NEGLIGENCE – Workplace injury – Psychiatric injury – Duty of care – Foreseeability – Content of duty to avoid psychiatric injury to employee – Terms of employment contract
The content of the duty of care that the defendant owed to Mr Doulis
519 In Koehler v Cerebos (Australia) Ltd, McHugh, Gummow, Hayne and Heydon JJ stated:
The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions … Consideration of those obligations will reveal a number of questions that bear upon whether … an employer’s duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee.
What is important is that questions of the content of the duty of care, and what satisfaction of that duty may require, are not to be examined without considering the other obligations which exist between the parties.
520 The authorities decided since the decision in Koehler pay particular attention to whether the employee has given signs of distress to the employer that might indicate risk of psychiatric illness. The risk must be perceptible and a response of the employer must have been required to the perceived risk.
521 For instance, in the recent Victorian Court of Appeal decision, Larner v George Weston Foods Ltd, an employee was unsuccessful in a psychiatric illness claim, as the Court accepted the trial judge’s findings that the employee did not give any indication of being vulnerable to psychiatric injury and that there was no reason for the employer to have appreciated that he was at risk of psychiatric illness in performing his duties.
522 Hindsight is not to be used in determining the content of the duty of care.
523 Work stress is not, by itself, an indicator that an employee is at risk of a psychiatric injury. In Taylor v Haileybury, in which the plaintiff also was a teacher, Beach J stated:
Teaching, like other professions, is clearly a busy profession. As was said by a number of the witnesses, teachers (busy professionals with occupations of considerable responsibility) often complain about workloads. Undoubtedly, the same might be said of members of any profession. The short point is that while one might always be capable of constructing a case with hindsight about what might or might not have constituted a risk of excessive stress and/or a risk to mental health, nothing in the evidence in this case leads me to conclude that there was any basis, during the course of the plaintiff’s employment, for the defendant to suspect that the plaintiff’s mental health was at risk as a result of his workload.
524 Keane JA in Hegarty v Queensland Ambulance Service stated:
It must be said immediately that, while an employer owes the same duty to exercise reasonable care for the mental health of an employee as it owes for the employee’s physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. 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.
525 In Hardy v Mikropul Australia Pty Ltd, J Forrest J stated:
In addition to it being necessary to establish that the injury was reasonably foreseeable, the court [in Koehler] held that [the] following factors are relevant in determining the content and scope of the duty of care of the employer:
- the contract of employment;
- the nature and extent of the employee’s work;
- any signs from the employee concerned (for example, in the form of express warnings or the implicit warning that may come from frequent or prolonged absences that are uncharacteristic); and
- an assumption that the employee taking on the employment is capable of doing the job.
The court also concluded that insistence upon the performance of a contract of employment could not amount to a breach of the duty of care owed by the employer. Indeed, it was irrelevant that the employee’s workload may have exceeded the industry standard.
526 In Larner v George Weston Foods Ltd, the Victorian Court of Appeal stated:
The Court [in Koehler] emphatically repudiated the view that there is ‘only one question’ to ask where an employee claims damages from an employer for negligently inflicted psychiatric injury, namely, ‘whether this kind of harm to this particular employee was reasonably foreseeable’, stating: ’That proposition should be rejected’. The initial question must lie in determining the content of the duty of care and the kinds of steps required of an employer in the particular circumstances of the case, informed, in particular, by the terms of the contract of employment.
The factors that are most likely to be relevant in determining the content of the duty of care, and what is required of an employer to satisfy the duty of care it owes, include both the nature and extent of the work being done by the particular employee; ‘and the signs from the employee concerned — whether in the form of express warnings or the implicit warning that may come from frequent or prolonged absences that are uncharacteristic’.
An employee’s agreement to perform those very duties which are later found to be a cause of psychiatric injury may be of considerable significance in determining whether an employer has breached its duty of care. As the High Court said:
An employer may not be liable for psychiatric injury to an employee brought about by the employee’s performance of the duties originally stipulated in the contract of employment. In such a case, notions of “overwork”, “excessive work” or the like have meaning only if they appeal to some external standard … Insistence upon performance of a contract cannot be in breach of a duty of care.
An employer’s obligations under a contract are not to be read subject to a duty to excuse performance if performance is injurious to psychological health, nor to be qualified by hindsight. In the absence of warning signs, an employer can assume that someone who enters into a contract of employment believes himself or herself to be capable of performing its duties:
[S]eeking to read an employer’s obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employerlater acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.
527 In Koehler, the High Court stated:
The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.
528 In this case, the question is whether a reasonable employer, in the position of the State of Victoria acting through the Principals of the College, particularly Mr Butyn and Mr Hatzis would, at the relevant time, September 2003, have foreseen that there was a risk of Mr Doulis suffering a recognised psychiatric injury because of his class allotment.
529 I will now state, or restate, my findings of fact that are relevant to the question of the knowledge of the College, or a reasonable employer in the position of the College, about Mr Doulis’ work commitments and environment and the risk of him suffering a work-related psychiatric injury.
530 Mr Doulis’ contract of employment obliged him to teach classes as directed by the College Principal, with the possible qualification that the classes were at his level. The defendant was entitled to assume that Mr Doulis could perform his obligations under the contract.
531 Mr Doulis had only had six or seven years’ experience as a teacher and he received no training and little mentoring to assist him in teaching low classes and foundation classes.
532 Mr Doulis had, at least initially, been an enthusiastic teacher of low classes and foundation classes. However, he had lost his enthusiasm for those classes by the end of 2002.
533 Mr Doulis had a high number of challenging low classes and foundation classes. In the first semester of 2003, he had the highest, or near highest, number of low classes and foundation classes, which were taught by one teacher, of any of the 100 teachers at the College, as contrasted with foundation classes that were team-taught. In the second semester of 2003, he taught nine periods of low classes and foundation classes each week.
534 Mr Doulis’ high allocation of low classes and foundation classes may have been due to his initial enthusiasm to teach those classes. However, after the first years of teaching them, Mr Doulis found them extremely difficult to control and teach and his enthusiasm waned.
535 Mr Doulis found that he could not cope with teaching those classes.
536 Prior to September 2003, the College did not have notice of his mental illness or disorder due to teaching the low classes and foundation classes.
537 Mr Doulis had complained at work, including to the Assistant Principals, about his sleeping problems, particularly after the birth of his children. He had also mentioned matters that suggested he had some financial issues. In 2002 and 2003, he often appeared tired and dishevelled at work and no longer presented as the enthusiastic teacher he had initially been.
538 In the meeting on 8 September 2003, Mr Doulis was in a distraught state and told Mr Lentini and Mr Hatzis that he could not cope with all his classes. He complained of lack of sleep. Mr Hatzis considered that, given Mr Doulis’ state, the College would be negligent in allowing him to teach and that he needed to obtain some sleep.
539 Mr Butyn attended at least part of that meeting.
540 Mr Butyn left to the Assistant Principals the question of any adjustment to Mr Doulis’ class allotments. Mr Hatzis had control of the allotment of classes.
541 The College allowed Mr Doulis paid sick leave in order to obtain some sleep.
542 Mr Doulis told Mr Butyn, in his letter of 11 September 2003, that he was suffering a high level of stress due to the nature of classes that he had been allotted. He found it necessary to give up his non-teaching duties at the College. The letter was an important step taken by Mr Doulis to bring his condition to the attention of Mr Butyn as the Principal of the College.
543 On 12 September 2003, Ms Curran, a psychologist, diagnosed Mr Doulis as having a major depressive condition and recommended that he go on WorkCover leave. He did not take that advice and did not tell the Principals of the diagnosis or the advice.
544 After Mr Doulis returned to work in September 2003, Mr Boyer informed Mr Hatzis that Mr Doulis needed his teaching load changed and was clearly not coping.
545 The College did not reduce Mr Doulis’ number of low classes and foundation classes for the remainder of 2003.
546 After Mr Doulis returned to work, the College did not put in place any formal monitoring of him, nor enquired about his condition.
547 Mr Doulis did not make further complaints to Mr Butyn after September 2003 but attempted to continue with his teaching.
548 In Mr Doulis’ request for subject allotments for 2004, which was made the next month, October 2003, he sought an allotment of subjects that did not include low classes and foundation classes.
549 In late 2003 and in 2004, Mr Doulis looked tired and dishevelled at work.
550 Mr Doulis took less sick leave in the first months of 2004 than in previous years but in those months he was suffering from depression.
551 I return to the statements I have previously made about the lack of credibility that affects much of Mr Doulis’ evidence when it is not supported by other evidence that I able to accept. Each of the findings of fact that I have made in the preceding paragraphs is supported by evidence other than that of Mr Doulis. I therefore consider that Mr Doulis’ case is able to be assessed by reference to those findings of fact.
552 Based on those findings, I consider that a reasonable person in the position of the Principal and Assistant Principals, who attended the meeting on 8 September 2003 and received the letter of 11 September 2003, would have realised that Mr Doulis was at risk, which was a significant risk, of sustaining a recognisable psychiatric injury, because of the difficulties that he was experiencing in teaching low classes and foundation classes.
553 That risk was reasonably foreseeable to the Principals.
554 I have reached that conclusion for a combination of the following reasons and factors.
555 First, I do not consider that a reasonable person who attended the meeting and received the letter would have attributed Mr Doulis’ condition just to lack of sleep caused by personal issues. Problems in private life can affect the ability of an employee to perform duties at work and particularly challenging duties at work can exacerbate private problems. In circumstances in which Mr Doulis was saying that he could not teach all his classes, Mr Butyn and Mr Hatzis should have concluded that there was a real risk that his teaching allotment of low classes and foundation classes would cause him to suffer a psychiatric illness. Attributing his condition solely to private problems was not a reasonable response by the Principals. Mr Doulis’ condition in the meeting of 8 September 2003, and the contents of the letter of 11 September 2003, did not support a view that the only significant causes of his condition were sleep difficulties and other personal problems.
556 Mr Doulis had a very high level of low classes and foundation classes that were difficult to control.
557 Mr Doulis’ tired and dishevelled appearance suggested that he was not coping with his teaching duties.
558 Mr Doulis’ distraught condition in the meeting of 8 September 2003 indicated that he was at risk of psychiatric breakdown. At that point he was not in a condition to teach.
559 Mr Doulis’ letter of 11 September 2003 advised Mr Butyn that he was experiencing very high stress of such a degree that he was abandoning his non- teaching duties.
560 Mr Boyer informed Mr Hatzis of the difficulties that Mr Doulis was encountering with his teaching load.
561 The factors that I have set out have, of course, to be assessed in the context of the Principals’ knowledge that Mr Doulis suffered from sleep problems. But, I consider that a reasonable person with their knowledge would have recognised that his condition was also work-related.
562 The combined notice and knowledge gained by Mr Butyn, as Principal of the College, and Mr Hatzis, as Assistant Principal in charge of the timetable, were sufficient to give the College notice of the risk that Mr Doulis might develop a psychiatric condition because of his teaching allotment.
563 I consider that Mr Doulis’ statements in the meeting of 8 September 2003 and in the letter of 11 September 2003, when taken together with the other factors that I have mentioned, were sufficient to bring his condition to the attention of Mr Butyn and Mr Hatzis. Mr Hatzis did not see the letter of 11 September 2003, but he was present at the meeting of 8 September 2003.
564 Mr Doulis bears the onus of establishing that, in the circumstances, the College was obliged to take steps to reduce or minimise the risk of him suffering a recognised psychiatric injury. I consider that he has established that the College’s duty did extend to taking steps to minimise the risk to him of psychiatric injury.
565 Keane JA in Hegarty v Queensland Ambulance Service stated:
The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff’s problems.
566 In my opinion, a reasonable person, with the knowledge available to Mr Butyn and Mr Hatzis in September 2003, would have modified Mr Doulis’ duties, by removing or lessening his low classes and foundation classes, providing him with support and directing that he take any sick leave that he required. A reasonable person would also have monitored his condition when he returned to work and enquired from time to time about his well-being. Such enquiries would probably have revealed that he continued to have great difficulty controlling and teaching the low classes and foundation classes.
567 The College’s actions, in permitting Mr Doulis to have some days off for sleep, might have formed part of an appropriate response to the College’s duty of care, if it had been combined with the other actions that I have mentioned, when Mr Doulis returned to work. But that did not occur and the College did not act on the basis that Mr Doulis had any work-related problem.
568 Mr Doulis had raised his work difficulties with the College and I therefore do not see any barrier to reaching these conclusions, because of the private and personal nature of psychological illnesses.
569 Nor is there a need for some external standard against which to determine if Mr Doulis’ work was unduly onerous, in circumstances where a reasonable person would have perceived that there was a risk that Mr Doulis would develop a recognised psychiatric illness.
570 Nor do I see any issue about whether the interventions would have been appropriate or would have ameliorated Mr Doulis’ condition. I consider the medical evidence that relates to the likely effectiveness of steps that could have been taken in September 2003 to address Mr Doulis’ condition when I deal with the question of causation. However, the steps that I have stated that the College should have taken in satisfying its duty of care to Mr Doulis were a matter of common sense. Particularly Mr O’Neil and, to some extent, Mr Butyn, recognised that in their evidence. They said that if they had known of the effect of Mr Doulis’ low classes and foundation classes on his mental health, they would have changed or reviewed his allotment (Mr O’Neil), or looked at some alternatives, if that was possible (Mr Butyn).
571 I do not consider that a reasonable person would have relied on Mr Doulis to fix the problem himself by the measures that he proposed, of lessening his non-teaching duties or seeking to teach elsewhere. The latter suggestion appears to have been principally made by Mr Doulis with the aim of achieving his educational goals. The fact that Mr Doulis would write in the terms contained in the letter of 11 September 2003 to his Principal, demonstrated the seriousness of his situation.
572 I consider that the College did breach the duty of care that it owed to Mr Doulis in September 2003, and thereafter whilst he worked at the College. It did not lessen his low classes and foundation classes until 2004, and then not completely, and it did not monitor him or otherwise support him after his return to work.
573 The College Principals directed that Mr Doulis take two days of sick leave, but on his return they did not monitor him or speak with him about his medical condition or well-being. Nor did they put in place any support measures for him.
574 The requirement that Mr Doulis take two days of sick leave to gain some sleep was not done to alleviate the risk that he might suffer a psychiatric illness.
575 The College did reduce his low classes and foundation classes in 2004, but he still experienced considerable difficulty in teaching that allotment.
576 I consider that Mr Doulis has established that the College’s breach of duty was a cause of his chronic severe major depressive condition.
577 Dr Tagkalidis received, and took into account, a history that Mr Doulis provided, which I have not accepted as accurate. This included that Mr Doulis had been complaining about his class allotments for a number of years, that he had been bullied by an Assistant Principal, and that rumours had been spread at the College about his relationship with his wife. Ms Curran and Dr Epstein also received a history along those lines.
578 However, I accept Dr Tagkalidis’ evidence that, if Mr Doulis’ condition had been addressed in September 2003, his condition may not have reached the point that it has. Dr Tagkalidis identified Mr Doulis’ teaching allotment as a major cause of his depressive condition.
579 The fact that Mr Doulis had other stresses in his personal life does not reduce the effect of Dr Tagkalidis’ finding that he suffered a depressive condition in September 2003 that was exacerbated by the failure to address it. Ms Curran diagnosed Mr Doulis as suffering from a significant depressive condition in September 2003.
580 I have taken into account that Mr Doulis had other pressures in his life, some of which were, as he perceived, the result of conduct of teachers at the College.
581 While there can never be certainty, it is probable that the monitoring of Mr Doulis by senior College staff in the period September 2003 to May 2004 would have assisted in avoiding the development of his current recognised psychiatric illness. I also consider that, had Mr Doulis’ workload of low classes and foundation classes been reduced, and if he had been supported in his teaching duties, then it is probable that his psychiatric condition would not have deteriorated to his current chronic severe major depressive condition.
582 There is necessarily some uncertainty about the effectiveness of the measures that I have found the College should have taken. On one view, Mr Doulis would have developed his chronic severe major psychiatric illness regardless of any steps taken by the College. However, taking into account the evidence of Dr Tagkalidis, I consider that it is probable that if the measures that I have mentioned had been taken, then he would not have developed that condition.
583 I have taken into account that Mr Doulis may not have been suitable for a teaching career. He encountered difficulties in dealing with staff at two other schools after he left the College, but by then he had developed a depressive condition.
584 I have also considered the significance of Ms Curran’s opinion that Mr Doulis already had a major depressive condition in September 2003. However, the fact that he was able to resume teaching in 2005 suggests that in September 2003 it was not too late to take steps that would have avoided him developing his current chronic severe major depressive condition.
585 Mr Doulis is therefore entitled to damages.
586 I repeat that Mr Doulis did not pursue or establish any claim for breach of contract or in reliance on the Regulations.
587 The first issue is the amount of damages that Mr Doulis is entitled to receive for pain and suffering and loss of enjoyment of life. His counsel pointed to the contrast between his former life, in which he was an active, outdoor, bubbly person, and his present life, in which he was said to be a shell of his former self, with suicidal thoughts. His regular medication and treatment is of limited assistance. He cannot participate fully in his family life and this places great strain on his wife. He can barely cope with the most basic tasks at home. He cannot make decisions and is in a state of permanent fatigue. Ms Doulis’ evidence supported that account of his present condition.
588 The defendant submitted that Mr Doulis’ claims about his level of disability should be treated with caution. It was suggested that his condition will improve once the litigation has ceased. Reliance was also placed on the fact that he did not enjoy unblemished health when he started working for the defendant.
589 I consider that the first point to take into account is that Mr Doulis has suffered a serious mental disturbance of which the defendant’s conduct was a cause.
590 I have previously set out the severity of Mr Doulis’ illness. I am satisfied that the impact of his illness has been very significant. I accept the description of Mr Doulis’ current life that his counsel summarised and the difficulties that it presents to him. The contrast with his previous outgoing life is marked.
591 I award Mr Doulis damages for pain and suffering and loss of enjoyment of life in the sum of $300,000.
David Cormack – Brisbane Barrister & Mediator