Robinson v EACH Ltd [2024] VSCA 313
Introduction
In the recent decision of Robinson v EACH Ltd [2024] VSCA 313, the Victorian Supreme Court of Appeal addressed the issues concerning employer liability for psychiatric injuries sustained by employees due to vicarious trauma. The case involved a carer peer support worker who alleged negligence on the part of her employer, EACH Ltd, after experiencing psychological distress attributed to her role.
Facts
Ms Robinson was employed by EACH Ltd (EACH), a community health service organisation, as a carer peer support worker from 2007 to 2015. Initially, Ms Robinson worked only in clinical and community settings. Her duties involved consulting with, and listening to, the experiences of carers and providing them with support. Ms Robinson’s role expanded in January 2015 to include home visits to her carer clients.
On 11 February 2015, Ms Robinson attended a trauma-informed training session run by her employer which included a session concerning vicarious trauma and its effects. On 17 February 2015, she reported psychological distress related to vicarious trauma to her team leader. Her team leader immediately ceased any new referrals to Ms Robinson, however, she was required to continue to attend upon her existing clients. Ms Robinson continued working under this new arrangement until being certified unfit for her duties on 25 February 2015. After two months off, Ms Robinson returned to work on modified duties (administrative tasks) for seven months but ultimately ceased working.
In June 2021, she sued EACH in negligence, alleging it breached its duty of care by requiring her to work in situations that were harmful to her mental health, particularly after 17 February 2015 – the day she told her team leader of her issues. Ms Robinson argued that EACH had a duty to implement appropriate measures to mitigate the risks associated with vicarious trauma, which she believed was a foreseeable consequence of her role. EACH maintained that no breach of duty occurred, arguing it provided appropriate training, supervision and support, and that earlier interventions would not have prevented her injury. EACH further argued that the risk materialised only on 17 February 2015 and its response after that was appropriate.
The case was initially heard in the County Court of Victoria, where Ms Robinson’s claim was dismissed. The judge ruled that Ms Robinson’s work as a carer peer support worker did not inherently pose a foreseeable risk of psychiatric injury from vicarious trauma. The judge found no evident signs of emotional distress before 17 February 2015, when she informed her supervisor that she was struggling. This disclosure put EACH on notice of the risk, triggering its duty of care. The judge determined that EACH responded reasonably by ceasing new referrals and later assigning Ms Robinson to administrative tasks upon her return to work. There was no evidence that a different approach would have prevented her injury. As a result, the judge found no negligence on EACH’s part and dismissed Ms Robinson’s claim. Ms Robinson appealed to the Court of Appeal of the Supreme Court of Victoria (the Court).
Issues
Ms Robinson’s appeal outlined nine grounds, primarily relating to the foreseeability of her injury and the reasonableness of EACH’s response.
Court’s Determination and Reasoning:
The Court dismissed the appeal, upholding the decision of the County Court.
Duty of Care
The Court reaffirmed the established principle that employers owe a non-delegable duty of care to their employees. This duty encompasses the obligation to provide a safe working environment, which includes taking reasonable steps to safeguard employees’ mental health. In roles involving exposure to vicarious trauma, such as Ms Robinson’s role at EACH, the duty of care is heightened due to the inherent psychological risks associated with the nature of the work.
Foreseeability of risk
Foreseeability is a fundamental element in establishing negligence. The Court noted that the risk does not need to be precisely identified for it to be considered foreseeable. Instead, it suffices that the risk of harm is not far-fetched or fanciful.
The Court found that, given the nature of the duties of a carer peer support worker, it was reasonably foreseeable that continuous exposure to accounts of trauma from their carer clients could lead to psychiatric harm through vicarious trauma. The risk of psychiatric injury therefore to Ms Robinson, was foreseeable by EACH, however, the Court found that no harm had actually occurred before 2015, so there was no issue of negligence for the pre-2015 period. Therefore, the case centred around Ms Robinson’s disclosure to her employer on 17 February 2015, regarding her psychological condition and work-related stress and what happened after that.
Breach of Duty
The issue of breach required the Court to examine whether EACH had taken reasonable steps to prevent or minimise the risk of psychiatric injury once the foreseeability of such a risk was established. This analysis involved assessing the adequacy of the employer’s response to Ms Robinson’s disclosure on 17 February 2015, having regard to all the circumstances at the time. It required the Court to identify what EACH should have done in response to the risk, and not what EACH should have done to prevent the injury from occurring.
The Court evaluated the steps taken by EACH, including, providing access to counselling services, stopping new referrals and ultimately modifying her duties solely to administrative duties in an office setting with no direct client contact. The Court determined that the response provided after Ms Robinson reported her issues was reasonable and consistent with an employer’s duty of care.
Conclusion
The Court ultimately dismissed Ms Robinson’s appeal. It held that while EACH owed a duty of care to its employees, including the duty to protect against psychiatric injury through vicarious trauma, EACH’s actions following Ms Robinson’s report of her psychological difficulties were reasonable and did not constitute a breach of duty. Consequently, Ms Robinson’s claim of negligence was not upheld.
Compliance Impact
This decision has significant implications for employers, particularly those in sectors where employees are exposed to potentially vicarious trauma. Employers should be aware of the risk of psychiatric injury in these circumstances and take reasonable measures to mitigate those risks.
