When is it time to move on from seminal cases? How fixed is common law orthodoxy? The recent case of Elisha v Vision Australia Limited [2024] HCA 50 illustrates how the High Court should respond to societal change.
The Facts
Mr Elisha (the appellant) was employed in 2006 by the respondent, Vision Australia Limited, as an adaptive technology consultant. The appellant was involved in an incident while he was travelling for work, allegedly having acted aggressively and abusively to one of the hotel proprietors, Ms Trch, and other members of hotel staff. After being notified of this incident, Vision Australia commenced an investigation, with Mr Elisha’s employment ultimately being terminated. The investigation involved allegations that Mr Elisha had previously engaged in aggressive behaviour, which led the investigators to place more trust in Ms Trch’s version of events. These allegations of a prior pattern of aggressive behaviour were never put to Mr Elisha. Mr Elisha suffered significant mental health issues following his termination, including major depressive disorder.
The Decisions
The Primary Judge found that Vision Australia was liable for breach of the employment contract with Mr Elisha, particularly the incorporated disciplinary procedure policy, and awarded damages. Following an appeal, the Victorian Court of Appeal also concluded that there had been a breach of an incorporated term in the contract, but denied that damages were available for psychiatric injury, as the harm was too remote from the breach of contract and did not stem from any physical injury attributable to the breach.
Mr Elisha appealed to the High Court arguing, relevantly, that the Court of Appeal had erred in deciding that he could not recover damages from psychiatric injury due to the breach of contract. The respondent heavily relied on a seminal English case, Addis v Gramophone Company Ltd [1909] AC 488, which held that damages could not be awarded for the manner of the breach of the employment contract, nor for ‘injured feelings’.
The majority of the High Court, with Steward J dissenting, held that damages were available for Mr Elisha’s psychiatric injury. The High Court noted that, since Addis was written, much development has occurred both in the legal sphere and in society’s view of mental illness. In the modern day, it is within the reasonable contemplation of prospective employers and employees in negotiating a contract that a serious breach of disciplinary procedures leading to an unfair dismissal could cause psychological harm, and even recognised illnesses, such as depression.
The role of common law in Australia
Elisha v Vision Australia Limited reflects a core aspect of the High Court’s role in the modern day. Old English common law is the backbone of our legal system, with some of the most vital principles stemming from cases prior to Federation. Stubbornly clinging to principles based on outdated assumptions and perspectives, however, will only lead to unjust outcomes in today’s society. As Jagot J said in her reasons, even “common law orthodoxy is subject to statutory intervention and new perspectives”.
It has been over 100 years since Addis was decided. While many aspects of employment law have remained the same, we now recognise the importance of mental health, and the harm caused by mental illness. Elisha is a modern rebuke of the notion that mental harm isn’t ‘real loss’ in an age where many believe that we are living in a mental health crisis. We know better now, and we aren’t bound to our old errors.
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