Australia: Crime reporter successfully recovers damages from The Age for psychiatric injury

In a recent Victorian County Court decision1, a journalist was awarded damages against her former employer, The Age, for breaching its duty of care, which resulted in her suffering psychiatric injury due to repeated exposure to traumatic events.

Background

The plaintiff, who was not named in the judgment, was employed by The Age as a crime reporter for 6 years, and subsequently as a Supreme Court reporter for 3 years. As a crime reporter, the plaintiff was frequently among the first on the scene of serious crimes, injuries and deaths, which she was required to investigate and report. This included attending the scenes of numerous high-profile murders and violent crimes, some of which involved children.

A compounding aspect of the trauma to which she was subjected during these investigations was the 'intrusions' she was encouraged to make into the lives of grieving victims at the scene and in the aftermath of such events. There was work pressure on the plaintiff to invade the privacy of witnesses and devastated families, including door knocking and attending funerals to obtain statements. This invasive role contributed to the plaintiff's distress.

The extent to which the plaintiff was required to investigate these incidents in pursuit of a story also led to her receiving various threats to her safety from prominent figures in Melbourne's 'gangland wars', and to dealing with people threatening to commit suicide.

The plaintiff's position as a crime reporter ended following her coverage of the murder of 4-year-old Darcey Freeman, who was thrown off the Westgate Bridge by her father. At this point, she requested to be moved into sports reporting, telling The Age that she was not coping with the 'death and destruction'. Despite this, the plaintiff was instead transferred to Supreme Court reporting the following year. As a Supreme Court reporter, the plaintiff listened to witness evidence of horrific crimes, many of which she had previously investigated as a crime reporter. This included covering the Darcey Freeman murder trial.

The plaintiff developed symptoms of depression and anxiety throughout her time as a journalist with The Age; she had trouble sleeping because of nightmares, began abusing alcohol and became increasingly tearful at work and at home. The plaintiff was subsequently diagnosed with Post Traumatic Stress Disorder (PTSD) due to prolonged exposure to traumatic, violent and disturbing events.

She brought proceedings against The Age for breach of contract of employment and, alternatively, breach of duty of care, as a result of which she alleges she suffered PTSD. She alleged that The Age failed to have a system in place to enable her to deal with the trauma of the work, failed to provide her with appropriate support and training, failed to intervene when she or others complained, failed to provide counselling and support from qualified peers and failed to allocate her to other appropriate reporting after she had complained of being unable to deal with trauma as a crime reporter.

Decision

Judge O'Neill confirmed The Age, as the plaintiff's employer, owed her a 'duty to take reasonable care against the risk of foreseeable injury, including foreseeable psychiatric injury. The duty extended to the institution and maintenance of a safe system of work and the provision of appropriate instructions and supervision. The reasonable employer, in determining what ought to be done in respect of the foreseeable risk of injury, needs to balance the magnitude of the risk and the degree of probability of its occurrence.  In the modern workplace, there is a positive duty upon an employer to take active steps to prevent the risk of foreseeable injury'2.

His Honour concluded The Age breached its duty of care to the plaintiff by failing to3:

  • provide appropriate training and instruction to the plaintiff as to the distressing nature of her work;
  • train editors and senior staff to identify symptoms of psychological injury;
  • have any systems in place to enable the plaintiff to deal with trauma, such as a peer support program or the availability of counsellors;
  • impose clear boundaries as to how journalists were to go about their work, particularly in relation to 'intrusions' and dealing with known crime figures; and
  • intervene when an employee exhibited signs that they were at risk of psychiatric injury (such as a policy that if a reporter was experiencing distress as a result of graphic investigations, transferring that person to another area, within a reasonable time).

In addition, his Honour found that working at The Age was a stressful and competitive environment where expressing symptoms of psychological injury was likely to be seen as a weakness. This encompassed an attitude that employees should 'take a walk around the block and get on with it' or 'have a drink after work' if they were distressed by their work, which discouraged employees from speaking up about experiencing trauma. His Honour accepted that steps should have been taken by The Age to change this culture and encourage employees to talk about tragedy and trauma and the symptoms of psychological injury.

His Honour also accepted that the risk of psychological injury was a foreseeable consequence of the plaintiff's work and 'it would have been relatively obvious to a reasonable employer that the cumulative effect of that exposure would create the distinct risk of psychological injury in the nature of PTSD or a similar disorder'4. Even though the plaintiff attempted to deal with her symptoms on her own, his Honour found that she had 'complained about and manifested real signs and symptoms of emotional distress on a sufficient number of occasions, both as a crime reporter and a court reporter, (and) it ought to have been relatively clear to her employer there were signs of the development of a psychological disorder'5.

His Honour found the plaintiff would not have suffered PTSD had The Age properly discharged its duty to take reasonable care against the risk of foreseeable injury to their employees and awarded the plaintiff general damages for non-economic loss of $180,000.

This case contrasts with the earlier analogous Supreme Court case of AZ v The Age (No 1) 6 in which Justice McMillan found the plaintiff had not established the risk of psychological injury was foreseeable during her employment as a photographer for The Age. In that case, the Court did not accept the plaintiff was exposed to repeated traumatic events in the context of her wider career, despite being assigned to jobs such as a tribute anniversary story about the Bali bombings. While the employer was on notice the plaintiff was experiencing personal difficulties at the time of the story, this did not mean the risk of psychological injury was foreseeable.

Implications

  This case provides a timely reminder to employers that they owe a duty to their employees to take reasonable care against the risk of foreseeable psychological injury caused by their employment duties. The duty extends to taking active steps to prevent the risk of such injury, even if employees do not openly report physiological symptoms due to concerns about jeopardising their employment.

If as an employer, you are concerned about your liability for injury to employees, Gilchrist Connell can assist you in providing advice on taking steps to discharge your duty of care and minimise the risk of injury to your employees.

Footnotes

1 YZ (a pseudonym) v The Age Company Ltd [2019] VCC 148

2 At paragraph [52]

3 At paragraph [162]

4 At paragraph [128]

5 At paragraph [128]

6 [2013] VSC 335

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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