By Amanda Tucker (Senior Associate) & Angela Marra, Holding Redlich
A recent High Court decision demonstrates that an employer has a duty to protect its employees from work-related psychiatric injury, even if there is a policy on vicarious trauma. Employers can be held responsible for psychological damage inflicted on their employees, whether or not they show obvious signs of psychiatric disorders.
In the case of Kozarov v. Victoria (2022) Aust Torts Reports ¶82-785;  HCA 12 (Kozarov), Ms. Kozarov was a lawyer in the sexual offenses unit (SSOU) of the Victoria Office of Public Prosecutions (Ontario Provincial Police) since 2009.
Ms. Kozarov’s job was to prosecute serious sex offenders. This included working with survivors and viewing explicit material daily.
In April 2011, Ms. Kozarov began to suffer from post-traumatic stress disorder (PTSD) due to the vicarious trauma she suffered during her employment.
Ms. Kozarov sought damages for her employer’s negligent failure to prevent her psychiatric injuries during her employment at the SSOU.
The case raised two issues:
• Has the employer been informed of Ms. Kozarov’s mental health problems?
• Would Mrs. Kozarov have accepted a rotation of the SSOU if her employer had offered it?
Was the employer informed of Ms. Kozarov’s mental health problems?
Dixon J found that the employer was warned that Ms. Kozarov’s mental health was suffering at the end of August 2011 and awarded damages in favor of Ms. Kozarov. His Honor also concluded that had Ms. Kozarov been offered a rotation, she would have accepted that offer, thus avoiding the exacerbation of her PTSD.
Judgment of the Court of Appeal
The Court of Appeal confirmed that the employer had been put on notice, but rejected the conclusion that Ms Kozarov had accepted the offer of rotation outside the SSOU.
High Court Findings
Before discussing the two issues involved, Kiefel CJ and Keane J explained that there was a preliminary misunderstanding in the application of Koehler v Cerebos (Australia) Ltd. (2005) CLR 44 (Kohler) to current facts. Koehler expressed concern about the extent of reasonable care for an employee’s mental health, which may require an employer to be vigilant for obvious signs of developing mental illness.
Unlike Koehler, the reasonable foreseeability of psychiatric injury for Ms. Kozarov was not based on “obvious signs”. Instead, the reasonable foreseeability that mental illness might develop was satisfied by the existence of the Ontario Provincial Police vicarious trauma policy (TV Policy).
Notice of Findings
Gordon and Steward JJ divided the opinion’s conclusion into three general categories:
• events before the start of employment
• events after the start of work
• the sentinel event (dispute with Mr. Kozarov’s manager, Mr. Brown).
Before Ms. Kozarov started working at the SSOU, the employer, the OPP, was already aware of the risks of harm to lawyers, usually due to burnout, work stress and exposure to indirect trauma. This is demonstrated by the professional training policy and the implementation of vicarious trauma workshops for staff.
After starting employment, notice to the employer was evident as Ms. Kozarov attended at least one vicarious trauma workshop and provided examples of how her work affected her as a mother. Additionally, Ms. Kozarov underwent resilience training, during which she explained how uncomfortable she was when people stared at her children. Ms Kozarov also spoke directly to her superiors about her declining mental health while employed.
Finally, there was the ‘sentinel event’ in which Ms Kozarov sent various emails to her manager, Mr Brown, who had suggested she could not cope with work. The emails that Ms. Kozarov sent in retaliation for what Mr. Brown had said were emotionally charged and displayed “genuine emotional distress” which served as a significant indicator of work-related psychiatric injury. Gordon J and Steward J concluded that a reasonable person in the employer’s position would have foreseen the risk of injury by this event, “a risk that was not exaggerated and fanciful”.
All were considered sufficiently knowledgeable about Ms. Kozarov’s employer.
Would Mrs. Kozarov have accepted a rotation of the SSOU if her employer had offered it?
It was questioned whether Ms. Kozarov would have accepted an out-of-SSOU rotation had the OPP offered it, Their Honors reviewed the various occasions between 2009 and 2012, in which Ms. Kozarov expressed the impact her work had on his daily life.
Ms. Kozarov spoke about her difficulties at various meetings and workshops and signed a written memorandum while other staff members complained about the workload. She also resisted being assigned sensitive files and asked to be transferred from the SSOU. It was clear that given the chance, Ms. Kozarov would have accepted a rotation.
Gordon and Steward JJ reviewed the elements of negligence to justify their honors decision. The employer’s obligation was “not simply to provide [that] safe system of work, but to establish, maintain and apply such a system, taking into account the [the employer’s] power, as an employer, to prescribe, warn, order and enforce [its] orders. »
The employer’s failure was apparent, since the “employer’s response to the risks to [the] SSOU staff and [Ms Kozarov] was not that of a reasonable employer. [OPP] has not implemented the necessary measures to prevent injuries to its employees.
Take away food
In the Kozarov case, the High Court held that the employer could have taken steps during Ms Kozarov’s employment to fulfill their obligations to her, such as additional vicarious trauma training, physical checks benefits, job selection and a flexible work approach such as regular rotations and that the failure to do so was the cause of the employee’s injury.
The fact that the employer had a vicarious injury policy in place showed that it was reasonably foreseeable that employees might suffer psychological injury as a result of their work. The onus is not on the employee to show signs of injury, but on the employer to take proactive steps to avoid the injury and minimize any exacerbation.
Employers should consider additional precautions to mitigate the risk of psychological harm to their employees. What will be considered proactive measures to avoid injury will depend on the nature of the work and the role of the employee. For example, employers may consider additional workshops, seminars and training courses, as well as implementing a flexible working arrangement, such as working from home when needed or rotating the employee to a different role within the team or department. Regular wellness checks and professional screening by a psychiatrist or clinical psychologist are especially helpful in roles that expose employees to vicarious trauma.
At the same time, employers should be careful when employees express the negative impacts their role may have on their personal well-being, as the courts are likely to consider this a formal notice from the employer. Employers must ensure that they are not oblivious to the warning signs of the development of psychological injuries at work, otherwise they run the risk of being found liable by the courts, as seen in the Kozarov case.
Related story: High Court upholds ex-prosecutor’s negligence claim against employer (Vic)April 13, 2022.