Principles of Liability in Psychiatric Injury Claims

Introduction

While it is inevitably clear that the law with respect to the compensability of pure psychiatric injury as a consequence of negligence is no different to the law with respect to physical injuries so caused, and leaving aside threshold issues imposed by statutory regimes, it is clear that there are very special considerations which pragmatically apply to claims for common law damages. The object of this paper is to try and focus on the central liability issues to highlight the difficulties with claims of this type. There are some very real barriers to successful claims for pure psychiatric injury, often said to arise because of the inherent nature of the psychiatric illness and its impacts upon Plaintiffs, the difficulty in discerning the existence of and/or the cause of psychiatric illness and, in turn from the latter proposition, the greater difficulty for the putative tort-feasor to take steps to prevent or not cause psychiatric illness. Pragmatically, the notion of reasonableness which one regularly confronts through the common law of negligence becomes more difficult to apply in many psychiatric injury claims2.

The aim of this paper is to try and thin down the issues so that you understand the critical problems confronting particularly Plaintiffs, but even sometimes Defendants, when dealing with pure psychiatric injury claims, meaning without physical injury, and as such not concerning traditional nervous shock claims where psychiatric injury follows the death of family. I will also deal with limitation issues (briefly) and some old issues surrounding employers and sexual abuse, and particularly non-delegable duty and vicarious liability.

Liability in pure psychiatric injury claims

The difficulty faced by Courts and doctors alike when determining claims for pure psychiatric injury is that there will often be no readily ascertainable objective or organic evidence of the injury let alone evidence linking the psychiatric injury to the incident. In part this is because injured plaintiffs are commonly not good witnesses and their instructions and in turn their evidence, more often than not, is not particularly focused. They themselves have difficulty because of lack of insight from understanding the real causes of their problems and often they lack the capacity to give evidence. Add to that the common view of psychiatrists that psychiatric illness is almost invariably multifactorial and often these types of injuries occur in high achieving personnel whose obsessiveness can pre-dispose them to the development of the very anxiety orders and in turn major depressive disorders because of that reality.

Courts are then confronted with a further layer of evidential complexity when asked to determine what steps could have been taken by a defendant to prevent the psychiatric injury from occurring. Often prior to the relevant incident said to give rise to the psychiatric injury occurring the injured person themselves would have been hard pressed to identify their pre-disposition to, or risk of, sustaining the psychiatric injury.

This is further complicated by the very understandable reticence that most people have towards telegraphing to others that they might be experiencing signs or symptoms associated with a risk of psychiatric injury. This is particularly so in the workplace, but applies equally to the community at large, thus concealment of the distress and impending psychiatric injury is common.

Despite, or perhaps because of, these additional barriers to identifying both risk of psychiatric injury and the resultant injury itself, the evidentiary onus placed upon plaintiffs seeking to recover damages for pure psychiatric injury is higher than it would be if had they suffered a physical component to their injury.

As noted by Hayne J in Tame v State of New South Wales; Annett v Australian Stations Pty Ltd3:

[A] plaintiff will not recover damages for an injury which psychiatric opinion recognises as a psychiatric injury by demonstrating only that such an injury was reasonably foreseeable and that the defendant’s negligence was a cause of the injury which the plaintiff sustained.

To recover damages for pure psychiatric injury the plaintiff must demonstrate the following:

1. Duty of Care

That the defendant owed a duty of care to the plaintiff because:

a. the psychiatric injury was reasonably foreseeable; and

b. of the degree of risk, on balance, that the plaintiff would suffer a psychiatric injury.4

It is this second limb of the evidential component of Duty of Care to be proved by the plaintiff that goes beyond that ordinarily required in personal injuries cases. To meet this second limb, the plaintiff must be able to demonstrate that the defendant knew that this particular plaintiff’s circumstances were such that he/she was at risk, on the balance of probability, of developing the psychiatric injury.

2. Breach

That the duty owed was breached by the defendant’s negligence;

3. Causation

That the defendant’s breach was causative of the plaintiff’s psychiatric injury.

The essence of this paper will be to address the three basic requirements.

Duty of care

The duty of care owed by an employer was clearly annunciated by the High Court in 2005 in Czartyrko v Edith Cowan University:5

An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.

In pure psychiatric claim cases, as in the general workplace obligation to report an injury, the plaintiff has an obligation to notify the defendant when stressors that may give rise to a psychological injury have arisen. The barriers experienced by plaintiffs when meeting this requirement to notify include:

1. the stigma associated with common stressors;

2. a lack of capacity, as a consequence of the psychiatric injury, to complain about the stressors being experienced: for example:

a. the plaintiff has no insight into their condition or circumstances;

b. the plaintiff’s fear/anxiety associated with the condition preclude reporting as required.

c. concern about having to disclose matters of a very personal nature, particularly if contributing stressors include personal factors such as financial distress and/or relationship breakdowns;6 and fear of retribution e.g. concern the plaintiff may lose their job or be demoted.

A failure to report these matters may result in the plaintiff’s claim failing, because a reasonable employer may have no knowledge of the issue.

Other difficulties plaintiffs confront when trying to establish whether a duty of care was owed to avoid pure psychiatric injuries include:

1. loss of access to key evidence and witnesses ; and

2. witnesses’ unwillingness to assist the plaintiff.

Both of these evidential hurdles are particularly relevant for plaintiffs injured psychiatrically in the workplace. Experience tells us they create their own problems in standard WorkCover cases. This becomes critically important in these types of cases where establishing breach of duty for the plaintiff often necessitates a need to call work mates and indeed some supervisors but often, of course, the plaintiff will have become estranged from his former colleagues at the workplace and of course the issue is whether that reflects the difficulties and personality conflicts arising out of the plaintiffs psychiatric illness or whether those personality conflicts were the genesis of the problem in the first place.7

The difficulties faced by defendants as to assessing whether a particular person may be at risk of suffering from a psychological injury include:

• that the plaintiff may not have complained about the stressors he/she may be experiencing;
• a number of the stressors that can contribute to the development of a pure psychiatric injury may be personal and not related to employment.

Assuming one can overcome these pragmatic hurdles and establish that there clearly was a duty of care owed by a particular defendant to the plaintiff in a pure psychiatric claim one then confronts the difficulties of breach.

Breach of Duty

A reasonable starting point is to recall the specific provisions of sections 9 and 10 of the Civil Liability Act (CLA) which provide:

9 General principles

(1) A person does not breach a duty to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things)—

(a) the probability that the harm would occur if care were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity that creates the risk of harm.

10 Other principles

In a proceeding relating to liability for breach of duty happening on or after 2 December 2002—

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done; and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and does not of itself constitute an admission of liability in connection with the risk.

I have started by restating these now well-known sections because, while in the broad sense there is no suggestion they dramatically change the common law, they do highlight the need to establish each component of the process of a breach of duty of care and that helps us to focus on the difficult issues which arise in pure psychiatric injury claims.

Defendants, and particularly defendant employers, will often have limited or no insight into the personal circumstances of each individual employee and therefore have limited or no insight into all of the stressors that may give rise to the risk (on the balance of probabilities) that the employee will suffer a psychiatric injury. This conundrum was discussed by Keane J in Hegarty v Queensland Ambulance Service:8

It may be accepted that a line commander of an ambulance officer must be vigilant for signs of dysfunction in ambulance officers because of the regular exposure of such officers to stressful situations, but that vigilance must respect, and be exercised in a context which recognises, the dignity of individual employees and their entitlement to privacy, 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.

The High Court in New South Wales v Fahy9 similarly expressed the difficulties that may be faced by the defendant in the context of a State employer protecting its police officers from the risk of psychiatric injury in circumstances where each individual’s response to a stressful situation may vary greatly. In their joint judgment Gummow and Hayne JJ observed that the best method of support can vary too.10 I highlight this issue for a couple of reasons: first not all problems confronting these types of cases are plaintiffs problems although they have by far the bigger hill to climb; second because it does highlight that there is a difference between pursuing a personal injury pure psychiatric case for an accepted group plaintiff (which may include police but less certainly ambulance officers and even less certainly perhaps warder type staff in a jail situation). Obviously this paper is more directed to those far more difficult cases where one is just dealing with a stock employment type situation and has to climb mountains with much less well established hurdles.

The key to addressing breach of duty in these psychological injury cases is to lead expert evidence that addresses:

1. what stressors were or should have been divulged to the defendant to enable them to identify the risk of psychiatric injury;

2. what actions or steps were or should have then been taken by the defendant to ameliorate the risk.

Of course this reverts to the reality that every case depends upon its own facts it is hoped these comments assist you to understand the importance of identifying precisely what is the breach and why the Defendant should have dealt with it. It will assist in this task if you address those particular items raised in section 9 CLA and direct your evidentiary pursuits to that and the subsequent provisions. One could resort to detailed examination of cases and show a litany of cases where plaintiffs have lost, at least in part, because of significant credibility issues on the part of the plaintiffs.11 Obviously one will go further to establishing a claim if one can establish some prior knowledge of a substantive nature about a plaintiff’s pre-disposition or pre-existing illness in the employer.12 One equally can show cases where there has been an overreach by plaintiffs with respect to what might amount to a reasonable response to a risk of injury on the employer’s part.13

I will now turn to the causation issue.

Causation

Again, I commence by stating the relevant provisions set out in the CLA which helps one to focus ones attention as follows:

11 General principles

(1) A decision that a breach of duty caused particular harm comprises the following elements—

(a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation);

(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).

(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not be established as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—

(a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.

12 Onus of proof

In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Again, while not suggesting this dramatically changes the common law, it does focus our attention on the issue, the scope of liability in particular being a problem sometimes in these types of cases. The provisions generally certainly focus ones attention on the broad based approach which courts adopt in considering causation.

The key issues are:

1. Whether the defendant’s negligence caused the psychiatric injury?;

2. Whether the plaintiff would have suffered the psychiatric injury regardless of the defendant’s negligence?

As stated by Maxwell P in Findlay v Victoria14:

When a plaintiff alleges a negligent failure to act, the causal link between the breach of duty and the claimed damage can only be established by means of a counter factual hypothesis. That is, the plaintiff must propound an alternative state of facts premised upon the defendant’s having exercised reasonable care and, specifically, upon there having been no relevant failure to act. The plaintiff’s counterfactual hypothesis must identify:

(a) what the defendant would have done had reasonable care been exercised; and

(b) how the taking of that action (or those actions) would have averted the loss or damage which the plaintiff in fact suffered.

If a number of separate events are said to have had a cumulative effect upon the causation of the injury, it is important that the evidence supports the allegation. Medical evidence should address all of the following propositions:

1. whether any of the separate events on their own could have caused the injury; or

2. whether each and every one of the alleged events would have to have occurred in order for the injury to have been caused, on balance, by the defendant;

3. whether any subset of the events alleged could have caused the injury.15

This, of course, creates enormous evidential difficulties, particularly for plaintiffs.

A genuinely held belief on the part of a plaintiff is insufficient to establish causation for injury arising from that belief. In absence of evidence that the genuinely held belief was true or correct, the plaintiff cannot establish that the injury arose from the defendant’s negligence. [16] It will be recalled in any event that section 11(3)(b) CLA provides any statement made by the Plaintiff about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

In addition to the matters outlined, in the context of WorkCover claims, the cause of the injury must be established to be the causative event/s:

1. for which compensation is obtained; and

2. described in the notice of claim.17

It will be recalled that the NOCD in Sayers asserted psychiatric illness in consequence of witnessing (as a security guard) a guest having fallen from height at a block of apartments causing his death but the Statement of Claim sought to include events being interactions between the plaintiff and his employer over the subsequent days and these parts of the Statement of Claim were struck out because they were not canvassed in the NOCD. This highlights the importance of understanding and appreciating the precise case to be run at the outset.

Section 32(5) of the Workers Compensation and Rehabilitation Act 2003 relevantly provides the following exemption:

injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—

(a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;

(b) the worker’s expectation or perception of reasonable management action being taken against the worker;

(c) action by the Authority or an insurer in connection with the worker’s application for compensation.

Examples of actions that may be reasonable management actions taken in a reasonable way—

action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker

a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker’s employment.

The explanatory notes indicate that the exemption was inserted to exclude psychiatric injuries which resulted from reasonable management action to improve a worker’s poor performance.

Whether management action is reasonable is an objective test. The onus rests upon the plaintiff to establish that the exemption does not apply i.e. that the management action was unreasonable or taken in an unreasonable way. one can illustrate the difficulties in the following scenario.

Applicant commenced employment as a spray painter.

Six weeks later she witnessed her foreman, Mr Foreman, verbally abusing her co-worker. She reported the abuse to her manager, Mr Manager.

Mr Manager conducted an investigation into the incident. The investigation revealed that Mr Foreman had been abusive and intimidating towards all the staff in the workshop.

Mr Manager issued Mr Foreman with a formal warning.

Mr Foreman retaliated against the Applicant by verbally abusing her and sabotaging her work.

The Applicant made several reports regarding abuse and harassment towards her by Mr Foreman but requested that no action be taken in relation to those reports.

The Applicant became very stressed and eventually left work.

She was subsequently diagnosed with schizophrenia.

Q-Comp rejected her claim for compensation on the basis that:

1. The Applicant’s psychiatric condition did not arise out of or in the course of her employment;

2. Employment was not a significant contributing factor to the development of the condition.

On appeal to the Industrial Magistrates Court, the Industrial Magistrate found:

1. The Applicant had shown signs of developing a schizophrenia type illness prior to commencing employment at the workshop;

2. Mr Foreman’s bullying was a significant contributing factor to the aggravation of her developing schizophrenic condition.

3. The Applicant complained that the employer’s management action against Mr Foreman was unreasonable.

4. The Industrial Magistrates Court found that the lack of further action against Mr Foreman despite the reports of further abuse and harassment was reasonable because the Applicant had requested that no further action be taken.

These findings were not disturbed on subsequent appeal to the Supreme Court (The failed appeal was made on the grounds of jurisdictional error). This is a line ball case, the outcome of which seems a little harsh, but it highlights the difficulties.18

Limitation Periods

Claims for pure psychiatric injury often involve ongoing injuries or ‘over period of time’ claims, and it can be difficult to pinpoint the moment in time when the illness becomes a compensable claim at law.19 It will be recalled in that case that it was determined that the damage had been suffered at a point in time when the plaintiff had a condition which a medical practitioner or psychologist would consider appropriate to provide treatment for.20 It is not a question of a DSM-IV diagnosis but rather a more simple clinical judgement and that aspect of the trial decision was not contested on appeal and remains good law.

Employers and Acts of Sexual Abuse

More and more frequently these days there are cases concerning inappropriate acts of sexual abuse. It needs to be kept in mind that there may be a physicality element here, not always present in pure psychiatric cases. As early as Lister and Others v Hesley Hall Limited21 the employer of a warden of a residential boarding annex for children with emotional and behavioural difficulties was sued for financial compensation for acts of intentional sexual abuse committed by the warden. The House of Lords found the employer of the warden could be held liable for the intentional acts of the warden on the basis of vicarious liability. Shortly thereafter of course the High Court also examined the legal principles upon which liability might be sheeted home to an employer of an employee who has committed acts of sexual abuse against another22 in Lapore a 7 year old was sexually and physically assaulted by his male teacher. In Samin and Rich both had been sexually assaulted by a teacher in a one teacher government primary school in rural Queensland on a number of occasions. The primary argument before the High Court was that by virtue of the non-delegable duty of care owed by an education authority, the education authorities concerned were liable in negligence simply upon proof that the assaults alleged had occurred and that the students had thereby suffered damage for which they should be financial compensated. It was also argued that they should recover on the basis of vicarious liability.

Of course one of the difficulties is that essential to establishing any claim against a defendant is the normal necessity to establish an element of fault. The plaintiffs argued in these cases that the simple fact they were assaulted was enough to establish breach of the non-delegable duty of care owed by the Education Department, therefore arguably not dependent upon establishing any fault on that authority. There were differing views of the High Court but all seven judges did touch on the basis of a breach of non-delegable duty of care.23 Some general propositions emerge from the decisions including:

(a) while it is accepted that in some relationships the duty to take care is non-delegable24 these relationships generally include master and servant, hospital and patient, education authority and student and adjoining land owners and it may be difficult to avoid such a conclusion where care of vulnerable people such as the elderly, the young, the infirm and mentally disabled are involved;25

(b) the underlying purpose for the imposition of such an non-delegable duty of care is the vulnerability or special dependence of the person and the accepting of responsibility for safety of such a person by the person or organisation said to owe the duty;26

(c) what is meant by non-delegable duty is that the person subject to the duty has the ultimate and personal responsibility to perform the duty himself/herself or to make sure it is carried out. While the primary obligation remains one of a duty of care it cannot be discharged by entrusting or delegating the duty to others;27

(d) the non-delegable duty is a stringent duty in the sense it imposes sole responsibility for its discharge on the person owing the duty;28

(e) it does not impose strict liability in the sense that the person owing it will be automatically liable simply on proof of injury incurred by the person to whom the duty is owed. There must be some fault, or failure to carry out the duty, or negligent conduct, established on the part of the putative tort feasor.29

In the event the plaintiffs failed in all three cases because there was no evidence of fault on the part of the education authorities concerned. The duty requires a business subject to it to put in place appropriately structured and workable systems to ensure sexual abuse to those under the care of the businesses is minimised. Of course this gives rise to questions of whether or not the business had any knowledge in the standard employment situation of a problem which is a recurring theme in these types of cases.

A discussion of these types of cases also brings into focus the issue of vicarious liability. McHugh J aside, the other 6 judges in these cases explored the concept of vicarious liability, particularly addressing two issues:

(a) because sexual abuse invariably amounts to a criminal offence, can an employer be vicariously liable for a criminal offence committed by its employee?

(b) because sexual abuse committed by an employee would be the antithesis of any employees job, can it ever be considered to have occurred in the course of the employees employment.

Quite frankly, I find it difficult to find a consensus in the judgments of the 6 judges on these issues but there are certainly two opposing viewpoints namely:

(a) where an employee has been negligent or has committed a battery, the wrong doing is a tort for which the employer will be vicariously liable if the remaining elements of that principle are established. If the wrong doing by the employee is a criminal wrong doing rather than a tort, it is not so clear and the narrow view is that negligent, even grossly negligent conduct is one thing, intentional criminal conduct is and always has been another. Of course on this view because the plaintiffs have been victims of a criminal act it was therefore not open to any of the students to argue a case on the basis of vicarious liability;

(b) the broad view was that after reviewing all the decisions in the face of so many decisions upholding vicarious liability in such circumstances, a general exemption from civil liability based on the deliberate or criminal character of the employees conduct cannot stand as good law because it is overwhelmed by too many exceptions.30

The general ultimate position is that sexual abuse in the course of employment will normally apply if it is a wrongful act authorised by the employer, or a wrongful and unauthorised mode of doing some act authorised by the employer. If one cannot fit within one of these categories then vicarious liability is unlikely to assist, certainly on the narrow view. On the broader view, one looks for a “sufficient connection” between the specific duties and responsibilities assigned to the employee including the degree of power and intimacy in the relationship between the parties including issues such as age, vulnerability and the circumstances of the sexual misconduct. The fact that the employment provides opportunity or occasion for the act of sexual abuse is not, of itself, sufficient to establish the connection.31 This of course, in a sense, tries to pick up the close connection test in the Listercase.32

This is a fleeting reference to some very complex concepts but there is certainly a paper worth reading if one wants to pursue it further.33

Conclusions

At the end of the day the basic principles applicable to a pure psychiatric injury claim are no different to any other personal injury claim but I trust this paper highlights the practical difficulties and hurdles in conducting claims of this nature and focuses your attention on the importance of ensuring that the various aspects of establishing a duty of care, a breach of that duty and that that breach caused the injury are centrally important to your thinking because it will be determinate of whether you succeed at all. Regrettably the reports are now littered with failed psychiatric claim cases and while these are substantially actually based decisions which comes with the territory, on occasions it is a failure to properly identify the legal elements to ensure success. In my view conducting plaintiff’s pure psychiatric injury claims is dangerous territory and the pragmatic reality is that ones clients often do not understand or apprehend the risks preventing a sensible negotiated settlement to occur in many cases. Take the cases on at your own risk and good luck.

Christopher Newton

Footnotes

 1. By Chris Newton, a member of the Queensland Bar

2. Acknowledgement is given to a paper by Geoffrey Diehm SC to the ALA Queensland State Conference on 17 February 2012.

3. (2002) 211 CLR 317 at [296].

4. Nationwide News Pty Ltd v Naidu & Anor; ISS Security Pty Ltd v Naidu & Anor (2007) 71 NSWR 471; (2007) Aust Torts Reports 81-928; [2007] NSWCA 377; Spigelman CJ at [26].

5. [2005] HCA 14; (2005) 214 A.L.R. 349; (2005) ALJR 839 at [12].

6. A lthough it is noted that employees are obliged at law to advise their employers of physical injuries and symptomology.

7. For a case where the failure of the plaintiff to call work mates or supervisor type witnesses, in which his credit about the bullying behavior was seriously impugned, contributed to a loss in Aksentijevic v Victorian Racing Club Ltd [2011] VSC 538

8. (2007) Aust Torts Reports 80-919; [2007] QCA 366 at [97]. Special leave to appeal was refused by the High Court [2008] HCA Trans 121.

9. (2007) 232 CLR 486; (2007) 236 ALR 406; (2007) 81 ALJR 1021; (2007) Aust Torts Reports 81-889.

10. at [69].

11. Joynson v State of Queensland [2004] QSC 154; Cranston v Consolidated Meat Group Pty Ltd [2008] QSC 41; Ilosfai v Excel Technik Pty Ltd [2003] QSC 275 at [26] and [55].

12. See Ilosfai v Excel Technik Pty Ltd [2003] QSC 275.

13. Lusk v Sapwell [2011] QCA 059 (Optometry store staff member working alone and sexually assaulted); White v Calstores Pty Ltd [2006] QCA 535 (service station attendant on night shift without security guard); and Queensland Corrective Services Commission v Gallagher [1998] QCA 426 (prison officer with work stress but declined psychology service offered by employer).

14. [2009] VSCA 294 at [2]-[3]; See also New South Wales v Fahy (2007) 232 CLR 486 per Gummow and Hayne JJ at [68] et seq.

15. Midwest Radio Ltd v Arnold [1999] QCA 020.

16. Panagiotopoulos v Rajendram [2007] NSWCA 265.

17. Sayers v Hanson [2011] QSC 70 re Workers Compensation and Rehabilitation Act 2003.

18. Parker v The President of the Industrial Court of Queensland & Q-Comp

[2008] QSC 175.

19. Hegarty v Queensland Ambulance Service [2011] QSC 70.

20. Hegarty at [111-112], [153-154] and [161]

21. [2002] 1 AC 215; [2001] 2 All ER 769; [2001] 2 WLR 1311.

22. New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 2012 CLR 511; (2003) 195 ALR 412; [2003] 77 ALJR 558; [2003] HCA 4.

23. The entire judgment of McHugh J (584-590) examines non delegable duty of care and he concluded all three cases in favour of the plaintiffs could be argued against the education authorities.

24. Gleeson CJ at 563-564, Gaudron J at 577-578 and Kirby J at 610-612 particularly relying on the Commonwealth v Introvigine (1982) 150 CLR 258.

25. See for example Gleeson CJ at [567-568], Gummow and Hayne JJ at [605] although the latter do qualify the possibilities.

26. See Gleeson CJ at [567-568], Gaudron at [578]. Callinan J at [620] seems to agree to a large extent with the views of Gleeson CJ on the matter of non-delegable duty of care.

27. Gleeson CJ at [564], McHugh J at [586].

28. Gleeson CJ at [564], McHugh J at [586].

29. Gleeson CJ at [567], Gaudron J at [578], McHugh J at [588-590], Gummow and Hayne JJ at [606], Kirby J at [619] and Callinan J at [620].

30. Kirby J at [616] Gleeson CJ at [574-5] also acknowledges vicarious liability can apply to intentional criminal conduct of an employee..

31. Gleeson CJ [574-576] and Kirby J at [618].

32. Gleeson GJ at [574 — 575].

33. The Legal Liability of an Employer for Acts of Sexual Abuse Committed by an Employee; Recent Developments in Australian Law by Peter Williams, Curtin University of Technology.