Intent does not suffice, employers can’t roll the dice on inherent risks Intent does not suffice, employers can’t roll the dice on inherent risks

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Intent does not suffice, employers can’t roll the dice on inherent risks

27 May 2022 | Employment and Safety

A recent High Court decision again puts the issue of mental health at the forefront when exploring a duty of care in instances where the risk of psychological injury is heightened through the inherent nature of the role resulting in a need to ensure ongoing and active implementation of a safe system of work.

Introduction

Mental health and wellbeing is an ever-evolving consideration for employees and employers alike, particularly in the fallout of the COVID-19 pandemic. The High Court recently reviewed the duty of care owed in situations where the risk of psychological injury is increased by the nature of a work role and considered what is required to provide a safe system of work in such circumstances. 

Background

The appellant, Ms Kozarov, was an experienced lawyer working for the Victorian Office of Public Prosecutions (OPP) in the Specialist Sexual Offences Unit (SSOU). Given the nature of the work, Ms Kozarov was subjected to a high volume of matters involving offences of an abhorrent nature, including that of explicit child pornography and other grotesque video and audio recordings. As a result of this exposure, Ms Kozarov suffered psychiatric injury and was diagnosed with chronic Post-Traumatic Stress Disorder (PTSD) and a major depressive disorder (MDD) which required her to take time off work. Following her return to work, Ms Kozarov had a falling out with her manager which led to her feeling ‘discriminated against as a single mother working full time’ and leaving her with ‘no incentive’ to work in the SSOU. Her employment was subsequently terminated.

Ms Kozarov issued proceedings in the Supreme Court of Victoria against the OPP claiming negligence, breach of contract and breach of statutory duty in relation to her injuries. The trial judge found the OPP had breached its duty of care to Ms Kozarov when it failed to take reasonable steps to prevent her psychological injury. Ms Kozarov was awarded $435,000 in damages. The decision was successfully overturned on appeal in 2020 when the Court agreed that while the OPP was on notice for the risks to mental health within the SSOU, there was no evidence to suggest that alternative actions would have prevented her injury. Ultimately, the Court of Appeal found that causation could not be established on the basis Ms Kazarov would not have taken any steps offered by the OPP to reduce her exposure to trauma, such as rotating out of the SSOU to another unit.

A special leave application was later submitted by Ms Kozarov and subsequently granted with the matter heard before the High Court on 21 December 2021.

The issues before the High court

The crucial consideration for the High Court was that of causation and specifically, whether OPP’s failure to provide Ms Kozarov with a safe system of work caused the exacerbation and prolongation of her PTSD, and subsequent development of MDD?

Ms Kozarov’s appeal to the High Court was brought on two grounds:

  1. Whether the Court of Appeal erred in finding that Ms Kozarov would not have cooperated with the steps to reduce her exposure to trauma within SSOU; and
  2. As a consequence of such a finding, whether the Court of Appeal erred in failing to consider the nature and content of the OPP’s duty of care.

On the first ground, the High Court considered evidence of Ms Kozarov’s conduct at work, together with expert evidence from a psychiatrist. A key consideration for the High Court was the inherent likelihood that a reasonable person, when advised of the risks of psychiatric injury, would have accepted advice to avoid those risks. These factors led the High Court to conclude that Ms Kozarov would have likely accepted a rotation out of SSOU and therefore cooperate with steps to  avoid her exposure to trauma. 

With respect to the second ground, the High Court identified 13 ‘evident signs’ which were deemed to have put the OPP on notice of the risks of psychiatric injury. These were divided into three categories being, prior to her commencing work for the OPP, during her employment, and the falling out with her manager upon her return from sick leave. The first category of notice is the most interesting as it did not specifically relate to Ms Kozarov, but rather to the fact that the OPP was on notice of the risks faced by those working in the SSOU. This included the OPP’s internal documents including one titled ‘Vicarious Trauma Policy’ which acknowledged the mental health risks associated with undertaking the type of work Ms Kozarov was required to undertake within the SSOU. Hence, the inherently risky nature of Ms Kozarov’s work gave rise to a duty of care best summarised by their Honours Gordon and Steward JJ:

OPP’s duty was "not merely to provide [that] safe system of work", but to "establish, maintain and enforce such a system", taking account of Victoria's power, as employer, "to prescribe, warn, command and enforce obedience to [its] commands". Indeed, as senior counsel for Victoria conceded, the duty required Victoria to do "almost everything" it could "short of forcing rotation" to protect Ms Kozarov from the risk of psychiatric injury.

It will come as no surprise then, that the High Court found in favour of Ms Kozarov by dismissing the Court of Appeal’s initial orders with costs.

Implications for you

The decision of the High Court highlights the degree of proactive care employers owe their employees who are engaged in inherently risky work. By undertaking such work, the prospect of injury to an employee is more apparent than simply foreseeable. Hence, an employer’s policies and system of work are deemed to serve as notice of the risks faced by employees. It is key that employers are actively taking steps to ensure their policies not only remain appropriate but also adhered to and implemented in practice. That is to say that an employer should do “almost everything” it can to protect their employees from predictable injury.


This article was authored by Assel Dawood. 

Kozarov v Victoria [2022] HCA 12

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