QUT - The Australian School of Philanthropy and Non Profit Studies Implications of this case Good workplace health and safety measures are essential in any work context. The avoidance of claims in negligence involving psychiatric injury should be dealt with in the first instance by having sound workplace policies and documentation in place, as well as counselling for employees who need it. These should be clearly communicated to employees. However, as Keane JA said in Hegarty v Queensland Ambulance Service (at [47]): ...the law’s insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee’s mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard.

1. Taylor v Haileybury [2013] VSC 58 (Supreme Court of Victoria, Beach J, 22 February 2013)
This was case involving a claim for damages in negligence and breach of contract following
psychiatric breakdown. The plaintiff was employed as a teacher of French at the defendant private
school between January 2005 and May 2007. He ceased work in May 2007 following a psychiatric
breakdown which he claimed was brought on by overwork at the defendant school. The plaintiff
claimed damages for pain and suffering and pecuniary loss, pursuant to section 134AB of the
Accident Compensation Act 1985 (Vic).
The plaintiff had never consulted a psychiatrist or taken any psychotropic medicine, apart from the
herbal remedy St John’s Wort. He had undertaken some psychological counselling. Nevertheless, it
was not disputed that he suffered from a major depressive illness. The school denied any liability.
The plaintiff taught French to years 5–8. The plaintiff’s case was that he was allocated 28 face-to-face
50 minute teaching periods per week in 2005, 29 in 2006 and 30 in 2007. He alleged that this was
excessive, and that his teaching load should have been no more than 25 teaching periods per week in
2005, and less in 2006–07 because he also undertook ‘head of house’ duties. The plaintiff claimed
that the teaching load place strain on him, and did not allow him adequate time for preparation and
other duties such as sport. In addition, he suffered from bullying and bad behaviour by students which
substantially increased his working time as he had to discipline all the students in his class via
detentions. The plaintiff submitted that he worked 66.85 hours per week.
The plaintiff was employed under an Australian Workplace Agreement (AWA) which was attached to
a letter of appointment. The letter of employment provided that:
.... As part of your teaching role, you are expected to participate in a range of duties beyond
classroom responsibilities. These duties may include attending up to two after-school
meetings, sports training, and professional development sessions each week of the school
year. You are also required to attend other meetings and professional development days at
the commencement of, and during, the school year. Some duties are performed at times other
than during the school day, including weekends. You would normally be required to take up
24 weeks of Saturday Sport supervision or equivalent, as negotiated with the Principal.
The AWA attached to the letter of employment set out teaching and extracurricular duties in detail. In
total, the plaintiff signed three AWAs with the defendant. All of these AWAs referred to a Staff Welfare
Document. Two Staff Welfare Documents were tendered in evidence, one undated, and one dated
2006. Both were detailed, but the 2006 document was more so. Both referred to the workload as
being 28 periods per week for junior school teaching, and 30 periods per week for middle school
teaching. However, these workloads were described as ‘flexible’.
Detailed evidence was taken. His Honour expressed the view that he was ‘less impressed’ with the
plaintiff’s evidence (at [104]) than with that of the defendant’s witnesses. His Honour concluded (at
[109]):
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. …. 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.
His Honour then reviewed the relevant law. In terms of contractual liability, was there a breach of the
AWA in this case? His Honour held that there was not. There were no stated maximum hours in the

2. documents in evidence. Moreover, both the letter of employment and the Staff Welfare Document
referred to flexibility in hours worked.
The leading case regarding psychiatric injury at work is Koehler v Cerebos (Australia) Ltd (2005) 222
CLR 44. In that case, the High Court rejected the proposition that reasonable foreseeability alone was
the determinant of the content of the duty of care in a psychiatric injury case. Also to be taken into
account were:
 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.
In addition, it did not matter that the hours of work exceeded the industry standard. As His Honour
said (at [141]) ‘whether a risk is perceptible at all may in the end depend upon the vagaries and
ambiguities of human expression and comprehension’.
His Honour said that the plaintiff’s case bore ‘the hallmarks of litigious hindsight’, a term first used by
Keane JA in Hegarty v Queensland Ambulance Service [2007] QCA 366 at [47], a decision with which
His Honour agreed. His Honour had no doubt that the plaintiff’s workload was heavy, but doubted that
it resulted in any psychiatric injury saying (at [144]):
The plaintiff has not established any breach of contract or negligence on the part of the
defendant. Further, the plaintiff has failed to establish that the creation or implementation of
additional policies, the education of staff contended for, the provision of further information or
training, the provision of counselling to the plaintiff or the offering of treatment to the plaintiff
would probably have alleviated the risk of the plaintiff suffering psychiatric injury. Additionally,
having regard to the histories given by the plaintiff concerning his various difficulties with a
particular student or students, it may be doubted that any particular reduction of the plaintiff’s
workload would have been likely to have made any difference in any event.
Therefore, the plaintiff failed to prove his case in either negligence or breach of contract.
The case may be viewed at: http://www.austlii.edu.au/au/cases/vic/VSC/2013/58.html
Implications of this case
Good workplace health and safety measures are essential in any work context. The avoidance of
claims in negligence involving psychiatric injury should be dealt with in the first instance by having
sound workplace policies and documentation in place, as well as counselling for employees who need
it. These should be clearly communicated to employees. However, as Keane JA said in Hegarty v
Queensland Ambulance Service (at [47]):
...the law’s insistence that an employer must take reasonable care for the safety of employees
at work does not extend to absolute and unremitting solicitude for an employee’s mental
health even in the most stressful of occupations. A statement of what reasonable care
involves in a particular situation which does not recognise these considerations is a travesty
of that standard.