Appellant Seeks Damages for Psychiatric Injury

Kozarov v Victoria [2022] HCA 12 (13 April 2022)

The appellant was found to have suffered psychiatric injury resulting from vicarious trauma suffered in employment.  The OPP adopted Vicarious Trauma Policy to protect the psychiatric health of employees.  The Court, in making its decision, assessed the effect of decision in Koehler v Cerebos (Australia) Ltd [2005] HCA 15.

Facts:

This appeal arises out of proceedings commenced in the Supreme Court of Victoria for damages for the negligent failure of the respondent to prevent psychiatric injury to the appellant in the course of her employment with the respondent as a solicitor in the Specialist Sexual Offences Unit ("the SSOU") of the Victorian Office of Public Prosecutions ("the OPP").  

In February 2012, the appellant was diagnosed with post-traumatic stress disorder ("PTSD") resulting from vicarious trauma which she had suffered until then in the course of her employment.

The SSOU was set up in April 2007 as a specialist unit within the OPP to prosecute all serious indictable sexual offences heard in the Magistrates', County and Supreme Courts of Victoria whether the victim was an adult or a child.  At the relevant times, the SSOU comprised 25 solicitors of varying seniority, together with other professional and administrative staff.  In June 2009, the appellant joined the SSOU as a recently admitted solicitor, in a "VPS Grade 4" role.  The appellant's work in the SSOU routinely involved interaction with survivors of trauma and exposure to their traumatic experiences including by attending court to instruct in sexual assault trials, meeting with child and adult alleged victims of sexual offences and their families, viewing explicit child pornography and preparing child complainants for cross-examination. 

The appellant asserted that there was not enough being done to assist SSOU staff, and she gave examples of how her work was affecting her as a mother.  The appellant became increasingly vocal at staff meetings from late 2010 onwards about how work was affecting her daily life.  By 2011, the appellant was known by the manager of the SSOU, Mr Brown, and the deputy manager of the SSOU, Ms Robinson, to be a dedicated, hard-working, ambitious and loyal employee of the OPP.  On 7 March 2011, the appellant applied for a permanent promotion to a VPS Grade 5 role at the OPP, either in Principal Prosecutions or in the SSOU.

 The staff memorandum recorded that the SSOU solicitors were experiencing increasing court commitments; that solicitors were working long hours and taking work home on weeknights and on weekends; and that "solicitors ... reportedly experienced a marked increase in the symptoms associated with stress".  The memorandum included a lengthy list of stress-related symptoms said to be experienced by SSOU solicitors, as well as a list of "unhealthy behaviour/lifestyle choices" that solicitors reported themselves to have made as a result of the stress-related symptoms.  The trial judge found that the appellant's signature on the staff memorandum "notified the [respondent] of ongoing health and well-being impacts" experienced by SSOU staff, including the appellant.  

Issues:

I. Whether or not the respondent failed to take reasonable measures in response to evident signs of psychiatric injury.

II. Whether or not the respondent's failure caused exacerbation of psychiatric injury. 

III. Whether or not the appellant needed to show evident signs warning of possibility of psychiatric injury.

Applicable law:

Koehler v Cerebos (Australia) Ltd 1 - concerned with the extent to which reasonable care for the mental health of an employee may require the employer to be alert for signs that, by reason of the exigencies of the employee's work, the employee is at risk of mental illness. 

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 - provides that implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. 

Coulton v Holcombe [1986] HCA 33 - provides that despite the appellant having taken on an unnecessary evidentiary burden, the appeal to this Court falls to be determined on the issues joined between the parties. 

Louth v Diprose [1992] HCA 61 - provides that in pursuing its Notice of Contention, the respondent did not seek to challenge the practice of this Court not to disturb concurrent findings of fact "in the absence of special reasons such as plain injustice or clear error". 

Victoria v Kozarov (2020) 301 IR 446 at 471 - where their Honours considered and rejected the suggestion that the finding involved "litigious hindsight", despite the trial judge explicitly adverting to the risks of such impermissible reasoning.

Kozarov v Victoria (2020) 294 IR 1 - where the trial judge ultimately reached the conclusion that work-related screening of the appellant at the end of August 2011 "would have revealed that the [appellant] needed to be rotated out of the SSOU because of the connection between her work and her symptoms at that time". 

Fox v Percy [2003] HCA 22 - where as it was conducting an appeal by way of rehearing, the Court of Appeal was required to conduct a "real review" of the evidence given at first instance and of the trial judge's reasons for judgment to determine whether the trial judge erred in fact or law. 

Warren v Coombes [1979] HCA 9 - where the appellant did not dispute that the Court of Appeal was in as good a position as the trial judge to decide on the proper inference to be drawn about the appellant's probable conduct from the available evidence, giving appropriate respect and weight to the conclusion of the trial judge.

Paciocco v Australia & New Zealand Banking Group Ltd (2016) 258 CLR 525 at 582 [169] - provided that the appellant's cooperative conduct in February 2012, which was with the benefit of insight about the harmful effect of the nature and intensity of her work upon her mental health, while not determinative, was relevant evidence in support of the rotation finding. 

Rosenberg v Percival [2001] HCA 18 - where the Court of Appeal also failed to advert to the inherent likelihood that a reasonable person advised of the risks of serious psychiatric injury might be expected, on the balance of probabilities, to accept advice to avoid those risks. 

Abalos v Australian Postal Commission [1990] HCA 47 - where the Court of Appeal should have adverted to the real possibility that the appellant's demeanour and credibility may have influenced the trial judge in making the rotation finding. 

Wyong Shire Council v Shirt [1980] HCA 12 - provides that a reasonable person in Victoria's position would have foreseen the risk of injury to Ms Kozarov by that date, a risk that was not far‑fetched or fanciful. 

Analysis:

The appellant's case has been put at every stage on the basis that the respondent's liability arose from its failure to take reasonable measures in response to "evident signs" of the appellant's work-related PTSD.  The risk of serious psychiatric injury was recognised by the respondent in its "Vicarious Trauma Policy", dated January 2008, which 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 member".  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.

There is some ambiguity in the trial judge's reasons as to whether her Honour considered that, in the appellant's case, the only option that would have avoided the exacerbation of her PTSD between August 2011 and February 2012 was rotation out of the SSOU.  It was inherently likely that the appellant, faced with advice as to the need to rotate out of SSOU in order to avoid an exacerbation of her PTSD, would have acted self-interestedly in accordance with the advice.  In this regard, it is significant that the appellant gave extensive evidence at the trial and the trial judge rejected the respondent's attacks upon her credibility, did not accept that she was an unsatisfactory witness and found her evidence to be "generally coherent and credible"

There was a body of material that tended against the rotation finding.  This material included the appellant's commitment prior to February 2012 to the SSOU's work and the social importance of that work; the commitment of SSOU staff, including the appellant, to specialisation in sexual offence work with the accompanying inevitability of vicarious trauma and the limited opportunities for "time out"; the instances of the appellant's applications for promotion within the SSOU as further indication of her strong desire to do the traumatic work involved; and the appellant's apparent outrage at the possibility that Mr Brown thought that the appellant should no longer be in the SSOU.  However, these factors were of relatively little weight in assessing the counterfactual, which involved a diagnosis of serious psychiatric illness and appropriate advice. 

Conclusion:

The appeal is allowed.  The Court set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 24 November 2020 and 7 December 2020 and, in their place, ordered that the appeal to that Court be dismissed with costs.  The respondent is to pay the appellant's costs.