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What is the foreseeability test for workers compensation psychological injury claims?

Workers who suffer a psychological injury at work can be entitled to workers’ compensation benefits such as weekly payments for your lost wages, medical expenses and a lump sum for an impairment benefit.  Claiming common law damages (lump sum compensation in cases where there is negligence) can be more difficult where the injury is a psychological one. The main difficulty with these claims is establishing a legal concept called “foreseeability”.

How do I prove negligence in a personal injury case?

To prove negligence in personal injury cases, you need to establish the following key elements:

  1. Duty of Care: That someone (in WorkCover cases, this is usually your employer) owed you a duty of care to protect you from reasonably foreseeable injury.
  2. Breach: That this duty of care was breached.
  3. Causation: That the breach caused your injury.
  4. Damage: you suffered loss as a result of the injury.

The first point is generally undisputed in the case of physical injuries in the workplace. However, when the injury is psychological, this first point is often one of the main issues in dispute.

What is reasonable foreseeability?

“Foreseeability” refers to the concept where the defendant should have been able to reasonably predict that it’s actions or inaction would lead to a particular consequence.

Therefore, when asking whether an employer owed its employee a duty of care, we can’t rely on the benefit of hindsight. We need to go back and consider whether it was reasonable that the employer could have known at the time, that the type of injury sustained was possible, and that there were reasonable options available to the employer to prevent it.

High Court case of Koehler v Cerebos looked at reasonable foreseeability

There is a case that was decided by the Hight Court of Australia in 2005 that dealt with this very topic, Koehler v Cerebos (Australia) Ltd [2005] 222 CLR 44.  

  • Ms Koehler, the plaintiff, was an employee of the defendant, Cerebos (Australia) Ltd.
  • During the course of her employment, Ms Koehler complained several times both verbally and in writing to her employer, that her workload was too high and that she couldn’t perform her work properly.
  • At no time did she mention to her employer that her health was being affected by her workload – just that it was too much work.
  • Ms Koehler eventually developed a psychological injury because of her work and sued her employer in negligence.

Unfortunately, Ms Koehler lost her case.

The High Court found that whilst there is a duty of care for an employer to not cause mental harm to an employee, in this case Ms Koehler’s employer could not have reasonably foreseen that she would suffer a psychological injury from her high workload.

The High Court reached this conclusion for two main reasons:

  1. She was employed to do the work that ultimately caused her injury and agreed to do this work. Therefore, the employer is entitled to assume that Ms Koehler was fit to do the work that she agreed to perform; and
  2. That the employer had no indication that Ms Koehler was at risk of suffering from a psychological injury. Whilst the complaints made by Ms Koehler let the employer know that she was struggling to complete her work, she at no time indicated that this work was affecting her health.

Action to consider if you suffer a psychological injury at work

If you have suffered a psychological injury at work, it is important that you try to retain any evidence that your employer was on notice of the risk to you, of psychological injury or illness, prior to you becoming sick.

This might include:

  • minutes of meetings where you mentioned it to management;
  • any witnesses that can confirm discussions you had with your employer;
  • emails that record/confirm meetings and conversations;
  • medical certificates or text messages to your boss where you have indicated that you were not coping at work and that your health was at risk.

Of course, each case is different and there may be scenarios where psychological harm is foreseeable without you having to specifically put your employer on notice; for example, cases of bullying, harassment or witnessing a traumatic event.

Finally, you may still be entitled to other types of WorkCover benefits where you are not required to establish negligence.

Legal advice and assistance during COVID-19

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