Managing the risk of vicarious trauma from legal work - Human Resource Management

Management of the risk of vicarious trauma in the legal profession is not of lesser significance because it is legal work that is being undertaken.

Lawyers may experience trauma, known as vicarious trauma, arising from the content of the legal work they perform or because their client has suffered trauma.

In that sense, lawyers are no different from other occupations which experience trauma, such as medical practitioners or first responders, recognising that the experience for lawyers may be less direct than in other occupations but not necessarily carrying with it lesser consequences.

Vicarious trauma can cause, or aggravate, psychiatric conditions in lawyers, including depression and post-traumatic stress disorder (PTSD). The result, at the end of the scale, may be an ongoing incapacity for work, with major loss of income, and significant pain and suffering or, even worse, suicide.

Trauma may be experienced by a lawyer in many different types of legal work – for example, a family lawyer may have a client who has been subjected to domestic violence, a personal injury lawyer with a seriously injured client, a criminal lawyer dealing with violent or horrific crimes, including child exploitation cases, a workplace relations lawyer with a bullied client, an immigration lawyer dealing with separated families – the list is varied and endless.

The obligations on Victorian employers in managing health and safety in the workplace, including the risk of vicarious trauma, and disabled workers, have a number of sources: statutory occupational health and safety laws,¹ workers' compensation laws,² discrimination laws,³ the contract of employment⁴ and the duty of care imposed under the common law tort of negligence. An employer, including legal employers, should have regard to potentially all these sources in managing the risk of criminal and civil liability arising from vicarious trauma, and, in particular, in managing employees with vicarious trauma, including required compensation, rehabilitation and adjustments to the employees' position and workplace.

In managing the risk, employers in the legal industry in particular will be assisted by the recent High Court case of Kozarov v Victoria (Kozarov)⁵ which examined the duty of care on an employer to lawyers undertaking legal work. While refining legal principles in this area, Kozarov sits with established legal principles supporting the important core task on an employer to assess the circumstances of each employment in order to discharge the obligation to take reasonable care for the safety of an employee.

Kozarov

The appellant in Kozarov worked as a solicitor in the Specialist Sexual Offences Unit (SSOU) of the Victorian Office of Public Prosecutions between 2009 and 2012, having previously worked as a paralegal between 1999 and 2009. In the SSOU she was regularly exposed to graphic material involving serious sexual offences against children, and she worked long hours with a significant caseload.

She was diagnosed in 2012 with PTSD resulting from her employment and was later diagnosed with major depressive disorder. In 2016 she commenced proceedings against the State of Victoria, claiming negligence and seeking damages.

The trial judge⁶ found in the appellant's favour and awarded damages on the basis that first, with respect to the scope of the duty of care, the respondent had been placed on notice of the risk to the appellant's mental health by August 2011 (Notice Finding) such as to require that reasonable steps be taken, including rotation out of the SSOU; and, second, with respect to causation, the appellant would have accepted an offer of rotation (Rotation Finding), which would have avoided the aggravation of her PTSD between August 2011 and February 2012.⁷

At trial, the appellant's case was based on establishing that the duty of care arose from the "evident signs" of the risk of mental injury. This approach was based on the views expressed by the majority in the High Court in Koehler v Cerebos (Australia) Ltd (Koehler)⁸ that an employer was 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 the job".⁹

In Koehler the High Court held the employer was not liable for psychiatric injury during employment as the employer would not have foreseen the risk of psychiatric injury because first, the employee had agreed to perform the duties and, second, the employer was not put on notice of a risk of psychiatric injury.

On appeal in Kozarov, the Court of Appeal upheld the Notice Finding but rejected the Rotation Finding. The appellant sought in the High Court to appeal the Court of Appeal's finding to reject the Rotation Finding and the respondent sought to overturn the Court's upholding of the Notice Finding. The High Court, with four different sets of reasons,¹⁰ was unanimous in setting aside the Court of Appeal's orders, leaving the decision of the trial judge on the Notice and Rotation Findings in place.

While the judgements in Kozarov differed in the reference to the various signs by the appellant of the risk of harm, the common signs connected with the applicant included:

signing a staff memorandum regarding vicarious trauma being experienced by staff
reporting adverse symptoms
emotional involvement in cases
excessive workload
overworking
sick leave taken
dizziness at work
emotional reaction to dispute with a manager over work
management views that she was not coping

The duty of care on the State of Victoria was to create and maintain a safe system of work which the trial judge stated should include "an active OH&S framework; more intensive training for management and staff regarding the risks to staff posed by vicarious trauma and PTSD; welfare checks and the offer of referral for a work-related or occupational screening, in response to staff showing heightened risk; and, a flexible approach to work allocation, especially where required in response to screening, including the option of temporary or permanent rotation from the SSOU where appropriate".¹¹

The appeal in the High Court focused on the Notice Finding and the Rotation Finding as these were the relevant issues before the Court for decision. However, the Court made some comments strongly suggesting that the duty of care to avoid mental injury existed for some positions, including the appellant's position, from the commencement of employment rather than when the employer was aware of the "evident signs" in the sense used by Koehler. The scope of that duty would depend on the position and the related employment contract.

In the words of Kiefel CJ and Keane J "no question truly arose as to whether the employer was duty-bound to be alert" for signs as the appellant was "duty-bound to exercise reasonable care to protect Ms Kozarov against risks to her mental health that were actually known to the respondent" as was evident from the terms of the respondent's Vicarious Trauma Policy.¹²

As Gageler and Gleeson JJ put it:¹³

"The assumption referred to in Koehler should not be taken to detract from the obligation of an employer, in the performance of a tortious duty to maintain a safe system of work, to exercise reasonable care to avoid a foreseeable risk of psychiatric injury to a class of employees. The question that arose in Koehler, whether psychiatric injury to the particular employee was reasonably foreseeable, was answered in the affirmative by the Vicarious Trauma Policy."

Edelman J took it further and thought that the Vicarious Trauma Policy was unnecessary to establish reasonable foreseeability:¹⁴

"But even without this policy, the very nature and extent of the work of the SSOU were such that the respondent was correct to concede on this appeal that at all relevant times the risk of psychiatric injury was such that it owed a duty of care to Ms Kozarov".

The timing of the existence of the potential duty of care from the start of employment, as suggested by Kozarov, better aligns with the duties of employers under the Occupational Health and Safety Act 2004 (Vic) (OHSA) which exist from the commencement of employment, with no triggering sign from an employee required. Importantly, the OHSA requires the employer, so far as is reasonably practicable, to monitor the health of employees from the start of employment: paragraph 22(1)(a).

Legal workplaces

A risk management process should be at the core of an employer's approach to effective health and safety measures in the workplace. The general approach to risk management includes, in consultation with employees:

identifying the hazards
assessing the level of risk, taking into account likelihood and consequences of injury
controlling the risks
reviewing and revising risk control measures.¹⁵

An employer's key focus should be on primary preventative interventions which have the aim of preventing the incidence of mental illness, rather than secondary or tertiary interventions although these are important as well. A secondary intervention is directed at dealing with how individuals manage stress (eg, wellness apps) and a tertiary intervention assists an employee when stress is present (eg, an employee assistance program).¹⁶

The precise legal obligations relating to health and safety on employers in the legal profession where there is a risk of vicarious trauma will depend on the employee's position and duties,¹⁷ and the nature and extent of the exposure to trauma, particularly its intensity.

A law firm complying with its statutory and common law obligations to employees exposed to the risk of vicarious trauma, particularly following Kozarov, would have a strong risk management process, with the following key features:¹⁸

Strong OHS framework, processes and systems

The starting point is the existence of OHS policies, processes and systems dealing with workplace risks generally, whether the risks are physical or mental harm. The firm should have a strong OHS culture which is demonstrated by effective consultation processes with employees, possibly with an OHS committee, tailored training for supervisors and managers, openness on OHS issues and active supervision over files, work patterns and demands which carry risk. This base provides the critical foundation for dealing effectively with the risk of vicarious trauma.

Vicarious trauma risk identification

A legal firm should identify the extent of exposure by employees to trauma. The areas of the firm's practice would inform this assessment, but there should also be processes to enable employees to report or flag distressing, or potentially distressing, circumstances or files.

Vicarious trauma risk policy

While a firm would have an OHS policy dealing with workplace risks in general, a firm with the risk of vicarious trauma should have a specific policy setting out its vicarious trauma risk management approach, including processes, training and supervision. It goes without saying that as good as having a policy is, the policy is of no value if not implemented with adequate and regular publicity, training and compliance with its terms.

Specific training

Employees should be trained on the risks of vicarious trauma as well as the firm's policies on how to identify, prevent and manage trauma. Supervisors need specific training on how to identify and control the exposure to trauma, and manage, as appropriate, the welfare of an employee who has been subject to stress.

Screening

Employees exposed to vicarious trauma should be offered psychological screening to assess trauma impact and be provided with support tools and techniques. Access to an employee assistance program should be standard.

Work systems and conditions

Standard working conditions should include rotating roles, working on files in pairs or teams, opportunities to debrief, adequate breaks, mandatory annual leave requirements and flexible work arrangements including part-time work. Supervisors should regularly review the arrangements as they apply to particular employees to ensure they remain effective.

Critical incident guidelines

Firms should develop guidelines to deal with a traumatic incident or an employee who reports or has signs of an injury, including counselling, support, provision of relevant information and regular monitoring of health and wellbeing. Accredited mental health first aiders on staff to provide front line support is highly recommended.

Regulation of management of psychosocial hazards

Recently, the Victorian government put out for public consultation the Occupational Health and Safety Amendment (Psychological Health) Regulations (Proposed Regulations). The Proposed Regulations aim to strengthen the existing regulatory framework and provide clearer guidance to employers regarding their obligations to protect workers from risks to their psychological health.

The Proposed Regulations would give rise to the following obligations on employers to:

identify psychosocial hazards, so far as is reasonably practicable
eliminate any risk associated with a psychosocial hazard, so far as is reasonably practicable, or if not reasonably practicable, reduce the risk so far as is reasonably practicable
review and if necessary revise any measures implemented to control risks associated with psychosocial hazards when triggered by specific circumstances
put in place prevention plans for identified psychosocial hazards involving aggression or violence, bullying, exposure to traumatic content or events, high job demands and sexual harassment
periodically report to WorkSafe if the employer has 50 or more employees.

The work undertaken by lawyers may well fall within the definition of "high job demands", which would require a specific prevention plan to manage the related psychosocial hazards.

The consultation period for the Proposed Regulations has closed and the Victorian government is currently considering its position. The Proposed Regulations, if they become law, will mean that law firms would need to consider the legal impact.

Also, Safe Work Australia has recently finalised its WHS Code of Practice, Managing psychosocial hazards at work.¹⁹

It is expected that governments and regulatory agencies will remain active in the regulation and management of psychosocial hazards and law firms should keep up to date with developments.

Conclusion

It is accepted that lawyers are often engaged to perform stressful work, including exposure to trauma.

Following Kozarov, it is clear that an employee's acceptance of stressful work does not relieve the employer from the extensive health and safety obligations imposed through common and statutory law, even in the absence of "evident signs". The nature of the job, particularly where an employee is regularly exposed to trauma, may require the employer to take positive steps from the beginning of employment to ensure compliance with the law. The duty will be more onerous where the "evident signs" are present.

As much as working as a lawyer involves stress, the job still needs to be performed safely, and both employers and employees have duties to ensure that happens.

Footnotes

¹ e.g. Occupational Health and Safety Act 2004 (Vic).

² e.g. Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

³ e.g. Equal Opportunity Act 2010 (Vic) and the Disability Discrimination Act 1992 (Cth).

⁴ See generally, M Irving, The Contract of Employment, 2^nd ed, 2019, at [10.21] – [10.23].

⁵ [2022] HCA 12.

⁶ Kozarov v Victoria (2020) 294 IR .

⁷ Note 5 above, at [23].

⁸ [2005] HCA 15.

⁹ Note 7 above, at [36].

¹⁰ Joint judgments were made by Kiefel CJ and Keane J, Gageler and Gleeson JJ, Gordon and Steward JJ, and a single judgment by Edelman J.

¹¹ Kozarov v State of Victoria [2020] VSC 78 at [702].

¹² Note 5 above, at [2] to [3].

¹³ Note 5 above, at [21].

¹⁴ Note 5 above, at [107].

¹⁵ See generally Worksafe, Preventing and managing work-related stress: A guide for employers, https://www.worksafe.vic.gov.au/resources/preventing-and-managing-work-related-stress-guide-employers

¹⁶ See generally, Workplace Stress in Victoria, Developing a systems approach, Report to the Victorian Health Promotion Foundation, May 2006, p21; C Molnar, Eliminating mental health hazards, Law Institute Journal, September 2015, p27; and C Molnar, Eliminating mental health hazards, Law Institute Journal, June 2022, p28.

¹⁷ The contract of employment may be a source of those duties.

¹⁸ See generally note 14 above, at p.57.

¹⁹https://www.safeworkaustralia.gov.au/sites/default/files/2022-07/model_code_of_practice_-_managing_psychosocial_hazards_at_work.pdf

Australia: Managing the risk of vicarious trauma from legal work