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Kozarov v State of Victoria [2022] HCA 12 – Guarding your employee’s mental wellbeing

On 13 April 2022, the High Court handed down a judgment in the matter of Kozarov v Victoria 

The primary question considered by the High Court was whether the employer’s failure to take reasonable measures in response to evident signs of the employee’s psychiatric injury from vicarious trauma suffered in the role caused the exacerbation and prolongation of the employee’s psychiatric injury.  

Ultimately the Court unanimously found the employer was negligent in failing to protect the mental health of the employee. 

Background Facts 

The case concerned an appellant employed as solicitor in June 2009 in the Specialist Sexual Offences 

Unit (“SSOU”) of the Victorian Office of Public Prosecutions. The employee’s work there involved “cases of an abhorrent nature involving child rape and offences of gross depravity.” In February 2012, the employee suffered a psychiatric injury resulting from vicarious trauma suffered in employment, and later was diagnosed with major depressive disorder.  

Since at least about January 2008, the employer maintained a Vicarious Trauma Policy, which recognised that vicarious trauma “can have detrimental, cumulative and prolonged effects on the staff member.” 

Since about 2010, the employee was vocal in staff meetings about how work was affecting the employee’s daily life, including describing her feelings in relation to the impact of work on her parenting.  

Since about 2011, it was known by the employer’s deputy manager, that the employee had a case load upwards of 25 files (where the case load was no more than 10), that she had needed sick leave from time to time, and was a mother of young children and a sole parent.  

In 2011, the employee (amongst others) signed a staff memorandum to the Employer’s manager that raised concerns around staff wellbeing, including increased workload and stress-related symptoms.  

The cases carried by the employee in the course of 2011 to 2012 continued to be challenging, with employee taking sick leave at various times during 2011.  In February 2012, the employee requested to move out of working with the SSOU, and there were attempts to work in different areas of the Department of Public Prosecutions, but ultimately those attempts were unsuccessful and her employment was terminated.  

Relevant Law of Note 

The High Court referred to the judgment in Koehler v Cerebos (Australia Ltd)1, in that: 

an employer engaging an employee to perform stated duties “is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job”.  

Justices Gageler and Gleeson noted that: 

The assumption referred to in Koehler should not be taken to detract from the obligation of an employer, in the performance of a tortious duty to maintain a safe system of work, to exercise reasonable care to avoid a foreseeable risk of psychiatric injury to a class of employees. The question that arose in Koehler, whether psychiatric injury to the particular employee was reasonably foreseeable, was answered in the affirmative by the Vicarious Trauma Policy. 

Findings of Note 

Justice Edelman noted that: 

In the circumstances of this case, psychiatric injury to every employee of the Specialist Sexual Offences Unit (“the SSOU”) of the Victorian Office of Public Prosecutions (“the OPP”) was a reasonably foreseeable consequence of the nature and extent of the work undertaken. The Vicarious Trauma Policy of the OPP, to which the primary judge referred, cited research indicating that vicarious trauma “is an unavoidable consequence of undertaking work with survivors of trauma”. But even without this policy, the very nature and extent of the work of the SSOU were such that the respondent was correct to concede on this appeal that at all relevant times the risk of psychiatric injury was such that it owed a duty of care to Ms Kozarov.  

 

A reasonable person in the position of Ms Kozarov’s employer would have been aware of the risks that existed from the commencement of any work in the SSOU. As more “evident signs” of psychiatric injury to Ms Kozarov emerged, that reasonable person would have appreciated that there was a considerable increase in the likelihood and the seriousness of a psychiatric injury to her or, if psychiatric injury already existed, a considerable increase in the likelihood of it becoming worse. Correspondingly, the extent of alleviating precautions against the risk of harm that would reasonably be expected to be taken by the respondent in relation to Ms Kozarov also increased. At the very least, these increased precautions included, as the primary judge found, a welfare enquiry of Ms Kozarov .  

It may be that, by the end of August 2011, the foreseeable risk of causing or exacerbating psychiatric injury was so great, and the likely extent of that foreseeable injury was so serious, that reasonable precautions would have included compulsory rotation of Ms Kozarov to a different part of the OPP that did not prosecute sexual offences. Putting to one side whether even at common law an employee can waive their rights to a safe place of work, an employer will not comply with the common law duty to ensure a safe place of work by acquiescing in the refusal of an employee to be rotated from a position that, by reason of some physical characteristic of the employee, involves a high risk of serious physical injury to that employee. Psychiatric injury is no different. 

Lessons 

Employers must manage workplace risks, proactively, take precautions and listen to employee concerns 

Employment at the SSOU involved the observation of distressing and difficult material and psychiatric injury was a very real risk. While the workplace had a vicarious trauma policy in place, the employer didn’t act reasonably by failing to address the employee’s concerns and circumstances.  

If you are an employer, it is necessary for you to consider the nature of your industry and the potential risks of harm. This case emphasizes that the risk of harm is not limited to physical harm, but also includes psychiatric injuries.  

Employers must implement and update their policies  

The Victorian Office of Public Prosecutions implemented their vicarious trauma policy in 2008, a year prior to the employee’s commencement in 2009. This indicates their awareness of the risk of harm and their efforts to manage this risk. The failure to simply implement a welfare enquiry indicates two things. Firstly, it demonstrates that the policy itself was potentially insufficient to manage vicarious trauma. Secondly, it highlights that even with a policy in place, the application of the policy is paramount.  

If you are an employer, it is vital that you have the appropriate policies which you regularly update and revisit. At Corney and Lind, we can provide expert legal assistance in drafting, interpreting and advising on a wide range of policies (privacy policy, social media policy, vicarious trauma policy).  

Employees should pursue external support if employers are unresponsive   

The employee vocalized her concerns including outlining the impact of her employment. Additionally, she had participated in the staff memorandum raising these concerns. This employee acted correctly and communicated their distress. It is unfortunate that despite the presentation of these issues, her concerns were not addressed.  

If you are an employee, your workplace has a duty of care to your safety. If you have taken your matter to your employers and they have not provided any resolution, you can access assistance through the Fair Work Ombudsman. We are also able to provide legal advice concerning your legal rights and options.  

To read the Judgement Summary of the High Court, you can read their statement online.  

For more information regarding options if you are injured in the course of employment or wish to speak with Brisbane Workplace Injury Lawyers 

Please contact our Team or call us on (07) 3252 0011 to book an appointment with one of our specialist lawyers today. 

For more case notes and informative articles, visit our blog page

This article was written by James Tan and Prini Avia.

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