01 June 2022
6 min read
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A recent High Court decision demonstrates that an employer has a duty to safeguard their employees from work-related psychiatric injuries even if there is a vicarious trauma policy in place. Employers can be held liable for mental harm inflicted upon their employees irrespective of whether the employees show evident signs of psychiatric injuries.
In the case of Kozarov v Victoria [2022] HCA 12 (Kozarov), Ms Kozarov was a solicitor in the Specialist Sexual Offences Unit (SSOU) of the Victorian Office of Public Prosecutions (OPP) since 2009.
Ms Kozarov’s work involved prosecuting serious sexual offences. This included, working with survivors and viewing explicit material on a daily basis.
In April 2011, Ms Kozarov began to suffer from post-traumatic stress disorder (PTSD) due to the vicarious trauma that she suffered during her employment.
Ms Kozarov sought damages for the negligent failure of her employer to prevent her psychiatric injury during her employment in the SSOU.
The case raised two issues:
Dixon J found that the employer was put on notice that Ms Kozarov’s mental health was suffering by the end of August 2011 and awarded damages in Ms Kozarov’s favour. Her Honour also held that had Ms Kozarov been offered a rotation, she would have accepted that offer, therefore avoiding the exacerbation of her PTSD.
Court of Appeal’s ruling
The Court of Appeal upheld that the employer was put on notice, but rejected the finding that Ms Kozarov would have accepted the offer of a rotation out of the SSOU.
High Court findings
Before considering the two issues at play, Kiefel CJ and Keane J explained that there was a preliminary misunderstanding in applying the case of Koehler v Cerebos (Australia) Ltd (2005) CLR 44 (Koehler) to the present facts. Koehler was concerned with the extent of reasonable care for an employee’s mental health, which may require the employer to be alert in detecting evident signs of the development of mental illness.
In contrast to Koehler, the reasonable foreseeability of a psychiatric injury to Ms Kozarov was not reliant on “evident signs”. Instead, the reasonable foreseeability that mental illness could develop was met by the existence of the OPP’s Vicarious Trauma Policy (VT Policy).
Notice findings
Gordon and Steward JJ broke down the notice finding into three general categories:
Before Ms Kozarov commenced her employment in the SSOU, the employer, OPP, was already on notice of the risks of harm to solicitors, generally from burnout, work stress and exposure to vicarious trauma. This is evidenced by the VT Policy and the implementation of vicarious trauma workshops for staff.
After the commencement of employment, notice to the employer was evident as Ms Kozarov attended at least one vicarious trauma workshop and provided examples of how her work affected her as a mother. Additionally, Ms Kozarov attended resilience training, during which she spoke of how she is uncomfortable with people looking at her children. Ms Kozarov also directly spoke to her superiors about her declining mental health during her employment.
Finally, there was the “sentinel event” in which Ms Kozarov sent various emails to her manager Mr Brown, who had suggested she could not cope with the job. The emails that Ms Kozarov sent in retaliation to what Mr Brown had said were emotionally charged and displayed “genuine emotional distress” that served as a significant indicator of a work-related psychiatric injury. Gordon J and Steward J held that a reasonable person in the employer’s position would have foreseen the risk of injury by this event, “a risk that was not far-fetched and fanciful”.
These were all considered as sufficiently putting Ms Kozarov’s employer on notice.
Consideration was had for whether Ms Kozarov would have accepted a rotation out of SSOU if the OPP had offered, their Honours considered the various occasions between 2009 and 2012, in which Ms Kozarov vocalised the impact that her work was having on her daily life.
Ms Kozarov spoke out about her struggles during various meetings and workshops, and signed a written memorandum while other staff members complained about the workload. She also resisted allocating sensitive files and requested to be moved from the SSOU. It was clear that if provided the opportunity, Ms Kozarov would have accepted a rotation.
Gordon and Steward JJ went through the elements of negligence to justify their Honours’ decision. The employer’s duty was “not merely to provide [that] safe system of work, but to establish, maintain and enforce such a system, taking account of [the employer's] power, as employer, to prescribe, warn, command and enforce obedience to [its] commands.”
The employer’s breach was apparent, as the employer’s “response to the risks to [the] SSOU staff and [Ms Kozarov] was not that of a reasonable employer. [OPP] failed to implement the steps required to prevent injury to its employees.”
In Kozarov, the High Court found that the employer could have taken steps during Ms Kozarov’s employment to discharge their duty owed to her, such as additional training on vicarious trauma, welfare checks, occupational screening and a flexible work approach such as regular rotations and that the failure to do so was causative of the employee’s injury.
The fact that the employer had in place a policy on vicarious trauma showed it was reasonably foreseeable that employees could sustain a psychological injury from their work. The responsibility was not on the employee to show signs of injury, but on the employer to take proactive steps to avoid the injury and to minimise any exacerbations.
Employers should consider additional precautions to mitigate against the risk of psychological injuries to their employees. What will be considered as proactive steps to avoid injury will depend on the nature of the work and the role of the employee. For example, employers may consider additional workshops, seminars, and training courses, as well as implementing a flexible work arrangement, such as working from home when needed or rotating the employee to a different role within the team or department. Regular welfare checks and occupational screening by a clinical psychiatrist or psychologist is particularly useful in roles that expose employees to vicarious trauma.
Simultaneously, employers need to be attentive when employees voice the negative impacts that their role may have on their personal welfare, as courts will likely consider this to be putting the employer on notice. Employers need to ensure that they are not oblivious to the warning signs of the development of psychological injuries in the workplace, otherwise they run the risk of being found liable by the courts, as seen in Kozarov.
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Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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