Shearer v iSelect Services Pty Ltd - [2021] VSCA 328

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0060

GARY RAYMOND SHEARER	Applicant
v
ISELECT SERVICES PTY LTD	Respondent

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JUDGES:	BEACH, KAYE JJA and FORBES AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 November 2021
DATE OF JUDGMENT:	1 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 328
JUDGMENT APPEALED FROM:	[2021] VCC 458 (Judge O’Neill)

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NEGLIGENCE – Personal injury – Psychiatric harm – Workplace injury – Sales consultant – Reasonable foreseeability of risk of psychiatric harm – Content and scope of duty of care – Causation – Reasonable response by employer – Change in role accommodated by respondent – New role not further modified - Whether judge erred in finding that the response by the employer was reasonable – Whether undue weight was placed on the contractual right to impose targets – Whether judge erred in finding that other modifications would not have prevented further injury – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J P Brett QC with Ms G B Jardine	Andropoulos & Associates
For the Respondent	Mr P H Solomon QC with Mr R Kumar	Hall & Wilcox

BEACH JA
KAYE JA
FORBES AJA:

Gary Shearer (the plaintiff) worked as a sales consultant in an online environment. His employer, iSelect Services Pty Ltd (iSelect) brokered various types of insurance and energy contracts between consumers and providers. He began work in May 2010. From June 2012, he was suffering from anxiety and was becoming very run down by the hours of work needed to achieve his sales targets. He raised this with his employer in June 2012. He became psychiatrically unwell and ceased work a number of times. He last worked for iSelect in June 2013.

In September 2018, the plaintiff commenced proceedings in the County Court of Victoria against his employer, claiming damages for personal injury. He alleged that from June 2012, iSelect owed him a duty to take reasonable steps to protect him from the risk of psychiatric injury arising from the pressure of his work. The plaintiff’s claim for damages was in negligence and for breach of the employment contract. The case came on for trial before his Honour Judge O’Neill, commencing on 1 February 2021. Over the eight days of hearing, viva voce evidence was given by Mr Shearer and his treating general practitioner, Dr Urie. Both parties tendered a significant amount of documentary material.

In reasons for judgment delivered on 5 May 2021, his Honour concluded that by November 2012 it was reasonably foreseeable to an employer in the position of iSelect that Mr Shearer was at risk of suffering a psychological illness and therefore a duty of care arose in respect of that risk. The plaintiff contended that a reasonable response to discharge that duty required the employer to modify or remove certain aspects of his sales role, particularly performance targets, and this had not been done. The judge concluded that modifications in the way contended by the plaintiff…

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 Shearer v iSelect Services Pty Ltd

Details

AGLC: Shearer v iSelect Services Pty Ltd [2021] VSCA 328
Case: [2021] VSCA 328
Decision Date: 1 December 2021

CaseChat Overview and Summary

The case of Shearer v iSelect Services Pty Ltd involved a claim for damages arising from psychiatric injury sustained by the plaintiff, Mr Shearer, in the course of his employment as a sales consultant. The dispute was brought before the Court of Appeal, following a decision in the District Court that found the employer, iSelect Services Pty Ltd, was not liable for the psychiatric injury suffered by Mr Shearer. Mr Shearer argued that his employer failed to take reasonable steps to mitigate the risk of psychiatric injury after he had suffered a previous incident of stress-related illness. The central issues before the Court of Appeal were whether the trial judge erred in finding that the employer's response to Mr Shearer's psychiatric injury was reasonable and whether the trial judge placed undue weight on the contractual right to impose sales targets.

The Court of Appeal held that the trial judge did not err in concluding that the employer's response to Mr Shearer's psychiatric injury was reasonable. The court noted that while Mr Shearer's role had been modified to reduce his exposure to sales targets, the employer was not obligated to further modify his role in a way that would have prevented the recurrence of psychiatric injury. The Court found that the employer's actions were reasonable in the circumstances, taking into account the contractual obligations and the steps already taken to accommodate Mr Shearer's previous injury. The Court further held that the trial judge did not place undue emphasis on the contractual right to impose sales targets, as this right was relevant to the overall assessment of the employer's response. The Court concluded that the modifications made by the employer were sufficient to discharge the duty of care owed to Mr Shearer.

The Court of Appeal dismissed the appeal, finding that the trial judge's assessment of the employer's actions was not erroneous. The court found that the employer had acted reasonably in accommodating Mr Shearer's previous injury and that further modifications were not necessary to prevent the recurrence of psychiatric harm. The Court held that the employer's response to Mr Shearer's psychiatric injury was reasonable and that the trial judge's decision was supported by the evidence. Consequently, the application for leave to appeal was refused, affirming the decision of the District Court.

Orders