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Kozarov v Victoria: High Court provides guidance on the scope and nature of the duty owed by employers to employees in psychiatric injury claim – Health & Safety

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This article was first published in LexisNexis’
newsletter Australian Civil Liability, Volume 17 No 3, June
2022.

Abstract

Kozarov v Victoria 1 was handed down by the
Australian High Court on 13 April 2022. It involved an appeal from
the Supreme Court of Victoria and an award of damages arising out
the alleged negligence and failure of the State of Victoria (the
State) to prevent the plaintiff’s psychiatric injury sustained
in the course of her employment with the Specialist Sexual Offences
Unit (the SSOU) of the Victorian Office of Public Prosecution (the
OPP). The High Court found in favour of the plaintiff. The judgment
is relevant for all employers responsible for the health and
wellbeing of their employees and is also instructive for legal
practitioners involved in such proceedings.

Introduction and background

The SSOU was established in April 2007 as a specialist unit
within the OPP to prosecute all serious indictable criminal
offences in Victoria. The plaintiff joined the SSOU in June 2009 as
a recently admitted solicitor. The nature of the plaintiff’s
work within the SSOU was of fundamental relevance to the
court’s ultimate findings. The work within the SSOU generally
and the plaintiff’s work itself involved regular interactions
with survivors of high-level trauma and exposure to these traumatic
experiences, meeting with children and adult victims of sexual
offences including rape and viewing child pornography.

In November 2011, the plaintiff accepted a promotion to a
permanent VPS Grade 5 role in the SSOU. On 9 February 2012,
following a period of leave, the plaintiff requested that she be
moved out of the SSOU. This was followed by attempts to work in
different areas of the OPP until 20 April 2012 when her employment
was terminated. The plaintiff was diagnosed with PTSD in February
2022.

A key question for the High Court and the courts below was
whether the State’s failure to take “reasonable
measures” in response to “evident signs” of
psychiatric injury suffered by the plaintiff caused the
exacerbation of her psychiatric injury. As will be examined below,
the High Court took a different – and more direct route – in
imposing liability on the State.

Procedural history

In 2016, the plaintiff commenced proceedings against the State
seeking damages for psychiatric injury (an exacerbation of a PTSD
and Major Depressive Disorder) arising during her employment with
the SSOU and as a result of the State breaching its duty of care
owed to the plaintiff. The plaintiff was successful at first
instance, with Jane Dixon J (Justice Dixon) awarding the plaintiff
the sum of $435,000 in damages.2 This decision was
overturned by the Victorian Supreme Court resulting in the
plaintiff’s application to the High Court.

Notice and rotation findings

Justice Dixon, at first instance, found that the State had been
placed on notice of a risk to the plaintiff’s mental health by
the end of August 2011 (the notice finding), necessitating that the
State take steps by way of “reasonable response” which
included offering her rotation out of the SSOU to work in a
separate part of the OPP.3 Justice Dixon also determined
that, by the end of August 2011, the plaintiff would have accepted
an offer of rotation out of the SSOU (the rotation finding),
thereby avoiding the exacerbation of the plaintiff’s PTSD that
occurred between August 2011 and February 2012.4 The
Victorian Court of Appeal upheld the notice finding but rejected
the rotation finding.5 Subsequently, all members of the
High Court agreed with Dixon J’s findings in respect of both
the notice finding and the rotation finding.6 In respect
of the rotation finding, Gageler and Gleeson JJ determined that
relevant evidence supporting the rotation finding included the
plaintiff’s cooperative conduct in February 2012, the expert
evidence of Professor McFarlane (that a “majority of
people”
that he sees in this type of situation would
accept the advice on rotation), and that the plaintiff appeared in
a credible and coherent manner when giving evidence before Dixon
J.7 Practitioners should be mindful of this type of
evidence which may persuade a court to accept an analogous rotation
finding in future proceedings of this type.

Consideration and application of Koehler

The shadow of Koehler v Cerebos (Aust) Ltd 8
was present in this proceeding and the courts’ deliberations.
The plurality in Koehler noted:

. . . the 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.
9

Chief Justice Kiefel and Keane J noted that there was an
unnecessary reliance placed on Koehler by the plaintiff in her
pleadings – determining that the plaintiff being required to prove
the “evident signs” was not required in this proceeding
given the nature of the plaintiff’s work in the SSOU. Chief
Justice Kiefel and Keane J surmised that:

. . . it should be understood, however, that the
circumstances of a particular type of employment may be such that
the work to be performed by an employee is inherently and obviously
dangerous to the psychiatric health of employee (just as other
kinds of work are inherently and obviously dangerous to the
physical health of the employee). In any such 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. The present was
such a case.
10

That the work undertaken by the plaintiff within the SSOU was
“inherently obvious and dangerous” was supported
by the Vicarious Trauma Policy dated January 2008 (VT Policy). Of
note, the VT Policy identified vicarious trauma as an
“unavoidable consequence of undertaking work with
survivors of trauma” and as a “process [that] can have
detrimental, cumulative and prolonged effects on the staff
members”
. The High Court, therefore, is effectively
saying that, in circumstances where the nature of the work
undertaken by the plaintiff is so “inherently and
obviously dangerous to the psychiatric health of the
employee”
, there is then no need for a plaintiff to
satisfy the Koehler requirement that there be “evident
signs”
flagging the possibility of psychiatric injury -
the factual circumstances of the current proceeding meant
“no question truly arose as to whether the employer was
duty-bound to be alert in this regard”
.11

Duty of care and reasonable steps/measures

This judgement reinforces that the State (and implicitly all
employees and future prospective defendants in similar
circumstances) had a duty of care to take all reasonable steps to
provide the plaintiff with a safe system of work 12 and
that this duty was not “merely to provide [that] safe
system of work” but to “establish, maintain and enforce
such as system”
taking into account its power, as
employer, “to prescribe, warn, command and enforce
obedience to [its] commands”
.13 Justice Dixon
found, and this was not challenged in the High Court, that the
State breached its duty of care.14 Justice Dixon
summarised that the State should have had available and properly
implemented at the SSOU the following:15

  • an active OH&S system;

  • adequate training; and

  • a system of welfare intervention accompanied by the offer of
    the occupational screening and flexibility regarding case/work
    allocation and rotations.

And that if these measures were “offered in
combination, [they] would have prevented the plaintiff’s severe
and chronic PTSD”
.16 This view was accepted in
the various judgements in the High Court. It was noted by Kiefel CJ
and Keane J that none of the protective measures identified in the
VT Policy, or indeed any other reasonably available protective or
other measures, was implemented by the plaintiff’s managers
within the SSOU.17 Justice Dixon ultimately accepted
that the plaintiff’s employment materially contributed to the
plaintiff’s psychiatric injury18 and this view was
also endorsed by all members of the High Court.

Key takeaways for practitioners

This judgment raises several important points and considerations
going forward in proceedings involving mental injury sustained by a
worker in the course of his or her employment. Key takeaways for
practitioners:

  • Where will the line be drawn regarding foreseeability due to
    the nature of employment ie, at what point does a job become
    “inherently and obviously dangerous to the psychiatric
    health of the employee”
    – does this cover police,
    emergency workers and frontline health workers? A specific factual
    analysis will always be required of the roles and duties undertaken
    by the worker in question.

  • If the workplace and the nature of the work undertaken by the
    injured worker pose an obvious risk to the worker’s mental
    health (such as that which existed at the SSOU during the
    plaintiff’s period of employment), there no need to
    examine-plead the “evident signs” line of
    reasoning referred to in Koehler or plead it in the
    alternative.

  • For employers (in particular): are policies/ procedures in
    place to mitigate the risks to mental health and are these properly
    implemented and understood across the board – this is an OH&S
    issue which must not be ignored and policies/ procedures should be
    proactively reviewed.

  • Ensure relevant evidence is obtained as to what policies and
    procedures were in place, how these policies and procedures were
    implemented, and what systems ought to have been in place. Evidence
    from employees at all levels of the organisation as well as
    evidence from independent experts will assist in this regard.

Footnotes

1 Kozarov v Victoria (2022) 399 ALR 573;
[2022] HCA 12; BC202202839 (“Kozarov”).

2 Kozarov v Victoria (2020) 294 IR 1; [2020]
VSC 78; BC202001198.

3 Kozarov, [23].

4 Ibid.

5 Ibid, [24].

6 Ibid, [53]-[54] and [59]-[61].

7 Ibid, [59].

8 Koehler v Cerebos (Aust) Ltd (2005) 222 CLR
44; 214 ALR

9 Ibid, [36].

10 Kozarov, [6].

11 Kozarov, [2].

12 Koehler, [19].

13 McLean v Tedman (1984) 155 CLR 306; 56 ALR
359; BC8400457, [313].

14 Kozarov, [85].

15 Footnote 2, [702].

16 Ibid, [739].

17 Kozarov, [8].

18 Footnote 2, [719]

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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