Case: Kozarov v Victoria [2022] HCA 12
Judgment date: 13 April 2022
Before: Full Bench of the High Court – Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ
Summary
The Appellant was employed by the State of Victoria (the Respondent) as a solicitor in the Specialist Sexual Offences unit (SSOU) of the Victorian Office of Public Prosecutions (the OPP) from June 2009 through to April 2012.
The Appellant’s work with the SSOU routinely involved interactions with survivors of trauma, exposure to traumatic experiences in court, meeting victims of sexual offences, viewing explicit material and preparing child complainant’s for cross examination.
In around 2009/2010, the Appellant had attended a one day training workshop at the OPP on the topic of ‘understanding and working with victims of trauma’ wherein she had asserted that the Respondent had not done enough to assist SSOU staff. Similarly, in April 2011, the Appellant, along with other staff of the SSOU, signed a memorandum raising wellbeing issues including increased workloads necessitating work on weeknights and weekends.
In March 2011, the Appellant was successful in a temporary promotion. In June 2011, the Appellant had unsuccessfully resisted allocation citing her inability to cope with her existing caseload.
By August 2011, the Appellant went on sick leave after feeling dizzy during the trial of the matter she resisted allocation and went on sick leave. During her two week sick leave, the Appellant attended the rooms of a psychologist on two occasions. Whilst on sick leave, the Appellant applied for a promotion.
However, on her first day returning from this period of sick leave, the Appellant and her manager engaged in an email exchange following the manager’s misperception that the Appellant had arrived to work late, when in fact she did not. This led to a highly emotional and verbose email which was deemed as a disproportionate reaction to the apparent conflict in a disproportionate way.
In November 2011, the Appellant accepted a promotion before taking leave in January 2012 and o her return, sought to be moved out of the SSOU. Following her request, there were unsuccessful attempts to return the Appellant to work at the OPP late until April 2022 and her employment was terminated.
The Appellant sued the Respondent for negligence in the Supreme Court of Victoria where Dixon J held that that the Respondent was on notice of the risk to the Appellant’s mental health by August 2011 email exchange and failed to take reasonable steps including rotating the Appellant to another section.[1]
On appeal to the Victorian Court of Appeal, the Respondent was successful in having the trial judge’s finding that the Appellant would have agreed to rotate out of the SSOU overturned on the basis that the Appellant did not give evidence that she would have agreed to such a rotation, her strong email response in August 2011 asserting she was passionate about working in the SSOU, and regularly sought and obtained promotions in the SSOU.[2]
Findings on Appeal
The matters on appeal came down to the Court of Appeal’s finding that the Respondent was on notice of the risk of psychiatric injury to the Appellant in August 2011 and that the appropriate exercise of the Respondent’s duty to offer to rotate the Appellant would have resulted in the Appellant accepting the rotation, and, in turn, avoiding an exacerbation of her psychiatric injury of post-traumatic stress disorder.
While the High Court unanimously found in favour of the Appellant on the notice finding made by the trial judge and affirmed by the Court of Appeal and in overturning the finding of the Court of Appeal with respect to the rotation finding, four separate reasons were provided by the Court.
Kiefel CJ & Keane J
With respect to the finding that the Respondent was on notice of a foreseeable risk of psychiatric injury to the Appellant, their honors took a different approach from the main judgment espoused by Gageler and Gleeson JJ but nonetheless agreed with the orders made.
Their honors held that the Respondent, as evident from its own vicarious trauma policy, had a lively appreciation of the serious risk to the Appellant’s mental health posed by her work and that no further warning signs were necessary in order oblige the Respondent to take reasonable steps to safeguard the employee’s mental health.[3] In doing so, their honors referred to the plurality in Koehler v Cerebos (Australia) Ltd,[4] wherein it was said:
“…First, 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.”[5]
Their Honors continued by holding that the employer is duty bound to be proactive in the provision of measures to enable the work to be performed safely by the employee where the particular 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.[6]
Gageler & Gleeson JJ
With respect to the finding that the Respondent was on notice of a foreseeable risk of psychiatric injury to the Appellant, their honors, in rejecting the Respondent’s submission that both the trial judge and Court of Appeal findings were unreasonable when the so called ‘evident signs’ were viewed ‘holistically’, found that the disclosures made by the Appellant in the workshop, the memorandum, her resistance to file allocation, taking sick leave during a trial, her email in August and employees of the Respondent admitting that the Appellant was not coping represented more than merely the inevitable experience of vicarious trauma but significant indicators of possible work-related psychiatric injury.[7]
With respect to the rotation finding, their honors were accepting of the fact the Appellant had sought to be rotated in February 2012 was insightful about the harmful effect of the Appellant’s work.[8] Further, their honors accepted the expert opinion evidence of Professor Macfarlane that if the Appellant was offered a welfare check or occupational screening following the August 2011 events, the medical advice she would have received would have included a need to rotate out of the SSOU and accepted that she would have acted out of self interest in following that advice.[9]
Further, their honors were not persuaded by the body of material which supported the conclusion that the Appellant was a dedicated employee who was focused on continuing her work in the Unit and had regularly sought promotion, holding that the same was a relatively little weight when measured against the diagnosis of a serious psychiatric illness.[10]
Gordon & Steward JJ
Their Honors viewed the matter in a slightly more confined analysis and held that it was not until the events in late August 2011 when the Respondent failed to intervene by making a welfare enquiry in offering occupational screening that the Respondent breached its duty of care and that this breach caused the exacerbation of the Appellant’s psychiatric injury.[11]
Further, their honors were more or less consistent with Gageler and Gleeson JJ in respect of the rotation finding as they agreed that more intensive training, a review by medical professional and an offer for rotation would have been accepted.[12]
Edelman J
His honor wished to take a more conceptual approach to the existence and scope of an employer’s duty of care by reference to the employment contract furthering the High Court’s recent pivot to the primacy of the contract as well as those contained in statute and the common law.[13]
However, his honor substantially agreed with the views of Kiefel CJ and Keane J in respect of the reasonable foreseeability of psychiatric injury and deferring to Gageler and Gleeson JJ on the rotation finding.[14]
Lessons for Employers
The High Court reaffirms that employment that involves inherently and dangerous types of work, reasonably accepted as giving rise to potential detrimental effect on their psychiatric health, imposes on employers, at the inception of the employment contract, a duty to take proactive steps to provide measures that enable work to be performed safely.
This will require an assessment on a case by case basis of different employment circumstances but demonstrates that ensuring employees are offered proper training to identify potential symptoms to allow them to seek further guidance, provided welfare checks and screening to allow them to earlier identify potential symptoms that do not solidify into a chronic condition.
Contrastingly, the matter does reaffirm the standard applied in Koehler with respect to employment arrangements that are not inherently dangerous to employees’ mental health. As such, employers with employees in this space will not be required to put into place onerous proactive measures in the absence of evident signs of appropriate systems are in place.
[1] Kozarov v Victoria (2020) 294 IR 1.
[2] Victoria v Kozarov (2020) 301 IR 446 [104]-[110].
[3] Kozarov v Victoria [2022] HCA 12 [7].
[4] (2005) 222 CLR 44
[5] Ibid 57-58 [36].
[6] Kozarov v Victoria [2022] HCA 12 [6].
[7] Kozarov v Victoria [2022] HCA 12 [52]-[54].
[8] Ibid [59].
[9] Ibid [60].
[10] Ibid [61].
[11] Ibid [88].
[12] Ibid [95]-[97].
[13] Ibid [99]-[101].
[14] Ibid [112].
Contributor: Chris Smith
The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.