* The information provided below is a basic overview of the law concerning psychiatric / psychological injury sustained in the context of work. This area of law is very intricate and complex. The particulars concerning an individual worker’s psychiatric / psychological injury will significantly influence whether an employer and / or a fellow worker can be held legally accountable for the injury. In order to protect your legal rights, we recommend that you contact us to organise a free, no-obligation consultation with one of our Accredited Personal Injury Law lawyers to discuss the particulars of your injury.
The law does provide recourse for a worker / employee who has suffered a psychiatric / psychological injury in the context of their work if the circumstances and nature of their injury meet particular criteria.
To determine if an injured worker can make a common law claim (once the statutory phase has ended) against their employer for the worker’s psychiatric / psychological injuries, essentially, the worker needs to establish that their employer was negligent.
Basically, four legal questions are asked in order to determine if an employer was negligent and thus, may be held accountable for an employee’s psychological or psychiatric injuries:
- Did the employer have a duty of care?
- Did the employer breach their duty of care?
- Did the worker suffer a psychological or psychiatric injury arising out of, or in the course of, their employment?
- Was the psychological or psychiatric injury caused by the breach of the employer’s duty of care?
Employer’s duty of care
In the context of an employer to employee relationship, duty of care means that an employer has a legal obligation to avoid causing their employee’s harm. Of note, this duty extends only to harm that is reasonably foreseeable.
This duty of care is non-delegable. Put simply, this means that an employer cannot “wash their hands” of their responsibilities by trying to make someone else responsible for the health and safety of their workers.
The case of McLean v Tedman (1984) 155 CLR 306 clarified that an employer has a duty of care to:
- Provide a safe system of work; and
- Establish a safe system of work; and
- Maintain a safe system of work; and
- Enforce a safe system of work.
What happens if another employee caused the injury?
Depending upon the circumstances of the worker’s injury, an employer is vicariously liable for the actions of their employees (including management / executive). Thus, depending upon the circumstances of the injury, an employer can be held legally accountable if one of their workers caused the injury of another worker.
How do you determine if the employer breached their duty of care?
In order to determine if an employer breached their duty of care, the following questions have to be addressed:
- Would a reasonable employer have foreseen a risk of injury to the worker as a result of the employer’s conduct at that point in time?
- What would a reasonable employer have done in response to the foreseeable risk to the employee at that point in time?
Of note, with respect to determining whether an employer was reasonable or not the Court will take into account a number of factors including how burdensome it would have been for the employer to take precautions.
The employer’s conduct will be evaluated by the Court without the benefit of hindsight. For example, the Court would ask at that point in time when the injury was sustained, was the employer aware, or, should they have been aware of the risk of injury?
In determining if an employer has breached their duty of care i.e. the employer should be held accountable for their employee’s psychiatric / psychological injury, the Court will consider both legislation and case law.
How does a Court determine if an employee’s work is the cause of the employee’s psychiatric or psychological injury?
Before evaluating if an employer was responsible for an employee’s psychiatric or psychological injury, it has to be established that the worker actually sustained a psychiatric or psychological injury.
Expert assessment, in the form of a report addressed to the Court, should be sought from a psychiatrist, psychologist, neuropsychologist etc. This report will determine if the worker has a psychiatric / psychological injury resulting from their work.
In addition to the report, the Court will be guided by section 32(1)(b) of the Workers’ Compensation Rehabilitation Act 2003 (Qld) which outlines that a worker is considered to have sustained a compensable injury, if their employment was the major significant contributing factor to their psychiatric / psychological injury.
Furthermore, section 32(3) of the Workers’ Compensation Rehabilitation Act 2003 (Qld) outlines that an injury includes “…an aggravation of a psychiatric or psychological disorder, if the aggravation arises out of, or in the course of, employment and the employment is the major significant contributing factor to the aggravation.” Thus, in the event that a worker already had, for example, Anxiety, before they commenced work for the allegedly negligent employer, the worker can seek compensation if their anxiety was aggravated i.e. made worse because of the negligence of their employer.
Can an employer be held legally responsible for the actions or inactions of their management staff?
Just because an individual is employed in the position of management or an executive position, does not necessarily mean that the individual, or for that matter the company, is above the law. An employer can be held vicariously liable for the actions of their employees.
In determining whether an employer should be held vicariously liable for the behaviour of one of their workers, a number of legal questions have to be met including:
- Was the worker, who allegedly caused the injury, working within the scope of their role at the time they allegedly caused the other worker an injury?
- Did the worker’s employer know about the worker’s action or inaction (that lead to the psychiatric / psychological injury of the injured worker), or
- Should the employer have known of the need to do something about the conduct of the subject worker and they failed to do so?
- Did the employer’s action/ inaction lead to the injury of the injured worker?
An example of employer being held vicariously liable for the actions of one of their workers is the case of Robinson v State of Queensland (2017) QSC 165. In this case, the employer, the Queensland Government, was held responsible for the actions of their District Chief Executive Officer for a number of reasons including that the employer knew or, if they had acted reasonably, ought to have known, of the need to conduct a timely and determinative action regarding numerous vexatious and injurious complaints about a worker.
When is an employer not responsible for the psychiatric or psychological injury of an employer?
In addition to case law, the Court will also consider section 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) to determine if an employer did not breach their duty of care. The legislation states:
(1) A person does not breach their duty to take precautions against a risk of injury to the worker unless:
- (a)The risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
- (b)The risk was not insignificant; and
- (c)In the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things):
- (a)The probability that the injury would occur if care were not taken;
- (b)The likely seriousness of the injury;
- (c)The burden of taking precautions to avoid the risk of injury.
In addition to section 305B of the Workers’ Compensation Rehabilitation Act 2003 (Qld), section 32(5) prescribes that an employer will not be held accountable with respect to a worker’s psychological or psychiatric state in the following circumstances:
- Reasonable management action was taken in a reasonable way by the employer in connection to the worker’s employment. For example, an employer may not be held accountable if it was reasonable for the employer to demote, transfer, retrench or dismiss a worker; or
- The worker’s expectation or perception of what they consider to be reasonable action differs from their employer’s reasonable management action (and, ultimately, what the Court determines to be reasonable); or
- The action by the Regulator or an insurer, in connection with the worker’s application for compensation. For example, the employer will not be held accountable if WorkCover Queensland decides to cease payments.
Causation: Did the employer’s breach cause the worker’s injury?
In order for an injured worker to make a claim for their psychiatric / psychological injury, they have to prove that their employer breached their duty of care and this breach of their duty of care caused, contributed towards or aggravated the worker’s psychiatric / psychological injury.
Although there are other tests that help guide the Court with respect to determining whether the employer’s breach caused the worker an injury, section 305D of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) outlines the legal test for the causation.
This test is colloquially referred to as the “but for” test. “But for” the employer’s breach of their duty of care, would the worker have sustained an injury or, had an existing injury aggravated?
In order to protect your legal rights, we suggest that you contact one of our Accredited Personal Injury Law specialists for a free, non-obligation consultation to discuss the particulars of your circumstances.
