Mr Gregory Johnson (the plaintiff) was an employee of Berry Street Victoria Incorporated (the defendant), a foster care, child protection, youth and family services agency, as a residential care worker at its Kialla premises (the Kialla premises). The plaintiff was a member of a team with responsibility for a “difficult, controlling, complex young teenager with a criminal history”2 referred to as ‘OJ’ (OJ).
On 13 April 2007 (the 13 April incident), OJ informed the plaintiff he had been subjected to sexual abuse by a male friend of his mother. The plaintiff alleged OJ then “looked me straight in the eye and said ‘you know, you look exactly Ð exactly like that man’.”3
In the course of evidence-in-chief, the plaintiff asserted his older brother sexually abused both his younger brother and himself, relevantly stating, “the memory of the sexual abuse by his older brother É had been repressed until shortly after the 13 April incident”.4 The plaintiff said that no enquiry was ever made of him by the defendant about a history of prior sexual abuse, nor had he disclosed that history.
On 17 April 2007 (the 17 April incident), a staff meeting for the carers of OJ took place where the senior manager of Specialist Adolescent Care Services for the defendant, Ms Margaret Bell (Ms Bell) learned of the 13 April incident and encouraged the plaintiff to seek counselling. In this discussion, Ms Bell first became aware of the plaintiff’s own allegation of past sexual abuse. The meetingÕs run sheet noted the 13 April incident had a significant impact on the emotional welfare of the plaintiff. On 19 April 2007, the plaintiff attended a counsellor recommended by Ms Bell, who continued to encourage further counselling, referred him to the independent and confidential Employee Assistance Program, and offered work with other young people, stating, “that’s part of our process in terms of staff not being disengaged from the workplace”.5 Ms Bell confirmed the plaintiff had been provided with specific training for the proposed care team established to care for OJ. The plaintiff participated in this training and had access to OJ’s file, setting out his history, and disclosing his history of sexual abuse.
A Disease/Near Miss/Accident (DINA) form completed by the plaintiff and Ms Bell noted the 13 April incident “raised personal history causing feelings of anxiety and stress”.6 The plaintiff next worked with OJ on 20 April 2007. On 23 April 2007, the plaintiff informed Ms Bell he could not work with OJ or any other children for an undetermined period of time.
The plaintiff returned to work in August 2007, undertaking basic administrative tasks to minimise one-on-one contact with clients in care. On 31 August 2007 (the 31 August incident), the plaintiff was confronted by OJ, an interaction which the plaintiff stated left him severely traumatised. By way of an Amended Statement of Claim, the plaintiff claimed the 31 August incident exacerbated the psychiatric injury sustained as a consequence of the 13 April incident.
The plaintiff commenced proceedings alleging severe psychological injury in the course of employment due to the negligence of the defendant. The plaintiff based the case in negligence against the defendant on the following two matters:
The defendant denied any acts of negligence and maintained that at all times it acted with appropriate care and consideration for the plaintiff. Senior counsel for the defendant submitted that due to the plaintiff’s own family and psychiatric background, he would have suffered psychiatric injury in any event.
Rush J dismissed the plaintiff’s claim and gave judgment for the defendant. His Honour was not satisfied the defendant was negligent in allowing the plaintiff to continue to work with OJ following the 17 April incident. No express or implied indication was made at this time of the plaintiff’s psychiatric health being in danger by continuing to perform normal duties as required.
His Honour further dismissed plaintiff’s counsel’s submission that but for the 31 August incident, the plaintiff would have continued to work. Histories provided by the plaintiff to treating medical practitioners and medico-legal practitioners failed to highlight the 31 August incident as exacerbating the plaintiffÕs extant condition or his ability to return to work. Both the plaintiff and the defendant had also recognised minor client contact was a possibility in the return to work program. Rush J held the incident to be a random occurrence, not one which would equate to breach of duty of care.
Reasonable action by an employer
Rush J held that reasonable care following the 17 April incident did not demand further action beyond a cautious approach in referring the plaintiff for counselling. An intervention by Ms Bell requiring her to stand the plaintiff down for employment or investigate his psychiatric background would not have constituted reasonable action.
The plaintiff was considered to have fastened on to a risk not reasonably regarded as significant at the time of the 13 April incident. His presentation following the 17 April incident was not such that a reasonable employer should have anticipated the plaintiff to be at risk. The plaintiff did not have manifest signs of psychiatric problems or an inability to perform. Rush J noted such a perception of the risk could indeed depend on “the vagaries and ambiguities of human expression”, “the dignity of employees” and their right to be free from any form of harassment.7
Further, his Honour held the description in the DINA form of the impact of the 13 April incident on the plaintiff and the run sheet note completed during the 17 April incident did not advance the plaintiffÕs case and did not demonstrate negligence on behalf of the defendant.
Failure of medical evidence to establish causation
Rush J held the medical evidence confirmed that the 13 April incident was the precipitating event which brought on the plaintiffÕs psychiatric symptoms of post-traumatic stress, depression and anxiety, but that it was not sufficient to establish causation.
Clinical psychologist, Mr M Creamer, said the 13 April incident was the final precipitant of the plaintiffÕs “breakdown”, stating the plaintiff was “too psychologically vulnerable to be working in residential care for disturbed adolescents”.8 Ms C McGregor, psychologist, considered while the 13 April incident triggered the plaintiffÕs condition, it was probable he would have experienced the impact of his past history of family violence and abuse regardless.
Rush J held that the plaintiffÕs allegation that work following the 17 April incident caused his current injury could not be established. Rush J accepted that while the plaintiff may have mentally declined following the 17 April incident, there was no support for the proposition that continuing to work after the 17 April incident caused continuing psychiatric injury or the plaintiff’s current incapacity.
This case serves as a reminder that while foreseeability is assessed by the overt characteristics of the person affected9, a reasonable employer will not be held to the same standard as a psychiatrist or mental health professional that may be capable of foreseeing risk of injury.
Rush JÕs decision reaffirms that the relevant duty of care of an employer to provide a safe system of work is not without limit. In appreciating the extent of an employerÕs duty to take reasonable care to avoid exposing their employees to unnecessary risk, the benefit of “litigious hindsight”10 must not obscure that this non-delegable duty will not extend toabsolute consideration for an employeeÕs mental health, even in objectively stressful occupations.