The Supreme Court of Victoria Court of Appeal (the Court) recently heard an appeal by a teacher formerly employed at a Victorian government school involving a claim that the school had breached its duty of care to her by causing her psychological harm.

In Pateras v State of Victoria, the Court dismissed the teacher's claim and found that in the circumstances of this case there had been no duty by the school not to cause psychological harm, or that any such duty had been breached.

While this case was decided on its particular facts, schools should take note of the issues it presents in dealing with staff who may have greater vulnerability to psychological injury.

The facts

Ms P commenced work at Galvin Park Secondary College (the College) in 1988, and from 2000 acted as their careers teacher. She was independently recognised as being a valuable and successful teacher.

In 2006 and 2007, Ms P had a significant amount of sick and carer's leave, arising from gynecological problems and caring for her son who contracted glandular fever.  She had engaged a psychiatrist and a psychologist, and was given two weeks stress leave by her general practitioner in July 2007. While Ms P gave evidence that she told the College’s Principal – Mr N – of her difficulties, she did not actually take the leave and did not bring the GP’s medical certificate to the College’s attention. No other staff were advised.

In late 2007, Ms P applied for a different teaching position at the College, attending two interviews with a selection panel in October. The selection panel included Mr N, who offered her the position in a discussion after her second interview. The other details of this conversation were disputed.

Ms P alleged that despite accepting the offer, Mr N repeatedly told her that her acceptance was not in the best interests of the College.

Mr N refuted this. His evidence was that after telling her of her success, he asked Ms P about certain aspects and expectations of the position, and she became upset. He suggested the discussion continue another day.

Ms P ceased work after this conversation. The next day, she sent an email to the selection panel, stating she felt 'forced into the position of being unable to accept the offer.' The same day, Mr N sent an email apologising for his ‘approach’ and asking Ms P to consider having a sit-down conversation the following week to resolve the appointment. Further emails passed between Ms P and Mr N, and other College staff, but she never took up the position.

Ms P then instituted a complaint process. The subsequent investigation found against her, and she sought a review of the determination by the Merit Protection Board. Finding in her favour, the Board's investigation found that Mr N had attempted to dissuade her from accepting the position, and advised she should be offered the position. In September, Mr N offered Ms P the position, which she accepted.

On October 8, Ms P returned to work, but failed to complete tasks allocated to her by Mr N despite staying back late, and subsequently suffered a panic attack. She was certified by her psychiatrist as not being fit to return to work, and in December 2009 retired on ill health grounds.

The issues

In initial proceedings before the County Court of Victoria, Ms P contended that as a result of these and related actions of the employer (the State of Victoria), she suffered psychiatric injury with various physical consequences including alopecia (hair loss).

The issues before the trial judge, Judge O’Neill, were whether:

• a relevant duty of care not to cause Ms P psychological injury existed on 22 October 2007 (the date of her second interview);
• Mr N’s conduct in the discussion after the second interview involved a breach of that duty; and
• other staff had breached that duty through the complaints investigation and on Ms P's return to work.

If these matters were established, then then the State of Victoria would be vicariously liable for the breach of duty of care.

Judge O’Neill was not satisfied that, given Ms P’s past history and conduct as known to the College, there was anything to indicate that she might suffer her significant psychiatric injury.

The appeal

In appealing against the decision, Ms P contended that Judge O'Neill had mistakenly applied the law: that her psychiatric injury was reasonably foreseeable and that there was a breach of a duty of care by the State of Victoria.

The duty of care had not been engaged

The test set by the High Court for when the duty of care not to cause psychiatric injury applies is if psychiatric injury to the particular employee is reasonably foreseeable. This involves considering the nature and extent of the work being done by the employee, and warning signs given by the employee, in the context of the employer/employee relationship.

In dismissing Ms P’s appeal, the Court found that, reading Judge O’Neill’s judgement as a whole, he had not misapplied the test. The Court stressed that an employer’s duty of care does not extend to absolute concern for an employee’s mental health, even in the most stressful occupation, but relates to what is reasonably foreseeable.

The duty of care, even if engaged, had not been breached

The Court reiterated the trial finding that Ms P’s career ended largely as a result of a misunderstanding with Mr N and other College staff.

Ms P claimed that Judge O’Neill should have assessed the conduct of various staff as a whole in order to determining whether the State of Victoria had breached its duty. However to make the State liable in negligence, it was necessary to demonstrate tortious action by “any servant or agent” of the State, not the aggregate of allegedly responsible persons.

While College authorities and possibly the teachers would have known Ms P had significant time off work in 2007, to their knowledge this had nothing to do with stress or anxiety. Further, her difficulties in the interviews did not put Mr N or others on alert that having the subsequent discussion with her was likely to cause any psychiatric injury.

Rather than the actions being sufficient to result in a psychiatric injury, the Court found that at best, ‘she might be disappointed, offended or upset’, which could have been resolved by attempting a sensible resolution with Mr N.

What does this decision mean for schools?

The dismissed appeal presents an important lesson for teachers suffering stress or other psychiatric injury; they should ensure their supervisors and the school are aware of their problems – particularly by lodging any medical certificates with sufficient detail – to put the school on notice in respect of their duty of care.

The warning for schools arising from this case is to ensure that they and their employees do not behave negligently in relation to an employee who is suffering, or should be known to suffer, from a psychiatric condition. Where appropriate, the employee may need to be asked to provide further medical advice on their fitness for work with sufficient specificity on their ability to perform all of their normal tasks.

While this case was being determined in negligence, workplace health and safety laws require schools to take all reasonably practicable steps to provide a safe system of work, including eliminating or minimising the risk of injury. This duty includes the risk of psychological or psychiatric injury. Obligations under workplace health and safety law (and the risk of prosecutions) are in addition to any civil action that an employee may take.