A mental injury that is primarily or wholly caused by management action taken on reasonable grounds and in a reasonable manner (reasonable management action) is not an injury under the Return to Work Act.
In Yao v Northern Territory of Australia the worker was successful in the Work Health Court with respect to his claim that he had sustained a mental injury in the course of his employment.
The employer appealed to the Supreme Court and it referred the matter to the Full Court for determination.
On appeal, the employer said that for the worker to be successful he had to prove an injury and to do that he had to prove:
- That he sustained a mental injury out of or in the course of his employment; and
- That it was not caused by reasonable management action.
The Full Court considered the state of the law around Australia and in the Northern Territory up until 2015 when the concept of reasonable management action was introduced.
It also had regard to the pleadings in the matter, noting specifically that the employer denied injury on the basis of reasonable management action and “pleaded substantive facts and provided substantive particulars of [it].”
In a decision delivered on 22 March 2024 (Northern Territory of Australia v Yao [2024] NTSCFC 1), the Full Court found that the employer had the legal onus of proof with respect to reasonable management action and cited with approval Mildren J in Millar v ABC Marketing and Sales Pty Ltd [2012] NTSC 21 where he said “he who asserts must prove” and this usually involves both the evidential and legal onus being on the same party.
Learnings
The attempt to “shift the dial” by the employer in this matter was a brave one. There is nowhere for it to go other than to seek leave to appeal to the High Court. Traditionally that Court has not shown much interest in workers compensation cases from the States and Territories.
