Australia: Employers not necessarily liable for psychiatric harm to employees who are stressed or overworked

In brief - Employees fail to establish that employers breached duty of care

In separate decisions, two employees who sustained psychiatric injuries in the course of their employment in Victoria were denied damages in recent decisions of the Supreme Court of Victoria and the Victorian Court of Appeal.

Psychiatric harm not reasonably foreseeable

In two recent cases, the employees failed to establish that their employers breached a duty of care to avoid psychiatric injury because it was found that it was not reasonably foreseeable that they would suffer psychiatric injury.

In Taylor v Haileybury [2013] VSC 58, Haileybury College was found not to be liable for the psychiatric injuries suffered by a former teacher at the school as a result of overwork and stress. Taylor claimed that the school had responded inadequately to the risks of him developing a psychiatric injury and failed to develop an adequate treatment plan in order to prevent his foreseeable injury.

In Brown v Maurice Blackburn Cashman [2013] VSCA 122, a salaried partner of Maurice Blackburn Cashman (MBC) claimed damages for psychiatric injury which she claimed to have developed as a result of being systematically harassed, undermined and bullied by a more junior salaried partner after returning from maternity leave. (For more information about this case please see Law firm successfully defends against a claim of bullying.)

Large teaching load and additional duties in Taylor v Haileybury

Taylor was employed at Haileybury between early 2005 and May 2007 as a French teacher. He ceased employment due to the "unreasonable and excessive stress and strain placed upon him by being given a weekly face-to-face teaching load which was too large as well as too many additional duties". Taylor claimed that Haileybury breached the terms of his employment contract by requiring him to work more than the maximum hours stipulated.

Although Taylor had never consulted a psychiatrist for treatment, nor taken any psychotropic medication for his condition, at trial Haileybury did not dispute that since May 2007 Taylor had been suffering a major depressive illness.

Risk of psychiatric harm and employer's duty of care

The principles governing the scope and content of the duty of care owed by employers to employees involving psychiatric harm are well settled in Australia. An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.

The content of an employer's duty in psychiatric harm cases is determined by asking the question whether, in all the circumstances, the risk of an employee sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful ( Koehler v Cerebos (Australia) Ltd [2005] 222 CLR 44).

The duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable, having regard to the nature and extent of the work being done by the particular employee and signs given by the employee.

Employee did not communicate his health concerns sufficiently

In Taylor it was held that requiring Taylor to work a "full load" did not expose him to risk of injury where he had failed to indicate he was suffering any adverse heath effects. Taylor had sent Haileybury two emails regarding his workload concerns, in addition to verbal complaints made to other teachers. He argued that his communication to Haileybury of his concerns had required the school to take action to alleviate his risk of developing a psychiatric illness.

However, Justice Beach concluded that there were insufficient communications between Taylor and the school that would have placed them on notice that his workload was adversely affecting his psychiatric health. It was held that a retrospective approach to the emails (the fact Taylor now suffers from a psychiatric illness) cannot be read into the interpretation of the communications between Taylor and Haileybury.

Further, Justice Beach held that he was not satisfied that the risk of Taylor suffering psychiatric harm would have been alleviated by the creation or implementation of additional policies.

Complaints which did not mention health risk did not engage employer's duty of care

The Court of Appeal in Brown (the leading judgment being delivered by Osborne JA, with whom McCaulay AJA and Harper JA agreed) found that the trial judge did not err in concluding that it was not reasonably foreseeable that Brown would suffer psychiatric injury as a result of the performance of her duties. It was not until October 2003 that Brown gave advice to MBC that workplace stress was causing her health problems.

The complaints made previously by Brown to MBC did not make such injury foreseeable as they did not make any allegation of a health risk. The advice to MBC on 30 October 2003 that Brown had been seeing a doctor and that her health was suffering was a material sign of a more serious situation than that which Brown had previously advised her employer. It followed that a relevant duty of care was not engaged until that point in time.

Work-related stress and the risk of psychiatric ailments

Ultimately, the question the courts will always need to answer in these psychiatric harm from employment cases is whether, having due regard to the contract of employment or through notice of an employee, it was reasonably foreseeable that a particular employee would develop a psychiatric ailment as distinct from merely feeling "stress" associated with their work.

In Taylor Justice Beach was not persuaded to conclude with the benefit of "litigious hindsight" (at 139) that the defendant knew or ought to have known that Taylor was under stress and therefore at risk of psychiatric harm. Justice Beach did not doubt that Taylor's workload was heavy and he also accepted that teaching, like many professions and occupations, would have significant levels of stress associated with it, but without more, this was not sufficient basis for Haileybury to suspect that he was at risk of psychiatric injury.

No breach because psychiatric harm was not reasonably foreseeable

If psychiatric harm to a particular employee is established to have been reasonably foreseeable in the circumstances, the court will go on to consider whether there has been a breach of that duty of care and therefore negligence on the part of the employer. In so doing, the court will identify how a reasonable employer would respond to foresight of the risk of occurrence of psychiatric harm.

In Taylor, Haileybury was found not to have breached the duty of care owed because "[w]ithout the benefit of hindsight, there was no reason for [Haileybury] to suspect that the workload it required of [Taylor] placed him at any risk of psychiatric injury".

Employer responded appropriately to employee's complaint

Similarly, the Victorian Court of Appeal in Brown held that the trial judge was correct to find that Brown was not subjected to systematic harassment or bullying. The trial judge used the summary description of "trivial interoffice and interpersonal conflicts" to describe the objective seriousness of the acts of perceived harassment.

In the Court of Appeal's view, this accorded entirely with the weight of the evidence (at [191]-[192]). Further, the Court of Appeal found that MBC responded appropriately to the complaint made by Brown by facilitating an attempt at mediation upon being made aware of the risk to Brown's psychiatric health on 30 October 2003.

Outcome could be different if employers informed of risk to employee's mental health

Adopting the reasoning in Brown and Taylor, the outcomes for an employee claiming psychiatric harm in the course of employment may well be different if evidence is adduced that the employer was provided with a medical certificate or told that a doctor had been consulted because the employment was adversely affecting the employee's mental health.

Kirsten Hawker Rose Raniolo
Work health and safety
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions