On 5 September 2014 the Supreme Court handed down their decision in the matter of Doulis v State of Victoria, in which secondary school teacher Peter Doulis received damages of $1.3M following the occurrence of a psychiatric injury which the Court concluded arose in negligent circumstances.
The Court applied the well-known authority of Koehler v Cerebos when determining whether the injury was foreseeable, however the Court in Doulis also additionally discussed why the employer had breached their duty of care and by extension, what a reasonable employer should do in those circumstances.
In 2000 Werribee Secondary College introduced a system of teaching where students were streamed into classes based on their academic achievements. The weakest of these streams were labelled the 'low' and 'foundation' classes.
Mr Doulis was assigned a number of 'low' and 'foundation' classes as part of his teaching load. The Court accepted that teaching such classes could be exceptionally difficult, stressful, and at times traumatic, due to the difficult behaviour and attitudes of some students. It was also noted that Mr Doulis taught more of these classes than any other teacher at the school.
On Friday 5 September 2003 Mr Doulis broke up a fight between two students during a foundation class. One of the students threatened him afterwards, causing him to become extremely upset. On the following Monday, 8 September, Mr Doulis arranged to meet with the Principal and his two Assistant Principals. In the meeting he presented in a tearful, dishevelled, and distraught state, complained of difficulties with his load of low and foundation classes, and requested that he not be given any of these classes in 2004. At the end of the meeting the Principal sent him home to rest for two days.
When he returned to school on 11 September 2003, Mr Doulis delivered a letter to the Principal following up their prior meeting. In the letter he referred to suffering high levels of stress, his prior requests for a more even spread of foundation and low classes, difficulties with student behaviour in those classes, a lack of support by the school, and a decision to relinquish his involvement in all non-classroom activities.
Despite the meeting and Mr Doulis' subsequent letter, the school did not respond to his complaints, and his teaching load of low and foundation classes was not lightened. Neither the Principal nor his Assistants checked on Mr Doulis' state or the progress of his teaching thereafter. He ultimately left the school in 2004 after being diagnosed with acute depression. Mr Doulis tried to resume work in 2005 and 2006, but relapsed both times.
The first issue to be determined was whether, at the relevant time, a reasonable employer would have foreseen there was a risk of Mr Doulis suffering psychiatric injury. In deciding this issue Justice Ginnane considered the High Court's decision in Koehler, which paid particular attention to whether an employee gave signs of distress to their employer that might suggest a risk of psychiatric injury. In that case the Plaintiff was a part-time sales representative who protested that she was required to visit too many stores in her allocated hours, and indicated to the employer that she needed to either be allocated more hours, or less stores. Significantly, her complaints related only to her ability to complete her work, and did not suggest that her difficulties were affecting her health. In response to her protests the employer neither reduced the number of stores nor increased her hours, and she was ultimately diagnosed with anxiety and depression.
In Koehler the Court held the Plaintiff's injury was not foreseeable, as she had not at any point suggested she was vulnerable to psychiatric injury or that her work was putting her at risk of such injury. Therefore, there was no reason for Cerebos to suspect she was at risk of psychiatric injury.
Applying the same reasoning, Justice Ginnane in Doulis held that a reasonable person in the position of the Principal and/or Assistant Principals, who attended the meeting on 8 September 2003 and received the follow-up letter, would have realised Mr Doulis was at risk of sustaining psychiatric injury due to the difficulties he was experiencing in teaching low and foundation classes.
Foreseeability having been established, the Court found the College had a duty to take steps to minimise the risk of Mr Doulis suffering psychiatric injury. In considering the content of that duty, Justice Ginnane found that a reasonable person with the knowledge available to the Principal and his Assistants should have removed or lessened Mr Doulis' low and foundation classes, provided him with support, and directed that he take sick leave. His Honour also stated that a reasonable person would have monitored Mr Doulis' condition when he resumed work and enquired from time to time about his wellbeing. He found the College breached its duty of care by not taking those steps, and that this breach was a cause of Mr Doulis' chronic depressive condition.
Differences between Koehler and Doulis
The High Court's decision in Koehler highlighted the difficulty faced by employees when attempting to prove their employer should have reasonably foreseen a risk of psychiatric illness arising from workplace stress. There the Plaintiff failed to meet the threshold as she had not identified her work was impacting her psychological health. In applying the same test to the facts in Doulis , the Court has confirmed the clearest way for an employee to establish foreseeability is by lodging a complaint with their employer noting they are suffering stress as a result of their work. Not an onerous requirement by any means, although in practical terms for employees, often not done.
Both Koehler and Doulis place a responsibility on employers to respond to complaints of stress caused by work, in order to avoid a risk of psychiatric injury to employees. However the court in Koehler only speculated as to what that response might generally entail – including altering the work expected of the employee. The Court in Doulis went further, by identifying specific actions a reasonable employer should have taken in response to Mr Doulis' complaints of workload stress, in order to minimise the risk of injury. Justice Ginnane found the College should have modified or removed his low and foundation classes, and provided him with support and ongoing monitoring.
The Court in Doulis also went further than Koehler by finding that the College breached its duty of care in failing to take those steps, and that this breach caused Mr Doulis' depressive condition.
Application of the Court's Decision in Doulis
Following Doulis, prudent employers should respond to any signs or complaints of workplace stress by taking reasonable steps to minimise the risk of relevant workers suffering psychiatric injury. These steps may include modifying an employee's duties, providing them with support, directing them to take sick leave, monitoring their condition on an ongoing basis, and enquiring from time to time about their wellbeing.