Job related stress is by no means a new phenomenon; however, increasing awareness around mental health means that there is a greater level of responsibility placed on employers to provide a safe workplace. Employers have a non-delegable duty of care towards their employees,1 which also seemingly includes the duty to provide a workplace where employee stress is adequately managed. Psychiatric injury and negligence however, is a legal grey area in Australia. Although, there is extensive case law and legislation that guides courts in making decisions in relation to the negligence of an employer where physical personal injury is suffered at work, the law surrounding psychiatric injury caused as a result of an employer’s negligence is fraught with difficulty, and an employee faces a high bar in establishing causation. Although ‘stress’ itself is not classified as a psychiatric injury, it is a precursor for such illnesses such as depression, anxiety and post- traumatic stress disorder.

In order for an employee to successfully make a claim for psychiatric injury, the employee is required to establish:

  1. that the employer owed a duty of care;

  2. that the duty of care was breached; and

  3. as a result of the breach, the employee suffered damage.

The High Court of Australia in Koehler v Cerebos2 formulated a fairly narrow test which appears to place more responsibility on the employee. In this case, the employer was not found negligent, as the Court found that the plaintiff failed to bring to the attention of the employer that she was actually suffering from a mental illness and continued her duties under her employment contract. Although the Plaintiff informed the employer that she was unable to cope with her ever growing workload, she did not warn her employer expressly of her risk of suffering psychiatric illness3 and continued to attend work. Accordingly, the Court found it was not reasonably foreseeable to the employer that the Plaintiff would suffer injury, and as a result, the employer did not act unreasonably nor breach their duty of care.4 Further to the above, the Court emphasised the contractual nature of the employment relationship.5 The Court found that because the employee continued to exercise her duties under the contract, the employee assumed the risk and therefore the employer could not have breached their duty of care, as it was not reasonably foreseeable to the employer that the employee was at risk of harm.

By narrowing the test for psychiatric harm, the High Court has restricted the number of cases which can be brought against employers for psychiatric injury suffered by employees in the workplace. Although an employer still owes an employee a duty of care, which includes the duty to take reasonable steps against the risk of psychiatric injury, it appears that the duty of care cannot be breached unless an employee has brought to the attention of the employer their inability to cope with the workload and associated employment stress, which puts the employer on notice of the risk (reasonable foreseeability) of injury. Accordingly, the responsibility is on employees to expressly inform employers that they are or may suffer psychiatric injury, rather than the employer drawing conclusions on each employee and make assumptions about their mental health.