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Robinson v Each Ltd

Robinson v Each Ltd

Case [2024] VSCA 313 12 November 2024

Employment & Labour Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0046

MARY VICTORIA ROBINSON	Applicant
v
EACH LTD (ACN 136 804 290)	Respondent

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JUDGES:	MACAULAY JA, GORTON and J FORREST AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2024
DATE OF JUDGMENT:	12 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 313
JUDGMENT APPEALED FROM:	[2024] VCC 365 (Judge Purcell)

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NEGLIGENCE – Duty of care – Foreseeability of risk of psychiatric injury – Vicarious trauma – Mental health support worker – Alleged unreasonable exposure to vicarious trauma during home visits and after return to work in administrative capacity – Whether judge erred in finding risk of injury was foreseeable at date employee first disclosed psychological trauma to employer – Undisputed evidence that employer was aware of vicarious trauma and inherent risk to employees performing applicant’s role prior to date of disclosure – Breach – Whether judge erred in finding employer responded reasonably to disclosure and made appropriate return to work arrangements – No error – Employer response reasonable – Employee’s further exposure to vicarious trauma outside return to work arrangements – Leave to appeal granted – Appeal dismissed.

Wyong Shire Council v Shirt (1980) 146 CLR 40, applied.

New South Wales v Fahy (2007) 232 CLR 486; Vairy v Wyong Shire Council (2025) 23 CLR 422; Kozarov v Victoria (2022) 273 CLR 115; Koehler v Cerebos (Australia) Limited (2005) 222 CLR 44; Karzi v Toll Pty Ltd [2024] NSWCA 120; Bersee v State of Victoria (Department of Education and Training) (2022) 70 VR 260; Rosenberg v Percival (2001) 205 CLR 434, discussed.

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Counsel
Applicant:		Mr A Clements SC with Mr J O’Connor and Ms A Smietanka
Respondent:		Mr S Gladman SC and Ms GJ Cooper
Solicitors
Applicant:	Zaparas Lawyers
Respondent:	Wisewould Mahony

TABLE OF CONTENTS

Introduction

Factual background — in precis

Procedural history

The pleaded case

The respective cases at trial

Ms Robinson’s case
EACH’s case

Evidence at trial

The judge’s reasons

Proposed grounds of appeal

EACH’s concession and its notice of contention

The hearing of the appeal

Events leading up to Ms Robinson ceasing work in November

2014
January and February 2015
April to November 2015

Expert evidence

Grounds 2, 2A , 8 and the notice of contention — consideration

The other proposed grounds of appeal

Conclusion

MACAULAY JA

GORTON AJA

J FORREST AJA:

Introduction

EACH Ltd (‘EACH’) provides a range of health, disability, counselling and community mental health services across Australia.
Mary Victoria (‘Vicky’) Robinson was employed by EACH as a carer peer support worker between November 2007 and November 2015.[1] For most of this time, this required her to consult with, and listen to, the experiences of carers and provide them with support in clinical and community settings, however in January 2015 this changed to include attendance at the homes of carers.
[1]Ms Robinson did some work for EACH prior to November 2007 in an ad hoc capacity however this was not the subject of this…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Robinson v Each Ltd

Details

AGLC: Robinson v Each Ltd [2024] VSCA 313
Case: [2024] VSCA 313
Decision Date: 12 November 2024

CaseChat Overview and Summary

Robinson, the plaintiff, commenced proceedings against Each Ltd, the defendant, in the Supreme Court of New South Wales, claiming compensation for psychiatric injury arising from her employment as a mental health support worker. Robinson alleged that she was subjected to unreasonable exposure to vicarious trauma during her home visits and that the defendant failed to provide adequate support and appropriate return to work arrangements, leading to further psychological harm. The primary dispute centred on whether the defendant breached its duty of care towards Robinson by failing to recognise and mitigate the foreseeable risk of psychiatric injury.

The legal issues before the court involved determining whether the defendant owed a duty of care to Robinson, whether this duty was breached, and whether the risk of psychiatric injury was foreseeable at the time Robinson first disclosed her psychological trauma to the employer. The court also had to assess whether the defendant responded reasonably to Robinson's disclosure and made appropriate return to work arrangements. Furthermore, the court examined whether Robinson's further exposure to vicarious trauma outside the return to work arrangements constituted a breach of the defendant's duty of care.

The court held that the defendant did owe a duty of care to Robinson, and that the risk of psychiatric injury was foreseeable given the undisputed evidence that the defendant was aware of the inherent risks associated with Robinson's role prior to the disclosure of her psychological trauma. The court found no error in the trial judge's conclusion that the defendant responded reasonably to Robinson's disclosure and made appropriate return to work arrangements. However, the court acknowledged that Robinson's further exposure to vicarious trauma outside these arrangements constituted a breach of the defendant's duty of care. Ultimately, the court determined that the judge did not err in his findings and dismissed the appeal. The leave to appeal was granted, but the appeal itself was dismissed as there was no error in the trial judge's decision.

Orders