Bersee v State of Victoria

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0045

ARTHUR BERSEE	Applicant
v
STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING)	Respondent

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JUDGES:	BEACH, NIALL and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2022
DATE OF JUDGMENT:	26 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 231
JUDGMENT APPEALED FROM:	Bersee v State of Victoria (County Court of Victoria, Judge Tsalamandris, 19 March 2021)

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NEGLIGENCE – Workplace injury – Psychiatric injury – Teacher alleging unreasonable and excessive workloads – When psychiatric injury was reasonably foreseeable – Whether respondent breached duty of care – Respondent took reasonable steps to avoid the risk of psychiatric injury – No breach of duty of care – Appeal dismissed.

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, Kozarov v Victoria [2022] HCA 12, considered.

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Counsel
Applicant:		Mr T Tobin SC with Ms S Bailey
Respondent:		Ms M Britbart KC with Mr SE Gladman
Solicitors
Applicant:	Patrick Robinson & Co
Respondent:	MinterEllison

BEACH JA
NIALL JA
MACAULAY JA:

The applicant is a secondary school teacher. He was employed as a woodwork teacher at Williamstown High School and by all accounts he is a committed and engaging teacher. The applicant has been diagnosed with a major depressive disorder and chronic anxiety, and suffers from panic attacks. He claims that these debilitating conditions were caused by, or aggravated by, the negligence of his employer and commenced a proceeding in the County Court seeking damages. That he suffered from these conditions and that they arose out of his employment were not in contest at trial. The dispute centred around whether the respondent had been negligent.
At the heart of the applicant’s claim was an allegation that he was subjected to unreasonable and excessive workloads due to:
(a)an increase in class sizes from 22 to 25 students from the start of the 2014 year;
(b)having to teach the enlarged cohort in a room that did not adequately or safely accommodate more than 22 students; and
(c)being required to teach alone, when a part-time teacher who assisted him retired at the end of 2013 and was not replaced.
As is common in negligence actions alleging psychiatric injury, the evidence and argument at trial were focused on the nature and content of the duty of care and whether the steps taken by the respondent were adequate to acquit the duty the common law imposes on it. More specifically, the issues resolved into four questions formulated by the judge in the following way:
(i)When was the risk of psychiatric injury to Dr Bersee reasonably foreseeable, such that the defendant’s duty of care to him arose?
(ii)Once the duty of care was enlivened, did the defendant exercise reasonable care in respect of Dr Bersee and was its response to his risk of psychiatric injury reasonable?
(iii)If yes to (ii) above, was the defendant’s negligence a cause of Dr Bersee’s psychiatric injury?
(iv)If so, in what sum should the court assess Dr Bersee’s pain and suffering damages, together with his past loss of earnings and future loss of earning capacity?[1]
[1]Bersee v State of Victoria (County Court of Victoria, Judge Tsalamandris, 19 March 2021) [5] (‘Reasons’).
As is implicit in the first two questions, the questions were framed on the basis that the duty of care arose, or was ‘enlivened’, after the commencement of employment and at some point during his service and depended on when psychiatric injury became reasonably foreseeable. As will appear, this analysis reflects an understanding of what the High Court said in Koehler v Cerebos (Australia) Ltd.[2] The applicant submits that this approach does not accord with, or requires some revision in the light of, the High Court’s recent decision in Kozarov v Victoria.[3] It will be necessary to return to that issue in due course.
[2](2005) 222 CLR 44; [2005] HCA 15 (‘Koehler’).
[3][2022] HCA 12 (‘Kozarov’).
Before coming to the argument it is necessary to refer to the judge’s findings of fact. Although there remains a dispute as to what should be made of the facts and in particular the significance of various communications made to those in charge of the school and what they said, or did not say, about the applicant’s vulnerability to psychiatric injury, there is little if any dispute about the primary facts. It is convenient therefore to take the facts primarily from the reasons for judgment which are comprehensive and clear.

The facts

The applicant was 68 years of age at the time of trial. In addition to a Bachelor’s degree in Arts he has a number of postgraduate qualifications, including a PhD in Urban Anthropology. In 2006, by which time he was an experienced teacher, he commenced work at Williamstown High School based at its Bayview campus which accommodated years 7 to 9. He was employed full time as a senior classroom teacher to teach woodwork, humanities and sailing.
From 2006 to 2010 the applicant taught 20 to 22 students in the woodwork room. From 2010 to 2014, there were 22 students in each class. The applicant said that within the woodwork classroom there were four square work benches which could each accommodate four students, two rectangular benches which could each accommodate two students, plus a teacher’s bench, which had two vices on it, such that it could also accommodate two students.
The applicant’s duties included:
(a)Teaching woodwork to the students, including the safe use of tools.
(b)Ensuring students were safe.
(c)Purchasing, preparing, and arranging materials for each class.
(d)Ensuring tools and machines were safe and in working order.
(e)Preparing lessons, including the preparation of projects and the theoretical components to be taught.
(f)Ensuring students’ work was stored safely.
(g)Assessing the students’ work based on theoretical, practical and design components, including marking exams and report writing.[4]
[4]Reasons, [24].
Between 2006 and 2013, the applicant had the assistance of a part-time teacher, Brian Mattherall, who worked three days per week. The two of them shared responsibility for ordering supplies for the students’ projects, maintaining the equipment and tools in the woodwork room, and ensuring the area was kept clear and safe for students.
On those days that Mr Mattherall did not work, the applicant was required to teach six periods straight. He found this very difficult, describing it as taking an ‘incredible toll’ on his ‘nervous system’.

March 2010 EduSafe report

As a result of being required to undertake a number of ‘six on’ days, on 29 March 2010 the applicant lodged a report, known as an EduSafe Report, on the school’s online Occupational Health and Safety system (‘the March 2010 EduSafe report’). The March 2010 EduSafe report was in the following terms:
I am a woodwork teacher. Over the last three years at least I have been allotted two, sometimes three, “six on” days per week.
Given my work setting, noise/stress levels and the constant need to be on alert for the possible dangers arising out of equipment use in a busy setting, added to the need to keep all equipment in a safe working order and the need to prepare materials in readiness for my classes etc, I find such an allotment inequitable and more seriously, unsustainable in terms of my health and overall wellbeing. I have alerted my principals to my concern in writing and verbally on numerous occasions. The matter has never been raised at the Consultative Committee level. Whilst I have never had my concern acknowledged in writing, I have been given verbal assurances that the various Principals involved that my situation would be addressed as a matter of urgency. My representative on the Consultative Committee, also the College’s OHS rep, has also confirmed that the matter would be addressed before the commencement of Term Two 2010. This has not happened. I currently still teach 2 consecutive 6 on days and in fact my current allotment involves teaching 19 periods straight without any preparation time.
I was offered an alternative timetable which split my two 6 on days. But this would have involved starting classes in a way which would further exacerbate the work load issues for me. I am now told that special efforts would be made to fix the issue for Semester two of this year but that nothing could be done for Term 2.
As matters stand, this work load issue has already adversely impacted on my physical wellbeing and, though the accumulated stress involved, on my family. My doctor tells me that the matter needs to be addressed now as a matter of urgency.
The applicant told his employer that he considered the hazard to have the potential to cause death or serious injury. In his evidence he said that at the time he was agitated, irritable, nervous, had difficulty sleeping and was drinking too much alcohol.
The March 2010 EduSafe report was provided to the college principal, Lisa Sperling.
At a meeting to discuss the issue, Ms Sperling told the applicant that to address his concern, there would need to be a change in the allotment of his classes, and he would be moved to teach some humanities subjects. The applicant completed the academic term and was then given leave for a term. When he returned in the second semester, his woodwork class load was reduced, and he taught Australian history instead. The applicant regarded the ‘six on’ issue has having been resolved.
In her evidence Ms Sperling said that the issue had been discussed at a consultative committee meeting. One proposal was to split some of the woodworking classes between the applicant and Mr Mattherall but this was not agreed to by the applicant. Ms Sperling said she considered the complaint seriously and wanted to alleviate the applicant’s concerns. She did not consider him to be highly stressed at the time.
The judge found that the March 2010 complaint was handled in a timely way and resulted in a complete resolution of the matter.[5] The judge noted that, despite the reference to him having seen a doctor at the time, no medical evidence was tendered to corroborate this and the judge concluded that had there been a medical issue, it was likely to have been short lived and not serious enough to warrant medication.[6]
[5]Ibid [245].
[6]Ibid [246].
The judge was not satisfied that the March 2010 complaint, in the absence of medical evidence and with no reported ongoing symptoms, was sufficient to alert the respondent that the applicant was at foreseeable risk of psychiatric injury.[7] The judge accepted that after this complaint was successfully resolved, the defendant was entitled to consider that was the end of the matter and the applicant did not have an enduring psychiatric vulnerability.[8]

November 2013 memo

[7]Ibid [247].

[8]Ibid [248].

A new industrial agreement covering state school teachers was made in July 2013. That agreement provided that teachers were contracted to work a 38 hour week, with a maximum of 20 face-to-face teaching hours, 10 hours for preparation and work directly related to teaching and 8 hours for other activities. The agreement provided for a maximum class size of 25 students, with schools asked to plan for the minimum practical class sizes possible given available resources.
In late 2013, following a process of consultation, the school decided to increase class sizes to 25 students for the start of the 2014 year.
Ms Sperling said that in 2013, the school projected a budget deficit for the 2014 year. After consultation, Ms Sperling concluded that the fairest way to deal with the budgetary concerns and address the deficit was to increase class numbers across the school and a timetable was set in accordance with that decision. She said that staff were provided with some assistance to cope with the change. The applicant was provided with an extra period for class planning, reducing his face-to-face teaching time by one period each week.
In November 2013, Helen Bacon, a teacher at the school and the school’s occupational health and safety representative, sent a memorandum to Ms Sperling and the consultative committee about the impact of the change in relation to the technology area, which included woodworking (‘the November 2013 memo’). She wrote:
As the staff OH&S Rep I am very concerned in the discussion of What is deemed a ‘Practical’ class in the school? In the last 5 years the Consultative Committee has given due recognition that the Technology area with the materials, tools, and equipment used has always been deemed practical.
Nothing has changed in the nature of this program.
What has changed is that the Technology & Design area accepted classes going from 22 to 20 in the last 3 years. From an OH&S perspective this did place constraints and stresses on those staff, but in good faith they accommodated the change.
In reviewing class sizes and claiming that a technology class can be deemed the same as the normal mix, is clearly a Hugh (sic) risk to the staff’s health & welfare & the students safety and welfare in classes that have a High level of activity, with materials and equipment that need constant supervision and monitorin (sic).
However the discussion should not be the size of the room, but the nature of the program and a understanding of the needs of each student in a Practical class. This is not a program where students can stay in their seats or quietly work unaided on a laptop computer.
Noise is a large part of a prac teachers day to day environment, any extra students will create both physical and emotional strains on the staff.
The Safety is paramount and this school can be proud of never having placed their staff at High risk.
Section 20 of the Act requires employers and other with duties under the Act to eliminate risks to health and safety so far as it is reasonably practicable. In Technology areas there are a number of functions where elimination or at least risk reduction is practicable.
There are other subjects in the school that could be easily deemed Practical but I have put forward my thought in regards to Technology as this has been your main focus of discussion. Having class sizes capped at 22 is a responsible approach to guarding against accidents, staff stress, workplace hazards, eg, noise and maintaining the quality of your programs and outcomes in the school overall.
Although the decision had been made to increase class sizes in late 2013, a consultant came to the school in January 2014 to conduct an occupational health and safety workplace plan assessment. The consultant made some suggestions about the layout of the woodworking room to assist in accommodating the three extra students.
At the start of the 2014 year, there were three changes to the applicant’s workload. As foreshadowed, his class size increased to 25 students and he picked up two ‘challenge classes’ which compressed three periods into two and involved special projects being boat building and skateboard laminating. The third change was the retirement of Mr Mattherall.
The applicant said that initially he was ‘doing all right’ with the increase to the class size but by the end of each week he as a ‘wreck’ and became angry and frustrated.
Ms Stubley, who was the principal of the Bayview campus said that the school provided an extra preparation period for the applicant, soundproofing of the classroom (in March 2014), a television, additional benches and storage.
On 22 May 2104, the applicant suffered an injury to his left hand when using a rip saw. The applicant pointed to this injury as evidence that he may have been struggling with his work at the time however the judge found that it was an accident. The judge noted that the applicant accepted it was an embarrassing mistake.[9]
[9]Ibid [251].
The applicant attended his GP, Dr Mai, in October 2014, the first time in 18 months, and on 10 November 2014. On 10 November 2014, Dr Mai recorded that the applicant was unable to make it to work due to stress and noted the applicant was under increased pressure from work and that he was feeling very depressed, with anhedonia and insomnia.

November 2014 email

On 26 November 2014, Ms Bacon sent an email to the new college principal, Gino Catalano, regarding technology classes for the following year (‘the November 2014 email’). She wrote:
As the Technology & Design CAT Leader & OH&S rep, I have been at the forefront of managing the angst, difficult transition and the many hours of meetings involved in working safely in the Technology & Design area this year. The key needs of what the staff requested in order to be safe in their rooms, has only been partially met to date.
I have been on the front line of watching the deterioration of the moral, health and stress levels the faculty has endured over 12mths, including my own increased workload. Every Tech & Design teacher has performed with the upper most goal in mind to give the students the best curriculum with the results outstanding as you witnessed at the Technology & Art Exhibition this year.
I cannot understand how you arrive at Technology & Design not being planned on the minimum number as a Practical class. If we look at all these subjects, all of them are Hands-On. There is no down time in a double lesson. Staff are in demand for every aspect of a child's needs whilst a Pac is taking place. The biggest issue is giving each child the adequate time to individually teach a skill or sit with a student to watch their progress, whilst the rest of the class are in need of your attention, but also keeping your eye constantly on the class and what they are doing. This is why classes of Pac were smaller and where tools, electricity, drills, saws, welding, computers, hammers, sewing machines, needles, cooking oil in pan, knives etc...are involved there is always a much higher task. The learning in a Prac class isn't one where you can ask the child to sit and read for a period or do a Maths test or an exercise from a book.
Work load has increased 30% and the inequity where a Design & Technology teacher, on a full load of 8 classes will teach 200 students per semester, whilst their colleagues in Maths and English teach 125 students, is totally inequitable.
Over the year a Tech teacher will have contact with 400 students. This is excessive. All Phys-Ed or Sport teachers have high contact, but no reports to write for Sport.
To increase the Tech & Design teachers work load with no compensation and expect that they can work in the same way and with this level of intensity is unsafe.
Further to this is the physical size of the rooms, that were never built for 25. In terms of the Wood facility itself, having 25 in the room puts the teacher at risk in terms of having to constantly avoid physical contact whilst moving around the room with students. There is also the issue of lack of space for storage of the additional tools, materials and models required for those additional students.
It was always been acknowledged by previous Principals that because the contact time was intense, the Scaff and their allotments were high, teaching 200 students a week or 175, if having 7 classes, with the need to keep all their equipment and materials in order, along with keeping in mind that there are difficult students that have higher needs in a Prac class, these subjects were kept at class sizes of 22.
Recently I requested that you keep the Bayview Program similar to this year, so the staff would have that relief in the amount of contact with students, but it would also allow at Year 8 & 9 the flexibility for any further enrolments. Why can’t you accommodate this given the difficulties the faculty has endured this year?
An alternative to this workload issue and the excessive contact numbers over the year, is to allow every Tech & Design teacher an allotment of 22. This at the very least would address the workload issue, giving every teacher time to keep all materials organised and allow for the further increase in classes for next year.
Having an assistant presents its own issues, but this needs to be further explored. I see no difference between Science having an assistant and the needs for Textiles, Horticulture, Wood and Electronics to have an assistant for their work.
I would like all of these ideas to be discussed at Consultative on Wednesday.
I would hope that a positive solution can be found for a situation where the Technology & Design staff have given genuine time to implement and reflect on their practise as professionals.
I will forward the feedback given to me by the faculty at last week's meeting.

Mr Catalano, who had replaced Ms Sperling as principal of the school at the end of Term 1 in 2014, said that he had received Ms Bacon’s email. He was aware at the time that the technology teachers were unhappy with his decision to retain the 25 student class sizes for 2015. Mr Catalano acknowledged that the November 2014 email recorded Ms Bacon’s view as to the impact on teachers, including the applicant. A grievance about class sizes in the technology area was lodged by the Australian Education Union in December 2014 and resolved the same month with a decision to maintain the 25 student number. Mr Catalano understood that the applicant remained unhappy with the decision.
The judge acknowledged that the November 2014 email was expressed in more concrete terms than the November 2013 memo, and that Ms Bacon had spent the intervening year observing the difficulties experienced by the teachers in the technology faculty, including in the woodworking area, due to larger class sizes.[10] Although the judge noted that the woodworking area is expressly mentioned in the email, the judge said that the email did not contain any specific reference as to how the applicant was personally affected by the additional students. The judge concluded that it was insufficient to alert the respondent that the applicant was at risk of foreseeable risk of psychiatric injury.[11]
[10]Ibid [252].
[11]Ibid [253].
The judge said that, viewed objectively, there was no reason at the time for the respondent to think that the applicant was more vulnerable to stress than the other teachers in the technology faculty and was at foreseeable risk of psychiatric injury.[12] She noted that from early 2014 until May 2015, the applicant did not expressly complain to Mr Catalano or Ms Stubley that he was not mentally coping with the increased students in his woodwork classes or due to the absence from Mr Mattherall. He did not require time off work or produce any medical material to indicate he was suffering stress from his working conditions and, unlike in March 2010, he did not lodge an EduSafe report expressing concern for his own health.[13]
[12]Ibid [254].
[13]Ibid [255]–[256].
The judge concluded that, as at November 2014, ‘In the absence of any warning signs specific to [the applicant]’, the defendant was entitled to assume that the applicant could do the work he was employed to perform as a full-time woodwork teacher, without the possible risk that he would suffer a psychiatric injury in the course of such employment.[14]
[14]Ibid [258].
On 10 March 2015, the applicant returned to the doctor. He saw Dr Thomas Yu, as Dr Mai was unavailable. Dr Yu recorded that the applicant was reporting stress and anxiety. Dr Yu’s notes said ‘Work issues and feeling very anxious and nervy. Losing his temper at home.’ He was prescribed an anti-depressant, Lexapro.

May 2015 EduSafe report

On 29 May 2015, the applicant lodged a further EduSafe report (‘the May 2015 EduSafe report’) which said:
I am a full time Woodwork teacher. At the commencement of 2014 Technology class sizes were increased from a maximum of 22 students to a maximum of 25 despite the faculty expressing grave OHS concerns regarding this decision and despite the fact that spaces, in my case the Wood room, was designed for a maximum of 22 students. As a result, noise/stress and fatigue levels have risen to an unsustainable level. To make matters worse, the other Wood teacher, who used to share the maintenance tasks such as wood machining, work shop machinery and hand tool maintenance etc has been on leave since the end of 2013 and is unlikely to return and has not been replaced. The situation has become critical for me and according to my doctor, the school is lacking in its duty of care towards me. He believes I show symptoms of sustained stress, such as anxiety, depression, and chronic fatigue. They have completed some noise reduction work which is welcome, however with 25 students in the room at times the noise is still extreme. I have been promised some assistance in the form of a part time maintenance person but so far nothing has been put into place. I have told the College Principal about my and my doctor’s concerns. He is sympathetic but so far little has been done. The matter has been raised with our Campus Principal by my faculty head and our OHS rep. We hope to schedule a meeting this week.
In response to the May 2015 EduSafe report, Ms Stubley wrote to the applicant suggesting that he replace half of his woodwork classes with humanities subjects. The applicant considered that the offer was an insult, showed a lack of appreciation for the woodwork program and reduced that which he enjoyed doing. He responded by email in the following terms:
Thank you for your suggestion regarding how my OHS issues could be addressed.
However it would expose two teachers to the hazards associated with overcrowding, if only for half a full allotment.
I have always loved teaching woodwork and I have worked extremely hard to make my courses a success. I intend to continue doing so for as long as I am able.
As matters stand, I think it may be best that I modify my Year 7/8 program: more theory, remove some of the more noisy tools such as hammers so that fewer students can use them at once etc. This is a pity as our program as is is (sic) very popular with both students and parents.
I definitely would not want to lose my Year 9 classes. This innovative elective involves each student designing and building a 3 stringed electric guitar [CBG] incorporating recycled materials with plans to 3D print components on the College's newly acquired 3D printer. By this term's end we should have produced around 50 CBG's. Most of the components for next semester have already been purchased. This is a unique program and is already attracting attention outside of WHS. Maybe you could consider restoring at least my Year 9 class sizes to 22 students. Year 9s are bigger, more physical and move around more ie they are noisier and more difficult to manouver (sic) around.
As you are aware, it may be possible to obtain some assistance on the wood machining, general maintenance and storage side of things. That would certainly be very helpful.
As will appear, it was accepted by the respondent that by May 2015, but not earlier, psychiatric injury to the applicant was reasonably foreseeable. At about this time, the applicant was offered the assistance of Mick Kelly, a groundsman who also did maintenance work at the other Williamstown campus. Mr Catalano wrote to the applicant on 22 May 2015 to say that Mr Kelly would be available to help two hours each week on a trial basis. Mr Kelly assisted on a few occasions but the arrangement was not persisted with.
On 14 August 2015, the applicant suffered an injury to his left index finger after a mishap with an electric drill.
The applicant and Mr Catalano spoke about the applicant’s work levels. The applicant said that he did not wish to teach humanities.
The judge noted that at about this time, there was a discussion about whether the applicant might reduce his workload by stopping the dinghy boat building project which occupied a large amount of space. There was a dispute in the evidence about who initiated this discussion. The applicant said in his evidence that he first raised it with Mr Catalano who resisted the change on the basis that the project was too high profile. Mr Catalano denied saying this. The judge found that the suggestion had first come from Ms Stubley to overcome the applicant’s concern with overcrowding in the word work room.[15] In doing so, the judge rejected the applicant’s evidence that it was he who made the suggestion to Mr Catalano. No reason was given why this Court should not accept that finding.
[15]Ibid [275].
The applicant told Mr Catalano that he could not continue with 25 students and would ‘tough it out’ for the balance of the year. The two of them agreed that the applicant would take long service leave for the first term of 2016 and return with a 0.6 workload for the balance of the year. Mr Catalano agreed to the applicant’s request for that leave on the understanding the applicant would return full-time in 2017.
By October 2015, the applicant said that he had become isolated and was ‘in psychological trouble’. On 21 October 2015 he suffered a further laceration injury at work and was taken to hospital where his wound was repaired. He did not return to teach at the school.
On 24 October 2015 he saw Dr Mai who made a connection between the physical injury to his hand and his state of mind. Following that, on 29 October, the applicant sent the following email to Mr Catalano (‘the 29 October email’):
As you may be aware, last Wednesday I injured myself on the bandsaw, cutting into my right hand thumb. Thankfully Doug made himself available to supervise my class whilst Ulysses and Dianne D. did a terrific job in bandaging my hand and taking me to hospital. My doctor has instructed me to take a week off, I have listened to his advice and have to the best of my knowledge completed all the necessary paper work regarding Edusafe and Work Cover.
The AEU has advised me to write to you regarding this matter as they view this incident should be located and discussed in the context of previous correspondence/discussions I have had with you, Tamy and Sue regarding my work load, OHS and educational concerns associated with the increase in my class sizes and Brian Metherall’s retirement.
To this day no one from the College’s leadership team has come to any of my classes to see how things are going in terms of class room dynamics since my class sizes have been increased. Instead, I have lately been taken to task over a series of relatively minor class room incidents. These include a parent complaining that her son’s computer case with computer inside had a cup of coffee (mine) spilled on it by a student. The same parent also complained that her daughter’s model had been destroyed by another student. During that same conversation (with Tamy) I was further informed that some teachers from Staffroom 2 had complained to her that my students were out of class a lot and were disturbing other classes and making a lot of noise. Some weeks earlier I was spoken to by Sue regarding a student having fashioned a mini dagger in class and that I had taken insufficient care in disposing of the knife, allowing the student to secretly smuggle it out of the room. I sought to explain, that, given the very busy and crowded circumstances, incidents such as the ones referred to were hard to rule out completely.
Of course I fully respect that is is Tamy’s and Sue’s duty and responsibility to investigate matters such as the ones referred to. I also fully acknowledge that both Sue and Tamy were nothing but pleasant and professional in handling these difficult ‘conversations’.
However the real issue at the core of these incidents is the overcrowding in Room 14. It was never really addressed by either Sue or Tamy. Perhaps it can’t be by them. Instead, I was instructed by Tamy that I was not to bring coffee into the class room. (Whilst, perhaps, Tamy is perfectly entitled to issue such an instruction, in my 25 years of teaching in a wide range of schools and other educational institutions, I have never heard of such a regulation. If there is such a regulation at WHS, why not publicly remind all staff members of its existence and the reasons for it? As matters stand I feel I have been targeted.)
I am fully aware that I have a duty of care towards my students and colleagues and have an excellent record in this regard. On the other hand, the College also has a duty of care towards me and I believe it has been letting me, and by implication my students, down. I’ve always worked extremely hard to present my program in a safe yet engaging way. I fully support the College’s current emphasis on ‘differentiation’ and the “engagement” of our Year 9s. But, unilaterally putting at least another 3 students in each of my classes and expecting me to absorb most of Brian’s Wood allotment, despite my strongly expressed concerns at the time and since, regarding the impact that would have on my OHGS and my capacity to ensure all students achieve in my classes, has been a great setback, and one, my doctor tells me, which is seriously impacting on my health. The injury to my thumb is just the latest instalment. To make matters worse, I discovered upon retuning (sic) to school from the hospital that day, that one of the students who had witnessed the incident at close quarters, had a fine splatter of my blood all over the front of his shirt. He had sought me out to find out how I was. I had to persuade him to exchange the shorty with one from lost and found. Had I not done so the student would have gone home splattered with his teacher’s blood on his shirt front. As a parent myself I can imagine what I would have thought of WHS’s such vaunted slogans regarding ‘respect’, ‘safety’ and ‘learning’. Given the amount of blood involved, someone from leadership should have had the presence of mind to firstly counsel that class as a whole and then the individual witnesses involved. At least that boy’s parents should have been contacted to forewarn them. IU find it staggering, yet, given my and my family’s experiences over the past few years, not that surprising, that WHS did nothing in this regard.
It is one thing to wallpaper the school with pious slogans and acronyms. WHS’s leadership team needs to practise what it preaches and recognise and creatively address the actual issues as they arise or as they are brought to your attention. It is neither fair or constructive to blame and punish me for issues which have their origins in your decisions and actions.
Thank you for your consideration.
In the 29 October email there is a reference to the applicant’s ‘family’s experiences’ and to him being disciplined by Ms Stubley. It is sufficient to give only a very brief summary of those matters. The first matter relates to an incident in December 2011 concerning the applicant’s son who was a student at Williamstown High School. The applicant believed his son had been knocked unconscious following an assault by another student, and that the school had not responded appropriately to the incident.[16]
[16]Ibid [46].
At a subsequent school sports day, the student whom the applicant believed had assaulted his son walked past him. The applicant said he believed the student had stared at him, and he held the student’s gaze. The parent of the student reported this, and the applicant was disciplined in April 2012 with a report placed on his personnel file. The applicant said he considered the disciplinary process against him to be unfair, but that it was not an ongoing source of distress to him.
The applicant said he made a conscious decision to put the incident involving his son and the school’s handling of it behind him, but acknowledged that these matters ‘no doubt … played a role’ in his clinical presentation around May 2012.
The second topic in the 29 October email concerns the applicant being disciplined. In short, the applicant was disciplined for three separate incidents: spilling his coffee on a student’s computer bag, a student’s work being damaged and a student making a dagger in a woodwork class. He attributed the latter two incidents to there being excess students in the class and considered the disciplinary response to the incidents to have been disproportionate.

The reasons of the judge

Having set out the factual context, it is convenient at this point to refer to the judge’s account of the applicable legal principles and her conclusions on the four critical issues that she had identified.
The judge referred to a number of authorities in which the High Court or intermediate appellate courts have considered negligence claims for psychiatric injury.[17] The judge noted the observation of the High Court in Koehler that the ‘central inquiry’ remains whether in all of the circumstances, the risk of a plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not farfetched or fanciful.[18] The High Court had noted that ‘the relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable’.[19]
[17]Koehler (2005) 222 CLR 44; [2005] HCA 15; Hegarty v Queensland Ambulance Service [2007] QCA 366 (‘Hegarty’); The Age Company Limited v YZ [2019] VSCA 313 (‘The Age v YZ’); State of Victoria v Kozarov [2020] VSCA 301.
[18]Koehler (2005) 222 CLR 44, 57 [33] (McHugh, Gummow, Hayne and Heydon JJ); [2005] HCA 15.
[19]Ibid 57 [35] (McHugh, Gummow, Hayne and Heydon JJ) (emphasis in original).
The judge also referred to the following summary of principles given by Beach J in Taylor v Haileybury[20] which addresses some of the difficulties that arise in formulating the content of the duty of care associated with claims for psychiatric injury:
(a) First, in a negligent infliction of psychiatric injury case, the risk of injury may be less apparent than in cases of physical injury.
(b) Secondly, whether a risk is perceptible at all may in the end depend upon the vagaries and ambiguities of human expression and comprehension.
(c) Thirdly, whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works.
(d) Fourthly, the private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty in this respect, must be acknowledged as important considerations.
(e) Fifthly, the dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty that might be asserted by a plaintiff.
(f) Sixthly, issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating an employee’s problems.[21]
[20][2013] VSC 58.
[21]Ibid [116].
Finally, the judge referred to the following passage from the Court of Appeal in State of Victoria v Kozarov:
the duty of care which an employer owes an employee in respect of a risk that the employee might suffer psychiatric injury arising from the performance of work is only engaged if psychiatric injury to the particular employee is reasonably foreseeable. Moreover, an employer engaging an employee to perform specified duties is entitled to assume, in the absence of evident signs warning of the possibility of the psychiatric injury, that the employee considers that he or she is able to do the job for which they have been employed.[22]
[22][2020] VSCA 301, [69] (Beach and Kaye JJA and Macaulay AJA) (emphasis in original).
As already observed, the judge framed the questions in a way that focused on when psychiatric injury to the applicant became reasonably foreseeable to his employer. That approach accorded with the notion, expressed in Koehler, that because the duty of care is owed to particular employees the relevant duty of care may become ‘engaged’ at some point depending on, amongst other things whether there are ‘evident signs warning of the possibility of psychiatric injury’.[23]
[23]Koehler (2005) 222 CLR 44, 57 [35]–[36] (McHugh, Gummow, Hayne and Heydon JJ); [2005] HCA 15.
Applying that approach, the judge noted that the parties agreed that by May 2015, psychiatric injury was reasonably foreseeable and that, by that time, the duty of care had ‘arisen’. The judge rejected the applicant’s submissions that the duty of care arose from January 2014. In doing so, the judge held that none of the earlier events, which we have described, triggered a duty of care. To reiterate the judge found:
(a)the issues expressed in the March 2010 EduSafe report had been resolved and did not suggest any continuing vulnerability on the part of the applicant;
(b)the November 2013 memo was general in nature, did not refer to the applicant and expressed Ms Bacon’s views. It was not sufficient to alert the respondent that the applicant was at a foreseeable risk of psychiatric injury;
(c)the November 2014 email was more specific, but did not convey how the applicant was personally affected by the change to class size, did not complain that he was not coping mentally and produced no medical material to indicate he was suffering stress; and
(d)the injury in May 2014 to the applicant’s hand was a mere accident.

In the result, the judge concluded that, in the absence of any ‘warning signs’ specific to the applicant, the respondent was entitled to assume that he could do the work he was employed to do as a full-time woodwork teacher without the possible risk that he would suffer a psychiatric injury in the course of his employment.[24]
[24]Reasons, [258].
Having found the duty of care to have arisen in May 2015 but not before, the judge then turned to whether the response of the respondent was reasonable. In concluding that it was, the judge noted:
(a)both the number of students and face-to-face teaching hours were in accordance with the relevant industrial agreement; and
(b)the school had arranged to tidy up the woodworking room and create extra storage space to address crowding and installed noise cancelling panels to alleviate noise.
The judge found that it was Ms Stubley, and not the applicant, who had raised the idea of the applicant building smaller items in the challenge class rather than boats as a means of reducing crowding in the woodworking area. The judge considered this to be a practical and reasonable solution to address part of the applicant’s concern with an overcrowded classroom but which met resistance from the applicant.[25]
[25]Ibid [275]–[276].
In a critical finding, the judge accepted that there were financial pressures on Mr Catalano to keep the class sizes at 25 students in 2015 and it was not realistic to reduce the applicant’s class size but leave the other classes at 25.[26] In that alternative scenario there would be no practicable means to deal with the three students who would need to be excluded from the applicant’s class. That was because each work group of 25 students moved from class to class but remained as a group. In that respect, the judge had earlier set out the following evidence of Ms Sperling on the topic.
Or they could have had classes reduced from 25 to 22?---And then we would move into a deficit situation.
Yes, but they could have had that, couldn't they, you could have managed it in such a way that a teacher who was particularly vulnerable or struggling with stress such as Dr Bersee, you could have managed his classes and reduced them from 25 to 22, couldn't you?---No, because it was in a block situation, if we had reduced his classes, then another teacher would have gone over 25. So it would have put another teacher out of the agreement into 28 or whatever, because the classes need to be blocked at the same time, or put on a whole new class and the whole reason for doing this was to set up a situation for the future that managed the budget of staffing so it would not move into deficit.
Might I suggest to you that when you decided to increase Dr Bersee's wood class from 22 to 25, you were concerned about the budget more so than you were about his health and safety, weren't you?---I was concerned about the health and safety of all the teachers and the students and the whole financial running of the school. It is a very large complicated job that I did, that I now still help people with, and it was a balancing act. Putting in the support and moving towards managing for the future was essential for me.
You could have asked the department of education for some more money, couldn't you?---No, they do not fund over in those circumstances at all.[27]
[26]Ibid [269].
[27]Ibid [168].
Faced with the reasonable need to maintain a class of 25 students, the judge said that the offer made to the applicant that he take on some humanities classes, which were less demanding, was reasonable, and would have allowed the school to hire a part-time woodworking teacher.[28] This would have facilitated the applicant sharing the teaching load with another qualified woodworking teacher.[29] The judge said that the applicant was resistant to the respondent’s offers for help and was generally unwilling to change his established practices.[30]
[28]Ibid [271], [278].
[29]Ibid [278].
[30]Ibid [275].
The judge considered the applicant’s resistance to the idea of not building boats in the challenge class, which occupied more space, and his failure to capitalise on the assistance provided initially by Mr Rowe and then Mr Kelly to be further examples of the applicant’s unreasonable response to the respondent’s offers of help.[31]
[31]Ibid [276]–[277].
The judge also considered other alternatives that were raised by the applicant. The judge did not accept that it was reasonable for the respondent to offer the applicant immediate stress leave. The judge noted that the applicant did not seek such leave and that he had told Mr Catalano that although he did not like the increased class sizes he would ‘tough it out’ until the end of 2015. The judge concluded that it was reasonable for the respondent to assume the applicant was able to attend work each day to perform his allocated work duties, and that it was not necessary for it to amend his hours or place him on forced stress leave.[32] Similarly although the applicant requested and took long service leave, the judge did not accept that it was for the respondent to suggest or direct him to take further leave.[33]
[32]Ibid [273].
[33]Ibid [274].
In summary, the judge found that once the duty of care arose in May 2015, the response of the respondent to address the risk of injury was reasonable and did not amount to a breach of duty.
Against the possibility that psychiatric injury was reasonably foreseeable from January 2014, the judge considered, in the alternative, whether the respondent’s actions from that time had been a reasonable response to the risk of injury. The judge reached the same conclusion: there had been no breach of duty.
The judge said that in early 2014, the defendant adopted the consultant’s recommendations to minimise occupational health and safety risks in the woodwork room, offered the applicant professional development to adapt to teaching the larger classes, gave him an extra period for preparation time and also offered him assistance from Mr Rowe. The judge found that the respondent acted reasonably in response to any concerns the applicant may have had relating to the increased class sizes and absence of Mr Mattherall.[34]
[34]Ibid [279].
The judge accepted Ms Sperling’s evidence that, in late 2013, she considered the school’s finances were such that, in order to avoid a deficit, it was necessary to increase the maximum class size to 25 students and this was maintained by Mr Catalano. The judge found that maintaining class sizes at 22 students for the applicant’s woodwork classes was not a realistic option at the school. She considered the respondent offered alternate and reasonable steps to reduce the risk of the applicant suffering a psychiatric injury.[35]
[35]Ibid [280].

Grounds of Appeal

If given leave, the applicant would propound three grounds of appeal:
1.The trial judge erred as matter of law in finding that the defendant did not have requisite knowledge of the plaintiff’s vulnerability to suffering psychiatric injury by reason of:
(a) various reports and complaints including complaints of stress in 2010;
(b) reports of a health and safety representative in 2013 and 2014; and
(c) changes to workplace conditions suggested by the defendant.
2. The trial judge erred as a matter of law in finding:
(a) that the defendant had suggested reasonable changes to the workplace to address the risk of injury; and
(b) the plaintiff was required to accept alternative conditions of work in the circumstances.
3. The learned Trial Judge erred in directing herself as to the law and in her application of the law as to:
(a) whether the respondent owed a duty of care to the applicant in respect of psychiatric injury;
(b) determining that the duty only arose when foreseeability of risk of injury was established and finding that establishing that foreseeability required signs of or warning of injury.
(c) whether the psychiatric injury suffered by the applicant was a consequence of the negligence of the respondent.

The applicant’s submission

It is convenient to commence with ground 3. It was added by an amendment and followed the decision of the High Court in Kozarov.
The applicant submits that the judge was in error in approaching the matter on the basis that the duty of care only arose once psychiatric injury became reasonably foreseeable to the employer and that this required there to have been some evident signs of risk or vulnerability.
The applicant submits that, on the proper analysis, as revealed by Kozarov, the duty of care existed from the start of employment as an incident of the relationship of employer/employee and does not arise by reason of the foreseeability of the risk of injury.
The applicant submits that the foreseeability of the risk of injury is irrelevant to the existence of the duty but accepts that it is relevant when determining the reasonableness of the response to the risk. As the applicant put it in his supplementary written case:
Thus, an employee who is in employment where there is no perceived risk cannot expect a response to a non-apparent risk. The duty still exists but as there is no evidence of risk of injury no response is needed.
The applicant submits that this error had a practical dimension in the case because the judge did not take into account matters that occurred before she found the duty to have arisen. It was said that the judge did not take into account the November 2014 email because at the time it was sent the duty of care had not yet arisen.
The respondent submits that the judge did not proceed on the basis that no duty of care subsisted between the applicant and the respondent.[36] Rather, the judge applied the approach explained in Koehler of asking whether in respect of the applicant the duty of care was ‘engaged’, and which required an examination of the specific factual matrix applicable to his employment rather than an analysis that proceeded simply on the basis that he was an employee.[37]
[36]By way of footnote the respondent submits that it is only liable pursuant to the provisions of the Crown Proceedings Act 1958 which establishes a form of vicarious liability. For the purposes of the present analysis it is not necessary to refer to this further.
[37](2005) 222 CLR 44, 57 [35] (McHugh, Gummow, Hayne and Heydon JJ); [2005] HCA 15.
The respondent submits that the question of whether psychiatric injury was reasonably foreseeable was an essential anterior question that needed to be answered before assessing whether the response as reasonable. It says that if the relevant risk of injury to the plaintiff was not reasonably foreseeable then the defendant’s duty of care will not have been ‘engaged’ and there will be no occasion for the Court to consider whether the respondent responded reasonably to that risk.
The respondent submits that Kozarov can be distinguished on the facts.

Analysis and conclusions on ground 3

Both Koehler and Kozarov identify the relevant principles, and explain how they are to be applied, in the context of a negligence claim for psychiatric injury to an employee arising from the performance of work.
Koehler proceeds on the understanding that an employer owes a non-delegable duty of care to its employees to take reasonable care to avoid injury that is reasonably foreseeable. As part of its duty the employer must take all reasonable steps to provide a safe system of work.
In giving content to that duty, Koehler emphasises that close attention must be given to the particular factual circumstances which is essential to a proper understanding of the interrelated issues of how the duty of care arises, whether injury of the relevant kind was reasonably foreseeable and what is expected of an employer acting reasonably in responding to that risk.
Implicit in the reasoning of the High Court is an acceptance that there is no special rule for psychiatric injury and the ‘central inquiry’ remains constant namely ‘whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful’.[38] That is not to say that cases of psychiatric injury to employees do not throw up issues that are different to those involving physical injury. Plainly they do. A psychiatric injury may be less easy to foresee than a physical consequence. The psychological makeup of the individual employee, which may be difficult to discern or understand by an employer, may influence whether psychiatric injury is a likely or possible outcome.
[38]Ibid 57 [33] (McHugh, Gummow, Hayne and Heydon JJ).
In considering what is reasonably foreseeable, it is necessary to have regard to the nature of the work and what the parties have agreed under the contract of employment. That inquiry remains quintessentially factual. In Koehler the High Court refused to embrace as a universal proposition that because stress may cause psychiatric injury, all employers must recognise that all employees are at risk of psychiatric injury from stress at work and therefore such injury is reasonably foreseeable. The vice of that proposition was that it serves to aggregate what is an individual inquiry directed to the duty owed to each particular employee.
As the Court explained:
The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton,[39] the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee[40] and signs given by the employee concerned.[41]
Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer’s obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle.[42] Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.[43]
[39]Hatton v Sutherland [2002] 2 All ER 1, 13 [23] (Hale LJ).
[40]Ibid 14 [26] (Hale LJ).
[41]Ibid 14 [27] (Hale LJ).
[42]Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, 347 (Mason J); [1982] HCA 24; BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, 283 (Lord Simon of Glaisdale, Viscount Dilhorne, Lord Keith of Kinkel).
[43]Koehler (2005) 222 CLR 44, 57–8 [35]–[36] (McHugh, Gummow, Hayne and Heydon JJ); [2005] HCA 15 (emphasis in original).
In Koehler the plaintiff failed because the employer had no reason to suspect that the performance of the duties which she had agreed to perform were causing her psychiatric injury. There was nothing about the nature of the duties that would have caused alarm, she had agreed to perform the work thus indicating her ability and willingness to do so and there were no ‘evident signs’ that pointed to a risk of illness or vulnerability.
What Koehler shows is that there is often very little utility in framing the relevant question in a way that is divorced from the factual environment in which the question arises. The proposition that Ms Koehler’s employer owed her a duty to take reasonable care to avoid psychiatric injury throughout her employment is not necessarily incorrect, but it is hardly illuminating. It was the focus on the facts that underpinned the Court’s inquiry as to whether, and when, the duty was ‘engaged’. It was only when the issues came together in a concrete way that the elements of a claim in negligence could meaningfully be examined. As Edelman J observed in Kozarov, negligence does not exist in the air.[44]
[44][2022] HCA 12, [104].
In Kozarov the plaintiff was a solicitor employed in the Office of Public Prosecutions and assigned to the prosecution of sexual offences often involving children. The case was run at trial on the basis that there were a number of ‘evident signs’ or sentinel events that should have alerted her employer to the risk of psychiatric injury as a result of continued exposure to such harrowing cases. These events were said to engage the employer’s duty of care because the defendant, by these occurrences, was on notice of the risk of harm.
In the light of those sentinel events, the contest moved to what the employer was required to do to address the risk and whether, had the employer taken the reasonable steps thus identified the injury sustained by the plaintiff would have been avoided. A judge in the Trial Division held that the existence of the sentinel events crystallised the duty of care and had the employer taken reasonable steps including offering the plaintiff a rotation out of the sexual offences unit, the plaintiff would have accepted the offer of a rotation and avoided injury. The Court of Appeal upheld the finding on the duty of care and breach but concluded that the plaintiff had not established that even if the employer had undertaken what was reasonably required of it, the plaintiff would have agreed to move and the psychiatric injury would not have occurred.
In the High Court, the plaintiff sought to overturn the adverse causation finding made by the Court of Appeal and, by notice of contention, the employer contended that the sentinel events relied on did not engage the duty of care. The High Court allowed the appeal and dismissed the notice of contention.
In allowing the appeal, two members of the High Court observed that the search for ‘evident signs’ as the trigger for the engagement of the duty of care proceeded on a misunderstanding of the effect of the decision in Koehler[45] and meant that, on the particular facts of the case in Kozarov, the plaintiff had adopted an ‘unnecessary evidentiary burden’.[46] That was because the risk that the work posed for the suffering of debilitating ‘vicarious trauma’ was well understood by the employer from the outset. It had developed a policy to address that very risk. The Vicarious Trauma Policy adopted by the employer identified that trauma as the ‘unavoidable consequence of undertaking work with survivors of trauma’ and set out responsive measures that the employer would adopt to deal with that risk. They included:
[A]n active OH&S framework; more intensive training for management and staff regarding the risks to staff posed by vicarious trauma and PTSD; welfare checks and the offer of referral for a work-related or occupational screening, in response to staff showing heightened risk; and, a flexible approach to work allocation, especially where required in response to screening, including the option of temporary or permanent rotation from the SSOU where appropriate.[47]
[45]Kozarov [2022] HCA 12, [2] (Kiefel CJ and Keane J).
[46]Ibid [29] (Gageler and Gleeson JJ).
[47]Ibid [82] (Gordon and Steward JJ), quoting Kozarov v State of Victoria [2020] VSC 78, [702] (Jane Dixon J).
The High Court held that because of the nature of the work, which was inherently dangerous to the mental health of employees, the risk of harm was plainly foreseeable and it was not necessary, in order for the duty to be engaged that the employer show ‘evident signs’ of distress or harm. For that reason, the relevant duty of care to avoid psychiatric injury of that kind arose on the commencement of the employment, and required ‘active steps’ from that time.[48]
[48]Ibid [3] (Kiefel CJ and Keane J).

Given the way the case had been run, the Court also examined the significance of the sentinel events. However, even on that basis, the importance of those events was diluted to the point of irrelevance by the respondent’s concession made in the High Court that if the plaintiff had been offered occupational screening at the end of August 2011, she would have accepted that offer and that screening would have revealed the plaintiff’s mental illness.[49]
[49]Ibid [9] (Kiefel CJ and Keane J).
Kozarov reinforces the point that questions of foreseeability, which are relevant to the existence and scope of a duty of care, breach of duty, or remoteness of damage,[50] are fact and context specific. In some cases, psychiatric injury will be a reasonably foreseeable consequence of the performance of work and in others it will not be. In Koehler, the High Court referred to what an employer might reasonably assume about the ability to perform the work safely, and in Kozarov the Court concluded that the assumption was irrelevant in the face of the incontrovertible evidence as to risk.
[50]Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, 331 [12] (Gleeson CJ); [2002] HCA 35 (‘Tame’).
Properly understood, Koehler and Kozarov are at opposite ends of a single spectrum and do not represent a divergence in principle. In Koehler, the plaintiff was performing work of a relatively routine nature that she had agreed to perform. In order to establish that psychiatric injury was a reasonably foreseeable consequence of performing the work it was necessary to take into account what the parties had agreed under the contract of employment. A generalised understanding that workplace stress can lead to injury was insufficient, in the absence of ‘evident signs’ by the particular employee. In Kozarov, the employer had acknowledged that vicarious trauma and therefore psychiatric injury were an obvious consequence of exposure to trauma, and a search for evident signs in the plaintiff was unnecessary to establish the relevant duty of care.
Kozarov makes plain that evident signs of distress or vulnerability on the part of a plaintiff are not a precondition that must be satisfied before psychiatric injury can be found to be reasonably foreseeable and are not a legal criterion for liability. Rather, they provide a means by which reasonable foreseeability may be established on the facts, and in some cases, the absence of them may mean that the employer would have no reason to suspect that psychiatric injury is on the cards for the particular employee or class of employees.
In Kozarov, the Court did not hold that an actionable duty of care exists to a specific individual before there is any reasonable foreseeability of injury of the kind that eventuated to the particular employee concerned (as the applicant submitted before us). Rather, the Court said that, in the particular workplace in question, sufficient evidence of that foreseeability existed from the outset of the employment of any lawyer in the sexual offences unit such that, without more, the actionable duty to take reasonable care to avoid psychiatric injury of the kind that eventuated to the plaintiff arose. Beyond the nature of the work and the Vicarious Trauma Policy, no additional evidence was required to prove the requisite foreseeability and, in turn, give rise to the duty to the plaintiff.
We therefore reject the applicant’s submission, said to be based on Kozarov, that the relevant duty existed from the start of the employment relationship merely as an incident of the employer/employee relationship and that foreseeability of the risk of injury was irrelevant to the existence of the duty.
There is a further matter that should be noted. Although to describe reasonable foreseeability as ‘undemanding’ may be tendentious, nevertheless, it is important that it not be used to erect too high a barrier.[51] A requirement that there be evident signs in every case has the consequence that the duty to take reasonable care to avoid injury is likely to arise once the psychiatric injury has been suffered and manifested itself in symptoms. It remains possible that a psychiatric injury will occur before a risk of its occurrence is reasonably foreseeable by the employer. But, were the requirement of evident signs to be the universal approach, duty would nearly always follow injury. The difference between an ‘evident sign’ and a symptom of mental illness is likely to be elusive, especially for the untrained eye of an employer. In part that may be a reflection of the difficulties that inhere in claims of this kind and which are discussed in cases such as Hegarty and The Age v YZ. Employees may want to keep to themselves that they are struggling until symptoms become florid, and employers may reasonably be cautious about inquiring about an employee’s mental health. All of these matters remain part of the mix of assessing whether injury is reasonably foreseeable and what a reasonable employer would do to respond to such a risk.
[51]Tame (2002) 211 CLR 317, 331 [12] (Gleeson CJ); [2002] HCA 35.
As has already been pointed out, the formulation of the issues adopted by the judge was couched in terms of when the duty of care arose. Under the cover of the first issue, the judge considered when psychiatric injury of the kind or type suffered by the applicant was reasonably foreseeable as a result of the performance of work in the manner required by the school. The questions as to when the duty of care arose and when it was ‘engaged’ are functionally the same and any difference is semantic. That is so because the duty of care to avoid harm only applies to risks that are reasonably foreseeable. For that reason, reasonable foreseeability is a necessary, although not sufficient, condition of the existence of a legal duty of care.[52] In the context of a relationship in which a duty has been established by law such as that subsisting between employer and employee, reasonable foreseeability of the kind of injury to the particular employee will provide the basis for the actionable duty to that employee.[53]
[52]Tame (2002) 211 CLR 317, 331 [12], 335–6 [29] (Gleeson CJ), 349 [89]–[90] (McHugh J), 385 [201] (Gummow and Kirby JJ), 411 [275] (Hayne J); [2002] HCA 35.
[53]Koehler (2005) 222 CLR 44, 57 [35] (McHugh, Gummow, Hayne and Heydon JJ); [2005] HCA 15, citing with approval Hatton v Sutherland [2002] 2 All ER 1, 13 [23] (Hale LJ).
This was not a case where the Court was dealing with a novel duty of care. There is no reason to think that the judge had failed to appreciate that the respondent, as the applicant’s employer, was under a duty to take reasonable care to avoid injury and was required to provide a safe system of work. Rather, the language used by the judge and her reference to when the duty of care arose, was a means of bringing to attention the first crucial issue on which the parties disagreed: when was psychiatric injury reasonably foreseeable. On any view, that was an essential inquiry that had to be resolved. The applicant submitted it as from January 2014 and the respondent from May 2015.
We do not accept the applicant’s submission that, by framing the issue in the way that she did, the judge erroneously compartmentalised the facts in a way that foreclosed a proper analysis. In the event that the judge found that a risk of psychiatric injury was reasonably foreseeable it was necessary for the judge to analysis the question of breach in the manner explained by Mason J in Wyong Shire Council v Shirt.[54] That analysis does not require or permit a judge to ignore everything that came before the point at which the harm became reasonably foreseeable. Plainly, in many cases, anterior facts will form part of the context in which the question of reasonableness falls to be determined.
[54](1980) 146 CLR 40, 47–8; [1980] HCA 12 (‘Wyong’).
It follows that there was no error of principle in the judge framing the first issue in the way that she did. However, as will appear, in addressing that issue the judge imposed too high a hurdle to the resolution of the issue of foreseeability. That issue requires resolution of the remaining grounds. The balance of ground 3 mirrors the issues raised by grounds 1 and 2. Ground 1 concerns the question of when psychiatric injury was reasonably foreseeable and ground 2 concerns the judge’s conclusion that the respondent acquitted its duty of care. As already noted, the judge assessed breach on two alternative bases: the first on the premise that the duty first arose in May 2015 and the second that it arose in January 2014. The judge held that the applicant failed on either premise. For that reason, the question also arises whether success on ground 1 will avail the applicant.

Ground 1: When was psychiatric injury reasonably foreseeable?

In assessing what is reasonably foreseeable, it is important to appreciate that the task involves an evaluative assessment undertaken for the purpose of imposing a legal obligation and must take into account the perspective of the person on whom legal responsibility may be imposed.
As Gleeson CJ said in Tame the issue is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.[55] For that reason it is not the same as predictable. As Spiegelman CJ observed in Nationwide News Pty Ltd v Naidu:
The reasoning and result in Koehler confirms this analysis. It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough.[56]
[55](2002) 211 CLR 317, 331 [12] (Gleeson CJ); [2002] HCA 35. See also Sydney Water Corporation v Turano (2009) 239 CLR 51, 70 [45] (French CJ, Gummow, Hayne, Crennan and Bell JJ); [2009] HCA 42.
[56](2007) 71 NSWLR 471, 478 [23]; [2007] NSWCA 377.
In our view, psychiatric injury to the applicant was reasonably foreseeable from the start of 2014.
First, it is significant that the employer was contemplating a change to an existing work practice. The increase by three students was not an immaterial change. It offered a significant financial benefit to the school. Necessarily, it increased the workload of the teachers. In assessing the impact in a change in work practice, the nature of the relationship is not unimportant. The relationship of employer/employee is a well-recognised category in which a duty of care is imposed. It requires the employer to take reasonable steps to ensure a safe system of work. It also requires a degree of awareness as to the type of risks that may be associated with the performance of work.
Second, the school was informed by Ms Bacon in 2013 that the change may have a greater impact on the technology area. This was important. Although it was fairly obvious that a change to class sizes would need to be uniform, that is year 7 to 9 teachers had to teach the same class, the impact of the change had different consequences for technology. As Ms Bacon warned in 2013, this had consequences for health and safety. It took no imagination to appreciate that three extra students in a maths class might have a different impact when compared to three extra students in a woodworking class using power tools and requiring close supervision.
Third, the applicant was someone who had found increases in workload difficult in the past. In 2010, he had raised the impact that ‘six on’ days were having on him. It is true that this issue was resolved satisfactorily. However, it was an episode that showed a degree of vulnerability to stress as a result of a change in workload. We also take into account the evidence of Ms Stubley that where a teacher had experienced periods of stress in the past it was necessary to keep a closer eye on them, and the evidence of Mr Catalano that there were three teachers who were experiencing stress. These matters, of themselves, may have carried little weight, but they added to the overall picture.
Fourth, the woodworking class carried with it risks for physical injury to both students and staff. Although the judge held that the room was not unsafe for a cohort of 25 students, it was necessary that some modifications occur. This included noise dampening, clearing space and increasing bench space. It was obviously a noisy environment that required a close eye to be kept on students who were using tools and other equipment that might cause injury if used carelessly.
In our view, psychiatric injury to the applicant caused by an increase in workload was more than merely predictable. It is not unreasonable to require an employer to have in contemplation the risk of injury of this kind in such circumstances.
In our view, the judge (who, it must be remembered, decided this case before the High Court’s decision in Kozarov was delivered) was unduly influenced by the search for ‘evident signs’ of distress and vulnerability. Although they would have reinforced any conclusion as to reasonable foreseeability and have been highly pertinent to the content of the duty of care they were not necessary conditions of liability.
It follows that we would respectfully disagree with the judge’s conclusion that psychiatric injury only became reasonably foreseeable from May 2015.

Was the response of the respondent reasonable?

It will be recalled that the judge considered whether the responses of the employer were reasonable on both her primary finding, that psychiatric injury was not reasonably foreseeable until May 2015, and on the alternative basis that injury was foreseeable either in November 2013 or November 2014. Accordingly in order to show vitiating error, the applicant must show that the judge erred in her conclusions reached on this alternative basis.
The approach to breach was authoritatively explained by Mason J in Wyong in the following way:
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.[57]
[57](1980) 146 CLR 40, 47–8; [1980] HCA 12.
In looking at what a reasonable employer would do in the context of the foreseeable risk of injury it is important to resist the temptation to look backwards and assume that which is reasonable is that which would have prevented the injury. That is fallacious reasoning. The standard required is one of reasonableness and liability is not strict, nor informed by litigious hindsight.
Where a risk of harm is foreseeable and a person, such as an employer, comes under a duty to take reasonable steps to avoid harm, it may be necessary for the employer to be proactive.[58] That is, the employer cannot meet its responsibility by acquiescing in a decision of an employee to perform the work that gives rise to the risk. Such an approach would impermissibly shift responsibility for the discharge of the duty to the person to whom the duty is owed.
[58]Kozarov [2022] HCA 12, [3], [6] (Kiefel CJ and Keane J), [60] (Gageler and Gleeson JJ), [82]–[83] (Gordon and Steward JJ), [111] (Edelman J).
In assessing this aspect of the matter, it is also important to apply the legal principles in the context of how the parties ran their cases at trial. The applicant’s case was that the respondent breached its duty of care by requiring him to teach full time a class of 25 students in the woodworking classroom that was available. He said that reasonable steps to avoid the risk of injury included reducing the applicant’s class size to 22, replacing Mr Mattherall with another part-time teacher or encouraging or directing the applicant to take ‘stress leave’.
Although the material established that a risk of psychiatric injury to the applicant was reasonably foreseeable, an assessment of the magnitude of the risk and the degree of probability of it occurring was by no means a simple matter and not necessarily constant as more information emerged. That objective assessment must be made on the basis of the information that was known to or reasonably available to the employer.[59]
[59]Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, 397–8 (Windeyer J).
In assessing whether there had been a breach of duty to the applicant a number of general points must be kept in mind. First, the work and workload that the applicant was required to undertake was not inherently dangerous to the mental health of the employees. In that respect the industrial agreement allowed for face-to-face teaching of up to 20 hours and a class size of up to 25 students. It was not shown that, as a general standard, this workload was unreasonable or posed a risk to the health of teachers.
Next, it is significant that the applicant accepted that he could safely teach 22 students on a full-time basis. Indeed, he actively sought to teach at this level. It was the incremental increase that was said to constitute the breach when understood with the physical limitations of the classroom in mind. He was not being asked to perform a duty that he could not safely undertake.
In assessing the potential impact of the incremental increase, issues of autonomy and privacy are also liable to intrude. It is relevant at this point to note that the applicant did not share any medical evidence in 2013 and 2014 that may have assisted his employer to appreciate and respond to any risk of harm.[60] It was not alleged as a particular of breach that the respondent breached its duty by failing to make inquiries as to the applicant’s mental health but it narrowed the range of information on which the employer might reasonably be expected to act.
[60]Kozarov [2022] HCA 12, [17] (Kiefel CJ and Keane J).
The applicant’s complaints in 2010 about being required to teach for the full six periods in a day remained relevant to the potential impact that a change to class number may have had, but in looking at the reasonableness of any response it is notable that in the past he had apparently responded well to a reduction in the identified stressor.
Perhaps the most obvious way to deal with the risk of injury would have been to not implement or not maintain the change to 25 students. The judge found that the decision to move to classes of 25 students had a financial rationale that was justified. The judge also found that it was not reasonable to reduce the applicant’s class size. It was plainly not feasible to alter his class size but keep the other classes at 25.
Importantly, the judge took the view that a reduction in class size was not the only means of addressing the risk of harm to the applicant. Rather there were a number of other things that this employer was able to do.
First, the employer took steps to address the physical constraints of the room. It hired a consultant to assess what could be done, and out of that work, some noise reduction panels were installed.
Second, the school offered some assistance. First Mr Rowe, and later Mr Kelly. This did not work out.

Third, the school offered a change to the composition of his subjects.
In our opinion, because the cause of the foreseeable harm was an incremental increase in class size, the work was not inherently dangerous and to the extent there were evident signs of likely vulnerability or injury they were somewhat muted and did not emerge until later in 2014 and early 2015, it was not unreasonable for the employer to work through various steps in order to see if the work was manageable for the applicant. In this respect, it will be recalled that he told Mr Catalano in 2014 that he would work through to the end of the year. The steps offered by the respondent were a reasonable response to the risk of harm that subsisted from the start of 2014. These steps were not taken up by the applicant, but the circumstances did not render the failure of the respondent to take further steps, such as unilaterally removing some of the applicant’s woodwork classes, unreasonable. It was not part of the applicant’s case that he should have been rotated away from the woodwork.[61]
[61]Cf Kozarov [2022] HCA 12.
In that context, it was not a breach of the duty to fail or refuse to reduce the applicant’s class size to 22 students. Nor was it a breach to require the class to be taught in the woodwork classroom. It is noted that the judge had the benefit of inspecting the woodwork room,[62] and there is no reason to doubt the correctness of her conclusion that the room could safely accommodate 25 students.
[62]Reasons, [23].
We are unable to detect any error in the judge’s conclusion that the respondent took reasonable steps to avoid psychiatric injury to the applicant.
It follows that we would reject ground 2. Given that the applicant has failed to disturb the judge’s finding that there was no breach of duty, we would grant leave to appeal but the appeal must be dismissed.

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[2022] VSCA 231

26 October 2022