Master and servant - Employer's duty to employee - Negligence - Occupational safety - Librarian developing anxiety disorder - Foreseeability - Causation

Occupational Safety and Health Act 1984 (WA), s 19

Public Sector Management Act 1994 (WA), s 8, s 9

Crombie v Uniting Churches in Australia Property Trust (WA) (1997) 17 WAR 291

Fane v Smart [2002] WASCA 62

Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18

National Mutual Life Association Limited v Richards (1995) 12 WAR 351

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Warren v Coombes [1979] HCA 9; (1979) 23 ALR 405

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

1 MURRAY J: I have read the reasons for judgment of Anderson J. I generally agree with them and there are only one or two observations I wish to add to make my reasoning clear.

2 I am of the same opinion as Anderson J that in view of the way in which the trial was conducted and the appeal argued it is unnecessary to give any attention to the claim originally made under the Public Sector Management Act 1994 (WA), s 8 and s 9. Nor do I have anything to add to the observations of Anderson J with respect to the claim under the Occupational Health and Safety Act 1984 (WA), s 19. I doubt that to require an employee to work hard, perhaps too hard, at duties for the performance of which the employee is unqualified, is to expose the employee to a hazard of the workplace within the meaning of the Act, but the statute need not be further considered because there was, I agree, no evidence of a breach of s 19(1) of the Act.

3 The live claim at trial and as the appeal was argued before us was the appellant's claim in negligence and it must be remembered that her claim was for the injury suffered in the form of the contracting of the psychiatric disorder described as being a major depressive disorder and anxiety disorder, ie, she was not merely depressed and anxious from time to time, but suffered from a recognised form of psychiatric illness.

4 The onset of that condition was attributed, on the appellant's case, to the unreasonable demands made of her by the respondent. She was given too much work to do and it was work of a kind, according to the case she mounted, for which she was unsuited due to her lack of education, training and experience. She argued at trial that her employer ought reasonably to have foreseen that demands of this character were being made upon her and that, as a conscientious employee, the consequence might be the onset of the illness described. Her case was that her illness having been caused in that way, the respondent breached its duty of care because it failed to leave the appellant to work in its libraries at the more menial level at which she was initially engaged.

5 As to the question of foreseeability, in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47, Mason J said:

"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."

6 More recently that is often referred to as the "duty" question; the question whether the respondent owed to a class of persons of which the appellant was a member, in this case the respondent's library employees, a duty of care not to ask persons to perform duties in superior positions to those they presently occupied and not to work hard in the performance of those duties, but to restrict those employees to duties of a less demanding nature, which it may be satisfied is within their capacity, in case they should suffer such psychological trauma as will amount to the contraction of a recognised psychiatric illness.

7 If that is the correct way to put the question, as I think it to be, then I agree it was well open to the trial Judge to hold that the appellant in this case fell in the pursuit of her claim at the first hurdle, that of foreseeability.

8 However, if I am wrong in that view, it was necessary for her to establish as a matter of fact that the illness from which she suffered was contracted as a result of a breach of duty on the part of the respondent by negligently working the appellant too hard at duties which the respondent ought reasonably to have known were beyond her. As I read his Honour's judgment, the trial Judge did not find that the duties the appellant was asked to perform were beyond her capacities, although he accepted that the demands in terms of the volume of work in the positions she occupied were very considerable. However, the question whether her illness was work-related in a causal sense was simply a question of fact, to be answered in this case by resolving, for good reason, to accept one body of expert evidence over the competing expert opinion. I can find nothing in the reasoning of the trial Judge to which Anderson J has referred which exposes any error in his Honour's approach to the resolution of this crucial question of fact.

10 ANDERSON J: This is an appeal from a judgment of the District Court (Martino DCJ) dismissing the appellant's claim for damages against her employer. The claim was in contract and tort and for breach of the statutory duties prescribed in s 19 of the Occupational Safety and Health Act 1984 (WA) and s 8 and s 9 of the Public Sector Management Act 1994 (WA).

11 The claim is said to arise from what is described in the statement of claim as three "accidents". The word is used for convenience and refers to three separate causes of action, only one of which arises from an accident.

The first claim is based on an allegation that between February 1993 and July 1997 the appellant was required to perform what for her were excessively onerous and exacting duties beyond her qualifications in the employer's library services in consequence of which she became chronically depressed and suffered a disabling anxiety disorder. The plea in terms is:

"7. Between about February 1993 and July 1997, in the course of her employment with the defendant, the plaintiff was required to carry out duties for which she was unsuitable due to the lack of education, training and experience and further, such duties were excessive and as a result the plaintiff sustained injuries ("the first accident")."

12 There then follows a set of particulars particularising the duties which the appellant performed from July 1992, particulars of the appellant's lack of qualifications and particulars of so-called "excessive work" between certain dates. In par 8 the "injuries" referred to in par 7 were said to be "psychological depression" and "anxiety disorder".

13 The second claim arises from a fall which the appellant had at work on 26 March 1996 in consequence of which she suffered physical injuries to her back, left hip, knees, left calf and left ankle. She was off work for some time and claims to have residual disabilities which are likely to be permanent.

14 The third claim arises from an incident which happened in May 1996 when the appellant was embarrassed by the disclosure by the respondent to a co-worker of "confidential comments" which the appellant had made to a superior about that person. This is claimed to have aggravated and/or exacerbated her depression and anxiety disorder.

15 The Judge dismissed all three claims. The appeal is only against the dismissal of the first claim. The grounds of appeal run to five pages but come down to this. The trial Judge should have found that the appellant was given duties and hours of work which were calculated to and did place her under so much physical and mental strain that it was foreseeable that, and there was a risk that, she might develop psychiatric or psychological disorders or illnesses; and that the illnesses which she did develop were indeed caused by those circumstances.

16 There was evidence from three eminent psychiatrists, of whom the two principal witnesses were Professor Peter Burvill and Dr Peter McCarthy. There was some disagreement between them as to the nature or perhaps more accurately the extent or severity of the appellant's condition and sharp disagreement as to the cause of it. Professor Burvill expressed the opinion that the appellant suffered from a major depressive disorder which was caused by workplace pressures brought about by overwork. Dr McCarthy was prepared to concede that the appellant may have suffered from a major depressive disorder at one time but gave the opinion that at the time he examined her in June 2001 (some two months before trial) whilst she did suffer from depression and anxiety she was not suffering from a major depressive disorder; and her depression and anxiety had not been caused by the work she was required to perform or by long hours

17 The Judge preferred the evidence of Dr McCarthy to that of Professor Burvill.

18 The Judge's findings as to the extent of the appellant's illness was that she had a psychiatric illness in the form of depression sufficiently serious to render her unfit for work but that it was not caused by the work she was required to perform or by long hours or, if it was, it was not foreseeable that the work she was required to perform or the amount of overtime which she worked would cause her to suffer psychiatric illness; and psychiatric illness from these causes was not a risk of which the respondent ought to have been aware.

20 Whilst there was evidence that the appellant was kept extremely busy, at least at times, in the years between early 1993 to March 1996 and worked a lot of overtime and that quite a lot of the work which she had to do was work which persons with a higher level of formal education and training would usually be engaged to do, the question whether this actually caused the psychiatric illness was essentially a medical question. It was a matter of expert medical opinion upon which the experts differed. In order to make good her case on the issue of causation the appellant had to persuade the Judge that Professor Burvill's opinion as to causation should be accepted. Professor Burvill did not see the appellant until 16 September 1998, more than a year after she had left the respondent's employment. He found it impossible to obtain a coherent history from her and reported this fact to her solicitors who had referred the appellant to him. Their solution was to send to Professor Burvill a copy of her detailed proof of evidence. With the assistance of that proof of evidence and subsequently with assistance from the appellant's husband who sometimes came with the appellant to see Professor Burvill he was able, he said, to reach more confident conclusions as to the nature and extent of her illness and as to the causes of it. It appears from Professor Burvill's reports and his oral evidence that he relied upon two matters as important indicators pointing to over work as having been the main cause of the appellant's psychiatric condition. These were that there was a slow onset of depression which she herself attributed to over work; and that this depression was exacerbated by an unheeding attitude on the part of the respondent to her persistent complaints of overwork and stress. As he said in his report of 25 October 1999:

"In my opinion her employer's requirement for her to perform excess duties during the 1996 period, and the failure of them to respond to her complaints, materially contributed to Mrs Wylie's current psychiatric condition."

21 In his evidence in chief Professor Burvill said this in respect to the above statement in the report:

"The situation you are talking about there - she is a fairly conscientious person, giving her major priority to work, probably pushing herself very hard at that time. I don't think this just occurred just in that year [1996]. The history I have got was that she had been under some stress in that workplace, building up over some time before that time but it became particularly acute during that time, plus the fact that also during that time she had fallen on something and injured herself and was off for two months. Her physical condition was another aggravant at that time. There was a whole lot of things happening with her life which were sort of mounting..."

22 The trial Judge was not persuaded to accept Professor Burvill's opinion as to the connection between the appellant's psychiatric condition and stress of over work for two main reasons. In the first place he had the evidence of the appellant's general medical practitioner, Dr Henderson, who had been seeing the appellant since June 1995 about various ailments and the appellant made no complaints to him of work related stress. Whilst the appellant did on one occasion mention feelings of anxiety, this was at a time when the appellant had been away from work on leave for two months. The Judge concluded that the feelings of anxiety about which she complained and for which she was prescribed medication did not have anything to do with the workplace. Because the information which Professor Burvill acted on as regards the onset of symptoms of stress was not consistent with Dr Henderson's contemporaneous record the Judge did not regard Professor Burvill's opinion as soundly based. Secondly, his Honour found that the information which Professor Burvill was given to the effect that the appellant made complaints to the respondent about overwork and stress and that these complaints were ignored by the respondent was simply wrong. His Honour found that the appellant had not made the complaints in question and therefore her health could not have been affected by her complaints being ignored. Therefore in this respect also Professor Burvill's opinion was ill-founded.

23 The appellant's counsel, Mr Marshall, contended that in so far as the Judge's preference for Dr McCarthy's opinions to those of Professor Burvill depended on the finding that the history of complaints on which Professor Burvill's opinion was based was factually incorrect the finding overlooked the evidence of fellow employees, especially one of the appellant's superiors, a Mr Wells. Mr Marshall submitted that if the Judge had not overlooked Mr Wells' evidence and the evidence of other fellow employees who were called, or if he had given their evidence proper weight the Judge would have accepted that the appellant did continually complain to no avail about her developing condition of stress and anxiety.

24 The first thing to be said is that it was not the appellant's pleaded case that her condition was exacerbated by the failure of the respondent to respond to complaints which the appellant made to fellow workers such as Mr Wells. It is quite clear that this aspect of the appellant's case depended on proof that she made complaints to a particular senior employee of the respondent, Mr McAullay, who was the Assistant Director of College Services. The plea is:

"7.16 From about May 1992 to September 1996 the plaintiff informed the defendant, its servants or agents, that she was unable to cope with her workload and requested assistance in the performance of her duties.

7.16.1 From May 1992 until October 1994 the plaintiff had regular meetings with Mr McAullay, Assistant Director of College Services in the employ of the defendant, where she requested that the defendant employ a formally trained librarian.

7.16.2 In about October/November 1994 the plaintiff and her co-workers reported to Mr McAullay that the librarian was unable to cope with her duties. The plaintiff and her co-workers requested further assistance from the defendant. This was refused by Mr McAullay.

7.16.3 Between November 1994 and September 1995 the plaintiff on at least three occasions advised Mr McAullay and other employees of her difficulty running the library due to her excessive workload and the stress she felt as a result.

7.16.4 Between July 1996 and September 1996 the plaintiff made numerous complaints to Mr McAullay of the defendant regarding the difficulties she was having coping with her duties."

25 Mr McAullay did not support the appellant's pleaded case and the appellant's evidence that she made complaints to him was not believed by the Judge.

26 On behalf of the appellant Mr Marshall contended that nevertheless there was in fact a large body of evidence, principally that of a Mr Wells, concerning the way in which the appellant was being affected by her employment circumstances all of which the Judge overlooked.

27 Typical of the evidence relied on by Mr Marshall was the following evidence of Mr Wells (AB386):

"I saw Mrs Wylie at the end of that year [1995] acting out of character with what I had seen before. She was becoming - I saw her becoming more and more argumentative over small issues that prior to that would not have caused her to argue with some members of staff. She was becoming more and more tired on a regular basis. She was becoming run down in that she was tired... I observed her becoming late for work, again being argumentative, having lapses of concentration in data entry --- errors in data entry. They were increasing."

28 I would observe in passing that this portion of Mr Wells' evidence contradicts what the appellant herself told Dr McCarthy as to the onset of her emotional problems, namely that they did not begin until the fall at work in March 1996 and secondly, it contains opinion evidence which Mr Wells was not qualified to give namely, that the appellant "was becoming more and more tired" and that she was "becoming run down". The more fundamental problem for the appellant is that the evidence does not bear upon the critical issue upon which she had to succeed in order to make good her case. Evidence of the kind set out above is not directly probative of the fact that the appellant was suffering from or developing a psychiatric illness, neither could the Court of trial be asked to infer from that evidence that she was. If evidence of this kind is sought to be relied upon as proof of the existence of a psychiatric condition it could only be by using the evidence as proof of facts upon which expert medical opinion was based. So far as I can see none of the expert medical witnesses was requested to base his opinion on the evidence given by Mr Wells and the appellant's other fellow workers as to her behaviour. It is not surprising to me that his Honour paid little attention to it.

29 Dr McCarthy saw the appellant on two occasions for a total of about 21/2 hours in July 2001. He wrote a very detailed report and gave evidence and was extensively cross-examined.

30 In his report Dr McCarthy wrote that he had great difficulty in obtaining a detailed or coherent history but the history that he did eventually obtain indicated that the appellant "enjoyed her work, enjoyed the challenge of her work and was pleased with her progress through the ranks". He reported that whilst she indicated irritation with what she saw as the deficits of others "at no time did she claim that the work was too much for her nor was there any indication that she felt stressed as a result of having to do higher duties". Whilst she did acknowledge that she suffered feelings of distress, Dr McCarthy wrote that she related this to "her relationship with her fellow workers, to her accident in March 1996 and to what she sees as a lack of acknowledgement of her efforts by her employers".

31 Under a heading of his report "History of Psychiatric Related Symptoms" Dr McCarthy reported:

"This lady is adamant that her emotional problems began when she fell over at work in March 1996. She believes that as a result of the fall she injured her back and complains of continuing pain and physical disability. She states that from the time of the accident she developed a variety of emotional symptoms but has great difficulty describing those symptoms. Despite being asked repeatedly about her mood she is unclear about her mood although her husband volunteered that she had been irritable. She states she has been tearful and keeps to herself and avoids people. She says she has disturbed sleep, from which she wakes frequently and attributes that to her back pain. I was unable to obtain an answer on questions about her memory, concentration or feelings of hopelessness, worthlessness, guilty or suicidal ideation, despite frequent attempts."

"It seems likely that she has suffered from symptoms compatible with a major depressive disorder at sometime in the last few years. I received the history from both her and her husband that her depressive symptoms only began in 1996 and they deny any previous symptoms."

"This lady is suffering from depressive symptoms, however I am simply unable to persuade myself that her presentation is due to any specific events in the workplace and particularly not to specific events in the workplace years ago. I would agree there appear to me significant intrinsic personality factors at work here as well as what I think would be best described as very considerable abnormal illness behaviour."

"This woman and her husband suggested to me that her emotional difficulties began in 1996 following a fall. Neither suggested to me she had any emotional problems prior to that time. I note she has had a number of non-work stressors, particularly affecting her family, including difficulties with her daughter, family illness and a temporary separation from her husband. She was unable or unwilling to expand on her non-work life or to discuss non-work related stressors. Since I believe that her extra-ordinary presentation is almost impossible to attribute to the events she describes, I think it is likely that non-work related stressors or personality factors are very significant in her presentation, although I do not have sufficient information from her on these matters due to her general vagueness and dramatic, tearful avoidance of discussion."

"I did not receive any suggestion that she found the requirement to carry out higher duties onerous, but rather it appeared to me that she sought the opportunity and was keen to advance herself through the ranks of her employment. To do this she was required to work substantial amounts of overtime but she appeared to me to actually seek higher duties and overtime rather than have it forced on her."

"The only one of the three injuries which I would entertain as possibly significantly contributing to her distress, would be her fall and the subsequent pain and disability."

"On the history I have received this lady through her own energy was able to function in her roles although she appears to have been somewhat intolerant of any contradiction. The issue does not appear to me to be that she was in some way forced to perform duties at a level for which she was not trained, but rather she, in her view, did not receive the promotion, recognition and acknowledgement that she believes she deserved."

"I do not believe ... that her psychiatric condition is primarily due to workplace events, however the experience at work may have had some role as a stressor. I think her psychiatric condition is predominantly due to non-work factors, particularly her personality. It appears to me it is not that she was required to work above her level of training and skill, but rather that she aspired to advance herself in the organisation and was frustrated by being reduced to her substantive Level 1 position."

39 As has been mentioned, Dr McCarthy was extensively cross-examined but counsel was not successful in making any inroads into Dr McCarthy's written report nor was he successful in persuading Dr McCarthy to change any of the opinions which he expressed in that report.

40 Taken as a whole Dr McCarthy's written and oral evidence was to the effect that whilst the appellant was exposed to some "stressors" associated with the workplace which may have contributed in some small degree to the depressive condition from which he found the appellant to be suffering the "stressors" did not include the performance of higher level duties or the requirement to work significant amounts of overtime as alleged in par 7 of the statement of claim. The Judge was entitled to accept this evidence and acceptance of it involved rejection of the appellant's claim.

41 As to the issue of foreseeability with respect to the common law claim of negligence and the issue of "risk" with respect to the claim under the Occupational Safety and Health Act his Honour said this:

"96. ...

If the illness were so caused it would be necessary for the plaintiff to establish that it was foreseeable that she should suffer psychiatric illness as a consequence of working long hours in areas where she was not qualified. I accept that the plaintiff was working long hours and that many of the tasks performed by her were tasks for which she had no formal training. I accept that it was foreseeable that the plaintiff could become tired from that work and her work performance could suffer, however I do not accept that it was foreseeable that as a result of that work the plaintiff would suffer a psychiatric illness.

97. In my view there has been no breach of contract or of the Occupational Safety and Health Act 1984 by the defendant because there has been no failure to take reasonable care for the plaintiff's safety."

43 As to foreseeability I can find no evidence upon which the court of trial could have based a conclusion that the respondent ought to have foreseen that the workplace environment which it provided to the appellant and the duties it called on her to perform and the hours that she worked might result in her suffering a psychiatric illness or any disabling illness. On the evidence as a whole and as the trial Judge found, the appellant gave every outward appearance of enjoying her work very much, at least until her fall in March 1996. The self assessments that she provided under the respondent's staff assessment system reflect this. As his Honour noted, she made no negative statements in these forms about her work situation but instead wrote "in positive terms about her opportunities to work at a high level". There was evidence that until her fall the appellant actively sought higher duties and was pleased to work overtime.

44 The claim in so far as it was based upon an allegation of common law negligence inevitably failed on the issue of foreseeability. Failure to prove foreseeability is of course also fatal to the claim in so far as it was based on contract, the contractual obligation being identical in content to the common law duty.

45 We heard no argument as to the applicability of the Occupational Safety and Health Act to a case of work related stress. Accepting that exposure of an employee to working conditions that may result in injury to the mental health of the employee is within the ambit of s 19(1) it is certainly not suggested that the section imposes strict liability. Section 19(1) obliges the employer to "so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards...". The word "practicable" is defined to mean "reasonably practicable having regard to... the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring" as well as "the state of knowledge about... the injury or harm to health... the risk of that injury or harm to health occurring... and the means of removing or mitigating the risk or mitigating the potential injury or harm to health". In turn "risk" in relation to any injury or harm means "the probability of that injury or harm occurring". Therefore, there can hardly be any doubt that in an action under the Act objective knowledge of risk of harm would have to be proved - that is, it would have to be proved that a reasonable employer in the position of the respondent would have appreciated that there was a risk of harm to the appellant's mental health in the circumstances. See the discussion in Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998 and Ertech Pty Ltd v Reid, unreported; SCt of WA; Library No 9174; 6 December 1991. There was no evidence that a reasonable employer in the position of the respondent would have appreciated that if the appellant continued in her position, performing the duties that she was performing, there was a risk that she would suffer psychiatric illness in consequence of the pressure of that work.

46 Mr Marshall did not submit that even if the claims based upon common law negligence and contract and the Occupational Safety and Health Act were properly dismissed a claim ought to have been allowed under the Public Sector Management Act. It is not clear to what extent, if at all, this claim was pursued at trial. There is no mention of it in his Honour's judgment and there is no complaint about that in the grounds of appeal.

47 There is one other matter that should be mentioned. The effect of the evidence of both Dr Henderson and Dr McCarthy was that the first real signs of a depressive disorder or anxiety state emerged only after the appellant had suffered the fall at work on 26 March 1996 and they gave evidence to the effect that the appellant may have been quite deeply affected by the lack of sympathy shown to her and by her inability to obtain a favourable resolution of her claims in respect of the physical injuries she sustained in that fall. Dr Henderson related the onset of depression and anxiety to that fall and its aftermath. There was some support for this from the psychiatrists. Professor Burvill accepted that the aftermath of the fall probably exacerbated her depressive illness. Dr McCarthy reported that the appellant was herself "adamant" that her emotional problems actually began from the fall. As has been mentioned, her claim for damages in respect of injuries arising from that fall was ultimately dismissed. In expressing his reasons for concluding that the appellant's psychiatric illness was not caused by the hours which she was required to work and the level of duties she was called on to perform his Honour said:

"84. I conclude from my findings as to what occurred in the course of the plaintiff's employment and from Dr Henderson's evidence that excessive hours or duties did not cause the plaintiff to become ill. The plaintiff developed her psychiatric illness following her fall in March 1996. It may have been caused by the pain and loss of mobility following the fall and it may have been caused or contributed to by her perception of a lack of acknowledgment of the injuries suffered in the fall. It was not caused by the excessive hours of duty."

...

88. I conclude therefore that following the plaintiff's fall in March 1996 she developed psychiatric illness. Her illness was aggravated by the consequences of

Ms McDonald becoming aware of the plaintiff's comments about her at the meeting to discuss the Rockingham library."

48 Mr Marshall submitted that this amounted to a finding which was not open on the pleadings or in light of the manner in which the trial had been conducted; and that therefore the trial miscarried.

49 I cannot accept this submission. The Judge was perfectly aware of what the issues were on the pleadings and at trial. The evidence of Dr Henderson and Dr McCarthy relating the onset of psychiatric problems to the fall was not objected to. It was to some extent confirmed by the evidence of the appellant's own witness Professor Burvill who accepted that the issues concerning the fall at work may well have contributed to the appellant reaching what Professor Burvill described as her "breaking point". It was part of the whole of the evidence for his Honour to consider. I think he was quite entitled to point to it as a matter of significance. He is to be understood as saying no more than that on the evidence as a whole there was another and more likely explanation for the onset of the appellant's psychiatric disorders than an inability to cope with her duties and hours of work.

51 STEYTLER J: I have had the advantage of reading the reasons for decision of Anderson J. I agree with them. There is nothing that I can usefully add.