environment, the atmosphere was not one that encouraged employees to speak up and identify weakness. With training, perhaps the plaintiff might have spoken up earlier.

190 We are not persuaded that this would have occurred. There are few signs in the evidence that the plaintiff was keen to move to a different area of journalism before 2009. She identified the job as one she loved and she was receiving medical assistance to help her cope with the stresses of both work and her personal life. The professional assistance she was receiving did not prompt her to seek a rotation out of crime. We do not accept that additional training from her employer would have resulted in her asking to be moved. As already noted, it was not submitted in this Court that training the plaintiff would have made her more resilient and better able to cope with the traumatic events she was witnessing.

191 The judge concluded that The Age ought to have implemented a formal peer support program on a number of occasions each year, involving reporters and others trained to detect signs and symptoms which may indicate the development of psychological injury.[76] His Honour said that had that occurred, the plaintiff would have been aware that exposure to the sort of trauma she was likely to encounter may lead to the development of injury, and could have taken steps at an earlier time to rotate or seek treatment.[77] The judge said early identification by trained peers would, at the very least, have resulted in an offer for her to move to another area or, if the symptoms were sufficiently severe, for such a move to be required.[78]

192 The peer support program of the type identified by the judge would involve a cohort of experienced journalists trained in peer support with assistance, encouragement and monitoring from mental health professionals. Such a program was recommended by Professor Embleton in a workshop undertaken at The Age in 2002 and 2004. It had the support of McKinnon, the training editor at The Age, who was keen to introduce such a program.[79]

193 Dr McMahon explained in her evidence that participants would be trained, usually for around two days, to have an 'educated ear'. The purpose of such training would not be to diagnose colleagues but to identify when they are displaying worrying behaviours about trauma reporting. She described it as a 'first level', that may result in the peer suggesting to go and seek assistance of a trauma counsellor, the EAP, or HR. It is contemplated that the peer would be trained to have sufficient skills to identify and refer the person for professional support. Largely, that knowledge would centre around identifying the 'tell-tale signs' of trauma induced injury. In part, the trained peer supporters would monitor and keep an eye on their colleagues and undertake 'basic intervention in terms of referral or talking around the issue a bit further'.

194 In her evidence, Dr McMahon said that there had been considerable positive outcomes from peer support programs. She noted that there had been successful programs introduced at the BBC and the ABC.

195 Although there was strong support for the introduction of a peer support program from McKinnon and Tippett, it was not introduced. This was, in part, because of the cost involved in training staff and in having ongoing support from an organisation such as the Dart Centre.

196 The judge concluded that the introduction of a trained peer support program was a reasonable response that the employer ought to have undertaken to address the risk of trauma induced injury. In part, the question whether the introduction of the program was a reasonable response depends on its efficacy. The evidence supported a finding that a peer support program was valuable in the context of a workplace with occupational exposure trauma. It had been shown to work at the BBC, the ABC and in first responder contexts. There is no reason to doubt the judge's conclusion that it could have reasonably been introduced at The Age. Of course, that conclusion, which is general in nature, does not address the more specific question of whether its introduction would have, alone or in combination with other factors, avoided the onset of PTSD in the plaintiff.

197 The implementation of trained peers would not, at least to the extent that it entailed voluntary participation by the employee, involve any undue or impermissible intrusion into the private domain.

198 However, the structure and purpose of the program is to provide trained peer support as a 'first level' of support to enable referral to appropriate professional support. This would include referring an employee in need of assistance for counselling through the EAP. In the case of the plaintiff, she was aware of the professional counselling available from the EAP and availed herself of the opportunity to obtain assistance. She first consulted the EAP in 2007, and again in 2009. In those circumstances, we are unable to accept that the failure to receive peer support had any material impact on the progression of the plaintiff's injury before 2009.

199 The absence of a peer support program might, in a different case, mean that an employee who is struggling with trauma induced symptoms would not seek professional assistance and might remain isolated. That is not this case.

200 As in the case of training, and for similar reasons, we are not persuaded that the implementation of trained peer support would have led the plaintiff to seek to be transferred out of crime reporting before 2009.

201 We have already found that the failure to have trained management and staff in relation to trauma induced injury had the effect that the plaintiff was transferred to court reporting without regard to her health. We accept that it is also likely that, had there been a formal peer support program in place in 2010, the plaintiff would have been better supported in her attempts to avoid being transferred to court reporting. Her own understanding of the relationship between trauma and injury would have been enhanced and the transfer would not have occurred.

202 The Age had an EAP. The availability of the program was known to the plaintiff and utilised by her from 2007 onwards. It was not suggested that the content of the EAP, or the quality of the services provided by the professional advisers retained to provide those services, was deficient. Rather, it was contended that there was significant delay in obtaining the assistance of the EAP. Although the judge identified an expanded program with immediate access as one of the steps that ought to have been taken by The Age, the absence of immediate access to the EAP does not find any express reflection in the judge's finding as to causation.

203 Looking at the matters identified by the judge as being required of the employer, both individually and in combination, we are not persuaded that the judge erred in the formulation of the duty of care by failing to have regard to matters of autonomy and privacy, or that the content of the duty was too vague or unworkable.

204 Training staff about the relationship between trauma and injury, trained peer support and a sympathetic informed rotation policy were all reasonable steps and did not unduly intrude into the private domain of employees. We have identified some limits on what an employer can reasonably be expected to do in relation to the monitoring and investigation of mental health, but we do not consider that the judge transgressed those limits.

205 However, we are not satisfied that, before 2009, The Age breached its duty of care in a way that caused the injury to the plaintiff by failing to train staff, including the plaintiff, providing a formal peer support program, providing more ready access to the EAP or a more informed rotation policy. That is because we are not persuaded that, had those matters been provided by the employer, the plaintiff would have been rotated away from crime reporting before 2009. We are not persuaded that she would have requested such a rotation, nor would those matters have resulted in the employer, at its own initiative, rotating the plaintiff.

206 As recognised by the judge, his findings on causation were arrived at applying a common sense and practical approach.[80] We do not regard his Honour's findings as to what would have occurred before 2009, had training, formal peer support and the other steps identified by the judge been implemented by the employer, as findings of fact based on his assessment of the credibility of the witnesses. We note that the judge found the plaintiff to be a credible witness.

207 In our view, they are not findings of a kind that this Court can overturn only if satisfied that they are glaringly improbable or contrary to compelling inferences. Rather, they involve an assessment of what is likely to have happened had steps been taken by the employer. The facts upon which we have reached our conclusion are not facts of a kind which depended on the judge's assessment of the credibility of individual witnesses.

208 As already observed, the position changed in 2010. The breach which we are satisfied occurred did not involve the employer failing to rotate an employee to avoid traumatic events, but involved the decision to transfer an employee, who had already suffered as a result of exposure to traumatic events, to an area of work that was inevitably associated with very traumatic and violent matters.

209 We would uphold ground 2. However, the errors in the judge's conclusions are confined to his Honour's finding that there was a breach of duty before the plaintiff was transferred to court reporting in 2010. As a result, the judge assessed damages on an erroneous basis.

210 Read fairly, even though the judge said that the plaintiff's PTSD was entrenched by 2010, the weight of the evidence showed that the real impact was felt between 2010 and 2013. The breach of duty that we have found occurred was responsible for a marked deterioration in the plaintiff's health. That conclusion is reinforced by the fact that during her time as a sports reporter, freed from exposure to trauma, the plaintiff's symptoms markedly abated. That reflected expert evidence that removal from trauma can lead to a reduction of symptoms, resulting in a remission in the condition, and this was reflected in the plaintiff's own experience.

211 Notwithstanding that the injury was most acutely felt after 2010, we cannot be satisfied that, had the judge assessed damages on the narrower basis that we have found, the award would have been the same. In our view, there is no impediment to the trial judge revisiting the award of damages. It may be that there is little or no change to the award, but that will be a matter for the trial judge to determine.

212 In the result, we would grant leave to appeal and allow the appeal in part. The judge was correct to give judgment in favour of the plaintiff. There is no doubt that the breach of duty caused injury but it will be necessary for damages to be reassessed. We would set aside order 1 of the trial judge in part and remit the matter back down to the judge for the judge to assess damages in accordance with these reasons.

[1] For the purpose of clarity, throughout this judgment the applicant will be referred to as 'The Age' and the respondent will be referred to as 'the plaintiff'.

[4] YZ (a pseudonym) v The Age Company Limited [2019] VCC 148, [51] ('Reasons').

[10] Ibid [18], [23]-[25], [29].

[19] Ibid [116], [120], [122]-[123], [127].

[25] See [50] above.

[28] Ibid [67]-[97]. Summarised above at [64]-[80] of these reasons.

[29] Ibid [98]-[113] (period 2003 to 2009), [114]-[127] (period 2010 to 2013). Summarised above at [36]-[52] of these reasons.

[34] Ibid [172] (underlining in original).

[36] New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486, 494 [18] (Gummow and Hayne JJ) ('Fahy'); Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44, 53 [21] (McHugh, Gummow, Hayne and Heydon JJ) ('Koehler').

[37] Fahy [2007] HCA 20; (2007) 232 CLR 486, 507 [62] (Gummow and Hayne JJ).

[38] [1980] HCA 12; (1980) 146 CLR 40.

[40] [2005] HCA 15; (2005) 222 CLR 44.

[41] Ibid 57 [35] (emphasis in original).

[43] See, eg, Hegarty v Queensland Ambulance Service [2007] QCA 366 ('Hegarty').

[44] [2007] QCA 366.

[46] Ibid [100]-[102] (Keane JA), [26]-[28] (Jerrard JA).

[52] [2016] NSWCA 344; (2016) 95 NSWLR 467 ('Briggs').

[58] [2010] NSWSC 1039.

[59] Briggs [2016] NSWCA 344; (2016) 95 NSWLR 467, 474 [18].

[62] Hegarty [2007] QCA 366, [41].

[64] Taylor v Haileybury [2013] VSC 58, [116] (Beach J), discussing Hegarty [2007] QCA 366, [41]-[43] (Keane JA).

[65] Robinson Helicopter Co Ltd v McDermott [2016] HCA 22.

[73] Hegarty [2007] QCA 366, [45].

[74] Hegarty [2007] QCA 366, [97].