Employer avoids liability for workplace psychiatric injury on causation grounds Employer avoids liability for workplace psychiatric injury on causation grounds

Employer avoids liability for workplace psychiatric injury on causation grounds

17 December 2020 | Employment and Safety

A Victorian government legal office has successfully appealed a finding of liability for psychiatric injuries suffered by a solicitor working in a sexual offences unit because the solicitor failed to establish  that measures open to be taken would have averted the risk of injury.

In Issue

  • Whether an event had occurred so as to put the appellant/defendant on notice which, together with evident signs from the respondent/plaintiff were apparent, so as to require action from the appellant by way of reasonable response.
  • Whether the trial judge erred in holding that the injury and loss suffered by the respondent would have been avoided had the appellant done those things the Court held were reasonably required in order not to breach the duty of care.

The background

The respondent is a solicitor and former employee of the Victorian Office of Public Prosecutions (the OPP). Between June 2009 and April 2012, she worked in the OPP’s Specialist Sexual Offences Unit (the SSOU). During the course of this employment, she suffered a psychiatric injury, namely, chronic post-traumatic stress disorder and a major depressive disorder.

In 2016, the respondent commenced proceedings against the State of Victoria (the appellant) claiming damages for personal injury sustained during the course of her employment in the SSOU. She alleged that her injuries were caused through ongoing, repeated exposure to a high volume of sexual offence cases, which included the commission of serious offences against children and other cases of an abhorrent nature. The defendant denied liability

The decision at trial

The trial judge delivered reasons for judgment in which she upheld the plaintiff’s claim, rejected the defence of contributory negligence, and assessed the plaintiff’s damages in the sum of $435,000. Our case note on this decision can be accessed here.

The issues on appeal

There were 2 proposed grounds of appeal. The first related to liability. The appellant argued that the trial judge erred in finding that an event had occurred, and the signs from the respondent were such as to require it to take steps to protect the respondent (such as rotating her duties).The second related to causation – that the trial judge erred in finding that any additional steps taken would have prevented the injuries from occurring.

The Decision on appeal

Leave to appeal was granted on both proposed grounds of appeal. The appeal on liability failed, the appeal on causation succeeded. The OPP avoided liability for the solicitor’s claim for damages for psychiatric injury

In relation to liability, the appellant argued that the trial judge’s conclusion of evident signs by the end of August 2011, involved impermissible ‘litigious hindsight’, and was erroneous because it failed to consider the evidence of events as they unfolded in the light of what was known from time to time. The respondent  disputed this, noting that the trial judge specifically referred to the need to guard against ‘litigious hindsight’ and that her conclusion was reached having viewed the evidence ‘prospectively’. The Court of Appeal noted that the trial judge identified 13 ‘evident signs’ which provided notice to the appellant of the heightened risks regarding the respondent’s mental health in connection with her work prior to 9 February 2012 (when she emailed the OPP Practice manger about her condition). The Court of Appeal observed that when viewed in isolation, each of these matters might not individually constitute relevant notice to the appellant that the respondent was at risk of suffering psychiatric injury as a result of the nature of her work. However, the correct approach, which was taken by the trial judge, was to analyse and consider all of those matters in combination, rather than in a piecemeal manner. The trial judge was alive to the risks of ‘litigious hindsight’ and specifically addressed that issue. This ground of appeal was rejected.

In relation to causation, the critical question was whether the respondent had established, on the balance of probabilities, that the measures which the trial judge considered were required to be taken by the appellant to protect the respondent’s health, would have prevented the exacerbation of her PTSD from that date. The trial judge’s conclusion that if the appellant had taken appropriate steps, it was probable the respondent would not have suffered the exacerbation of PTSD was based on three essential steps. Two of the three steps involved co-operation by the plaintiff. While evidence from an injured party as to what he or she might have or would have done is, appropriately, treated with some circumspection by a court, nevertheless it is relevant and admissible. No such evidence was elicited from the respondent in this case. The third step in the reasoning chain was therefore significantly open to question. It essentially involved the respondent being rotated out of the SSOU. The appellant could not have compelled this because it was prohibited by the terms of the contract of employment. Step three necessarily involved a finding by the trial judge that, in the relevant period from late August 2011, the respondent would have co-operated if the appellant had offered to rotate her to a different unit. This was contrary to the respondent’s evidence and the Court of Appeal therefore concluded that the respondent failed to establish that if the appellant had exercised reasonable care from August 2011, those specified steps would have avoided or reduced the exacerbation of the respondent’s PTSD that occurred between August 2011 and February 2012.

The appeal was allowed on ground two and the judgment below set aside.

Implications for you

This case provides comfort for employers and underlines the message that safety and preventative measures must be established as being accepted and effective before a failure to implement them will result in a finding of liability. The case highlights the importance of appropriate evidence and cross examination on employee attitudes and responses to work changes for safety and preventative reasons.

State of Victoria v Kozarov [2020] VSCA 301 (24 November 2020)

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George Rafter

George Rafter

Solicitor