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1 QUT Digital Repository: Butler, Desmond A. (2006) Psychiatric injury in the workplace: Directions for cases involving stress or bullying. Torts Law Journal, 14(2). pp Copyright 2006 LexisNexis

2 1 Psychiatric injury in the workplace: Directions for cases involving stress or bullying Des Butler * The High Court in Koehler v Cerebos (Australia) Ltd considered the liability of an employer for psychiatric injury from stress in the workplace. In so doing, it commented not only on foreseeability of psychiatric injury from stress, but also on the conduct of actions for an alleged breach of the employer's duties in relation to the employee's workload. This case informed the decision in New South Wales v Mannall, which concerned psychiatric injury from bullying in the workplace. This note considers both of these cases and suggests directions for cases involving other types of workplace bullying. 1. Introduction It has been 35 years since the High Court recognised in Mount Isa Mines Ltd v Pusey 1 that an employer's duty of care towards his or her employee was not limited to cases of physical injury but also extended to cases of psychiatric injury. In the intervening years the claims for psychiatric injury in a workplace context that have been considered by Australian lower courts have not been restricted to those involving the plaintiff himself or herself being injured or imperilled, 2 or witnessing the death, injury or imperilment of another. 3 Claims have included circumstances involving a less traumatic, but none the less still damaging, stressor arising in the workplace, such as bullying 4 or workplace stress. 5 The exact boundaries of the last of these claims -- workplace stress -- has always had the prospect of being problematic since it raises a number of potentially conflicting issues, including whether compensation is appropriate where the amount or type of work is undertaken voluntarily, whether all employees should be treated equally and whether certain amounts or types of work should be deemed in some way a 'normal' expectation with greater amounts deemed excessive or harmful. The High Court has recently had the opportunity to state its position on different types of psychiatric injury, including claims by so-called 'primary' victims 6 and 'secondary' victims. 7 Now, in Koehler v Cerebos (Australia) Ltd, 8 it has expressed its views in relation to common law claims for psychiatric injury arising from stress from overwork. In the process, the court may be seen to have continued its trend of emphasising greater personal responsibility, while disapproving of a practice that had developed at trial which focused primarily on the employer's common law duty in tort rather than contractual or statutory duties. Some of its statements may also be seen as having implications for other types of claims for psychiatric injury, such as

3 2 psychiatric injury resulting from bullying. In this connection, the NSW Court of Appeal in New South Wales v Mannall 9 drew on pronouncements in the Koehler case. 2. Stress from overwork: Koehler v Cerebos In Koehler v Cerebos the plaintiff was employed by the defendant company as a sales representative until she was retrenched. The company then re-hired her as a merchandising representative on a part-time basis, Monday to Wednesday, for a total of 24 hours each week. Despite her protests that she was required to visit too many stores in the time available, the company neither reduced the number of stores nor increased the plaintiff's work hours. Significantly, the plaintiff's complaints related only to her ability to do the work rather than any consequential health problems. The plaintiff reached a point where she felt as though she could not physically go on. She consulted her doctor complaining of aches and pains and difficulty in moving, thinking that she was having troubles from the physical side of her job. She was diagnosed as suffering from a psychophysical disorder called 'fibromyalgia syndrome'. After three months, anxiety and depression were thought to be complicating the plaintiff's condition and she was thereupon referred to a psychiatrist. At trial it was undisputed that the plaintiff was suffering from a recognisable psychiatric illness which had been caused by her work. The plaintiff claimed that her psychiatric condition had been caused by, alternatively, a breach by her employer of its common law duty to provide a safe system of work, a breach of an implied term of her employment contract, or a breach of a statutory duty based on the Occupational Safety and Health Act 1984 (WA). In accordance with the practice of such claims the action was tried largely on the basis of the alleged breach of common law duty on the ground that no different issues were raised by the other two grounds. At trial the District Court Commissioner held that the plaintiff's workload was excessive; that with its knowledge of the industry and the particular workload of the plaintiff, the defendant employer required no particular expertise to foresee a risk of psychiatric injury to the plaintiff; and that the defendant employer had been free either to increase the plaintiff's hours or provide her with assistance. The defendant's failure to follow either course meant that the plaintiff was entitled to judgment. On appeal the Full Court of the Supreme Court of Western Australia held that the question of foreseeability was determinative. In this case, the employer was held to have no particular reason to foresee a specific risk of psychiatric injury to the plaintiff. The appeal was therefore allowed.

4 3 In the High Court, two judgments were delivered. The main judgment was a joint one by McHugh, Gummow, Hayne and Heydon JJ. Callinan J, while delivering a separate judgment, reached the same outcome as the joint judgment. The joint judgment made a point of noting the practice of pleading the three causes of action but conducting trials solely on the basis of the alleged breach of the employer's common law duty to provide a safe system of work. Since the case had been conducted in this fashion in the courts below, the joint judgment regarded itself as obliged to address its disposition in terms of the tortious claim only. On that basis, there were two grounds for regarding the claim to have been correctly dismissed by the Full Court of the Supreme Court: the plaintiff's agreement to perform the duties that were the cause of her psychiatric injury; and the absence of any reason for the defendant to foresee the risk of psychiatric injury in the circumstances. Plaintiff's agreement to perform assigned duties In this case, the joint judgment attributed only limited significance to the plaintiff's agreement to perform the assigned duties. 10 It nevertheless noted that the plaintiff's agreement to perform the assigned duties was contrary to any contention that the defendant ought to have realised that performance of the tasks posed a risk to the plaintiff's psychiatric health. This was because her agreement to undertake the work not only evinced a willingness to try, but was also inconsistent with her entertaining a fear of danger to her health. In this context, the protests that the plaintiff made about performing the work within the time available did not at the time have the same significance that might be attributed to them in hindsight. 11 Presumably, an agreement will have greater significance in circumstances where the risk of psychiatric harm is readily apparent to the employee, who nevertheless agrees to perform the work. Naturally no such apparent risk arose in the case at hand. In the view of the joint judgment, concepts such as 'overwork', 'excessive work' or the like could only have meaning if they had reference to some external standard, such as an industrial standard, or whether the amount of work was injurious to health. 12 However, apart from the potential threat to legal coherency inherent on making the law dependent on outside control like industry-set standards, there was the matter of freedom of contract. Parties are entitled to contract as they choose, and they might freely choose that the employee is to work in excess of the industry standard amount, possibly in return for an increase in remuneration and/or advancement. 13 It would be a 'large step' for the common law to inhibit the making of such agreements. 14

5 4 Further, making performance subject to whether it might be injurious to health was also not without difficulty. Asking whether psychiatric harm could be sustained from performance of the work involved consideration of matters relevant to foreseeability. Certainly, Tame v New South Wales rejected 'normal fortitude' as a precondition to liability for a claim for psychiatric illness. 15 The joint judgment would not entertain reintroducing the concept into the field of an employer's liability to employees so as to expect some conformity to a norm of health as a precondition. Instead, reasonable foreseeability remained the central question. No reason for defendant to foresee risk of psychiatric injury The joint judgment thought that while it may be possible to say that as a matter of general knowledge some recognisable psychiatric illness might be triggered by stress, it was a much larger step to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work. 16 Such an assumption seemed to lie behind the District Court Commissioner's conclusion concerning foreseeability. Instead, an employer will be liable if psychiatric injury to the particular employee is reasonably foreseeable. This will require consideration of the nature and extent of the individual employee's duties and any signs he or she may be displaying. 17 Accordingly, any attempt to make performance subject to whether the duties were injurious to psychiatric health contradicted two basic principles. First, an employer engaging an employee to perform certain duties is entitled to assume, in the absence of evidence to the contrary concerning the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Secondly, the obligations of the parties are fixed at the time of the contract unless they are later varied. It is contradictory, therefore, to seek to qualify the operation of the contract on the basis of information the employer later acquires about the employee's vulnerability. Here there was no reason for the defendant to suspect that the plaintiff was at risk of psychiatric injury. There was no indication of any particular susceptibility nor at the time did the plaintiff suggest she was vulnerable to psychiatric injury or that the work was putting her at risk of such injury. Her complaints had been directed only to the amount of work, rather than to any potential danger to her psychiatric health. Indeed, when she first consulted her doctor, both she and her doctor believed that her problems were physical rather than psychiatric. 18

6 5 Callinan J delivered a judgment which was not dissimilar from the joint judgment in this respect. His Honour suggested that the plaintiff should fail at the threshold of foreseeability. He believed that it was far-fetched and therefore not reasonably foreseeable that a competent, seemingly well woman would suffer a disabling injury within six months of taking up a part-time position. 19 He too thought it significant that no witnesses who observed the plaintiff perceived any changes in her personality or any psychiatric symptoms and neither she nor her doctor believed in the first instance that she was suffering from a psychiatric illness. Other observations: claims for psychiatric illness in the workplace These comments were sufficient to dispose of the case in hand. However, the significance of the case will also lie in obiter comments in relation to psychiatric claims arising from workplace injuries. The joint judgment in particular indicated its disagreement with the practice that had evolved of pleading in such cases breach of the contract of employment as well as breach of statutory duty, but conducting the cases only on the basis of the common law. Instead, the joint judgment indicated that the scope of the duty which the employer owed to the employee could not be properly determined without taking into account the obligations which the parties owed to each other under the contract of employment as well as under any applicable statutory provisions, including both industrial instruments and legislation such as the anti-discrimination legislation. It is only when the contractual position between the parties, including the implied duty of trust and confidence between them, 20 is explored fully together with the relevant statutory framework that it is possible to give appropriate content to the duty of reasonable care upon which an employee claiming damages for psychiatric injury at work would seek to rely. 21 This includes the answers to a range of questions, including: o o o o o o Is the employer bound to engage additional workers to help a distressed employee? If the contract of employment stipulates the work which the employee is to be paid to do, may the employee's pay be reduced if the employee's work is reduced in order to avoid the risk of psychiatric injury? What is the employer to do if the employee does not wish to vary the contract of employment? Do different questions arise in cases where the employee's duties are fixed in a contract of employment from those that arise where an employee's duties may be varied by mutual agreement or at the will of the employer? If the employee is known to be at risk of psychiatric injury, may the employer dismiss the employee rather than continue to run the risk? Would dismissing the employee contravene general anti-discrimination legislation?

7 6 In other words, questions about the scope and content of the common law duty of care should not be settled until a full appreciation of the relationship between the parties in its proper context is obtained. This is done by also taking into account the other aspects delineating that relationship, including rights and obligations voluntarily conferred or assumed, as well as those implied, under the contract of employment, as well as the legislative framework designed to ensure, for example, safety and equal opportunity in the workplace. Appropriate content may then be attributed to the duty of reasonable care on which an employee claiming damages for psychiatric injury at work may seek to rely. There is a sense of restoration of personal responsibility in that part of the court's judgment dealing with the tortious duty of care. The trial court's judgment in this respect may be seen as an instance of a failure to properly recognise elements of the negligence equation. This phenomenon has previously been identified by, for example, McHugh J in Tame v New South Wales, 22 where his Honour referred to a previous tendency of trial courts to find that a duty had been breached merely where the risk of injury was foreseeable without fully considering the other essential question, namely whether a reasonable person would have taken precautions in the circumstances. The result was to make the plaintiff's task easier to achieve. The failing here was slightly different. Instead of reasonable foreseeability that the relevant circumstances might create the risk of psychiatric illness, the trial court held that it was sufficient for liability that the defendant know or ought to know of the relevant circumstances, in the form of overwork, since such knowledge was assumed to carry with it reasonable foreseeability of the risk of psychiatric illness. Naturally, this approach to foreseeability made it easier for the plaintiff to make her case, thereby passing responsibility for her illness to her employer, presumably a deep pocketed defendant. It stands to reason that many employers will be aware of the circumstances in which their employees are working without realising without more that those circumstances might be having a psychologically detrimental effect. The unfairness associated with equating foreseeability of circumstances with foreseeability of risk of psychiatric illness lies in the fact that unlike many physical injuries, the chief means of detecting most psychiatric injuries is through information provided by the individual. The situation becomes even more problematic when that individual is voluntarily performing the work, perhaps with a view to reward and/or advancement, and might be reluctant to volunteer that it is having a detrimental effect. The trial court's approach to foreseeability therefore has the potential to unfairly require defendant employers

8 7 to be mind readers by assuming that they have knowledge of the risk of psychiatric illness based only on their knowledge of the relevant circumstances. Whereas the District Court's approach overly favoured plaintiffs, following the High Court's decision in Koehler plaintiffs now face a substantial challenge in showing that in the circumstances the defendant ought to have reasonably foreseen the risk of psychiatric illness from workplace stress. The High Court itself thought it significant that when the plaintiff in Koehler was first medically treated both she and her physician thought that she was suffering a physical rather than psychiatric condition. 23 It would seem that the clearest way for the plaintiff to meet his or her burden in this regard will be to show that after being assigned a certain workload he or she actually suffered a recognisable psychiatric illness and on recovery was given the same workload. 24 In other cases the signs that the plaintiff is suffering a psychiatric illness will need to be overt to the employer, or to an officer of the employer of sufficient authority in the case of a substantial organisation. 25 A plaintiff may be prepared voluntarily to share with the employer the fact that he or she was undergoing treatment for a psychiatric illness, although even in today's more enlightened times some may feel a stigma attached to such a revelation. Indicia such as a change in personality may suffice in some cases, but in others may be open to differing interpretation by observers. Further, some individuals may be able to continue working without any apparent sign of prolonged depression, anxiety state or other psychiatric condition he or she might be suffering. Nevertheless, there may be some circumstances that involve an inherent risk to the psychological health of employees. In such a case, the employer may have a duty, where possible and appropriate, to perform some form of screening to determine whether the employee's personality is such that he or she ought or ought not to be undertaking the work, properly prepare the employee for the work whether in the form of training, provision of information or otherwise, and/or monitor the state of the employee's mental health Bullying: A different context for psychiatric injury at work Koehler v Cerebos dealt with a situation where the psychiatric injury results from work which is authorised under the contract of employment. Does the case have implications for cases involving psychiatric injury resulting from conduct or behaviour which is outside the terms of employment, including bullying behaviour? 27

9 8 New South Wales v Mannall In New South Wales v Mannall 28 the plaintiff was employed by the Department of Housing. She was promoted to the position of district officer at its Wagga Wagga office, answering to one Singh, the area manager stationed at the same office, who in turn reported to the regional director based at regional head office in Orange. The plaintiff was appointed in preference to an incumbent, who was aggrieved and who subsequently unsuccessfully appealed against the decision. The plaintiff found herself working alongside not only the previous incumbent, who had remained at the Wagga Wagga office at an inferior grade, but also a group of his supporters. The plaintiff alleged that she was subsequently subjected to a prolonged campaign of 'victimisation, harassment, humiliation and abuse'. This included being addressed in a demeaning and belittling way in front of others by Singh, insinuations by Singh that she had been favoured in her promotion, being shunned by staff of the Wagga Wagga office, being left out of meetings, having changes made to her team without being consulted and generally experiencing a lack of support from Singh as her superior. She recorded her complaint about the 'hostile environment' in the office in a letter to Singh, which she copied to the regional director. The regional director later wrote to Singh directing him to respond to the staff disharmony in the Wagga Wagga office. The plaintiff claimed that notwithstanding this direction and an apology from Singh, the belittling of her at meetings and elsewhere continued. At one stage the regional director telephoned her to say he was worried about her mental health. Eighteen months after the plaintiff's appointment the department appointed a consultant expert in human resources management to advise on the situation. However, the plaintiff by that stage was too incapacitated by an anxiety depressive disorder to resume work. The NSW Court of Appeal 29 upheld the finding that the defendant was vicariously liable for the negligence of Singh. There were unchallenged findings that Singh's responses had been tardy, unreasonably inadequate and sometimes entirely lacking when instead what was required was positive intervention in response to particular situations. 30 The court rejected the defendant's argument that the most Singh should have foreseen was that the plaintiff was being subjected to stress that was an inevitable concomitant of everyday life, particularly the life of a work supervisor, rather than a recognisable psychiatric illness. 31 It was true that there were times when the plaintiff kept up a reasonable facade at work as she struggled to cope, and that Singh's capacity to detect stressors likely to result in psychiatric injury was not to be measured as if he were a medical specialist. However Singh was a manager who knew that the plaintiff needed and was entitled to expect his assistance and cooperation. 32 Indeed, Singh was actually aware that at the critical times the

10 9 plaintiff was not coping and was at risk of suffering psychiatric injury as a result of the hostile work environment in which she found herself. The court held that this case did not involve the same 'fallacy' as that exposed in Koehler, where the trial judge was regarded as having failed to give due regard to the particular contractual arrangements when deciding that there had been negligence on the part of the employer in circumstances in which no reasonable employer would have foreseen the risk of psychiatric injury to the employee. Here there was evidence of the employer, through its manager, having actual notice of the plaintiff's mental breakdown. Merely because the plaintiff entered into a contract of employment as team leader did not mean that the defendant no longer owed a general duty of care as the employer. Neither did it relieve the employer, through its manager, from having any responsibility for the mental well-being of its employee as both the expected and unexpected pressures of the job visibly began to take a toll on her. 33 The consultant's report demonstrated that there were reasonably practicable means of avoiding the foreseeable risk available to the employer. Such measures as were recommended by the consultant were likely to have been effective in preventing the damage suffered by the plaintiff had they been implemented before it was too late. Singh's unreasonable failure to take such measures was held to have materially contributed to the plaintiff's mental breakdown and the damage she suffered. 34 Foreseeability of bullying A problem that arises with Mannall as a pointer for future bullying cases is the fact that the manager in that case was actually aware of the bullying behaviour exhibited by the company's employees towards the plaintiff. More problematic may be cases where there is no actual knowledge of such behaviour. 35 There are some distinctions to be drawn between bullying cases on the one hand and stress cases on the other. In the case of stress from overwork, as pointed out in Koehler, there is difficulty associated with making performance of the work subject to qualifications such as external industry standards or danger to health. The employee may agree to undertake the overwork, perhaps with a view to reward and/or advancement. By contrast, it seems that widespread concern at bullying in the workplace took hold in society in the second half of the 1990s, with unions insisting on industrial awards which required employers to develop policies which were designed to handle claims of bullying, harassment and victimisation in the

11 10 workplace. 36 No employment agreement is likely to authorise it as a feature of the employment, nor is an employee likely to agree voluntarily to be subjected to it. There is now widespread understanding of bullying and its significance as well as the widespread adoption of anti-bullying protocols and policies -- sometimes zero tolerance protocols and policies -- in workplaces, which may be incorporated into employment contracts. It is reasonable to suggest that an employer should be regarded as being able reasonably to foresee that any workplace may be the setting for bullying behaviour and that any employee may suffer psychiatric injury as a result of that behaviour. Accordingly, unlike most stress cases 37 it might be argued that in most if not all cases of bullying in the workplace, foreseeability -- even when cast in terms of being 'not insignificant' in accordance with recent tort reform legislation should not be a difficult test to satisfy. Naturally, this does not mean that the employer will necessarily be liable in all cases since, apart from anything else, it must be shown that a reasonable employer would have taken precautions which would have avoided the damage resulting from the bullying in the circumstances. This may be an important consideration when the bullying is subtle in form, and perhaps kept concealed from even fellow workers. In addition the plaintiff must show that as a result he or she suffered damage in the form of a recognised psychiatric illness rather than any of the array of other responses to bullying such as mere discomfort, upset or annoyance. 4. Conclusion The decree in the joint judgment in Koehler of a change in practice in the case of claims for psychiatric injury in the workplace, requiring courts to determine the extent of the common law duty by taking into account the contractual relationship and relevant statutory duties, should lead to a richer understanding of the relationship between the particular employer and employee, although no doubt at extra cost in terms of court time, effort and money. While such a change in general approach may apply consistently to different types of workplace claims, there may still be differences. The test of foreseeability in stress claims requires foreseeability of not only the stressor, such as a heavy workload, but also the risk of the employee suffering psychiatric injury. Setting aside cases where such a risk may be regarded as inherent, this may be a difficult burden for the plaintiff to discharge when the same workload in kind and amount may be manageable for one worker but oppressive for another. By contrast, nowadays knowledge of the risk of bullying in any workplace and of its potential to cause long lasting psychological damage is widespread in the community. It is commonly the subject of policies and industrial awards, and highly unlikely to be permitted even under individually negotiated workplace agreements. It is suggested, therefore, that the risk of psychiatric injury from bullying be regarded as readily foreseeable by all employers.

12 11 * LLB (Hons), PhD; Professor, Faculty of Law, Queensland University of Technology. 1 (1971) 125 CLR 383; [1971] ALR See, eg, Keeys v Queensland [1998] 2 Qd R 36; McDonald, Wilson and Shepherd v New South Wales (2001) Aust Torts Reps (NSW CA). 3 See, eg, Rogers v Brambles Australia Ltd [1998] 1 Qd R 212; New South Wales v Seedsman (2000) 217 ALR See, eg, Midwest Radio Ltd v Arnold (1999) EOC ; New South Wales v Jeffery (2000) Aust Torts Reps (NSW CA). 5 See, eg, Gillespie v Commonwealth of Australia (1993) Aust Torts Reps Tame v New South Wales; Annetts v Australian Stations (2002) 211 CLR 317; 191 ALR Ibid; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR (2005) 214 ALR [2005] NSWCA 367 (unreported, 28 October 2005, BC ). 10 (2005) 214 ALR 355 at [28]. 11 Ibid, at [29]. 12 Ibid. 13 Such a scenario may become more common under the individual workplace agreements regime enacted by the Federal Government: see Workplace Relations Amendment (Work Choices) Act 2005 (Cth). 14 (2005) 214 ALR 355 at [31]. 15 Ibid, at [33]. Note, however, that a 'normal fortitude' precondition has been introduced under the recent tort reform legislation in most, but not all, jurisdictions: see Civil Law (Wrongs) Act 2002 (ACT) s 34; Civil

13 12 Liability Act 2002 (NSW) s 32; Civil Liability Act 1936 (SA) s 33; Civil Liability Act 2002 (Tas) s 34; Wrongs Act 1958 (Vic) s 72; Civil Liability Act 2002 (WA) s 5S. Queensland and the Northern Territory still apply the common law in this respect. 16 (2005) 214 ALR 355 at [34]. 17 See also Hatton v Sutherland [2002] 2 All ER 1 at [26]-[27]. 18 (2005) 214 ALR 355 at [41]. 19 Ibid, at [55]. 20 If such a term applies in Australia, as it does in England: see, eg, the discussion in Heptonstall v Gaskin (No 2) (2005) 138 IR 103 (NSW SC) at [18]-[24]. 21 Barber v Somerset County Council [2004] 2 All ER 385 at 398 per Lord Rodger. 22 (2002) 211 CLR 317; 191 ALR 449 at [98]-[102]. 23 Australian law has long required reasonable foreseeability of a recognisable psychiatric injury, as opposed to some other form of injury: see, eg, Mount Isa Mines Ltd v Pusey (1971) 125 CLR 383; [1971] ALR 253. The reaffirmation of this approach in Koehler v Cerebos amounts to a continued rejection of any notion that in primary victim cases -- which could be said to include stress cases in as much as there are only two parties involved in the form of the plaintiff and the defendant -- reasonable foreseeability of some form of personal injury, whether physical or psychiatric, is sufficient, as stated in Page v Smith [1996] AC 155; [1995] 2 All ER Walker v Northumberland County Council [1995] 1 All ER 737. In such cases, where the defendant is regarded as not liable for the original psychiatric injury, the extent of the defendant's liability may be limited to any aggravation of that condition. 25 Cf Petch v Customs and Excise Commissioners [1993] ICR 789; Dickson v Creevey [2002] QCA 195 (unreported, 6 June 2002, BC ) at [18]. 26 See, eg, the facts in Seedsman v New South Wales (2000) 217 ALR 583 (police constable transferred to unit dealing with child abuse without adequate training or monitoring); Bougoure v Queensland [2004] QCA 485 (unreported, 17 December 2004, BC ) (police officer assigned to undercover duties for two years,

14 13 requiring him to act, dress and live as a member of the criminal subculture, including participation in the use of drugs, with great risk to his life if he was exposed). See also New South Wales v Burton (2006) Aust Torts Reports (NSW CA) (failure to provide treatment and counselling to police marksman after traumatic episode); New South Wales v Fahy [2006] NSWCA 64 (unreported, 4 April 2006, BC ) (failure to provide support to female police officer after traumatic episode). 27 Indeed, the two stressors may coincide. It is conceivable for an employer to bully an employee into undertaking an excessive workload resulting in psychiatric illness. Apart from anything else, such a scenario may be a test for the new system of industrial relations enacted by the Federal Government. 28 [2005] NSWCA 367 (unreported, 28 October 2005, BC ). 29 Mason P delivering a judgment with which Giles and Tobias JJA agreed. 30 [2005] NSWCA 367 at [121]-[125]. 31 Based on O'Leary v Oolong Aboriginal Corp Inc (2004) Aust Torts Reports (NSWCA) (bookkeeper returning from leave to discover that in his absence his employer had removed his books of account and computer, moved his workspace to a veranda area, and withdrawn his ability to sign cheques, due to suspicions he had misappropriated funds (although this was never put to him)). The court held by majority that the employer could not have reasonably foreseen a risk of psychiatric illness in the circumstances, only some form of workplace stress, and that the bookkeeper's psychiatric illness was an idiosyncratic response. 32 [2005] NSWCA 367 at [116]. 33 Ibid, at [126]. 34 Ibid, at [168]. It was acknowledged that the plaintiff had access to formal grievance procedures, which she belatedly had resort to, attended a stress management course, and eventually spoke to more senior management about her perceived problems with the previous incumbent and Singh. It was held that these matters might have had relevance if a defence of contributory negligence had been pressed, but had no relation to Singh's negligence or the defendant's vicarious liability: ibid, at [128]. 35 The bullying behaviour discussed in this article is presumed to be unrelated to any attribute or characteristic which might attract discrimination laws and which, as stated in Koehler, may help shape the common law duty of care owed by the employer: see, eg, Naidu v Group 4 Securitas Pty Ltd (2005) EOC (NSW SC).

15 14 36 Dickson v Creevey [2001] QSC 340 (unreported, Moynihan J, 18 September 2001, BC ) at [33]- [35]. 37 But similar to those stress cases that involve, for example, inherent risk of psychiatric injury: see above n Civil Law (Wrongs) Act 2002 (ACT) ss 42-43; Civil Liability Act 2002 (NSW) s 5B; Civil Liability Act 2003 (Qld) s 9; Civil Liability Act 1936 (SA) ss 31-32; Civil Liability Act 2002 (Tas) s 11; Wrongs Act 1958 (Vic) s 48; Civil Liability Act 2002 (WA) s 5B.

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