Koehler v Cerebos (Australia) Ltd

[2004] HCATrans 412

[2004] HCATrans 412

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P61 of 2004

B e t w e e n -

NUHA JAMIL KOEHLER

Appellant

and

CEREBOS (AUSTRALIA) LIMITED

Respondent

McHUGH J
GUMMOW J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 27 OCTOBER 2004, AT 10.00 AM

(Continued from 26/10/04)

Copyright in the High Court of Australia

McHUGH J:   Yes, Ms Braddock.

MS BRADDOCK:   May it please the Court.  Yesterday afternoon Justice Hayne, I believe, posed the question, what it was that an employer was to direct themselves towards or look towards in relation to making a proper assessment of a situation, obviously now in hindsight.  The answer to that, I would venture to suggest, is threefold.  It is the job itself, the employee – the worker, his or herself, and the feedback, if any, that the employer is getting from either the job or, indeed, the employee; and, although this is not a fourth category, it is the interrelationship between those three features that is of vital importance, we would say.

If I might move then to the features in this case before the Court.  One looks at the job, the duties in question.  These matters are adverted to in the written submissions and I do not propose to go through them in great detail.  The significant features there were that whilst the appellant was employed initially as a full‑time sales representative on a five day a week basis with all the usual perks of the job and the usual duties of the job, all that changed after 29 April 1996.  What occurred was, for economic reasons within the corporate structure, that, in essence, she went from working five days a week to working three days a week; from having a merchandiser assisting her to having no assistance whatsoever; and to working in a territory which, if not identical, was significantly the same for all practical purposes. 

In those circumstances, she not only effectively maintained the sales levels that she had previously been able to do; did the merchandising side of the job; but was given on top of that other specific additional jobs from time to time on, I think, at least 23 occasions, to help out other employees in circumstances where the territory physically that she was covering required a lot of driving to do the job.  That, therefore, firstly, is a principal submission that this was not in terms of her industry area a normal situation; not normal for a salesperson or normal for a merchandiser.  It was a situation created by the employer on an ad hoc basis.

Then you look to see what do we know about the employee:  an achiever who had obtained an award, conscientious and not a person who you would expect to be complaining without any basis.  But from the outset, from 29 April, she effectively told the employers this cannot be done in the time available, and then that continued and there is a schedule attached to the written submissions that sets out the sequence of complaints that were made. 

The point about them is, in fact, that she was not listened to; she was fobbed off.  In effect, it would appear for a substantial period of the time the senior man, Mr Budd, was away either on sick leave or on leave and effectively she was fobbed off – “Take that up with Mr Budd when he gets back”, “Take that up with the other manager”.  It was not addressed.  What we would say in relation to that is this was a total failure of management to manage a situation that they had, in fact, created.  That is the interrelationship.  You have, in effect, a conscientious employee who is telling the employer in various personalities that this cannot be done, that there is not sufficient time to achieve the tasks required, in circumstances where they know that she has the characteristics which would say she would try as hard as possible to maintain the job done properly.

What are the results, therefore, as found by the learned Commissioner at first instance?  There was an excessive workload, and not only an excessive work load, your Honours, an excessive workload that had to be achieved in a shortened period of time.  It is common knowledge that the stress or pressure or difficulty of doing something is increased by looting the amount of time available to do it in; that is to say from a perception and from a practical point of view.  It gets more difficult the shorter the time scale that you are given to do the job if it does not fit.

Your Honours, perhaps it is also important to remember that in the context of this action at first instance it was pleaded that the appellant was employed as a merchandiser and sales representative after the significant date in April.  It was denied by the employer, by the respondent, that that was the case on the pleadings.  They lost on that point.  The attitude of the employer was, and from the evidence, she was employed as a merchandiser; if she wanted to do the sales, that was up to her – effectively, a complete denial of responsibility for the situation that had been created.  That is why this is a situation where the references to, if you like, being up to the normal pressures of the job simply has no direct relevance because it was not a normal job.

Your Honours, in this sort of industry there is some degree of job design.  There are references in the evidence from the expert witnesses called for the appellant who were from within the industry as to the design of territories and what their reactions would be if they received negative feedback in relation to the duties being performed.  That is to say that this is not something to which no managerial responsibility attaches – in fact, very much the opposite from the evidence.

So on the facts of the case, your Honours, it is our submission that the learned Commissioner at first instance was more than justified in the finding that it was an excessive workload placed upon an effectively diligent worker without help, be it either practical or otherwise, and her pleas for effectively assistance had gone unheeded and it was easily fixed.  Not only ‑ ‑ ‑

HAYNE J:   Before you come to that, what is the content that the Commissioner gave to the expression “excessive” which we find at 822, paragraph 167?  Does it mean more than this person could cope with, more than some hypothetical person of what kind could cope with?  What is the standard against which excess is being judged there?

MS BRADDOCK:   Your Honour, perhaps the most direct answer is contained in the paragraph above at page 822 of the appeal books, paragraph 166:

the plaintiff was carrying out a full-time job in three rather than five days per week.

Linked with the other factors that then were found in relation to the additional work she was required to perform for others in the period in question.  Your Honours, on page 823 – this is the Commissioner going on at line 5 or thereabouts:

The evidence establishes that from 29 April 1996 the defendant and its officers were well aware they then expected the plaintiff to undertake a workload as a sales representative and merchandiser in three days which was little different from that which she had previously undertaken in five days . . . Thereafter –

et cetera.  That paragraph also links into the fact that the findings were that the respondent knew that the plaintiff was diligent and hardworking and would continue to try and achieve the results expected.

Your Honours, those are the features, we would suggest, that led to the learned Commissioner saying that it required no particular expertise to see that injury of the kind that ensued was foreseeable because the circumstances were, in fact, so far outside of the normal.  So you have a situation where you have an objective finding of excessive workload which is unusual which, in common parlance, is bound to place pressures upon the employee.  You then have unheeded complaints.  It is, again, a matter of commonsense.  There is a range of potential reactions that can be expected when those circumstances pertain.  They include some level of mental illness – maybe not the level of illness and incapacity that resulted in this particular case, but some level of mental illness, we would say, in those circumstances was reasonably foreseeable and it was justifiable that the Commissioner so found, even if it was unlikely, as he also found. 

The response then is, what is the reasonable response, the reasonable practical preventability of this injury?  It was the case that the appellant herself had given the respondent the remedy:  increase the hours, give assistance, reduce the territory – easily fixed.  That, in a sense, I am sure to some extent is behind the more damning comments that the learned Commissioner made as to the attitude of the respondent in that regard.  What, in a sense, was the reaction, as opposed to the reasonable preventability reaction, was effectively it is up to the employee the amount that the employee takes on and it is up to the employee in those circumstances to come back and say, “If you don’t take some notice, I am going to get sick”, or something of that kind, “I am going to lose it in some significant way”.

What is required, we would submit, in these circumstances, is that an employer thinks about the situation and manages the situation and takes responsibility for the situation, which is no more than another manner of saying that the employer takes reasonable care for the safety of the employee in these circumstances.

Your Honours, I think yesterday I was making submissions, perhaps in more general terms about the current 21^st century situation.  In many employment situations, there is more concern with the mental wellbeing than the physical wellbeing of people in an employment situation.  It is not being radical to suggest that management and employers must be alive to their responsibilities in relation to the mental wellbeing.  That involves being alive to the elements of the job in question and the personality of the employer and the demands to balance the safety issues with other issues.  Autonomy is not in question here.  The relationship of employer and employee is that the employer can say and does say, “You shall go here and do this, you shall do so much or you shall do more”.  It is not a question of autonomy with respect to the response of the respondent in this situation.

If your Honours would consider the manner in which the Full Court dealt with this issue – and I would suggest at page 864 of the fourth appeal book, paragraph 59, it commences at line 41, the paragraph which when taken in context of this case, we would submit, very well illustrates the error into which the Full Court had fallen and the dangers of the approach that are disclosed there.  In the first half of that paragraph, the statements made by the learned judge are not exceptional, and commencing to read from line 36:

That will necessarily require that consideration be given to facts and matters that might alert the employer to the presence of a risk of injury, unless the employee is known to be in a special position or susceptible to injury.

Now, your Honours, in fact, that expression in itself is not necessarily accurate, because whether or not an employee is known to be susceptible it was still a question of the employer having to be vigilant.  Simply knowing that that there was a susceptibility would not overcome a particular problem.  Then, going on:

In the absence of specific complaint by the employee or fellow employees, or other signs of prospective injury such as absences from work or unusual conduct, for the reasons indicated by the Court of Appeal in Hatton and by McHugh J in Tame v New South Wales, the employer is entitled to assume that there will be a normal reaction to the conduct in question.

Firstly, might I make this point, your Honours, that that is in terms a very general statement.  That statement taken at face value, it is with respect suggested, would be likely to lead to a very erroneous attitude being taken in lower courts and by those dealing with these types of complaints or actions.  Next, your Honours, might I suggest that one would be very surprised if any such statement were ventured to be made if one were talking about a physical injury or illness that had ensued. 

In that final sentence, the reference at line 46, your Honours, to a “normal reaction”, I would suggest begs the question in a sense – begs the question “a normal reaction”.  It may be, your Honours, in my submission, that the Full Court ventured perhaps to run together the comments of Lady Justice Hale about the normal pressures of the job and other comments in relation to normal fortitude because in respect, your Honours, there is no question of there being an obligation or assumption of a normal reaction.  Normal reactions are a potentially very wide range of reactions and if there would have been a disease, for example, a disease of a latent delayed onset type disease resulting from the circumstances in question, that statement would surely not be ventured by any judge of the intermediate appellate court. 

Your Honours, it is my respectful submission that that thinking therefore indicates the degree of error into which the Full Court had fallen.  Also the expression “alert the employer” perhaps deserves a little more attention.  It is as if, in those circumstances, the burden is being shifted and placed back to the employee to effectively send signals to the employer when, in fact, the obligation is on the employer to think about the situation.  That “alerting” reference or the word “alerting” is again apparent in the paragraph on the following page, 865, at line 23, in paragraph 61:

However, as I have indicated, that will necessarily lead to an examination of the Judge’s findings –

he is talking about the instant review case –

and related evidence with a view to determining whether the appellant was alerted to the risk of an injury occurring of the kind complained of.  It is in that context that the employer is entitled to take account of factors of the kind described by Hales LJ in Hatton and to weigh up whether the conduct would be injurious with respect to a person of normal fortitude.

Your Honours, that recurrence of the expression “normal fortitude” does, indeed, give perhaps some cause for concern in the particular context that it is being repeated, in the context of paragraph 59, in the context of normal reactions.  It is not a principal submission, your Honours, but one does have concerns as to whether that indicates some confusion in the mind of the Full Court in that regard.

Your Honours, then from that point of departure from paragraph 59, at the later stage of page 867, paragraph 73 and following, the Full Court elaborates upon the absent features which the Full Court has found effectively damn the claim in that in the absence of those features the respondent was entitled to assume and could carry on regardless, in effect, and that there could be no suggestion that there was any foreseeable risk of injury to this employee.  Those features are there set out as no specific complaint of any risk of physical or psychological injury, no suggestion of susceptibility, no suggestion of symptoms of ill health or absences from work. 

Having those matters in the forefront of his mind, it appears the Full Court actually approached the problem from the point of view of the absence of those features rather than from the point of view of assessing the overall situation.  That submission, your Honours, is founded upon the observations at paragraph 25, page 855 in the reasons of the Full Court.  At paragraph 25 the court says this:

I note in passing that the particulars of negligence and related particulars do not contain an allegation –

and then sets out those three absences.  It would appear that that was the fundamental point of departure that the Full Court was looking for those matters, did not find them and effectively ventured to suggest that they should have been pleaded that they were so fundamental to the nature of the claim.  That, amongst other reasons, is why it is submitted on behalf of the appellant that the Full Court effectively elevated matters that are no more than enumerated considerations into effectively prerequisites to liability where the injury is one of a psychiatric nature. 

Your Honours, that is in the context of the Full Court using or suggesting that the Commissioner’s error was in failing to give proper regard to certain features, which certain features were those omissions, in circumstances where the Full Court itself, we submit, did not give a proper overview or did not take a proper overview of the facts upon the appellate review.  There was a complete failure, in our respectful submission, evidenced in the judgment of the Full Court to properly appreciate that the appellant was not doing her normal job, or anybody’s normal job for that matter. 

If that needs to be demonstrated, your Honours, from the outset at page 849 in the appeal book, one traces through the manner in which the Full Court describes the job which was being conducted by the appellant.  At page 849, the reference in paragraph 5 is to her:

full‑time position . . . as a sales representative. 

In paragraph 6 the reference to the fact:

each sales representative was supported by a merchandiser –

Then on page 850 it states at line 12:

On 29 April 1996 she began part-time employment as a merchandiser.

Then, thereafter, the Full Court canvassed various aspects of the evidence.  At 853 – again, this is summarising the evidence – the summary at paragraph 19, line 18 is this:

At a later stage in her evidence-in-chief, the respondent summed up her reasons for remaining in the position of merchandiser, notwithstanding her dissatisfaction.

Again, your Honours, on the same page, the next paragraph:

In the course of her evidence-in-chief she also made some observations about the facts and matters bearing upon her inability to continue working in the part-time merchandiser position after 2 October 1996.

The following page, under the heading of “Legal proceedings”, the Full Court set out the position as pleaded and the issue as to the claim that she was, in fact – the respondent – there respondent, appellant here – was required to take on the dual role.  The fact that the respondent lost significantly at first instance on that particular plea is not without significance.

GUMMOW J:   What is the position in contract in this case?  Is that irrelevant to the position in tort?

MS BRADDOCK:   Your Honour, the position in contract would be interesting in the sense that this appellant was contracted objectively to work as a part‑time merchandiser.  What occurred was a complete change in her basis of employment, from being on salary to being paid an hourly rate, from having a company car to having to provide her own vehicle – there was a complete change objectively.  But, in fact, what she did was not what she was contracted to do.  She went well beyond that in terms of what she actually did.  She actually continued to do the job she had previously been doing, although she was only on, as it were, casual contract as a merchandiser. 

So, your Honours, that is an interesting point perhaps in another situation where the contract and the actual duties performed coincided more or less, but in this situation the contract took position after 29 April, was that she should be paid as and performing as a part‑time merchandiser, but the facts did not then conform to that contractual position.

GUMMOW J:   I was worried in particular about paragraph 21 on page 854 where “an implied term” was pleaded.  Is that implied term any different to what is now said to be the position in tort?

MS BRADDOCK:   No, your Honour, because the employer is liable to take all reasonable care for the safety of the employee engaged in what the employee is actually doing in fact.  There is no difficulty there, I would suggest, your Honour, that the duty to take reasonable care in tort extends beyond the contract if the contract is effectively a limited one and the employee is doing more with the knowledge and effectively consent of the employer, then the duty extends to the extent of what the employee is knowingly doing for the employer.

Your Honours, the position then in relation to the Full Court’s assessment, the Full Court refers at page 857, lines 30 to 33 to the findings of the learned Commissioner that she was:

expected . . . to carry out the duties of a sales representative and merchandiser –

in the context of simply setting out the findings of the learned Commissioner.  Then there is no further reference or further discussion by the Full Court as to the actual workload that the appellant bore or to the actual effect of any changes pre and post 29 April 1996 in relation to what she was doing and the assessment of risk. 

Your Honours, in a sense it would appear that the Full Court effectively overlooked that aspect of the case, concentrating perhaps from the outset upon the absent features noted at paragraph 25 of the judgment referred to previously and proceeding from there, whilst adverting to what the learned Commissioner found, did not in a sense go behind that or did not, in effect, attack the reasoning for that.  At paragraph 73, page 867, his Honour Justice Hasluck at line 41 says this:

However, it will be apparent from earlier discussion that a finding in these general terms does not appear to reflect the realities of the situation or conform to the evidence.

That is to say, he is referring to the findings set out at paragraph 72 above of the learned Commissioner, that is to say:

namely, that with the knowledge of the industry and the particular workload of the respondent, the appellant required no particular expertise to appreciate and foresee –

So the Full Court departs from the view of the learned Commissioner on the grounds that the findings did not conform to the realities of the situation, but themselves do not advert to what was the principal reality of the situation, the abnormality of the duties being performed at the relevant time by the appellant without support, without proper management and without regard being had to her protest and complaints. 

That, if your Honours please, is where the difficulty in the judgment of the Full Court is most evident, that that justification for appellate interference is, in effect, in a manner of speaking, hauling oneself up by one’s bootstraps, saying these features are absent, therefore, the learned Commissioner’s views were not conforming to the realities of the situation, when, in fact, the Full Court is not taking a composite view of the realities of the situation themselves.

HAYNE J:   Does the argument then come to this, that if an employee says to the employer, “I cannot do the job you ask me to do in the time you give me or without assistance”, it follows as step two that it is not far‑fetched or fanciful that on receipt of that information the employer may foresee the risk of psychiatric injury.  Step three, psychiatric injury ensues, the employer is liable.  Is that the argument reduced to its barest?

MS BRADDOCK:   That is paring it away too much, with respect.

HAYNE J:   What is missing?

MS BRADDOCK:   What is missing is the requirement that the employer has to have made an assessment of the work to assess the complaint in its context.  If, for example, in this case, your Honour, the appellant had continued to be employed after April as a full‑time sales representative, if there had been no downturn in the business of the respondent, and simply continued to sell and to conform with the pre‑existing contractual relationship, and then, for no apparent reason, simply walked in one morning and said, “I can’t do this job.  It’s too much”, then that would be the situation that your Honour Justice Hayne is postulating.  This situation ‑ ‑ ‑

HAYNE J:   The element you seem to be adding is the element that the employer, looking at the complaint, concludes, yes, the employee is struggling. 

MS BRADDOCK:   Looking at the complaint and looking at it in the context of what she is complaining about. 

HAYNE J:   Yes, but is that what the argument comes down to?  That is what I want to understand.

MS BRADDOCK:   There is another element, with respect.  It is to assess the employee, that is to say, if the employee was a person who was known to constantly be complaining about anything and everything, that might be one thing.  If the employee is a person, perhaps such as Mr Barber, who, for various reasons, is not given to complaint or not making his complaints in a sufficiently forceful manner, then that is another thing.

So it comes back to those three features, the job, the employee and the feedback, and a proper assessment of those things.  No, your Honour Justice Hayne, it would not be sufficient simply to have your secretary walk in one morning and say, “I’m not coping with the job”, and if then subsequently a psychiatric illness ensued you would be liable in negligence.  It would have to be a situation where something had changed, some feature of the job had changed, some demand of the job had increased such that there was a context in which that complaint was made which called for it to be investigated. 

“Investigate” is perhaps in some ways too heavy a word, but the employer has to step back and think, so why is this person saying this?  Are they just making a complaint because they do not feel too enthusiastic this morning, or is there something behind it?  If it is not immediately obvious, then take maybe one step or two steps to find out what generated the complaint.  It is not a situation that necessarily leads to an inappropriate intrusion upon the privacy of the employee, “Why aren’t you coping?”, “Why is it too much?”, very simple responses there might be.  If the employer says, “Well, that doesn’t seem to me to be quite right.  Why can’t the employee get around and do all this in the time available?”, then, as was the evidence in this case from the other industry salespeople, perhaps go out one day and see what they’re actually doing and make an assessment from there. 

GUMMOW J:   Now, you have spoken about the Court of Appeal in Hatton v Sutherland, but part of that litigation has gone to the House of Lords.  Is there anything you want to say about Barber v Somerset County Council?

MS BRADDOCK:   Your Honours, yes. The comments of the House of Lords at [2004] 1 WLR 1109, paragraphs 64 and 65, commenting on the Court of Appeal, said this:

In particular the Court of Appeal . . . has recognised that although injury which takes the form of psychiatric illness is no different in principle (for a primary victim) –

which comment relates to the particular position in England – 

than physical illness or injury, the causes of mental illnesses “will often be complex –

et cetera, and adverting to the consequences of uncertainty, but also, in that regard, adverting to the fact that people have different capacities and that employees have inhibitions against complaining, to a certain extent.  I am reading now from E:

Personal and professional pride, loyalty to the head teacher and to colleagues, and the wish not to add to their problems and workload, may all influence a teacher not to complain but to soldier on in the hope that things will soon get a little better.

Just coming back very briefly to the facts in the particular case, in this instant case, your Honours, there was also a factor operating, which is to say that Mrs Koehler was told that this particular situation was a temporary one and that she might expect to get her full‑time normal job back within six months.  She was effectively induced to carry on.  The comments further on the very bottom of that page in paragraph 65 below H, commenting directly upon the Court of Appeal’s paragraph [29]:

This is, I think, useful practical guidance, but it must be read as that, and not as having anything like statutory force. 

That, with respect to the House of Lords, commenting upon the Court of Appeal, is exactly correct.  In effect, it would be wrong to harden what our observations of a general kind made by Lady Justice Hale into something having something like statutory force, which is, with respect, what we suggest the Full Court in Western Australia has in practical terms done. 

Mr Barber, of course, was interesting in the sense – it is noted again in the House of Lords report on the following page 1110, at paragraph 66, quoting from the Court of Appeal, and this is at just below F in that report in the House of Lords:

Mr Barber did not think of himself as a candidate for psychiatric illness until it was diagnosed in May –

it says “1966”, which must be a typographical error.  That, in a sense, is one of the features that is perhaps difficult, but nevertheless has to be grappled with in this area.  It is not to be expected necessarily that the employee will think of themselves as being likely to succumb to mental illness, whether it be of a serious kind or a shorter‑lived kind.  It is not to be thrust upon the employee to self‑diagnose that type of problem: 

He simply told Mrs Hayward that he was not coping very well.  He made a more explicit reference to health to Mrs Newton and Mr Gill, but did not explain the symptoms from which he was suffering. 

Over the page, your Honours, the House of Lords, commenting in paragraph 67 on the Court of Appeal’s decision in relation to Mr Barber, and this is at page 1111C: 

The Court of Appeal was concerned about the timing of the breach, but for my part I do not think there is much room for doubt about that –

and then discusses the specific time scale –

The Court of Appeal evidently considered that Mr Barber was insufficiently forceful in what he said at these interviews, and that he should have described his troubles and his symptoms in much more detail.  But he was already suffering from depression, and neither Mrs Hayward nor Mrs Newton was a sympathetic listener.

So, your Honours, it is not the case, clearly, that the employee must be in a position to say to the employer, “Look, I am going to have a nervous breakdown” or words to that effect.  

HAYNE J:   In the case of this man, the teacher, Mr Barber, he had been off work and his doctor had certified stress and depression.

MS BRADDOCK:   That is correct.  Your Honour Justice Hayne is absolutely correct that there had been a previous difficulty, and it was a longer term problem.

HAYNE J:   But his employer had received the certificate of the medical attendant?

MS BRADDOCK:   That is correct.

GUMMOW J:   What do you say about paragraph 35 in Barber in Lord Rodger’s speech as to the appropriate starting point in contract and the applicable statute before you give content to the duty of care?

MS BRADDOCK:   In relation to contract ‑ ‑ ‑

GUMMOW J:   What his Lordship says at paragraph 35, is that correct?

MS BRADDOCK:   The contract of employment usually will regulate what would happen if a person was sick or injured, that is correct, and whatever ‑ ‑ ‑

GUMMOW J:   No, 35.  I think you are reading 33.

MS BRADDOCK:   Sorry, your Honour, I was above.

GUMMOW J:   We do not know any of this in this case.

MS BRADDOCK:   No, your Honour.  The interrelationship in relation to contract and tort was not explored in the appellant’s case.  It would appear that the duty may well have simply been assumed to be co‑extensive, whether it be one or the other.  The fact is that ‑ ‑ ‑

McHUGH J:   Well, it always is.  The duty to take reasonable care under the contract of employment is identical with the duty in tort, but the point is that the terms of the contract may throw light on the extent of the duty.

MS BRADDOCK:   Yes, your Honour, such as in the case of the hospital doctor, Johnstone v Bloomsbury Health Authority, the English case where the hospital doctor was contracted to work for 40 hours and be on call for 48 hours.  Yes, obviously the terms of the contract may throw light upon it.

HAYNE J:   But will, will they not?  Is it a breach of a tortious duty for a party to a contract to insist upon performance of the contract?  “You will do the duties which are required under your contract of employment”.  Now, how does that intersect with a tortious duty of care?

MS BRADDOCK:   Your Honours, it may be that in certain particular circumstances the duty to take care of the employee’s health may involve looking within the contractual terms as to whether in those circumstances, in the events that are then happening, there is a risk to the health of the employee, despite the contractual terms to work for so many hours.

HAYNE J:   We have a real problem of coherence emerging.  We have a genuine problem of coherence of tort and contract emerging, have we not?

McHUGH J:   Because the received view has always been that you can sue in contract or tort.  There is the Kuwait Corporation Case, there is Jury v Commissioner for Railways (1935) 53 CLR 273, and since, at least in contract, the duty arises by implication as the duty to take care, you could not imply a term which would be inconsistent with an express term of the contract. I mean, one of the difficulties may be that if you have contracted, for instance, to deliver 60 articles a week, then that is your duty and you cannot say, “Well, you are under a duty to take reasonable care to see that I don’t do that because it might affect my health”.

MS BRADDOCK:   Your Honours, some contracts may in fact be inherently unreasonable.  Some obligations may be – they are not obligations that would be reasonably enforced, if questioned.  I would suggest, in any situation, it would depend upon the precise circumstances. 

HAYNE J:   Let us take the simple case of the employee who is contracted to perform duties that are closely defined:  make 60 deliveries a week at points identified.  Let it be further assumed that the employee finds that the performance of those duties is proving stressful.  Let it further be assumed that the employee goes to the employer and says, “Look, I am just not coping.  This is really too much pressure for me to deal with”.  Now, where do we go from there?

MS BRADDOCK:   The employer in that circumstance would have to say, “Well, there has to be a better way to perform these duties”, unless the parties have got themselves into a situation of contracting to do something that inherently was always going to be too much.

HAYNE J:   Contracting for the employee to do something which this employee is finding too much for them.  There is no shame or difficulty about that.  It is the fact.  Now, what is the legal consequence that follows from that set of circumstances?

MS BRADDOCK:   The employer ‑ ‑ ‑

HAYNE J:   Does the employer have to vary the contract?

MS BRADDOCK:   The difficulty might be that the employer might have to say, “Well, I employed, clearly, the wrong person to do this job.  This is a matter I am going to have to take up with the employee”.  The employee may well be speaking the truth, but that is no fault necessarily of the employer’s or, in fact, no fault of the employee’s.  They both underestimated the abilities of the employee. 

GUMMOW J:   Then the employer runs into the disability legislation.

MS BRADDOCK:   That may be the situation, and it would depend upon whether it was due to a disability ‑ ‑ ‑

GUMMOW J:   Part 4A of your Act here.

MS BRADDOCK:   Yes, your Honour.  It may be, but it may not be that it is due to a disability.  It simply may be a mismatch of an employee to employment duties.  I mean, these things must, indeed, happen, probably quite frequently.  You may think you have somebody who can do a particular job, but, if it is not a standard specific situation, it may not unfold.

McHUGH J:   One of the difficulties in this case is that there is no evidence in any written contract, and in dynamic relationships the terms of contract can change.  They can be changed by conduct, and it is arguable that because your client accepted the increased workload, they constituted the conditions of employment, that it was a contractual term.

MS BRADDOCK:   To a point, your Honour, but the point was that from the very outset, from the day that she was assigned the territory, she said, in effect, “This can’t be done”.  She was then with a response to the effect of, “Try it for a month and then we will see what we can do”.  Your Honour’s point comes very much to how important it is to look at the precise facts of each situation.  So this was a situation that was evolving and was, in effect, being varied by conduct, but it was not accepted by the appellant that it was possible or reasonable.  Nevertheless, as the employer, the respondent accepted the benefits of her efforts, which is to say, the maintenance of the sales, accepted the benefits that were being achieved, whilst, at a substantial saving to the entity, paying her less, not providing a vehicle, not providing a merchandiser. 

So they are accepting the benefits, she is protesting.  Your Honour, in this particular instant case, one would venture to say that whilst in theory there may be a variation by conduct, in practice, it was a more fluid situation here.  It had not been accepted by the appellant that it was a reasonable or proper manner of going about covering the particular territory.  So there may be situations where that would pertain, but not in this particular situation.

A truck driver might be contracted to deliver across the Nullarbor several loads in a particular period of time which would perhaps necessarily involve driving for 120 hours a week.  That might well be the contract, but that would come starkly into conflict with the duty to take reasonable care, not just for the employee but for any other road user, if the employer insisted upon the performance of that contract in the face of “This just can’t be done within the speed limit or within the statutory hours permitted for driving”.

McHUGH J:   That seems to turn the contractual or employment relationship on its head.  I mean, how else can you determine the content of the duty of care and contractor in tort other than by starting with Lord Rodger’s analysis in Barber?

MS BRADDOCK:   Your Honours, this has not, to the best of my information, been dealt with directly, save the issue in the Johnstone v Bloomsbury Health Authority Case, which is the hospital doctor, which, of course, is a situation where, indeed, one probably would expect the contractual obligations to be pushing the limits of what is reasonable, for historical reasons if for no other.  But there would have to come a point where it would not be reasonable, and it would not be taking proper care within terms of the contract. 

McHUGH J:   I think that argument seems to me to be circular.  Supposing, as a result of the employee failing to carry out the contractual obligation, the employer lost money, why would the employer not be able to sue for breach of contract?  Would it be an answer to say, “Oh, it was too hard for me, I couldn’t do it”?  This gives rise to Justice Hayne’s point about the need, which Sullivan v Moody emphasised, to have coherence between the law of tort and other doctrines which it overarches. 

MS BRADDOCK:   Your Honour, yes, one could not seek to argue against the need for coherence, but the development of the law from the contractual point of view – at what point can you contract to do the eminently dangerous, to work for 100 hours a week?  To what ‑ ‑ ‑

McHUGH J:   Well, steeplejacks contract to do dangerous work every day.  It depends on the terms of the contract.  What is involved here is a completely different area from the area of physical injury.  We are concerned with an area where the employee is under an obligation, express or implied, to do certain work, and the question then is, to what extent is it governed by a contract?  It must be governed by the contract.

MS BRADDOCK:   But the taking of reasonable care within the context and the confines of the contract may take life in different forms.  Your Honours, the Irish situation, the case in which – its name has escaped for a moment, but it is a first instance Irish decision of Justice Declan Budd in Ireland, in Dublin, which involved a soldier in the Irish Army.  My learned junior is indicating that the case is McHugh v Minister of Defence; I should not have forgotten that, your Honour.  The interesting analysis there was it was not that the duties of an Irish soldier in Lebanon did not expose the soldier to post traumatic stress disorder.  That much was effectively not in issue.  That was a given. 

It was the reaction of the Ministry of Defence, effectively, the commanding officers, and the training and the way in which it was handled that was the focus of the inquiry as to whether the state of knowledge and the state of training and the response to the effect that after a certain number of incidents the particular soldier began to show signs of this.  That was not the foundation of liability.  It was, was that then properly managed in terms of recognising it and seeking treatment?  The case turned upon the state of knowledge and whether the psychologist who had been educating, giving lectures to the commanding officers, but that then was not put into effect.

So it may be, taking the hospital doctor situation, the young hospital doctor contracted to work for 40 hours and then to be on call for 48 hours, it was the being on‑call part that was the problem, that within that the hospital must seek to manage the content of being on call for 48 hours, such as not to expose the employee to danger to health, whilst both parties are performing the contractual obligation.

It may be that it is the content, in my submission, of the duty and how it is effected that lends to coherence rather than incoherence.  You might be contracted to be on call for 48 hours, but the expectation is that one individual would not be on call for 48 hours each week and every week.  If it was mismanaged to that extent, then the response of the employer would not be taking reasonable care, because one might assume that the implication is you are not working for 48 hours a week, you are in part on call and can sleep, et cetera.

McHUGH J:   But to the extent that you imply any of these qualifications on being on call for 48 hours, it must be from a contractual base.  You cannot have the law of tort driving the law of contract.  After all, until negligence was seen as an independent tort, one would have had to declare in contract under an implied term.  It is the contract, in a case like this, that seems to me to be quite definitive.  We affirmed in Astley that the obligations in contract and tort are concurrent, but I do not think you can get a situation where your duty in the law of tort can be different from your duty under the law of contract. 

MS BRADDOCK:   Your Honour, I am not submitting that it should be different.  It is the response that is called for in the context of what is being asked of the employee under the contract.  These things are seldom simply absolute.  We are not in a simple situation where you are contracted to simply sit at a desk and mind the carpark. 

McHUGH J:   All I am putting to you is that in working out what ought to be done or what are the obligations, one ought to be looking at it in terms of a contract.  In the doctor’s case, you say to yourself, is it an implied provision of the contract that although he is on call for 48 hours, or whatever the period is, he shall only be called out at certain times or after certain periods of rest and so on?  I think you have to really look at it from the point of view of contract, and insofar as equitable doctrines of trust and confidence overlay that situation.

MS BRADDOCK:   Yes, your Honour.  My submission, with respect, is that that comes back to looking to the content of what he has actually been doing and the way in which that is being managed, in both senses of the word, by the employer in terms of management and by the employee in terms of capacity and response, the feedback.  With respect, your Honour, it would not necessarily take one into an area of incoherence – it should not take one into an area of incoherence, particularly when one considers that perhaps these situations arise at the more sophisticated end of the employment market. 

At that level, there is expected to be a degree of dialogue and feedback, and, as your Honour Justice McHugh said earlier, the contract may be subject to variation and change in changing or difficult or different circumstances.  With respect, there should be no necessity for an outbreak of incoherence in this particular area. 

Your Honours, returning perhaps to the more specific in relation to this instant case.  Your Honours, I have made the point of the facts that, in our respectful submission, were not properly apprehended by the Full Court, and the result of that being the statement of the Full Court and the manner in which the Full Court decided the case and expressed it in paragraph 59 to which I took your Honours earlier. 

The point I would further add to that is, if that is what has actually happened and that is the way in which the Full Court has actually dealt with the matter, to simply have repeated, quoted and set out in the judgment large excerpts from unexceptionable authority not to be argued against does not save the actual judgment.  In every judgment there are parts which are analytical and parts which are stating the area of the law that one is in.  It is the analytical parts that form ultimately the ratio and the power and the force of the judgment. 

It is our submission that in the analytical aspects of this judgment in the way it has actually been operated, which is evidenced by the matters in paragraph 59 and 73 onwards, that the error is disclosed, that it elevates certain features to being prerequisites, that it will therefore limit the wide and principled operation in this area and will be taken to do so.  With respect, it may be that it will be misused as it stands and lead, therefore, at that level, at the trial level and ‑ ‑ ‑

McHUGH J:   I think you have already made that point.

MS BRADDOCK:   Yes, your Honour.  This is not, your Honours, therefore, to open any floodgates.  There are considerable limitations upon these types of actions.  There are statutory limitations to the commencement of actions in this State and in other States and Territories, there is the application of commonsense, and there is one of the fundamental constraints in relation to the area of psychiatric injury that we talk about illness, not people being upset emotionally, angry or resentful as to the way in which they have been treated.  There is a very clear limit there that is not under any threat in relation to intervention in this particular instance.  And there is obviously the increasing level of psychiatric expertise from a medical point of view to draw the line if none is otherwise drawn. 

This is not the treatment of employees, in a sense, acknowledging that they may be subject to adverse reactions to stress that are as severe as a mental illness, not necessarily as severe as the appellant’s mental illness.  It is not in any way adverse to challenging employment; it is not adverse to productivity; it is not adverse to personal privacy.  It is simply a reflection of requiring responsibility and management skills to be applied, when you are in an area – it is not a question of lifting limestone blocks – where it is an area of greater subtlety requires greater subtlety in management.  It certainly is not a matter of guesswork.  It is the commonsense aspect of the man on St George’s Terrace who in these days would say, yes, it is a well‑known fact that persistent overwork leading to stress and pressure on an employee may cause mental illness of some description.  It does not have to be specific as to what description.

Your Honours, it is no answer, in our respectful submission, to say that neither the employee, nor necessarily immediately the medical expert, would know what the precise form of the adverse reaction were to be.  You do not have to have expert evidence to say that it is reasonably foreseeable.

Your Honours, the features that we rely upon have been set out at length in the written submissions, as, indeed, have the authorities so far as have been able to be garnered by research as to how it has been dealt with.  There does not appear to be difficulty in relation to the actual basic duty in relation to psychiatric illness generally.  There are difficulties in England in relation to the primary/secondary victim analysis which do not concern us here. 

But, your Honours, in my respectful submission, the Full Court has fallen into error by adopting, in fact, part of the general remarks of Lady Justice Hale and using them in a way, which I have already demonstrated, effectively to overturn a judgment which at first instance, on close analysis, makes perfect sense and was perfectly rational and reasonable in all the circumstances.  As I have already indicated, the route by which it would appear that the error in a practical sense crept in was this failure to appreciate what, in fact, the appellant was actually doing.  Those, your Honours, are my submissions.

McHUGH J:   Thank you.  Yes, Mr Walker.

MR WALKER:   Whether one is examining the Commissioner’s language, the word “excessive” in paragraph 167, 4 appeal book 822, or the now much used expression “overwork”, there is immediately the questions raised and, for the reasons there put, not answered by Lord Rodger in paragraph 35 of Barber. 

This case, as we have tried to put in the last paragraph of our written submissions, wholly failed at the trial level, perhaps not by the fault of the current appellant, to grapple with the necessary analysis.  It fell out this way.  As your Honours have seen from our written submissions, this was a case that was pleaded in contract, in tort and also for breach of statutory duty.  The contractual claim is not clearly pleaded and certainly does not raise at all anything in the nature of saying, “The contract called for X amount of work or Y kind of work and I was, in fact, illegitimately required – whatever is involved in that curious notion – illegitimately required to do more than X or a different kind than Y.”  There is none of that.

So when the Commissioner, in effect, failed to determine the case in contract or for breach of statutory duty, your Honours should proceed, particularly in light of what has been said and not said about that here on behalf of the appellant, along the lines indicated by Moustakas v Water Board.  That is the way the party, relevantly the plaintiff, chose to conduct the case.  Certainly, that is explicit in the Full Court because there was, as we pointed out, no contention of any kind raising a contractual count for a breach of statutory duty matter in the Full Court.

McHUGH J:   But it is very difficult to determine the content of the duty in tort without knowing what the same duty is in contract.

MR WALKER:   Quite so, and that is why the word “excessive” in paragraph 167 of the Commissioner and “overwork” as used by my learned friend, particularly in appealing to what is said to be the man in the street’s understanding that overwork can send you mad, which, with respect, is a vulgar and unsafe assumption for a court administering tort law to proceed.

HEYDON J:   You take that point do you, that there is no evidence that working to the point of extreme fatigue and distress can lead to mental illness or disorder?

MR WALKER:   Your Honour asked me whether I take the point of a lack of evidence.  It would need to be ‑ ‑ ‑

HEYDON J:   Can it be judicially noticed?  Is there any expert evidence on it?  Is there any other way in which the proposition can be accepted?

MR WALKER:   Well, (a) it does not need to be expert.  The existence of a risk is something which may be found without expert evidence, depending upon the nature of the risk and the material otherwise available to the court, including judicial notice.  And (b) judicial notice does not go so far as to accept the ideology of recognised mental illness.  The court having for good reason, with respect, required that damages not be awarded for anything other than recognised mental illness, judicial notice should not take the court into the ideology of those things which are from time to time recognised as psychiatric illnesses, particularly as the court would have judicial notice of the fact that medical understanding of such matters has altered and altered very radically over the course, say, of the last 150 years, and is unlikely to have reached its acme of perfection now. 

The next thing we would say is that in the nature of things for what Lady Justice Hale, with respect, correctly noted were understood, even at the lay level, to be multifactorial ideologies, such as are classic for what we currently understand about mental illness, it is naturally going to be possible in some cases for it to be expert evidence which will supply the necessary material for the court, but we do not take a point that there was no expert evidence in this case ‑ ‑ ‑

HEYDON J:   You take the point there was no evidence.

MR WALKER:   I certainly take the point that there was no evidence that the kind of burden which was placed upon the plaintiff is something which a reasonable employer in the position of my client should have understood gave rise to the sufficient possibility of causing, that is, contributing to, the ideology of a psychiatric illness, a relatively serious disabling psychiatric illness, so as to require preventative steps to be taken. 

We certainly take the point that there was no evidence that the kind of burden which was imposed in this case would be understood, or should be understood, except by a rather socially dangerous caution, to present across the board, and apparently for everybody, that if you are looking ahead and you do not know of indications from particular people, it would be some general human phenomenon of which should be held to be aware.  We certainly take the point that there is no evidence to suggest that kind of risk was understood by an employer such as my client treated objectively, and I stress it is evidence relating to this kind of burden.  Your Honour did ask me about overwork generally.  Overwork generally was not, in our submission, an issue in the case.  It factually does not arise.  It is the kind of burden which was being imposed in these circumstances and there is really no evidence that justifies treating that as having been within the reasonable grasp of my client’s knowledge so as to lead to the foreseeability finding.

HAYNE J:   That is, in particular, a challenge to 171 of the Commissioner’s reasoning, is it not?

MR WALKER:   Yes.  One of the next paragraphs I was going to come to – there is, in our submission, nothing in the evidence supporting the facts found in the Commissioner’s reasoning leading up to paragraph 171 which can possibly justify those conclusory statements, which is why the Full Court was properly fulfilling its duty using its incontestable powers in substituting the opposite result.

GUMMOW J:   Paragraph 31 of Justice McHugh’s judgment in X v The Commonwealth 200 CLR 177 at 187 to 188 encapsulates the contractual starting point, the equitable overlay involved too and the intrusion of statute in discrimination cases ‑ ‑ ‑

MR WALKER:   Yes, thank you, your Honour.

GUMMOW J:   ‑ ‑ ‑which I think fits in with what Lord Rodger was saying.

MR WALKER:   Yes, could I return to that matter. 

GUMMOW J:   Yes.

MR WALKER:   One therefore starts, when talking about work, with the notion that there is employment.  After all, we are sued as an employer.  There is a contract.  You do not know much about the contract in this case.  There is the document at – I will come back to that in a moment.  Suffice it to say that the description of the duties as merchandising representative was shown in the evidence to be a set of duties of which the plaintiff claims she was well aware when she was given the very perfunctory letter confirming her employment. 

You do not know anything more, because the plaintiff did not make a contractual issue of it, as to what could be required of her under the job.  But in general one can say an employment contract is obviously subject to the law of the land enacted by statute.  So, if one was to move out of the present area of so-called overwork and move to something far more familiar, to the developmental history of the tort of negligence in employment, one now has statutory limitations on what you can ask certain people to lift physically – the weights you can ask them to lift physically.  There is an obvious interrelation between contract and statute in a way that preserves any incoherence. 

If a contract purports to require somebody not a circus strongman to lift 5 tonnes unassisted, then the occupational health and safety legislation in all civilised jurisdictions will render that an illegal promise.  That is unenforceable as a matter of common law doctrine and by statutory dictate in most cases.

HAYNE J:   But the first level answer to the problem of coherence might be thought to be that the duty of reasonable care might require either a modification of the contract that has been made, or might affect the content of contracts which might be made by employer and employee.

MR WALKER:   Yes, indeed.

HAYNE J:   Now, that is the first level answer, but the second level problem that then emerges is the problem identified by Lord Rodger in the second‑last sentence of paragraph 34 immediately before the passage to which we presently have been looking. 

MR WALKER:   That is right.  Now, I am going to come to that in just a moment, because this notion of so-called overwork or something being excessive does require appropriate analysis of what are, in our submission, co‑ordinate, if you like concurrent, common law obligations.  It is important to observe that the contract is voluntary.  The employee undertakes to discharge certain jobs, to do certain work.  In terms of the contract, subject only to what I am going to come to in relation to implied terms concerning safety and health of workers, subject only to that, it makes no sense – indeed, it must be an egregious fallacy – ever to suggest that work within the contractual description could be overwork.  It is by definition the work called for.

Now, the fact that a contract may not be particularly precise as to the scope of duties which can be called for, no doubt means that from time to time, when suing in contract, there will be difficulties – not always for the plaintiff, quite often for the defendant – in determining where the line is drawn between what is work called for and what is work excessive to the contract.  This case did not raise that at all and we do not have any determinations against that contractual scope of job line.  In particular, paragraph 167 and 171 of Commissioner Greaves’ reasons does not supply any such reasoning or conclusion at all. 

We then come to the interplay which is given rise to by the usual implied term of employment that an employer will take reasonable care with respect to the health and safety of its workers.  That has not hitherto been thought to be a term in contract capable jurisprudentially of contradicting a scope of job provision – “You must make 60 sales calls a week by motor car”.  Now, that is obviously going to involve variables such as traffic, it is going to involve variables such as how long you are engaged, et cetera, et cetera.  Leaving aside terms that deal with being indisposed or sick, because they will be contractual or statutory or a mixture, the question would then arise as to whether in contract there could be an implied term that provided by way of the scope or content of the stipulated care a requirement that the 60 be dispensed with and be substituted, say, by 50. 

In our submission, hitherto – and by that I mean up until this argument today – it has not been suggested that in this special area of employment in relation to what is tendentiously called overwork an implied term can do what no implied term has ever done before, namely, contradict an express term.  If the express term be not illegal, then, in our submission, the voluntary nature of the contractual relationship makes it, in our submission, of high importance that the common law do nothing to interfere with that clarity.

That means, of course, that under the contract, when one undertakes to do something which proves to be too hard, there will be the usual common law recourse for both employer and employee.  Because the common law does not permit contracts of employment to be bonds of slavery, one will be able to give notice or otherwise to bring to an end the employment relation without a court forcing you to carry it out.  But, for example, particularly if you are a senior executive whose duties happen to be very onerous, as they mostly are, and could well be thought such as to drive people to distraction or worse, then you may well have to pay damages or lose benefits by reason of the early cessation of your attempts to carry out your duties. 

That is a coherent contractual analysis which, whatever the pity that may be evoked by the overworked or distracted executive, should not involve any contradictory influence from the law of tort.  That is because, as I say, the law of tort must reflect the same content of reasonable care for health and safety as the contractual implied term does.  It is for those reasons, bearing in mind that the employee has voluntarily undertaken by contract to create the relationship which the law of tort then says carries with it a duty of care, it must be that the law of tort starts by saying, “What is reasonable in the circumstance created by the employee’s choice to carry out this work?”  Tort will therefore automatically calibrate the content of what is reasonable to the circumstances created by the employee’s voluntary choice to do the work.

Now, in many cases what might be called bullying, harassing, callous or oppressive conduct by an employer will be in breach of some statutory obligation.  In many other cases they will, in fact, be in breach of an implied term, because it is difficult to understand any job description, any scope of job requirement in a contract which would ever include as a matter of proper interpretation the liberty on the part of the employer to engage in conduct attracting epithets such as I have just used. 

It is in that fashion that tort and contract operate coherently in this area of the duty of care in relation to health and safety of workers without involving the nonsense of saying that work contracted to be done in contract is overwork for the purposes of tort.  Yet, in our submission, that is precisely the fallacy that underlies and informs the whole of my learned friend’s argument.

CALLINAN J:   Mr Walker, could I just ask you about a factual matter.  At 823 in the reasons for judgment of the Commissioner, at line 28 – do you have that?

MR WALKER:   Yes, your Honour.

CALLINAN J:   Paragraph 171, line 28, the Commissioner said:

It may be some would view that risk unlikely.  It matters not –

and then he says he does not think it is farfetched or fanciful.  But if you go to paragraph 173, he seems to have formed the view by then that, in fact, “the risk of injury was unlikely”.

MR WALKER:   Yes, but then Shirt’s Case classically demonstrates that it is never a matter of requiring probabilities.  Something may be quite unlikely and still a foreseeable risk, depending on all the other matters that need to be considered as well.  But, yes, your Honour, with respect, is right.  This is a case approached on the basis that the risk of injury was unlikely, approached on that basis at trial where the plaintiff succeeded.

CALLINAN J:   There has always been a problem with Shirt and really, with all due respect in that regard, farfetched, not farfetched, not fanciful but unlikely really.

MR WALKER:   I hope your Honour is not going to ask me to distinguish between farfetched and fanciful.  But in 173 this wrapped‑up phrase, “the risk of injury was unlikely”, by reason of the way the case was properly put, has to be read as meaning the risk of this kind of psychiatric injury – of psychiatric injury as a kind to this plaintiff was unlikely.  It is in light of that, in our submission, that it is very difficult to see that this employer was bound to reduce its lawful requirements under the contract.  I say lawful requirements because there is really no challenge to that proposition and it is the first thing one would do for an employee if complaining about too much work, to say, “Well, could it be said this was work beyond the contract?”  It was not said, from which one ought to proceed on the basis that that was never the case.

Now, when one then sees what the Commissioner does in paragraph 173 on page 824, one sees this complete ignore of the contractual position between lines 5 to 10:

It was open to the defendant to increase the plaintiff’s hours –

that is one way of saying to increase the costs of employment, the labour costs of the employer –

or provide her with assistance –

which is another way of saying increased costs.  So that, in a way that is not explained, the law of tort required somebody, an employer who had retrenched in straitened economic circumstances a person, re‑engaged her for less time and therefore overall less money, that the law of tort would require that contractual choice on the part of the employee, not only the employer – she chose to be re‑engaged on those terms – somehow the law of tort requires that to be departed from.  In our submission, there has never been an authority which explains how negligence – admittedly a retrospective award of damages rather than a prospective injunction – negligence can force someone to financially adjust matters on the basis that the contract should not have been enforced.  That is what we were trying to conjure up in the last paragraph of our written submission, that it has been, with respect, entirely unanswered in my learned friend’s argument.

HEYDON J:   Is there any evidence of what a period of lawful notice would have been on either side, or is that something that would have been implied?

MR WALKER:   It would have been implied.  The closest one gets to a contractual document is in volume 4 of the appeal book at page 757.  I can assure your Honour Justice Heydon that not even the strongest of light will reveal any express answer to your last question.  It is, how shall I say, a brief but not admirably brief document. 

Now, there was in the evidence‑in‑chief of the plaintiff, appeal book volume 1, pages 203, 204, starting about line 45 on 203, questions establishing that there was an understanding between the parties to the contract as to the nature of the duties.  It is the way in which this was forensically presented which enables us to say this is not a case where the complaint ever was, “I was being asked to do more than my contract could require me to do”.

We have drawn it to attention in our written submissions and the very full reference to the facts in the appellant’s written submissions also include the passages that your Honours will have seen show that the plaintiff, having been sales representative of the year, was eager to do things as well as she could, eager to sell more and more, notwithstanding that selling was not called for under the contract.  If she wanted to do it, she was permitted to do it. 

In our submission, she was one of those employees of a kind that make the English Court of Appeal’s doubts about claims of this kind and how they should be presented entirely substantiated.  What does one do with an employee who wants to do more and wants to do things better and, not unnaturally, being ambitious, asks for more hours, that is, more salary, and for a more elaborate establishment, an assistant.

In our submission, it cannot be the case that the law of tort says that now the contract should be renegotiated to reflect what a keen employee wanted, or, worse still, to prevent a keen employee from working “too hard”.

McHUGH J:   It may be that despite the fact, as I have mentioned, concurrent obligations and duties arise both in tort and in contract, the proper approach is to jettison any use of tort doctrine and simply concentrate on the matter from a contractual ‑ ‑ ‑

MR WALKER:   That would be, I fear, too radical a step to take on the basis of the arguments in this case.  It may well be, your Honour, that concurrency, which can operate only in the way we have submitted, namely, that the content of the contractual implied term, which is itself dictated by the express terms of the contract, subject to illegalities created or not by occupational health and safety legislation, in turn must be reflected in, that is, mirrored in, the duty enforced by the law of negligence.  If it is in that fashion, as we submit it must be, then, in a broad functional sense, one would ask, why have the law of negligence? 

On the other hand, that is not a question we would wish to embrace, not least because, although one might say there will always be a contract between worker and so‑called employer, there must be quite a few cases where the proof of that, through no fault of the worker, may be very difficult.  It would be, obviously, a tragedy for the law of negligence entirely to vacate the field.  I think your Honour was putting to me, not entirely vacating, but that where there is a contract it should prevail.

McHUGH J:   There would always be a contract with the employer, even if it is a contract at will, and there will be terms implied by law.  In Concut v Worrell, which was in this Court a few years ago, we pointed out that this is the sort of contract where terms are implied by operation of law.

GUMMOW J:   Concut v Worrell (2000) 176 ALR 693. For some caprice on the part of the editor, it is not reported in the CLR.

MR WALKER:   Your Honours, all we need to observe is that what is called “coherence” simply in this case dictates the outcome that nothing in the content of the common law duty of care – that is, the essence of it – can contradict what the contract called for or permitted.  There would be no difference between “called for” or “permitted”. 

McHUGH J:   Those who were not brought up on the third edition of Bullen and Leake sometimes overlook the fact that the law of negligence is a Johnny‑come‑lately in these areas, in that basic doctrine begins with contract.

MR WALKER:   That does not necessarily mean that one always pleads first, let alone only, the cause of action with the longest history, your Honour.

GUMMOW J:   No, but it does indicate that the attempt in Clayton v Heffron to have tort drive contract was really the wrong way around.

MR WALKER:   Yes.  I do not need to add anything further to what I have said in that regard.  Could I very briefly turn to the spectre your Honour Justice Gummow has raised in relation to the application of the local ‑ ‑ ‑

GUMMOW J:   There is no evidence of any industrial award here, is there?

MR WALKER:   None at all.  My learned friend’s written submissions make some play of how long this case took at trial.  We are entitled to observe that that makes all the more significant some of the things that were not proved.  One of the things that was not really proved satisfactorily, although there are slighting references to her former colleagues in the plaintiff’s own evidence, is anything remarkable or inappropriate – to use deliberately vague words at the moment – in a contrast, on a fair comparison basis, between the plaintiff and her workmates – if I can use that word which, on the evidence, would appear not to be very applicable to their relations. 

In our submission, that in itself is highly indicative of the fact that there was no complaint then and could not be any complaint now that what was being called for under the contract went beyond that which was the deal between employer and employee.  My learned friend said repeatedly, as if it were self‑evidently a bad thing, reprehensible conduct – she referred to the inappropriate language of Commissioner Greaves in this regard – on the part of my client, reprehensible to have terminated one contract and started a new one in which, it is put, the work was not proportionately scaled down to reflect the scaled‑down time. 

Unpacked, that proposition, which is really only a proposition of fact, is amazing, startling and unreasonable.  It says that there is a ratchet in terms of work pressure – we do not shy from the word “pressure” – namely, you can only ever decrease your employee’s job description.  That, with respect, is absurd.  We do not shy away from saying that the argument of the appellant here is an argument that says productivity achieved by doing more in less time for less cost is prima facie negligent, in breach of your duty of care to safeguard your workers’ mental health.  In our submission, that simply cannot be right, as a matter of what my learned friend herself calls common sense.  She volunteered that in the latter stage of her argument as some kind of limit to remove the notion of floodgates. 

I am not raising the metaphor of floodgates.  We are simply saying the content of the word “reasonable” will involve and should involve this Bench in stoutly refusing to give any credence to the prospect that an employer is putatively in breach of a duty of care for making the job harder.

The fallacy also is, of course, of this notion of it being relevant that there is an increase in workload or a decrease in wages or a decrease in hours or a decrease in assistance as being significant.  That is saying that there is, as it were, a starting point in every employment relationship which is to be treated as an admission by the employer that anything more demanding would be unreasonable.  That flies in the face of the ambitious worker who wishes, by demonstration of capacity – excess capacity, if you like – wishes to get more work, in the entirely natural ambition that by getting more work and doing more work and taking on more work, by comparison with colleagues, for example, there will be longer term preferment, quite apart from what is still called job satisfaction.

It is the balance between the capacity or willingness – and the two are different, but related – of a worker, on the one hand, and the work to be done under the contract, on the other hand, which is, after all, in question when the colloquial word “overwork” is being described.  For the reasons we have already put, you cannot have overwork if it is work called for by the contract. 

For those reasons, in our submission, when one finds a deficient balance of capacity or willingness, on the one hand, and the work to be done, on the other hand, what one obviously has is a commercial choice presented to the employer as to whether to vary the duties.  A lot of the so‑called expert evidence in this case simply went to that, in effect, implicitly, rather than sack the person, rather than reduce their wages for not doing what was called for, particularly if one recognised that the requirement was not likely to be met, which is the expectation. 

GUMMOW J:   It would seem that she could be dismissed without attracting the discrimination provision in 66B, because of 66Q of the Equal Opportunity Act of 1984.

MR WALKER:   The way in which it would operate – 66Q(1)(a) is the one that would most obviously operate and it may be doing a redundant job, because it could be that under 66A(1) the required comparison between the impaired and unimpaired in any event would mean that the sacking for incapacity or unwillingness – that is, for the deficient balance between what is being done and what should be done – would be the same were you psychiatrically ill or just unambitious or not capable. 

For those reasons, it may be that 66Q(1) reflected more abundant caution and could not be criticised for that, but very often, in cases that your Honour had raised with us for consideration, there would not be a problem under the Discrimination Act.  We would be able to sack, because we would be sacking on the ground not of impairment, but of demonstrated incapacity to do the work.  There is also the requirement in 66A(1) that it be discrimination on the ground of impairment.  In this case, of course, had we sacked rather than the plaintiff simply leaving the job, we would have done so without any knowledge of psychiatric illness.  That was off in the future, yet to be known by way of several diagnoses down the track.

So we could have sacked rather than asked her to “soldier on”, to use one of the English judgment’s words, without attracting a difficulty under the Act.  If that makes the way a little easier for my friend’s argument, so be it.  Certainly, it would be a fairly appalling prospect for employers in my client’s position if the statute were to operate to prevent you to remove somebody from a job which you thought other people could do, which they were showing they could not do.

GUMMOW J:   No, but the statute has some impact upon the formation of contractual implications, does it not?

MR WALKER:   Yes, it does.  Unquestionably, that is one of the statutes that belongs to the class that I talked about when I stood up, namely, all employment contracts have to be seen against the law of the land, and, obviously, legislation of the kind drawn to attention by Justice Gummow would be one of the first ports of call for that comparison.  My learned friend described, in answer to some questions from the Bench, contracts which might call for more than a particular worker wants to do or can do as being unreasonable.  It is of the first importance to establish whether that is simply a description of a non‑legal kind, by way of a social observation, perfectly valid in itself, or whether it is the attachment of a description which would have legal consequences.

If the former, then, with great respect, my learned friend must be right.  There is nothing about the law of contract that says they are all the outcome of wise negotiations with 100 per cent predictability and that they always would strike a social observer as reasonable.  We do not say that, but that is irrelevant.  For legal consequences, in our submission, something would have to be identified which has not been identified in the argument against us.  We are not talking about some equity, we are not talking about a new doctrine in the nature, perhaps, of a penalty, we are not talking about the doctrine of frustration or impossibility, we do not think, but, if we were, then the law of contract would simply look after that in the ordinary way.

We are certainly not talking about any doctrine by which the law of tort trumps the law of contract.  I have already said what I wanted to say about the implied term, contractual parallel with the common law duty.  There are well‑known statutes that regulate, stipulate and limit the way in which concepts that might be gathered in the word “unreasonable” will drive a judicial overturning of all or some parts of a contract.  None is relied upon in this case at all.

It is for those reasons, in our submission, that when one then turns to the Court of Appeal’s reasoning in Hatton, that although, as your Honours have seen in our written submissions, we respectfully commend the prefatory analysis to this Court as one which your Honours would find as useful as the Lords did, may I nonetheless draw to attention some matters which your Honours may consider ought receive explicit ‑ ‑ ‑

GUMMOW J:   There is a problem in Hatton, in that nowhere does contract get a look‑in.

MR WALKER: That is right. There ought to be caution expressed in exactly the same way that Lord Rodger has expressed it. At, for example, [2002] All ER 14, paragraph [26], the court starts by referring to what is emphasised as “the nature and extent of the work being done by the employee” as if that were some matter of status, as it were, or conduct at large, rather than a contract.

GUMMOW J:   Yes, I think that is right.

MR WALKER:   That, in our submission, is where an omission in the analysis of the whole legal and social framework against which the law of tort must always operate – that is the beginning of an omission.

GUMMOW J:   It overlooks the historical progression from status to contract, I am afraid.

MR WALKER:   Yes, it does.  That is an omission which casts no adverse light on what I am going to call the evidentiary matters, in what we could be forgiven for thinking is criticised by our friends as a checklist approach.  Now, there is nothing wrong with a checklist, so long as it does not become slavishly followed.  It can be a very useful practical guidance, as Lord Walker said.  Paragraph [26] is one which deserves caution, in our respectful submission.  About halfway down, between letters d and e, one will see a sentence upon which, no doubt, my learned friends would place reliance.  We submit it is probably wrong, or, if not wrong, so incomplete a statement of what is relevant as to be misleading.  Her Ladyship, as everyone describes the author of the composite judgment, says:

It will be easier to conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable.

That is either incorrect, because it is not for a common law court adjudicating a tort claim simply to sweep aside what is lawful or permitted under a contract as unreasonable, or it is incomplete, because it elides what could make it a correct statement, namely, a contract which, either by implication or expressly, permitted only reasonable pressure.  There may be many contracts, indeed, which are of exactly that kind.  Now, that needs to be spelled out, because otherwise there is this notion of carte blanche given – of a kind happily taken up, it would appear, by Commissioner Greaves, for the court to say, “I don’t approve of the amount of work you lawfully asked your employees to do.  I’m not an industrial arbitral tribunal.  I’m not conciliating an industrial dispute.  I’m administering the common law of negligence and I simply say I don’t approve of it.  I call it unreasonable and I don’t ask the question, but is it lawful?”.

HAYNE J:   It seems to focus only on a question of foresight.

MR WALKER:   It does.

HAYNE J:   That is, if you were to go back to Lord Rodger’s speech at paragraph 26 in the last sentence, it deals with the first element of his Lordship’s statement:

what steps did the council have to take when, by reason of some individual vulnerability, Mr Barber was liable to suffer material injury to his (mental) health –

If you stop it there, the question is relevant and understandable, but it is the tailpiece: 

if he carried out the duties which were stipulated in his contract(s) and for which he was paid his salary?

That is the kick.

MR WALKER:   That is right.  In our submission, it is the one which was never attended to in the way the plaintiff put her case, but it was essential.  The Commissioner, with respect, wholly mistook the scope of his judicial conclusions as they would become applicable or appropriate to be formed and expressed in deciding a tort case. 

Could I return to a couple of matters that your Honours raised during my friend’s address.  Your Honour Justice Hayne, when seeking to understand the sequence of three or four steps by which the foreseeability conclusion ought to have been decided as the Commissioner rather than the Full Court did, your Honour inquired about whether seeing an employee struggling was one of those indications which, in this case, and therefore as an illustration of how the law might proceed in such cases, would be significant. 

There is, in our submission, great danger of wholly departing from a lay or commonsense test of reasonableness to regard it as simply sufficient to see someone struggling in order to render foreseeable the infliction of mental health harm, injury, in the nature of psychiatric illness.  That is for this reason.  There is struggling and struggling.  There is the struggling of the kind that the unfortunate Mr Barber was suffering, in common, apparently, with his colleagues.  That was struggling which contained within it, as the evidence of it, the report of mental disease, depression – a report to an employer.  There was no such report in this case.

There is another kind of struggling.  It is the struggling of the inexperienced, the inexperienced and the ambitious.  The inexperienced and unambitious presumably do not struggle at all; they give up or they do not try.  The inexperienced and the ambitious, with respect, is a class which this Court should never say anything which might discourage employers from giving them jobs apparently above their current capacity.  It is, after all, how people get on.

McHUGH J:   Conditions in the coalmining industry, at least in earlier times, is a good illustration.  Miners worked under contracts under which they had to fill 16 skips a shift.  When they did it, they could go home, if they could do it after four hours or whether it took them the whole eight hours.  But if you are under stress and you are inexperienced, there would be physical strains on you as well as ‑ ‑ ‑

MR WALKER:   Unhappiness, resentment perhaps.

McHUGH J:   Yes.  So what does an employer do in that situation?

MR WALKER:   The employer almost certainly responds to whatever, depending upon the state of history, stands in the place of trade unions and industrial tribunals.  They exist for precisely the reasons that your Honour has raised by that example.  But what the common law of tort does not do is to say, “I can see someone’s not filling their skips.  For him, I must alter the contractual stipulation regulating payment, agreed payment, that he agreed to undertake.  I must alter that, because otherwise I may send him into a spiral of self‑loathing, depression and mental disease”. 

I do not mean my words to be mocking of the argument on the other side.  They are quite literal applications of exactly the tests that the plaintiff here says conduced to her success – properly, they argue – at trial.  In our submission, they are, for the reasons we have put, very severely unreasonable.  The severest example of that is the class of person who has never yet shown they can do something to a particular standard or with a particular frequency and wants to have a go.  It is not the case that the world is full only of people whose ambition never exceeds their reach.  For those reasons, in our submission, it cannot be enough to see an employee struggling to put one on notice.

To return to add a supplementary answer to what I said to Justice Heydon in relation to there being no evidence or the like in relation to overwork causing mental disease, it is one thing – because we are all inhabiting physical bodies – it is one thing for a court to say, without expert evidence, that certain lifts, certain heavy weights, are far too heavy for it to be other than foreseeable that to require an employee to do it without assistance is an unacceptable risk of injury.  Of course, we know there is also a lot of expert evidence about average bodies and average physiques and techniques and the like, but there are weights.  You do not need expert evidence, and that is, if one likes, judicial notice.  You would not need evidence of it.

We would contrast that with the idea that too much work –and it has to be one of those question‑begging circular descriptions, “too much work”, because no one has suggested how you measure work apart from hours, which ultimately has to do with sleep only – that too much work is an indication of foreseeable psychiatric injury.  That, in our submission, is neither understood in any respectable way in St George’s Terrace or on a Bench without evidence.  In our submission, the aetiology is far too difficult simply to say so‑called too much work.  It probably just means hard or demanding work, when it comes down to it, and the very nature of that statement, as opposed to certain weights being clearly beyond anybody’s capacity.

Now, against all of that, and at risk of illegitimately looking at decided cases as some kind of factual precedent – I would disavow that, but nonetheless draw to attention that in applying the approach more or less of the Court of Appeal, the House of Lords in Mr Barber’s case, the majority, using Lord Walker’s leading speech, your Honours will have noticed in paragraph 67, page 1111 of the WLR, expressed the view that Mr Barber’s case was “fairly close to the borderline”.  That is all on the issue of foreseeability.  He elaborated that:

It was not a clear case of a flagrant breach of duty any more than it was an obviously hopeless claim.

But the entire burden of my learned friend’s song was to the effect that what happened in this case was a more or less clear case of negligence, because of foreseeability.  By comparison, it must be that, according to the appellant here, Lord Walker was simply wrong and applying the wrong standards to have ever perceived Mr Barber’s case as “fairly close to the borderline”.  Of course, if the appellant here were to accept that Mr Barber’s case was fairly close to the borderline, then the plaintiff’s case is pretty far away from the borderline and on the other side of it.

CALLINAN J:   What a psychiatrist might foresee is entirely different from what a reasonable person might foresee or what a layperson might foresee.

MR WALKER:   Particularly if the psychiatrist – it depends on the question asked.  If a psychiatrist is asked, could hard demands on an employee, particularly in a market where it is ultimately customers who are going to determine your success – it is not like woodcarving.  You cannot just finish the product.  There it is, it is a woodcarving.  Somebody else buys it on a contract.  Ultimately, your success depends upon all sorts of people, whether they are going to buy Gravox or not, in this case.  In our submission, there are so many ways in which the job may become unsatisfying that it becomes quite critical to understand what a psychiatrist might be asked. 

The psychiatrist might be asked, could such a job be one of the factors which would materially contribute – the lawyer’s question – to psychiatric illness?  The psychiatrist would say, “Of course, it could”, and explored the answer would be, “Because there is an unknowable range of factors which can lead to it”.

CALLINAN J:   That was the position in Tame.  I think the evidence there was that a psychiatrist said that knowledge of the entry could well have affected her psychiatric ‑ ‑ ‑

MR WALKER:   Coming from a science that says, “Because there appears to be no limit on the things that could contribute materially, whether you use the metaphor of “trigger” or anything else, to the course of events which becomes the aetiology of disease”.  In our submission, that is not the question.  We are not talking about the natural history of disease.  We know about, for example, the natural histories of many infectious diseases where the answer to the question, “Could exposure to a certain substance cause a certain disease?”, the answer by the professors would be, “Yes, it’s been in the chapters of the books for years and years”, but it may well be, of course, of such an uncertain or rare kind that you could not possibly attribute it to an employer.

McHUGH J:   No, but is that right?  The employer ‑ ‑ ‑

MR WALKER:   It will depend on the disease.

McHUGH J:   The employer is bound not only by what it knows, but what it ought to know.

MR WALKER:   Yes, but it ‑ ‑ ‑

McHUGH J:   I mean, James Hardie cannot escape liability ‑ ‑ ‑

MR WALKER:   Evidently not.

McHUGH J:    ‑ ‑ ‑ because at particular times management did not know, if there was a widespread knowledge. 

MR WALKER:   If there was ever such a time.  No, my point is not about sources, means of knowledge.  Particularly of industrial undertakings, there is clearly a duty to seek out the best and updated information.  I am talking about foreseeability where you have multifactorial aetiology – and I have used, by way of contrast, a very much simpler case of an infectious disease, where there are some diseases where it is sufficiently rare, unknown, reported but uncertain, that one could not possibly say that this was a sufficiently foreseeable risk for a factory to take certain precautionary steps. 

With psychiatric illness, bearing in mind that what we seem to know best about it is that we know very little about its aetiology, then the plaintiff does not improve its position by saying, well, more or less anything could be a trigger.  At the risk of inviting judicial notice, or at least testing judicial notice, we could say this.  Being passed over for promotion has been known to make people embittered, and bitterness is apparently ‑ ‑ ‑

HEYDON J:   That is not judicial notice.  That is part of the common experience of life.  It is not the technical doctrine of judicial notice. 

MR WALKER:   Then, in my submission, the common sense of those matters, that is, the common experience of life, means that you would have to ask whether an employer in the broad, that is, regardless of the particular employee, has to take particular steps as a precaution against employees becoming embittered and clinically depressed as a result of being passed over.  In our submission, no, there would need to be an indication for the particular plaintiff, singling out that possibility as one which was sufficiently foreseeable as to require something to be done.  Then, of course, always going back to the contractual matter.

HEYDON J:   Mr Walker, this no evidence point, I think, depending on Ms Braddock’s attitude, would call for an examination of the medical evidence in this case, would it not, or at least those parts of it that she might want to rely on or point to, because there might be something in it which would at least get an argument moving towards making a finding of reasonable foreseeability available.  The materials are not in the appeal books.

MR WALKER:   Yes, as to the theoretical possibility, no, as to the actual possibility.  We have put on a supplementary appeal book that your Honours have seen.  It has one piece of medical evidence in it.  It is the one we have referred to in our written submission.  This is on the day when the first claim comes through.  This is Dr Hendry, her treating general practitioner.  We have made this point in our written submission.  Here he is, a qualified medical practitioner, before him a person who cannot work.  Of course, this is too late for us because this is the last day.  It seems to be what I will call organic – muscular skeletal problems.  Now, we know that that does not exclude the later diagnosis made.  There is no earlier diagnosis than this, your Honour, and there is nothing in the medical material that shows, as it were, something at an earlier stage ‑ ‑ ‑

HEYDON J:   I am not saying that what you say is incorrect, but we just cannot take what you say as being true, without examination, if Ms Braddock wishes to contend that there is other material, not in the appeal book, that might cause a question mark to be placed against the truth of what you say. 

MR WALKER:   Yes, I accept that it does not suffice for me to make an assertion.  However – I will stand to be corrected – this case was not fought, for example, in the Full Court or, indeed, even at trial on the basis that there was a body of evidence, as it happened, from experts in psychiatric injury, which was the equivalent of the kind of medical evidence that fixes an asbestos manufacturer with the requisite knowledge so as to show that the risk of mesothelioma was foreseeable.

There does not seem to be anybody of material other than the generalisation which we actually assert ourselves, namely, problem at work, pressure at work, disappointment at work is one of the vast range of life experiences thought to be capable of precipitating mental disease.  It does not go further than that.  We do not have, for example, an analysis of hours not sleeping or the like.  We do not have an analysis of kilograms lifted.  We do not have an analysis of traffic encountered in such a way as to show that there is a recognised etiological risk of a kind that would make this kind of injury foreseeable in the plaintiff’s case, so as to call for a variation of her contract.

HAYNE J:   Mr Walker, 955 in the supplementary appeal book, the paragraph commencing second on that page.

MR WALKER:   There is also 905.  Page 955, your Honour?

HAYNE J:   Page 955, a report of Dr Skerritt, one of the psychiatrists called to give evidence.  That is some evidence, is it not?

MR WALKER:   Yes.

HAYNE J:   This was brought about by what at the loosest might be described as overwork.

MR WALKER:   Yes.  It says:

the several difficulties in Mrs Koehler’s employment culminated in a degree of physical and mental overwork.  I think that this precipitated a common mixture of depressive and anxiety symptoms.

That is not evidence in the category that I was referring to in my answer to Justice Heydon at all, unless, of course, it is to be treated as – and Dr Skerritt does not express it thus – being an opinion about the “degree of . . . overwork” – whatever that means in this case – being recognised as something which gives rise to an appreciable risk, a foreseeable risk, of mental disease.  Looking backwards and saying this is how it happened – I am sorry, your Honour? 

HEYDON J:   I am perhaps causing time to be wasted about this, but that paragraph on 955 does suggest there is a common body of medical knowledge.  The next question would be, how far is that common body of medical knowledge shared among employers and so on?  If Ms Braddock wishes to contend that there is material not reproduced in the appeal book, or, for that matter, which is reproduced in the appeal book, she and you perhaps had better liaise on how it can be brought before the Court.

MR WALKER:   Yes, and, with respect, as to how it would need to be the subject of supplementary submission once we knew how it was proposed my friend would use such material.  It is of significance that it was not deployed in any such way in the Full Court or, indeed, it would appear, at trial, and so there may arise questions about whether there is a Suttor v Gundowda difficulty in the way of any such contention.  It does not appear in the case as presently put. 

HEYDON J:   If it is in evidence, I can conceive of a theoretical Suttor v Gundowda difficulty, but a rather remote one.

MR WALKER:   I am only raising it theoretically at the moment, your Honour.  That is, I would not wish to lose the opportunity, upon instructions that I presently do not have, to understand whether the contention – whatever it may be, and there may be none – coming from my friend is truly available in the ultimate appeal, that is all. 

My learned friend attacked paragraph 59 in volume 4 of the appeal book, page 864 in Justice Hasluck’s reasons, as being a zone of error, for the reasons we have already put.  In our submission, that was an unexceptionable description of the approach – obviously, as applied to the particular case – which was required in that case.  There is no point of comparison between that and any authority in this Court, or, for that matter, anything in the Hatton discussion of a kind that this Court would find

persuasive, which is inconsistent with what Justice Hasluck says in that paragraph, which does not purport, of course, to be anything other than an explanation of the reasoning by which principles are being applied to the particular case. 

One of the matters that the plaintiff’s argument does not address is how, in relation to this supposedly foreseeable risk, one could possibly do something about it without making matters worse, for all you knew; a matter which, in our submission, goes into the foreseeability basket, where the complaints, as in this case, are not complaints which would give rise to any reasonable apprehension of a depressive illness or any other neurosis or psychological disorder of a kind that would nowadays achieve the status of disease as being in prospect. 

For example, in considering the complaints of employees about too much work or inappropriate conditions for work, is an employer to take into account whether or not this is the kind of person who would react well or badly to a demotion, or to something which may not be called a demotion but may be a decided reduction of responsibility?  In other words, if you took somebody at their word when they said, “Too much work”, and you said, “Fine, well, I want you to service only five stores from now on and that should only take you two days and I think your hours should be reduced accordingly”, there is a grave problem, even at the foreseeability of risk stage, which has to do with evaluating this employee and the prospect of mental disease, in saying that the kind of pressure of which she complains indicates that kind of risk. 

Constructive dismissal, after all, is a matter in employment law that can be brought about by removing responsibility, removing pressure from somebody, and the difficulty of the appellant’s argument, as we have put in our written submissions, is that it elevates a complaint to something which is taken up and complied with by an employer or else the employer is thereafter on risk – ineradicable risk, it would appear – of being held liable for whatever mental sequela may result, coming about because of the kind of material, one gathers, that Justice Heydon has looked for in vain in the appeal book as it is presently built, namely, a generalised understanding that the kind of things about which some people may complain at work are within the vast array of the kind of things which can precipitate serious mental illness.  In our submission, that is a case which should falter at the initial stage of foreseeability, for the reasons we have put.  May it please the Court.

McHUGH J:   Thank you, Mr Walker.  Yes, Ms Braddock.

MS BRADDOCK:   Your Honours, I will ask my learned friend, Mr Mullany, to respond in this instance, with your Honours’ leave.

McHUGH J:   Yes.  I do not think you need leave, do you?

MS BRADDOCK:   Probably not, your Honour.

McHUGH J:   It used to be a tradition once, a junior’s reply.  Thank you, Ms Braddock.  Yes, Mr Mullany.

MR MULLANY:   The answer to your Honour Justice Heydon’s question is no, we cannot pray in aid any material which is not in the book. The paragraph which deals with the ponit raised by your Honour Justice Hayne is found at 140 AB 4814 of the appeal book, to which I do not intend to take your Honours.

Your Honours, while relevant, the following factors do not make all the difference in this case, in our respectful submission:  the fact that she was not off sick or armed with a sick certificate; that she did not present in an unhappy, teary, visibly distressed or anxious state; or that, when complaining generally of an inability to cope, she did not use medical or psychiatric terminology. 

We do not press your Honours in this case to demand of employers the ability to guess the future, predict the unpredictable or engage in pure speculation.  Nor do we urge your Honours to shield employees from hard work or the challenges which occasionally confront us all in our daily work.  What we contend for simply is that in the modern work environment, the discharge of their obligation to provide a safe system of work requires them to be alive to and take that action required of them to prevent reasonably foreseeable injury, both to the physical and mental wellbeing.  What we say, your Honours, is that safety does not yield to productivity or profit.  What was called for in this case was not guesswork on the part of the respondent, but assessment.

Your Honours, can I turn briefly to this question of the interrelationship between contract and tort that your Honours Justice Gummow and Justice Hayne discussed with my learned friend.  There is only one case of which we are aware where this issue has been canvassed in this context, and that case is Johnstone v Bloomsbury Health Authority [1992] 1 QB 333. Can I hand your Honours a copy of that decision.

Your Honours will recall, that was a case involving the resident doctor.  This doctor was contracted to work up to or be available for up to 88 hours per week and a declaration was sought that he did not have to work beyond 72, the terms of that contract notwithstanding.  There was an attempt to strike out certain parts of the statement of claim and in the English Court of Appeal there was a division of opinion.  Lord Justice Stuart‑Smith recognised that the defendants owed a duty to take reasonable care not to injure the plaintiff’s health, but also that the plaintiff was under a contractual duty to be available for a stated number of hours.  In his Lordship’s opinion, the contractual duty could not prevail.  I should tell your Honours that the decision was a majority decision.  The Lord Justice alleged ‑ ‑ ‑

GUMMOW J:   Where do we see this particular statement?

MR MULLANY:   Your Honours, I will find it.

GUMMOW J:   I see Sir Stephen Sedley was counsel for the plaintiff.

MR MULLANY:   Yes, your Honour.  The relevant pages, if I could give them to you, are 343 to 344, 345 C, 350 H to 351 A and C to D in 352 AB.  Your Honours, the decision was a majority decision ‑ ‑ ‑

GUMMOW J:   Wait a minute, at 343 C, Lord Justice Stuart‑Smith says, “It is not a question in this case of importing from the law of tort”. 

MR MULLANY:   If your Honour turns over the page, from about 344F and over the page on 345 from B to C, we invite your Honours to compare that with what Sir Nicholas Browne‑Wilkinson said, agreeing in result, but on more restricted grounds, that the employer in the case owed an obligation to take ‑ ‑ ‑

GUMMOW J:   It looks like a contract case.

MR MULLANY:   That is so, your Honour, but the reason we refer to it and invite your Honours’ attention to it is that it is the only authority of which we are aware where there was some discussion about the interplay between contractual and tortious duty in this particular context.  This was an overwork case.  This was a case where a young man was asked to work excessive hours ‑ ‑ ‑

HAYNE J:   This was a claim, was it not, in which it was said that the unfair contract terms were engaged? 

MR MULLANY:   That is so, your Honour, and that is an important factor.

HAYNE J:   The Unfair Contract Terms Act 1977.

MR MULLANY:   That is so, your Honour.  The point we seek to derive from it is this.  There was a Justice, Stuart‑Smith, who agreed with the proposition that in this case the contractual duty could not prevail.  The Vice‑Chancellor agreed in result, but for a different reason, and talked of the coextensivity of the two duties.  So it is in this case, your Honour.  The implied contractual duty and the duty owed in tort, we say, were both coextensive and identical.  The passage that our learned friend took your Honours to in Hatton ‑ ‑ ‑

GUMMOW J:   Yes, but that does not really answer the question, does it? 

MR MULLANY:   No, it does not, your Honour ‑ ‑ ‑

GUMMOW J:   Of course, they are coextensive. 

MR MULLANY:   Well, can I just ‑ ‑ ‑

GUMMOW J:   They do not come into existence with the same big bang, though.

MR MULLANY:   Well, that may be so, your Honour.  May I just take one moment, if I may, because the difficulty we have in this case is that we do not have any particular contractual duties spelt out in the manner that one might have expected.  There is a reason for that.

CALLINAN J:   One way of reading Lord Justice Stuart‑Smith at 345 is that he is inserting an implied term, particularly if you look paragraph 4(b) of the pleading at page 341, with which he is dealing.  I know he does not say “implied term” but it rather looks like it.  He says:

the contract does not preclude or limit the plaintiff’s claim –

And if you go back to 4(b) on page 341, I think it is:

cannot lawfully be required to work under his contract of employment ‑ ‑ ‑

McHUGH J:   You see, a case like Johnstone I do not think really helps, because it is a case of a contract to work a certain number of hours and it is very easy to say that, consistently with that expressed term, there is the implied duty to take reasonable care for the safety of the employee.  For instance, you could not reasonably expect the employee to work 48 hours straight, even though, in one sense, that is complying with the contract.  But you are in a different area, for instance, to take an illustration from earlier this morning, if the employee is contracted to make 60 deliveries per week, then the implied duty to take reasonable care – the implied term – has to be moulded around that.  You cannot be inconsistent with it.  You cannot say it requires that you do not deliver 60 items a week.  You must make 60 deliveries a week, but the implied term to take care may say a lot about the manner you go about it and where you do it and so on.

MR MULLANY:   We accept all of that, your Honour, and we do not refer your Honours to that case as providing any definitive answer.  It is simply a case which has at least attempted to grapple with this question in this context.  Can we compare that, your Honours, if it please, to the page that our learned friends took you to, the contract.  What we have here, 757 of appeal book 4, your Honours, that is it.  Can we invite your Honours’ attention particularly to what is said at B) of that one-page document, where there is a reference to the working week, and your Honours see at the end “(24 hours)”.  Well, of course, that is not what happened.

McHUGH J:   Well, it raises ‑ ‑ ‑

MR MULLANY:   It raises the very question that appears to be unanswerable.

McHUGH J:   Well, it raises questions, among other things, as to what directions could reasonably be given in accordance with the contract.  There is a great deal of law on that subject matter and this sort of contract ‑ ‑ ‑

MR MULLANY:   Yes, we would accept that too, your Honours.  With that, we refer you to the circumstances in which he was redeployed, which is set out at 33 of our outline of submissions.  At paragraph 50, your Honours, can we ask you to refer ‑ ‑ ‑

McHUGH J:   Your point is that there is nothing in this contract that really allows anybody to draw the inference as to what the precise obligations were to carry out work.

MR MULLANY:   That is precisely the point, your Honour.  At 50 can we ask your Honours simply to note a further transcript reference – that is the evidence of Mr Budd who, your Honours recall, is the State Manager – at appeal book 2, 464, line 25 to 35, where there is a discussion – I do not intend to take your Honours to it – about what the industry recognises in cases like this, in short, and where there are complaints made, then territory may need to be modified.

McHUGH J:   Is there any evidence, apart from this evidence you have just referred to at 464, about practice or custom, because that may throw some light on ‑ ‑ ‑

MR MULLANY:   Not in those terms, your Honour.  That is the high‑water mark, if I might put it that way.  There is an interrelationship here, of course, to return to what your Honour Justice Hayne said earlier, between an objective and subjective analysis; an analysis by reference to what ought be known by reasonable common experience and what the actual respondent knew by reference to the personal circumstances of this particular woman and the particular demands imposed upon her.

On the matters referred to by our learned friends of outline 41, may we invite your Honours to have regard, without going to them now, to what was said in Walker’s Case [1995] 2 All ER 737 at 747, where the budget and resource argument was dealt with, and also to the Johnstone Case I have just referred you to.  Your Honours, may I ask also that you note the following additional references.  In relation to the question of the modification of the territory, your Honours may care to note at 5(h) of our submissions the following reference:  paragraph 169 of the learned Commissioner’s judgment which appears at AB 4, 822 to 823.  At 23 of our submissions – and this relates to the exchange that Mr Walker had with your Honour Justice Hayne concerning what the psychiatrist knew – your Honours may be assisted by what appears in Fraser v State Hospitals Board for Scotland 2001 SLT 1051 at 129 ‑ ‑ ‑

GUMMOW J:   What will that tell us?

MR MULLANY:   That will tell you, your Honour, that so far as Lord Carloway was concerned, there was no merit in the argument that one may, as a lay individual, be unable to recognise the symptoms of a psychiatric illness or its onset or, more specifically, the failure by a GP or a doctor to do so until the horse had bolted.

GUMMOW J:   Have we got a copy of it?

MR MULLANY:   Yes, we do, your Honour.  It is in our list.

CALLINAN J:   Is that not contrary to Tame, what was said in this Court in Tame?

MR MULLANY:   In what sense, your Honour?

CALLINAN J:   That what a psychiatrist or an expert might know is not to be attributed to the lay person.  There was plenty of psychiatric evidence in Tame that the wrong entry might cause a psychiatric ‑ ‑ ‑

MR MULLANY:   It is a different inquiry, as we see it, your Honour.  As we understand what is put against us, it is said, “Well, look why should we, the employer, be saddled with an obligation to detect the prospect of this injury in circumstances where not only the lay employee could not do it but, more particularly, even the first doctor to whom she was sent failed to detect the psychiatric underlay?”  That argument has been run on two

occasions – the first in Fraser and it has been rejected.  Your Honours, we will provide a copy of that in due course.

HEYDON J:   I have a copy.

McHUGH J:   I have a copy.

GUMMOW J:   Which particular paragraph in Fraser ‑ ‑ ‑

MR MULLANY:   It is [129], your Honours, page 1057.  It is the last part of the last sentence.  Your Honours see the words ‑ ‑ ‑

GUMMOW J:   Thank you.

MR MULLANY:   With that, can I ask your Honours to note a second authority for that point.  It is Jones v Sandwell Metropolitan Borough Council [2002] 2 All ER 1 at [195] to [196] and [204]. That, of course, your Honours, is a case where there was a success in the English Court of Appeal in the co‑joined appeals of Hatton and no appeal from it.

Your Honours, I was dealing with some additional references.  At 40 of our submissions, can I ask your Honours also to note the evidence of the appellant at AB 1, 226 where there is discussion of the promise of assistance by one De Coster, which was never forthcoming.  Your Honours immediately see the similarities between that situation and that which prevailed in Walker’s Case.

Lastly, your Honours, may I ask that you note the following additional references for the chronology.  On the second page of that, annexed to the end of our submissions, in the third entry, your Honours will be assisted by what appears at appeal book 4, 770 at paragraph 12, and AB 1, 296 and 326.  In the entry underneath that, that is in the box “Undated”, et cetera, your Honours will find assistance at AB 2, 368 to 369.  Lastly, in the entry of 21 May 1996, we invite your Honours’ attention to also 360 and 428 of volume 2.  If your Honours please.

McHUGH J:   Yes, thank you.  The Court will reserve its judgment in this matter and we will now adjourn to reconstitute.

AT 12.29 PM THE MATTER WAS ADJOURNED