Liability for Work Stress: Koehler Ten Years On

Abstract

This article was published in a special issue of a journal commemorating the life and work of Dr Peter Johnston. It focused on a case drawn to the attention of the author by Dr Johnston – AZ v The Age (No 1) [2013] VSC 335. This case is used as a vehicle for assessing the approach being taken by Australian courts to claims for work stress, ten years after the leading High Court decision in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44. In the first decade of the 21st century, both in England and Australia, appellate courts found it necessary to impose some order on this body of law. In Australia, the High Court, by focusing on the content of the duty of care as reflected in the contract of employment, placed a considerable brake on expansion; in England, as the result of the decision of the Court of Appeal in Hatton v Sutherland [2002] ICR 613, the restrictions took a different form. The article reviews the current Australian situation, and assesses how it differs from its English equivalent, even though the two lines of cases are derived from common roots. The article concludes by discussing trends and contrasts in the case law, including a suggestion that the courts are beginning to distinguish between different types of work stress cases.