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Mukherjee, Abhi --- "The Age Company Limited v YZ (a Pseudonym) [2019] VSCA 313" [2020] PrecedentAULA 20; (2020) 157 Precedent 34

CASE NOTE: THE AGE COMPANY v YZ (A PSEUDONYM) [2019] VSCA 313

By Abhi Mukherjee

Courts are required to grapple with often complex claims for psychiatric injury involving claimants with pre-existing psychiatric conditions. Breaches in duty of care, even egregious ones, may not necessarily result in a successful claim if the defendant can show that their breach did not contribute to the outcome. The task of the court will always be to assess the causal link between the breaches of duty alleged and the difference this may have made to the psychiatric condition. This is particularly challenging in cases where professionals such as police officers, firefighters and other emergency services bring claims of psychiatric injury, given their exposure on a regular basis to traumatic events.

The recent Victorian Court of Appeal decision of The Age Company v YZ (a Pseudonym)^[1] highlights the need for plaintiffs to establish a strong causal basis in order to be successful in their claim. The appeal was brought following a first instance decision in which liability was found against the defendant, who was the publisher of The Age newspaper. The claimant was a journalist who brought a claim for psychiatric injury in respect of her employment over a number of years. Her work required her to report on crime, involving cases of murder and violence. On appeal, the defendant argued that the judge at first instance erred in his approach to causation.

The facts were as follows:

• the plaintiff qualified as a journalist in 1998;

• in 2003, at the age of 27, she commenced work with the defendant as a crime reporter;

• between 2003 and 2009, the plaintiff covered a multitude of news events involving death, suicide, violence and rape, including child rape;

• during this period she exhibited signs of mental distress;

• as a consequence of her mental distress, the plaintiff was moved by the defendant to a sports journalist role, which she occupied from February 2009 to April 2010;

• the plaintiff was then moved from sports coverage to court reporting (again involving coverage of serious crime) – she accepted this position reluctantly after much persuasion from the defendant; and

• by November 2011, the plaintiff’s health had deteriorated once more and she suffered a range of significant psychological symptoms, including depression, nightmares, lack of sleep and serious stomach issues, as well as feeling unappreciated at work.

FIRST INSTANCE DECISION

The judge at first instance found the defendant to be liable for the plaintiff’s psychiatric injuries. He found that there were breaches of duty relating to failures in the following areas:

• training of new staff about the nature of the trauma, suffering and distress they were likely to be exposed to;

• training of senior staff in respect of trauma awareness;

• recognition of risk of trauma;

• institution of a risk support program;

• procedures around how journalists should deal with known criminals and their relatives;

• the speed and responsiveness of the Employment Assistance Program (EAP);

• instituting programs made by other media organisations such as the BBC and ABC;

• culture in the workplace;

• rotation of roles as a measure for addressing mental wellbeing; and

• the decision to transfer the plaintiff to court reporting.^[2]

He also found that causation was made out. The defendant ought to have taken steps to:

• train the plaintiff, both at the outset of her job and continuing;

• train editors and senior managers to better identify psychological injury;

• set up a peer support program;

• change the work culture at The Age so that employees could talk openly about symptoms and signs such as depression, anxiety and stress; and

• communicate to employees that they had an option to change the area of reporting if their current area became too traumatic.

The judge stated that in taking a common sense and practical approach to the question of causation, if the steps identified had been implemented it was likely the plaintiff would not have suffered injury.^[3]

It is clear that careful consideration was given to causation in the judgment.

COURT OF APPEAL DECISION

A significant part of the appeal dealt with the causation issue. The appeal was allowed in part. The Court of Appeal overturned the finding that the defendant breached its duty of care prior to 2010 (the time at which the plaintiff was moved to court reporting). It stated:

‘However, when the plaintiff was moved to court reporting in 2010, it was clear that she was reluctant to move and that she was obviously unable to cope with exposure to trauma. The decision to move the plaintiff caused a significant deterioration in her health and constituted a breach of duty. As the judge found, correctly in our view, the move to court reporting should not have occurred, consistently with the employer’s duty of care.’^[4]

The Court of Appeal then further analysed the plaintiff’s case on causation. It made clear that cases involving psychiatric injury required a greater level of preparation than those involving physical injury:

‘... in the context of psychiatric injury, Koehler v Cerebos (Australia) Ltd (‘Koehler’) established that it is wrong to frame the duty of care with the level of generality considered sufficient in respect of physical injury. It is necessary to have regard to more specific aspects of the nature and content of the duty. In such cases, it invites error to proceed immediately to questions of foreseeability and breach.

In Koehler, the plurality observed that “the duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable.” That question, “invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned”. Just as those matters inform the question of foreseeability of injury, they are also relevant to the identification of the steps that an employer ought reasonably take to avoid that risk.’^[5] [footnotes omitted.]

The ‘concrete issues’ of the case as identified by the Court of Appeal were whether:

(1) training, formal peer support, immediate access to the EAP and a sympathetic rotation policy were reasonable steps for the defendant to take;

(2) not taking such steps constituted a breach of duty; and

(3) if taken, such steps would have avoided the plaintiff’s injury.^[6]

Most significantly, the Court of Appeal found that greater training and consequential greater awareness of the risk of psychiatric injury would have avoided the plaintiff being assigned to court reporting in 2010.^[7] However, breaches of duty prior to 2009 as found by the judge at first instance were not considered to be causative of damage.

In effect, the Court of Appeal’s findings were a more refined distillation of the facts of the plaintiff’s case, with the aim of assessing the breaches of duty that were found by the judge at first instance in terms of their causative potency and the directness of their nexus to the plaintiff’s psychiatric condition. As such, this stands as an important decision in its guidance to practitioners on the need to sieve through breaches of duty in order to assess their importance in terms of causation.

While it may be argued that the breaches of duty of care that were found by the judge at first instance prior to 2009 were a foundation for what was to occur afterwards, and were thus part of a continuum, the Court of Appeal discerned otherwise. It stated:

‘... we are not satisfied that, before 2009, The Age breached its duty of care in a way that caused the injury to the plaintiff by failing to train staff, including the plaintiff, providing a formal peer support program, providing more ready access to the EAP or a more informed rotation policy. That is because we are not persuaded that, had those matters been provided by the employer, the plaintiff would have been rotated away from crime reporting before 2009. We are not persuaded that she would have requested such a rotation, nor would those matters have resulted in the employer, at its own initiative, rotating the plaintiff.

As recognised by the judge, his findings on causation were arrived at applying a common sense and practical approach. We do not regard his Honour’s findings as to what would have occurred before 2009, had training, formal peer support and the other steps identified by the judge been implemented by the employer, as findings of fact based on his assessment of the credibility of the witnesses. We note that the judge found the plaintiff to be a credible witness.’^[8] [footnotes omitted.]

CONCLUSION

The case is an important one, and is of particular relevance to employees whose work necessarily exposes them to traumatic events and so carries the foreseeable risk of psychiatric damage.

The Court of Appeal decision can be viewed as a template of sorts for what is expected of employers in order to manage the risk of psychological injury to their employees. Complying with their duty of care appears to require that employers have meaningful training programs in place for employees and managers. Further, providing employees who are in trouble with access to an internal support program also seems to be a necessary component of the protection expected for these employees.

Abhi Mukherjee is a barrister at Owen Dixon Chambers West, Melbourne. EMAIL a.mukherjee@vicbar.com.au.

^[1] The Age Company v YZ (a Pseudonym) [2009] VSCA 313 (CA decision).

^[2] See YZ (a pseudonym) v The Age Company Limited [2019] VCC 148, [162].

^[3] Ibid, [184]–[185].

^[4] CA decision, above note 1, [12].

^[5] Ibid, [105]–[106].

^[6] Ibid, [151].

^[7] Ibid, [186].

^[8] Ibid, [205]–[206].