This article was first published in LexisNexis' newsletter Australian Civil Liability, Volume 17 No 3, June 2022.
Kozarov v Victoria 1 was handed down by the Australian High Court on 13 April 2022. It involved an appeal from the Supreme Court of Victoria and an award of damages arising out the alleged negligence and failure of the State of Victoria (the State) to prevent the plaintiff's psychiatric injury sustained in the course of her employment with the Specialist Sexual Offences Unit (the SSOU) of the Victorian Office of Public Prosecution (the OPP). The High Court found in favour of the plaintiff. The judgment is relevant for all employers responsible for the health and wellbeing of their employees and is also instructive for legal practitioners involved in such proceedings.
Introduction and background
The SSOU was established in April 2007 as a specialist unit within the OPP to prosecute all serious indictable criminal offences in Victoria. The plaintiff joined the SSOU in June 2009 as a recently admitted solicitor. The nature of the plaintiff's work within the SSOU was of fundamental relevance to the court's ultimate findings. The work within the SSOU generally and the plaintiff's work itself involved regular interactions with survivors of high-level trauma and exposure to these traumatic experiences, meeting with children and adult victims of sexual offences including rape and viewing child pornography.
In November 2011, the plaintiff accepted a promotion to a permanent VPS Grade 5 role in the SSOU. On 9 February 2012, following a period of leave, the plaintiff requested that she be moved out of the SSOU. This was followed by attempts to work in different areas of the OPP until 20 April 2012 when her employment was terminated. The plaintiff was diagnosed with PTSD in February 2022.
A key question for the High Court and the courts below was whether the State's failure to take "reasonable measures" in response to "evident signs" of psychiatric injury suffered by the plaintiff caused the exacerbation of her psychiatric injury. As will be examined below, the High Court took a different - and more direct route - in imposing liability on the State.
In 2016, the plaintiff commenced proceedings against the State seeking damages for psychiatric injury (an exacerbation of a PTSD and Major Depressive Disorder) arising during her employment with the SSOU and as a result of the State breaching its duty of care owed to the plaintiff. The plaintiff was successful at first instance, with Jane Dixon J (Justice Dixon) awarding the plaintiff the sum of $435,000 in damages.2 This decision was overturned by the Victorian Supreme Court resulting in the plaintiff's application to the High Court.
Notice and rotation findings
Justice Dixon, at first instance, found that the State had been placed on notice of a risk to the plaintiff's mental health by the end of August 2011 (the notice finding), necessitating that the State take steps by way of "reasonable response" which included offering her rotation out of the SSOU to work in a separate part of the OPP.3 Justice Dixon also determined that, by the end of August 2011, the plaintiff would have accepted an offer of rotation out of the SSOU (the rotation finding), thereby avoiding the exacerbation of the plaintiff's PTSD that occurred between August 2011 and February 2012.4 The Victorian Court of Appeal upheld the notice finding but rejected the rotation finding.5 Subsequently, all members of the High Court agreed with Dixon J's findings in respect of both the notice finding and the rotation finding.6 In respect of the rotation finding, Gageler and Gleeson JJ determined that relevant evidence supporting the rotation finding included the plaintiff's cooperative conduct in February 2012, the expert evidence of Professor McFarlane (that a "majority of people" that he sees in this type of situation would accept the advice on rotation), and that the plaintiff appeared in a credible and coherent manner when giving evidence before Dixon J.7 Practitioners should be mindful of this type of evidence which may persuade a court to accept an analogous rotation finding in future proceedings of this type.
Consideration and application of Koehler
The shadow of Koehler v Cerebos (Aust) Ltd 8 was present in this proceeding and the courts' deliberations. The plurality in Koehler noted:
. . . 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.9
Chief Justice Kiefel and Keane J noted that there was an unnecessary reliance placed on Koehler by the plaintiff in her pleadings - determining that the plaintiff being required to prove the "evident signs" was not required in this proceeding given the nature of the plaintiff's work in the SSOU. Chief Justice Kiefel and Keane J surmised that:
. . . it should be understood, however, that the circumstances of a particular type of employment may be such that the work to be performed by an employee is inherently and obviously dangerous to the psychiatric health of employee (just as other kinds of work are inherently and obviously dangerous to the physical health of the employee). In any such case, the employer is duty bound to be proactive in the provision of measures to enable the work to be performed safely by the employee. The present was such a case.10
That the work undertaken by the plaintiff within the SSOU was "inherently obvious and dangerous" was supported by the Vicarious Trauma Policy dated January 2008 (VT Policy). Of note, the VT Policy identified vicarious trauma as an "unavoidable consequence of undertaking work with survivors of trauma" and as a "process [that] can have detrimental, cumulative and prolonged effects on the staff members". The High Court, therefore, is effectively saying that, in circumstances where the nature of the work undertaken by the plaintiff is so "inherently and obviously dangerous to the psychiatric health of the employee", there is then no need for a plaintiff to satisfy the Koehler requirement that there be "evident signs" flagging the possibility of psychiatric injury - the factual circumstances of the current proceeding meant "no question truly arose as to whether the employer was duty-bound to be alert in this regard".11
Duty of care and reasonable steps/measures
This judgement reinforces that the State (and implicitly all employees and future prospective defendants in similar circumstances) had a duty of care to take all reasonable steps to provide the plaintiff with a safe system of work 12 and that this duty was not "merely to provide [that] safe system of work" but to "establish, maintain and enforce such as system" taking into account its power, as employer, "to prescribe, warn, command and enforce obedience to [its] commands".13 Justice Dixon found, and this was not challenged in the High Court, that the State breached its duty of care.14 Justice Dixon summarised that the State should have had available and properly implemented at the SSOU the following:15
- an active OH&S system;
- adequate training; and
- a system of welfare intervention accompanied by the offer of the occupational screening and flexibility regarding case/work allocation and rotations.
And that if these measures were "offered in combination, [they] would have prevented the plaintiff's severe and chronic PTSD".16 This view was accepted in the various judgements in the High Court. It was noted by Kiefel CJ and Keane J that none of the protective measures identified in the VT Policy, or indeed any other reasonably available protective or other measures, was implemented by the plaintiff's managers within the SSOU.17 Justice Dixon ultimately accepted that the plaintiff's employment materially contributed to the plaintiff's psychiatric injury18 and this view was also endorsed by all members of the High Court.
Key takeaways for practitioners
This judgment raises several important points and considerations going forward in proceedings involving mental injury sustained by a worker in the course of his or her employment. Key takeaways for practitioners:
- Where will the line be drawn regarding foreseeability due to the nature of employment ie, at what point does a job become "inherently and obviously dangerous to the psychiatric health of the employee" - does this cover police, emergency workers and frontline health workers? A specific factual analysis will always be required of the roles and duties undertaken by the worker in question.
- If the workplace and the nature of the work undertaken by the injured worker pose an obvious risk to the worker's mental health (such as that which existed at the SSOU during the plaintiff's period of employment), there no need to examine-plead the "evident signs" line of reasoning referred to in Koehler or plead it in the alternative.
- For employers (in particular): are policies/ procedures in place to mitigate the risks to mental health and are these properly implemented and understood across the board - this is an OH&S issue which must not be ignored and policies/ procedures should be proactively reviewed.
- Ensure relevant evidence is obtained as to what policies and procedures were in place, how these policies and procedures were implemented, and what systems ought to have been in place. Evidence from employees at all levels of the organisation as well as evidence from independent experts will assist in this regard.
1 Kozarov v Victoria (2022) 399 ALR 573;  HCA 12; BC202202839 ("Kozarov").
2 Kozarov v Victoria (2020) 294 IR 1;  VSC 78; BC202001198.
3 Kozarov, .
5 Ibid, .
6 Ibid, - and -.
7 Ibid, .
8 Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44; 214 ALR
9 Ibid, .
10 Kozarov, .
11 Kozarov, .
12 Koehler, .
13 McLean v Tedman (1984) 155 CLR 306; 56 ALR 359; BC8400457, .
14 Kozarov, .
15 Footnote 2, .
16 Ibid, .
17 Kozarov, .
18 Footnote 2, 
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.