Tort Of Negligence In Employment

Tort Of Negligence In Employment

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Tort Of Negligence In Employment

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Tort Of Negligence In Employment

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Discuss about the Negligence in Employment.

Case Introduction
The case is related to the tort of negligence with respect to workplace and employment contract. it is the duty of the employer in common law as well as through legislations to ensure that they are provided with a safe and healthy working environment and system. In case the employer is not able to provide a secure system to the employees in relation to their work they evidently violate the duty of care which has been imposed on them towards the employees. The case of Koehler vs. Cerebos (Aust) Ltd (2005) is related to a situation where psychiatric harm had been faced an employee due to additional work pressure. Therefore the issue before the court was to identify that whether the employer could reasonably foresee such psychiatric harm and whether at all an employer owed a duty to be alerted about a mental harm which can be caused to the employee. Disability claims in relation to mental stress have been almost totally removed from workers compensation provisions imposed in Western Australia and such an action have increased common law action with respect to mental injury to employees. This case has provided a major decision with respect to the duty of employer to the employee towards mental injury.
Facts of the case
The facts in relation to this case are very simple and clear. The appellant employee had worked for the respondent employer on full time basis in form of a sales representative. The appellant have been retrenched by the respondent. An offer was made by the respondent to the appellant upon retrenchment to work on a part time basis which was to work for only three days a week. Complaints had been coming in from the employee during the course she had been employed as a part time worker in relation to increased work pressure. She had notified the management about this problem on various occasions to reduce the number of shops to be covered by her or to provide her with an opportunity to work for an additional fourth day to reduce her work pressure. However, no relevance had been provided by the management to such concerns.
Subsequently, a mental illness had been developed by the employee and the cause for such illness was the increased work load. Therefore proceedings had been initiated by the employee with respect to the tort of negligence by alleging that the duty of care owed by the employer towards her been violated as the employer failed to provided her with a work system which was safe. It was determined by the commissioner of the district court of WA that the work pressure imposed on the employee was actually excessive. In addition it was ruled by the court that no advance expertise was needed for the employer to foresee the harm suffered by the employee. The employer according to the commissioner could have easily provided increased assistance to help the employee whom he did not and thus violated the duty of care. However the decision of the district court had been over ruled through an appeal where it was stated by the court of appeal that the employer could not reasonably predict the mental harm caused to the employee in relation to the work pressure. In addition no evidence suggested that the employer has to be altered in relation to a mental injury which may be caused to an employee. The high court also agreed with the decision of the full court in relation to the case.
Issue raised by the plaintiff and the defendant
The major issue which had been raised in relation to the appeal by the appellant was that the full court was not correct in its decision towards determining the duty of care which was owed by the respondent to the appellant with respect to the additional harm. In addition the appellant raised the issue in relation to the breach of employment contract and statutory provisions as well in the high court. The issue which was raised by the employer in this case was that there was no reason which they had towards suspecting that the employee would suffer mental injuries and the employee had expressly agreed to the duties which were to be performed by her.
Arguments provided by the parties
It had been provided by the appellant that the work load had been significantly increased by the employer as she had been expected to do the work she used to do during five days in only three days and as a result she suffered a mental injury.
No particular expertise was needed for the employer to identify the fact that the employee may suffer a mental damage if excessive work pressure was imposed on her.  There was no problem for the employer to provide assistance to the employee in relation to the additional work pressure. Even if there were problems such problem were negligible.  Thus the employer was negligent towards his actions.
It was provided the defendant employer that it was not possible for them to foresee such mental injury caused to the plaintiff. The appellant in addition had gone into a contract with the employer which signified her agreement in relation to performing such duties in the provided time. The employer had not reasons to suspect that such work would result in mental injury for the employee. Thus there is no negligent action on the part of the employer
Decisions by the court
The High court in this court in this case upheld the decision of the full court and provided a decision in favor of the employer that there was no negligence on their part. The appeal made by the employee had been dismissed by the court unanimously. The court found that no reasonable person if placed in the position of the employer would foresee psychiatric harm caused to the employee in similar conditions. This was because there was an agreement between the employee and the employee that employee would be performing such duties. it is the right of the employer and the employee in relation to common law to get into a contract with respect to any amount of work imposed on a person even if such work is more than the basic industrial standard or is more than often provided with a higher level of pay. It is the right of the employer to assume that the employee would be properly able to do their work in the absence of any sign of warning related to a psychiatric injury. No indication had been made by the employee that she was prone to such mental injury as claimed in this case. In addition the court provided that the complaint made by the employee suggests a problem related to industrial relation rather than a risk to health due to negligence. Therefore there is no breach of the duty of care had been done by the employer in relation to the injury caused to the employer.
Critical analysis
This section of the paper would critically analyze the decision of the high court in relation to the case in order to determine to what extent the decision made by the court is correct. This part argues in the favor of the case presented by the employer.
The decision of the court in this case was unanimous. No judge of the high court had a view that the duty of care had been violated by the employer.  According to Lockwood, Henderson and Stansfeld (2017) the duty of care can only be violated if the harm which has been caused to the plaintiff was foreseeable. If the defendant could not have foreseen the harm he cannot be held liable for negligence.  In addition Torres and Jain (2017) states that a test has to be applied in order to ensure that a harm related to psychiatric injury to an employee was reasonably foreseeable to the employer or not, and it cannot be concluded on the basis of the fact that such harm is a matter of general knowledge to the employer. In this case it had been provided by the learned judges of the court that it is the right of the employer to assume that the employee would be able to carry out his or her duties in a proper manner unless any signs or evidence to the contrary has been provided by employees. The court towards reaching its decision adopted the principle provided by the case of Walker v Northumberland County Council (1994), Hatton v Sutherland (2002) and Petch v Customs and Excise Commissioners (1993), in relation to psychiatric injuries to the employees. Through the joint opinion it was determined by the judges of the high court that the problem of the appellant was not in relation to dangers related to her mental health but merely an industrial relation issue. Thus it can be provided that no duty had been imposed on the employer to foresee the mental injury caused to the employee. However it can be argued that some significant possible objections in relation to the above discussed principles had been ignored by the high court in its decision. According to  Patterson (2016) a significant objection in relation to the principle is that the provisions may be largely in favor of the employee who manifests early signs of mental health problems in relation to the work pressure to the employer. Thus the employers would be seen better off if they are ignorant blissfully in relation to these problems and warning signs. It also ignores the position that the employees may be subjected to mental harm even if they do not know such harm may occur like it was in this case where all the employee could have done was to raise complaints in relation to the circumstances. As a result a clear argument can be provided that it would not be just to deprive the employee of compensation.
However there is no suggestion or evidence which provides that the objections are entirely convincing and should be endorsed by the learned judges in this case with respect to the facts. Cardi (2014) states that the law of negligence in relation to employment is based on creating a balance between the right of an employer related to the freedom of action to run the business in a smooth way and to ignore risks which are unacceptable and the need of the employee in relation to a safe working environment and system. The balance has to be achieved with respect to a reasonable level and not merely out of assumptions which in this case was that a mental injury can be caused to the plaintiff without any prior indication or warning. In addition it can also be argued that the employer should not be imposed with an obligation of being clairvoyant with respect to the particular vulnerability of the employee towards a psychiatric harm where no sign of signs in relation to the problems. According to Kleiman and Kass (2014) the situation is considerably more significant when the issue is relate d to a psychotic harm as compared to a physical injury. Thus it can be fairly provided that if there was no surety of both the employee and the employer that such a harm would take place the responsibility of the harm if placed solely on the employer would be unfair.
In addition as provided by Flint (2016) foreseeable means a situation which can be predicted reasonably and not a situation which is fanciful or far-fetched. However this test in relation to foreseeability was not applied in this case by the court. The principle provided by Justice Mason in the Wyong Shire Council case had been applied by CALLINAN J that a risk is foreseeable even if it is not fanciful or far-fetched as long as the probability of the risk to materialize was remote or low (Hayes et al. 2015). It was held by the judges in this case through the application of the principal that the risk that the employee would suffer mental illness within six months was far-fetched and not foreseeable.
Therefore, the case provided by the employer in this case was stronger and more compelling that the case presented by the employee.
Cardi, W.J., 2014. The Role of Negligence Duty Analysis in Employment Discrimination Cases.
Flint, P., 2016. An employer’s duty of care to prevent psychiatric injury recent cases. Precedent (Sydney, NSW), (135), p.26.
Hatton v Sutherland (2002) ICR 613
Hayes, J., Lawing, K., Allison, A.L. and Rubenstein, J., 2015. Workers’ Compensation and Personal Injury. The Encyclopedia of Clinical Psychology.
Kleiman, L.S. and Kass, D., 2014. Employer liability for hiring and retaining unfit workers: How employers can minimize their risks. Employment Relations Today, 41(2), pp.33-41.
Lockwood, G., Henderson, C. and Stansfeld, S., 2017. An assessment of employer liability for workplace stress. International Journal of Law and Management, 59(2), pp.202-216.
Patterson, J., 2016. Negligently Caused Psychiatric Harm: Recovering Principle and Fairness after the Alcock-Up at Hillsborough. Southampton Student L. Rev., 6, p.23.
Petch v Customs and Excise Commissioners (1993) ICR 789
Torres, L.D. and Jain, A., 2017. Employer’s civil liability for work-related accidents: A comparison of non-economic loss in Chile and England. Safety Science, 94, pp.197-207.
Walker v Northumberland County Council [1994] EWHC QB 2

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