Koehler v Cerebos (Australia) Ltd [2005] HCA 15

HIGH COURT OF AUSTRALIA

McHUGH, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ

NUHA JAMIL KOEHLER APPELLANT

AND

CEREBOS (AUSTRALIA) LIMITED RESPONDENT

Koehler v Cerebos (Australia) Ltd

[2005] HCA 15

6 April 2005

P61/2004

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of Western Australia

Representation:

A G Braddock SC with N J Mullany for the appellant (instructed by Marks & Sands)

B W Walker SC with D R Clyne for the respondent (instructed by Dibbs Barker Gosling)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Koehler v Cerebos (Australia) Ltd

Negligence – Duty of care – Psychiatric injury – Content of an employer's duty to an employee to take reasonable care to avoid psychiatric injury – Whether employer breached its duty to provide employee with a safe system of work by failing to take the steps identified by employee – Whether reasonable person in position of employer would have foreseen the risk of psychiatric injury to the employee – Relevance of employee's agreement to perform the work which brought about her injuries – Whether the law of negligence should be developed in such a way as to inhibit the making of agreements involving more work than an industry standard.

Contract – Contract of employment – Freedom of parties to stipulate that an employee will do more work than an industry standard – Whether the law of negligence should be developed in such a way as to inhibit the making of agreements involving more work than an industry standard.

McHUGH, GUMMOW, HAYNE AND HEYDON JJ.

The issue

1. The appellant was employed three days a week as a merchandising representative of the respondent (the employer). She could not perform the duties expected of her to her satisfaction. She repeatedly told management that changes had to be made. She said that the work expected of her had to be changed, or she should have more time in which to do it, or she should have help to do it. No changes were made. 2. Five months after starting this work the appellant fell ill. At first a physical disorder was suspected but further consideration revealed that the appellant was suffering a psychiatric illness. Her work was a cause of that illness. 3. Did the employer breach the duty of care it owed the appellant to provide her with a safe system of work? 4. In the District Court of Western Australia, Commissioner Greaves found that the appellant's workload was excessive, that the employer needed no particular expertise to foresee that there was a risk of injury to the appellant of the kind that ensued and that, by not increasing the appellant's hours of work or giving her assistance, the employer failed in its duty to ensure that all reasonable steps were taken to provide the appellant with a safe system of work. 5. On appeal to the Full Court of the Supreme Court of Western Australia (Malcolm CJ, McKechnie and Hasluck JJ) that Court held[1] that the employer could not reasonably have foreseen that the appellant was exposed to a risk of psychiatric injury as a consequence of her duties at work. That being so, the employer's appeal was allowed. The appellant now appeals to this Court. The Full Court was right. The appeal should be dismissed.