Key Takeaways

• Employers must be proactive, consistent with WHS obligations, in addressing psychosocial hazards and risks regardless of whether a worker is displaying evident warning signs of injury
• The state of the law relating to foreseeability in negligence matters has not changed
• However, the High Court has, at least in Kozarov, supported a less rigid assessment of evidence and reliance on technical arguments.

Background

In Kozarov, the High Court considered an appeal from the Victorian Court of Appeal, concerning a claim by Ms Kozarov, a solicitor employed by the Victorian Office of Public Prosecutions (OPP) in their Specialist Sexual Offences Unit (SSOU).

Ms Kozarov claimed that her employer, the OPP, was negligent in its management of the risk posed by her exposure to distressing materials and events in the course of her employment, in particular her exposure to sexual offences including child exploitation and pornography. Ms Kozarov alleged that this caused her to suffer from PTSD and major depressive disorder.  She also claimed further contribution from intense workloads due to understaffing.

In cases concerning psychiatric injury in employment prior to Kozarov, the Courts have applied the decision in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 (Koehler) in that an employer was able to consider an employee fit to perform the role they were employed to do and, was not liable for psychiatric injury unless there were evident signs warning of the possibility of this.

At first instance, the Victorian Supreme Court, applying the test in Koehler, considered the OPP was negligent in failing to protect Ms Kozarov from harm. The Court found that the OPP was aware of the risks associated with her role and Ms Kozarov had showed evident signs of psychiatric injury.

This was evidenced by the OPP having a Vicarious Trauma Policy (Policy), which amongst other things, recommended SSOU employees be rotated through different units within the OPP to minimise the mental health impacts associated with working in the SSOU. However, rotation between units under the Policy was not strictly implemented in practice. The Court held that had Ms Kozarov been offered an opportunity to rotate out of the SSOU, she would have agreed to this, avoiding an exacerbation of her PTSD.

The OPP appealed and the Court of Appeal agreed with the Supreme Court in finding that Ms Kozarov had shown evident signs of psychiatric injury and this required a reasonable response from the OPP. However, the Court of Appeal also found that Ms Kozarov had failed to adduce relevant evidence that she would have rotated out of the SSOU if given the opportunity. As a result, it was not established that exacerbation of Ms Kozarov’s psychiatric injuries would have been avoided.

High Court Judgment

Ms Kozarov appealed to the High Court, which was critical of the application of the test in Koehler. The High Court found that the mental health risks for SSOU employees were inherent to the work due to the duties the employees in the SSOU were required to undertake. The presence of these risks was acknowledged by the OPP’s decision to introduce the Vicarious Trauma Policy.

As a result, the High Court considered it was unnecessary for Ms Kozarov to prove that she had put her employer on notice by displaying evident signs warning of psychiatric injury.

Keifel CJ and Keane J stated:

It should be understood, however, 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 (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.

As a result, the High Court allowed the appeal, finding that the OPP was in breach of its duty of care to Ms Kozarov.

Implications

The decision in Kozarov is timely given the increasing focus on psychosocial risks in the workplace and should prompt organisations to review their approach to managing psychosocial hazards and risks.

In cases where psychosocial risks are inherent to the work, the employer should implement measures to proactively manage the risks regardless of whether the employee exhibits signs warning of psychiatric harm.

It has long been understood that employers owe their employees a duty of care and are required at law to provide a safe workplace. Such duties have always extended to ensuring appropriate management of psychosocial risks, with liability arising for those employers who fail to do so. The obligation to proactively manage psychosocial risks has also been present under work health and safety legislation. For example, under the Model Work Health and Safety Act and Regulations (Model Laws), a Person Conducting a Business or Undertaking (PCBU) has always been obliged to take reasonably practicable steps to ensure the safety of its workers, including by providing and maintaining a work environment without risks to health and safety.

The recent publication of Safe Work Australia’s Code of Practice for Managing Psychosocial Hazards has called in to greater focus and further clarified the expectations on, and obligations of, employers in relation to the proactive management of psychosocial hazards and risks at work.

For those in Model Law jurisdictions (being the Commonwealth and every State and Territory other than Victoria), amendments to the Model Laws are proposed which will create a specific and express legislative obligation on a PCBU to manage psychosocial risks in accordance with established risk management principles.

However, even prior to the implementation of such Model Law changes or in jurisdictions where the Model Laws do not apply, appropriate management of psychosocial risks should be an active consideration for organisations, particularly, as Kozarov demonstrates, where an organisation is aware that it engages employees in roles that inherently involve exposure to the risk of psychiatric injury.

While Kozarov was specific to a unique role that exposed the employee to traumatic material, there is no reason that the views espoused by the High Court will not be equally applicable to other roles where trauma is “part and parcel” of the role. For example, in roles where employees may be exposed to verbal abuse, violence or offensive conduct by others.

The Safe Work Australia Code of Practice (and the pre-existing Code of Practice that is in place in NSW) and the Model Law amendments provide important guidance on the key considerations and processes employers and PCBUs should be implementing to ensure their legal obligations are being discharged effectively, including by:

• Eliminating and minimising risk through good work design
• Implementing and maintaining safe systems of work, such as organisational rules, policies, procedures and work practices; and
• Ensuring adequate and suitable information, training, instruction or supervision to workers.

It is timely for organisations to arrange for an uplift of their systems in respect of the management of psychosocial hazards and risks.

Further information / assistance regarding the issues raised in this article is available from the authors, Elizabeth Radley, Partner, Matthew Parker, Senior Associate and Lachlan Martin, Lawyer or your usual contact at Moray & Agnew.