Karzi v Toll Pty [2024] NSWCA 120
101 These three cases, Koehler, Kozarov and Stevens illustrate how fact-specific torts cases are and how the principles operate in different factual situations. They highlight why the High Court in Koehler held that the nature and extent of the employee’s work were significant when addressing whether the employer had been negligent when an employee suffers from work-related psychiatric injury. In Kozarov, the nature of the tasks required to be performed by K carried with them the risk of psychiatric injury such as was suffered by K because they exposed her to the significant trauma of others. However, in Koehler, the risk posed by the plaintiff’s employment arose because the plaintiff adjudged that the task was too demanding for her working hours. In the former case, the employer’s duty of care requires it to be alert to potential harm, whether the employee shows signs of harm. In the latter case, the employer will not be alerted to the risk of harm unless the employee indicates that harm is being suffered, or is likely to be suffered.
102 In Stevens, the conduct was perpetrated not only by fellow workers but also by Mr Stevens’ supervisors and management and had reached a significant level. Thus, irrespective of whether Mr Stevens exhibited signs of distress, the conduct was such as to make psychiatric injury reasonably foreseeable and call for the employer to intervene to take steps to prevent such harm. The lengthy history of serious and widespread bullying in Stevens puts it in an entirely separate category from the present case.
102 In the present case, the potential for psychiatric harm arose from the comments of Mr Johnpulle and the reaction of the TWU to the appellant’s complaint. When the appellant raised his concerns with the respondent, it took immediate steps to protect him (by reprimanding Mr Johnpulle, by separating the appellant from Mr Johnpulle by creating a position for him at the Mascot depot, by referring the matter to the FWC for resolution and by employing him in a permanent position in Freight Solutions). It may be that, had the appellant’s reaction to these incidents been as described in his own evidence, the respondent would have been alerted to the potential for psychiatric harm.