'Liability for Workplace Psychiatric Injury in Australia: New Coherence and Unresolved Tensions' by Kylie Burns in (2023) 45(2) Sydney Law Review 157 comments
Workplace psychiatric injury is a significant health, economic and social problem. Multiple recent inquiries and reports have drawn attention to the failure of Australian law, including workplace health and safety (‘WHS’) regulation and compensation laws, to adequately respond to workplace psychiatric injury. This article considers how Australian negligence law has responded to workplace psychiatric injury since the High Court took a restrictive approach in 2005 in Koehler v Cerebos (Australia) Ltd. It considers the role of workplace psychosocial hazards in psychiatric injury and the changing Australian WHS landscape, including the evolution of Australian principles of negligence following Koehler. The 2022 High Court decision in Kozarov v Victoria which concerned injury from vicarious trauma is analysed and the tensions and unresolved issues post Kozarov are considered. The article argues that while Australian negligence law has experienced some change of direction post Kozarov, the failure of the High Court to overrule Koehler means it may remain difficult for some injured employees to recover for their workplace psychiatric injuries. Further development of negligence law is required in a way which promotes coherence with the Australian legislative regulatory landscape, and which adequately recognises the nature of workplace psychosocial hazards.
Workplace psychiatric injury is a significant health, economic and social problem. The cost to the Australian economy of poor psychosocial workplace climates is approximately $6 billion per annum. A 2014 study by Beyond Blue found that only about half of Australian employees considered their workplace was mentally healthy. On average, there are around 10,000 accepted workers compensation claims for psychiatric injury or illness each year, the majority of which involve extended periods of absence from the workplace. While the number and overall cost of all ‘serious injury’ workers compensation claims4 have fallen over the past decade, the number and costs of mental injury claims have grown exponentially. Serious mental health–related claims rose 73% between 2000 and 2020. Median time lost in working weeks for mental health conditions ‘rose 175%, from 11.2 working weeks in 2000–01 to 30.8 weeks in 2019–20’. Median compensation for mental health conditions rose 288% from $14,300 in 2000–01 to $55,300 in 2019– 20. Mental stress claims had the highest median compensation amount of all injuries — ‘more than three times the median compensation amount for all serious claims’.
Many people who suffer psychiatric injury in the workplace remain uncompensated. Psychiatric injury claims are treated differently from physical injury claims. State and territory workers compensation schemes reject 24–60% of psychiatric injury claims, compared to 6–10% of physical injury and disease claims. Workplace psychiatric injury is suffered at a disproportionately higher rate by women, particularly in sub-categories of mental stress such as work-related harassment, workplace violence, bullying and work pressure where women suffer injuries at more than twice the rate of men. Rates of workplace psychiatric injury and claims differ widely between different industries. The average overall incident rates of serious accepted claims over five years for injuries caused by mental stress are highest in public administration and safety services (including police, fire fighters, emergency services personnel, corrections officers, border control officers); health care and social assistance professionals; and education and training professionals. Occupations with very high rates of work-related harassment and bullying include clerical and administrative workers; defence force members, police and fire fighters; and labourers.
There is increasing awareness that workplace psychiatric injury in Australia requires an urgent response. The risk of psychiatric injury in the workplace due to employer-controlled psychosocial hazards has been known for many years. However, multiple recent government inquiries and reports have drawn attention to the failure of Australian law, including workplace health and safety (‘WHS’) regulation and compensation laws, to adequately recognise, respond to and compensate workplace psychiatric injury. These include the 2019 report by the Senate Education and Employment References Committee on the mental health and suicides of first responders; the 2020 report by the Productivity Commission on mental health; the 2021 report of the Royal Commission into Victoria’s Mental Health System; the 2018 review of the model WHS laws (‘Boland Review’); the 2020 report of the Australian Human Rights Commission (‘AHRC’) on the inquiry into sexual harassment in Australian workplaces (‘Respect@Work’); the 2022 AHRC report on the independent review into Commonwealth parliamentary workplaces; and the 2022 Western Australian Legislative Assembly Report on sexual harassment in the fly-in fly-out mining industry.
This article considers how Australian negligence law has responded to workplace psychiatric injury since the High Court took a restrictive approach to liability in 2005 in Koehler v Cerebos (Australia) Ltd. Part II considers, as background, the role of workplace psychosocial hazards in psychiatric injury and the changing WHS regulatory landscape in Australia. Part III discusses the principles of negligence following Koehler. It suggests that the restriction of employer liability for injury by courts has been problematic. Factors contributing to the restriction of liability have included: the construction of workplace psychiatric injury as predominantly caused by individual employee factors rather than workplace psychosocial hazards; the principle of the coherence of negligence law with other areas of law, particularly contract; and legal policy factors including privacy and individual autonomy. Part IV analyses the 2022 High Court decision in Kozarov v Victoria concerning vicarious trauma — that is, trauma suffered by exposure to the trauma and suffering of others. Part V considers tensions and unresolved issues in negligence law post Kozarov. The article argues that while Australian negligence law has changed direction post Kozarov, the failure of the High Court to overrule Koehler means it may remain difficult for some injured employees to recover for their workplace psychiatric injuries. Further development of negligence law in a way which promotes coherence with the Australian legislative regulatory landscape, and which adequately recognises the nature of workplace psychosocial hazards, is required.
