Worth, Glenn --- "Reasonable foreseeability: when does it not mean reasonable foreseeability ?" [2017] PrecedentAULA 4; (2017) 138 Precedent 9

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REASONABLE FORESEEABILITY

WHEN DOES IT NOT MEAN ‘REASONABLE FORESEEABILITY’?

By Glenn Worth

There is a political movement across the world borne in some part of a yearning for plain speakin’. This movement is broadly a reaction to the failure of the establishment– and yes, I am including the judiciary – to engage the electorate, and a perception, particularly prevalent in the debate around political correctness, of orthodox governments’ failure to ‘say it as it is’. Examples of this anti-establishment movement spring easily to mind: think Trump, think Brexit, think our own Pauline Hanson. Indeed, at times it appears that such is the yearning for plain speakin’ in some pockets of the community that even a repugnant message can be accepted, provided the messenger is ‘sayin’ what he thinks.

We have our own plain speakin’ problem right here in the realm of common law psych. Bewilderingly, the phrase ‘reasonably foreseeable’ often does not mean ‘reasonably foreseeable’, and that is leading to inconsistency and uncertainty.

Let me explain.

KOEHLER

In Koehler v Cerebos (Australia) Ltd (Koehler), the High Court exhorted us to examine closely the content of the duty of care owed by an employer to an employee to prevent or reduce the risk of psychiatric injury, before jumping straight to an examination of whether or not there was negligence or breach. Yet, in the final analysis, the Court concluded that the central enquiry on duty was to remain whether, in all the circumstances, the risk of a plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful.^[1]

‘Reasonably foreseeable, in the sense of not being far-fetched or fanciful’, should be a phrase profoundly familiar to those practising in the common law jurisdiction. It is the standard by which the establishment of a relevant duty of care has been adjudged for over 35 years.

The foremost proponent of the ‘not far-fetched or fanciful’ test, Mason J, described it as a very easy test to satisfy. Even a risk of injury that is ‘extremely unlikely to occur’ may nevertheless constitute a foreseeable risk, his Honour noted, when one applies the ‘not far-fetched or fanciful’ test from Wyong Shire Council v Shirt (Wyong).^[2] Mason J was at great pains to point out the difference between ‘reasonable foreseeability’ as it applies to establishing a duty, and ‘reasonableness’ as it applies to establishing a breach. Mason J made it quite clear that the establishment of a reasonably foreseeable risk – and so a duty – will not in itself dispose of the question of breach.^[3] Indeed, Hayne J cemented this difference between the test for establishing duty and the test for establishing breach in Vairy v Wyong Shire Council (Vairy). Hayne J noted that the ‘reasonable foreseeability’ test for duty was so easily satisfied it could be used to establish a duty in circumstances where the ‘reasonableness’ test in respect of breach might require that the reasonable man do nothing at all to satisfy that duty.^[4]

Nonetheless, for 36 years the Wyong formulation of the test for establishing duty has applied in Australia, and the words used by the High Court in Koehler put it beyond doubt that the same test applies to a court considering whether an employer owed a relevant duty to an employee to reduce or eliminate the risk of psychiatric injury.

PLAIN MEANING

So how does our plain speakin’ problem arise?

The ‘reasonably foreseeable’ test has been considered so easy to satisfy that a relevant duty is virtually always found – or indeed conceded – to reduce or eliminate risks of physical injury.

The ‘reasonably foreseeable’ test, as it has been applied in cases of physical injury, is so likely to give rise to a relevant duty that courts very rarely even consider duty, preferring instead to launch straight into an enquiry about the reasonableness of the acts or omissions of the employer.

When was the last time you even saw the content of the duty pleaded in a case of physical injury to an employee? In the bulk of cases concerning physical injury to an employee, the fact that a duty exists, and its content, are not pleaded at all. It has, by convention, been considered sufficient to simply plead that the relationship between employer and employee exists, and that alone imports the relevant duty and its content – at least in cases of physical injury.

The test for duty, in its current formulation of whether the risk was reasonably foreseeable in the sense that it was not far-fetched or fanciful, has been criticised as so easy to satisfy that it will virtually guarantee that a relevant duty exists every time.

Here is what McHugh, Callinan and Heydon JJ have had to say on the subject.

McHugh J in Tame v New South Wales (Tame):

‘Given the undemanding nature of the current foreseeability standard, an affirmative answer to the question whether damage was reasonably foreseeable is usually a near certainty.’^[5]

Callinan J in Koehler:

‘Three Justices of this Court in Wyong Shire Council v Shirt held that any risk, however remote or even extremely unlikely its realisation may be, that is not far-fetched or fanciful, is foreseeable. I suppose that it is true that there is nothing new under the sun. With enough imagination and pessimism it is possible to foresee that practically any misadventure, from mishap to catastrophe is just around the corner. After all, Malthus in 1798 famously predicted that the population of the world would inevitably outstrip the capacity of the Earth to sustain it. The line between a risk that is remote or extremely unlikely to be realised, and one that is far-fetched or fanciful is a very difficult one to draw. The propounding of the rule relating to foreseeability in the terms that their Honours did in Wyong requires everyone to be a Jeremiah, and has produced the result that undue emphasis has come to be placed upon the next element for the establishment of tortious liability, the sorts of measures that a reasonable person should be expected or required to take to guard against the risk. Wyong has however been constantly applied throughout this country and in this Court since it was decided, and neither party sought to challenge it here. I am therefore bound to apply it.’^[6]

Callinan and Heydon JJ in Vairy:

‘As Callinan J recently pointed out in Koehler v Cerebos (Australia) Ltd, the fact that the test of foreseeability as stated in Wyong Shire Council v Shirt is so undemanding has the consequence that too much emphasis has come to be placed upon some of the other elements of liability for negligence. Having concluded that an event is foreseeable, as almost every occurrence can be, a court then has to consider as a related matter "the reasonable man's response" to it, having regard to the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of alleviating action, and other competing demands upon a potential defendant. These are all matters in respect of which the maintenance of absolute objectivity and the statement of norms or standards are very difficult. Included in those matters is an assessment of, in effect, the extent of the non-fancifulness of the occurrence, or, as is put, "the degree of probability of the occurrence". It might have been better to retain the law as it was stated to be in Caterson by Barwick CJ and before Wagon Mound (No 2) was decided, the case which was very influential in the reasoning of the majority in Wyong Shire Council v Shirt. On the basis of the law as it was propounded in Shirt, which was not challenged in this appeal, there could be no doubt that an injury of the kind, and the circumstances in which he might sustain it, here were foreseeable.’^[7]

So here, at last, is our plain speakin’ problem: the ‘reasonable foreseeability’ test, while virtually guaranteed to produce a relevant duty in cases of physical injury, so frequently does not in cases of pure psychiatric injury that one is forced to wonder whether the words ‘reasonably foreseeable’ mean something different in cases of psychiatric injury than they do in cases of physical injury.

THE DUTY IN PSYCH CASES

As was noted at the outset, the High Court demanded that practitioners and courts turn their attention to the content of the duty before enquiring as to breach. Yet, when considering whether a relevant duty exists – and its content – the Court held that we are to use the same test that virtually always produces a duty in cases of physical injury.

Why then has it traditionally been so hard to establish a relevant duty in cases of pure psychiatric injury?

I would argue that this anomaly stems from some unfortunate obiter comments, and a fundamental misunderstanding – or an overly harsh application – of Koehler and the later Queensland Court of Appeal case of Hegarty v Queensland Ambulance Service (Hegarty).^[8]

The unfortunate obiter was this: having just set out the test for duty in terms that could not any more clearly invoke Wyong, in the very next paragraph the High Court mused that stress alone may not be enough to give rise to a reasonably foreseeable risk of an employee sustaining psychiatric injury.^[9] And that very sentiment has been seized upon by judges to arrive at a conclusion that the High Court must have meant that something more than ‘mere stress’ is needed before the risk of psychiatric injury is reasonably foreseeable. In effect, by paragraph 34 the High Court in Koehler undermined the very test that it had just expounded at paragraph 33.

Bear in mind two things:

(1) Mason J contemplated that even risks that were extremely unlikely to occur could nonetheless be reasonably foreseeable in the sense that they were not far-fetched or fanciful. So surely it follows that a worker saying to an employer no more than ‘I am stressed’ creates reasonable foreseeability?

However:

(2) ‘Reasonable foreseeability’ as it applies to establishing a duty is a vastly different concept from ‘reasonableness’ as it applies to breach. While a simple statement such as ‘I am stressed’, if it is said in respect of some aspect of an employee’s work duties, might create a reasonably foreseeable risk of psychiatric injury, that alone, without more, might create a duty in the employer to do very little or perhaps nothing at all.

It should be clear to the reader that an argument for the words ‘reasonably foreseeable’ to mean the same thing across all spheres of the common law is not an argument for the floodgates to open and for a requirement that all Australian employers be solicitous of their employees’ feelings to the N^th degree. It is simply an argument for the test for duty to be the same when assessing psychiatric injury as it is in cases of physical injury, as the High Court intended.

The misunderstanding or overly harsh applications of Koehler and Hegarty have driven many of the outcomes in this area of the law since 2005 and 2006.

In the case of Koehler, the logic appears to be that if the High Court failed to find a relevant duty in that case, it must follow that establishing a relevant duty is relatively difficult. This, of course, ignores what the High Court actually said in respect of establishing duty.

Further, courts have for years been tying themselves up in knots analysing the exhortation in Koehler that it is relevant to examine the contractual relationship between employer and employee before determining the nature and extent of the duty to prevent psychiatric harm. It is, of course, trite now to observe that an employer will have no specific duty in respect of an employee’s psychiatric health if that employee is doing no more than fulfilling the terms of the contract. And so it was true in Koehler that Mrs Koehler had contracted to perform certain duties and was performing those duties without specific complaint about her health (albeit that she was complaining about having insufficient time) and without specific complaint that she was at risk of psychiatric injury.

This observation by the High Court was no more than a restatement of the rights of the parties to contract in any way they see fit; for an employee to agree to do more work for greater reward without that necessarily resulting in an obligation on the part of the employer to ensure that the employee could safely perform that additional work without risk to their psychiatric health.

Yet, in the vast majority of cases the contract between the parties will make not one iota of difference to the nature and extent of the employer’s duty; to begin with the proposition that an employer is entitled to assume that an employee can safely perform the terms of the contract distracts from the real task of the court; being to establish whether or not the circumstances of the case, and in particular the signs from the worker, gave rise to a reasonably foreseeable risk of that worker sustaining psychiatric injury.

Likewise, an overly harsh application of Hegarty has resulted in a finding of no relevant duty in a number of cases. In Hegarty, Keane JA emphasised the dignity of individual employees and their entitlement to privacy, and emphasised that the task of assessing whether or not there was a relevant duty must not be undertaken with ‘litigious hindsight’.^[10]

Both of these passages of Keane JA’s judgment have been utilised time and again to find no duty. And yet the observation in respect of ‘litigious hindsight’ is no more than a restatement of a well-established rule of law^[11] which applies equally to cases of physical injury, where a relevant duty is found to exist virtually every time. And Keane J’s comment in respect of privacy was qualified at [97] to apply:

‘...at least where the only signs of possible dysfunction are equally explicable as the assertion of legitimate grievances about the terms and conditions of employment, and there is no suggestion that the officer’s performance at work has been or is likely to be adversely affected in any way, and the employee chooses not to convey information which would clearly signal a level of psychological distress.’

His Honour did not intend that in all cases a requirement that we respect privacy and dignity should subvert the enquiry required of the court in respect of reasonable foreseeability. Rather, Keane JA indicates that considerations of privacy and dignity have some application to play in respect of reasonable foreseeability in certain confined circumstances.

O’DONOVAN

Perhaps the clearest example in recent times of ‘reasonable foreseeability’ not meaning ‘reasonable foreseeability’, arises from the District Court of Western Australia in the case of O’Donovan v Western Australian Alcohol and Drug Authority [No. 2] (O’Donovan).^[12]

Without repeating the entire facts of the case, it is sufficient for the present discussion to note that in the District Court it was accepted that the plaintiff had been unfairly treated: there had been a breach of the conditions of her employment without proper consultation; she had told the Human Resources Manager that she was ‘very, very stressed’; and that she had, in writing, informed her employer that she felt victimised, intimidated and bullied.

You might be asking at this point how it is that in such circumstances a risk of psychiatric injury was not ‘reasonably foreseeable’. Yet that is precisely what the District Court judge found. If ‘reasonably foreseeable’ events can include even those events that are ‘extremely unlikely to occur’, how could it possibly be said that the risk of psychiatric injury was not, here, ‘reasonably foreseeable’?

Again, that is to say nothing at all about breach. ‘Reasonableness’ as it applies to breach might have required that the employer do very little in response to those complaints from Ms O’Donovan, and the employer’s response may have in fact been entirely reasonable. However, the case was not (first) decided at the level of breach; it was determined at the level of duty. The judge’s final comment on the subject of duty was, ‘There was nothing to suggest the defendant ought to have known that Ms O’Donovan was at risk of suffering a psychiatric injury. The claim in negligence must be dismissed.’^[13]

Maybe it could be argued it was not ‘probable’ that Ms O’Donovan would sustain a psychiatric injury, but the probability or improbability of an event occurring has a very limited role, if any, in establishing duty.^[14]

The Queensland Court of Appeal did not disturb the findings of the District Court judge and the High Court refused special leave to Ms O’Donovan. Dr Morrison QC’s submission on Ms O’Donovan’s behalf at the special leave application is, however, entirely apposite:

‘[DR] MR MORRISON: Yes. Can I deal with it in this way? The Western Australian Court of Appeal thought the trial judge was entitled to find that psychiatric injury was not reasonably foreseeable, notwithstanding the evidence that we have just referred to a moment ago in relation to improper and inappropriate treatment, complaint about that treatment and disclosure of being very, very stressed, and of being intimidated, victimised and bullied. Now, the Court of Appeal said that the information that we have just referred to did not convey any reason for the employer to suspect the possibility of future psychiatric injury.

The test applied, we say, by the Court of Appeal has the effect of requiring a worker to demonstrate symptoms of illness before it will be found that the necessary level of foreseeability is there and, in practice, this means the illness has to be developed before it is a foreseeable consequence. Now, there is supposed in this context to be a high duty of care to employees, and that is referred to in Koehler v Cerebos, and I will come back to that and the proposition that I was just referred to a moment ago, and also in Czatyrko v Edith Cowan University, there is nothing novel in that, because the element of control which an employer has over an employee’s work environment provides good reason for imposing a high duty of care. But, we say, why is it not foreseeable that if an employer mistreats an employee, psychiatric injury may occur.’^[15]

CONCLUDING COMMENT

Is this difference in the way the ‘reasonable foreseeability’ test has been applied no more than an annoyance for the pedantic? Is it no more than an irritation to blackletter lawyers who believe the same phrase used in different contexts should have the same meaning? I would argue no. I would argue it is a substantive problem.

Psychiatric injuries can have devastating effects upon the injured party and their family. This devastating effect is no different to the devastation that can be wrought by serious physical injury. The High Court has indicated that a duty to prevent psychiatric injury will arise in the same way – and with the same easy-to-satisfy threshold – as a duty of an employer to prevent physical injury. Given that both physical and psychiatric injuries can be equally devastating, there is no good reason for the words ‘reasonably foreseeable’ to be applied differently or to have a different meaning depending upon the nature of the injury.

And, further, if we don’t address the yawning chasm of difference in the way the ‘reasonable foreseeability’ test has been applied in cases of psychiatric injury versus cases of physical injury, we are – in our own small way – guilty of the same failure to ‘say it plain’ that has in part spawned one of the most divisive political movements in modern times.

Glenn Worth is a Victorian barrister with a special interest in cases of industrial psychiatric injury.

PHONE [phone] EMAIL [e-mail].

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^[1] [2005] HCA 15; (2005) 222 CLR 44, 57.

^[2] [1980] HCA 12; (1980) 146 CLR 40, 48.

^[3] Ibid, 47 and 48.

^[4] [2005] HCA 62; (2005) 223 CLR 422, 461.

^[5] [2002] HCA 35; (2002) 211 CLR 317, 353.

^[6] See above note 1, 64.

^[7] See above note 4, 480 and 481.

^[8] [2007] QCA 366.

^[9] See above note 1, 57.

^[10] See above note 8, [97] and [98].

^[11] See above note 2, 47, and in particular the High Court’s comments on Wyong in New South Wales v Fahy [2007] HCA 20, [56]-[57]. See also Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540.

^[12] [2013] WADC 13.

^[13] Ibid, [401].

^[14] See above note 2, 47.

^[15] Transcript of Proceedings, O'Donovan v Western Australian Alcohol and Drug Authority, [2014] HCATrans 134 (20 June 2014) 61-84.