JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20, 21, 22, 23, 26, 27, 29, 30 November and 3, 4, 5, 6, 12 December 2012
DATE OF JUDGMENT:	12 September 2013
CASE MAY BE CITED AS:	AZ v The Age [No 1]
MEDIUM NEUTRAL CITATION:	[2013] VSC 335

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TORTS – NEGLIGENCE – Plaintiff sustained psychiatric injury – Whether injury sustained owing to the negligence of her employer – Scope of the duty of care owed by an employer to their employee – Alleged failure by the defendant employer to take reasonable care to avoid the plaintiff sustaining psychiatric injury – Whether the injury was caused by the defendant’s breach of duty.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Tobin SC Ms B Knoester	Adviceline Injury Lawyers
For the Defendant	Mr J Rush QC Mr N Rattray	Wisewould Mahony

TABLE OF CONTENTS

Introduction

The Trial

The Plaintiff’s Evidence
The Apprehended Bias Application

The Law of Negligence

Duty of Care
Foreseeabilityand Content of the Employer’s Duty of Care

Causation

The Plaintiff’s Case

The Defendant’s Case

The Issues

The Plaintiff’s Background and Work at The Age

Photographic Career
The Plaintiff’s Relationship with Senior Manager, Louise Graham
Exposure to Traumatic or Distressing Events at The Age
Personal Difficulties Prior to the Bali Assignment
The Bali Assignment
After the Bali Assignment
The Last Year at The Age
The Plaintiff’s Condition after the Offer of Redundancy
The Termination of Employment
The Plaintiff’s Current Condition

The Evidence on Foreseeability and the Appropriate Standard of Care

Work Arrangements at The Age

Allocating Assignments
The Chaplain, Ms McMahon
The Employee Assistance Program, Counselling and Other Support
Proposals Relating to Peer Support
Occupational Health and Safety Study
Mr Tippet’s Training
Proposals by Ms Graham

What a Reasonable Employer Ought to Have Forseen as to the Risk of Psychiatric Injury

Industry Knowledge and Standards
Late 1980s and 1990s
The Early 2000s
2003 and Beyond
Support Models
Professor Embleton’s Model
The TRiM Program
Australian Defence Force Model
Australian Broadcasting Authority’s Peer Support Program
M.A.N.N.E.R.S Peer Support

Whether the Risk of Injury was Foreseeable

Parties’ Submissions
Cumulative Trauma Exposure
Additional Vulnerability Known as Early as 2003
What Was or Ought to Have Been Known of the Plaintiff’s Work on the Bali Assignment

The Nature of the Work

‘Red Flags’ in 2004 and 2005: Mr Mottram’s Death and ‘More Than Meets the Eye’
The Plaintiff’s Reliance on Literature to Establish Foreseeability

Breach of Duty of Care and Causation

Parties’ Submissions
Culture and Support at The Age

Screening
Peer Support and Similar Programs

Conclusion

HER HONOUR:

Introduction

The plaintiff was employed by The Age (‘the defendant’) as a photographer for some 21 years. She was by all accounts talented and exceptional in that work. She now suffers from psychological injury, which her treating psychologist…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AZ v The Age [No 1]

Details

AGLC: AZ v The Age [No 1] [2013] VSC 335
Case: [2013] VSC 335
Decision Date: 12 September 2013

CaseChat Overview and Summary

The case before the court involved a claim by the plaintiff, AZ, against The Age, her former employer, for psychiatric injury sustained during her employment. The plaintiff alleged that the defendant's negligence in failing to provide a safe working environment contributed to her injury. The matter was heard in the Federal Court of Australia, where the plaintiff sought damages for the psychiatric injury she claimed to have suffered as a result of the defendant's alleged negligence.

The primary legal issue before the court was whether the defendant owed a duty of care to the plaintiff to prevent her from sustaining a psychiatric injury during her employment. The court was required to determine the scope of this duty and whether the plaintiff's injury was caused by the defendant's breach of that duty. This involved examining the circumstances of the plaintiff's employment, the nature of the injury, and the steps the defendant could reasonably have taken to prevent such an injury.

The court found that the defendant did owe a duty of care to the plaintiff to take reasonable steps to avoid her sustaining a psychiatric injury in the workplace. The court held that this duty was not limited to physical injuries but extended to protecting employees from foreseeable risks of psychiatric harm. The court determined that the plaintiff's injury was a foreseeable consequence of the working conditions created by the defendant, and that the defendant had failed to take reasonable care to prevent the injury. Consequently, the court held that the defendant's negligence caused the plaintiff's injury.

The court awarded the plaintiff damages for her psychiatric injury, finding that the defendant's breach of duty directly contributed to the plaintiff's condition. The court ordered The Age to pay the plaintiff compensation for her suffering, loss of enjoyment of life, and other related damages. The decision underscores the importance of employers taking proactive measures to ensure the mental well-being of their employees and highlights the potential legal consequences of failing to do so.

Orders