In Kozarov v Victoria  HCA 12 (“Kozarov”), the High Court of Australia (HCA) handed down a decision that will likely have significant implications for the assessment of common law liability for psychiatric injury sustained in the workplace.
In June 2009, Victoria’s Office of Public Prosecutions employed Ms Kozarov as a recently admitted solicitor in its Specialised Sexual Offences Unit (SSOU) where she worked on child sexual offences. In the course of her employment, Ms Kozarov suffered vicarious trauma that led to post-traumatic stress disorder and a major depressive disorder for which she sought damages. The Victorian Supreme Court’s decision to award damages was reversed by the Court of Appeal but the reversal was unanimously overturned by the HCA in four separate decisions.
Kiefel CJ and Keane J held that the respondent’s Vicarious Trauma Policy (VT Policy) for the protection of psychiatric employees within the SSOU before Ms Kozarov’s employment meant that no further warning signs were necessary to establish that the content of the duty of care owed to Ms Kozarov included active steps for the care of psychiatric health of Ms Kozarov and her fellow employees within the SSOU.
Kiefel CJ and Keane J held that the respondent was in breach of its duty from the commencement of Ms Kozarov’s employment and none of the protective measures identified in the VT Policy or any other reasonably available preventive or protective measures were implemented by Ms Kozarov’s managers within the SSOU.
Gageler and Gleeson JJ held that, by the end of August 2011, a reasonable person would have adverted to the evident signs regarding the appellant and observed that she was failing to cope with her allocated work and that her mental health was at risk. Moreover, it was inherently likely that the appellant, faced with advice to rotate out of SSOU to avoid an exacerbation of her PTSD, would have acted self-interestedly in accordance with the advice. Further, expert evidence was that it is more common than not for persons to heed medical advice given to them about the cause of a diagnosed serious illness and how that cause could be either mitigated or removed.
Gordon and Steward JJ held that the respondent’s failure to provide Ms Kozarov with a safe system of work caused the exacerbation and prolongation of her PTSD and subsequent development of major depressive disorder.
Edelman J held that if the respondent had taken the reasonable steps of making a welfare enquiry and offering Ms Kozarov a referral for occupational screening, then she would have accepted that offer. With the benefit of screening by a clinician, this would have potentially revealed that she had symptoms of post-traumatic stress disorder with the result that Ms Kozarov would have agreed to a rotation out of the SSOU and her psychiatric injury would not have been exacerbated.
Kiefel CJ and Keane J distinguished Kozarov from Koehler v Cerebos (2005) 222 CLR 44 (“Koehler”). Koehler stands for the proposition that the content of the obligation of an employer to take reasonable care for the safety of employees at work cannot be determined in isolation from the obligations which the parties owe each other under their contract of employment. However, Kozarov stands for the proposition that the circumstances of a particular type of employment may be such that the work to be performed by the employee is inherently and obviously dangerous to the psychiatric health of the employee in which case the employer is duty-bound to be proactive in the provision of measures to enable the work to be performed safely by the employee.
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