Employer Liability for Workplace Psychiatric Injury | Kozarov v Victoria [2022] HCA 12
4 min read
19 June 2023
Facts
Ms Zagi Kozarov was employed as a solicitor in the Specialist Sexual Offences Unit (SSOU) of the Victorian Office of Public Prosecutions. Her role required her to work closely with victims of serious sexual offences, including children, and regularly exposed her to traumatic material, graphic evidence, and accounts of sexual abuse.
Over time, Ms Kozarov developed psychiatric injuries, including Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder, as a result of prolonged exposure to vicarious trauma in the course of her employment.
The Office of Public Prosecutions had previously recognised the psychological risks associated with this type of work and had implemented a Vicarious Trauma Policy acknowledging that employees working in the SSOU were exposed to an increased risk of psychiatric harm.
Ms Kozarov commenced proceedings against the State of Victoria, alleging that her employer had failed to take reasonable steps to protect her from foreseeable psychiatric injury. At first instance she was successful, but the Victorian Court of Appeal overturned that decision. The matter ultimately proceeded to the High Court of Australia.
Principles Applied by the High Court
The High Court considered the scope of an employer's duty to take reasonable care to avoid causing psychiatric injury to employees.
A central issue was the application of the High Court's earlier decision in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44. In Koehler, the Court held that employers are generally entitled to assume that employees can perform the duties they have agreed to undertake unless there are evident signs that the employee is at risk of psychiatric injury.
The High Court in Kozarov clarified that this principle does not operate in the same way where the nature of the work itself carries an obvious and inherent risk of psychiatric harm.
The Court emphasised that where:
· the employer knows that a particular role exposes employees to a significant risk of psychiatric injury;
· the work involves regular exposure to traumatic material;
· the employer has actual knowledge of those risks; and
· policies or systems already acknowledge the existence of those risks,
the employer may be required to take proactive steps to protect employees even before an employee expressly complains or exhibits clear symptoms of psychiatric illness.
The duty is not limited to reacting to warning signs. In some workplaces, reasonable care requires preventative measures as part of a safe system of work.
Decision
The High Court unanimously allowed Ms Kozarov's appeal.
The Court found that the State of Victoria was aware of the psychological risks associated with work in the Specialist Sexual Offences Unit and had a detailed understanding of the dangers posed by vicarious trauma.
The Court held that reasonable precautions were available and should have been implemented. These included active monitoring of employee wellbeing, appropriate supervision, training regarding psychological risks, welfare checks, and the possibility of rotating employees away from highly traumatic work where necessary.
The High Court concluded that the State's failure to take reasonable protective measures contributed to the exacerbation and prolongation of Ms Kozarov's psychiatric injuries.
As a result, the employer was found liable in negligence for the psychiatric harm suffered by Ms Kozarov.
Lessons and New Principles
1. Employers Must Be Proactive Where Psychiatric Risks Are Obvious
The decision confirms that employers cannot simply wait for employees to report mental health concerns where the nature of the work itself presents an obvious psychological risk.
Where an employer knows that a role exposes workers to traumatic material or significant emotional stress, preventative measures may be required from the outset.
2. Psychiatric Injury Is Treated Like Physical Injury
The High Court reinforced that an employer's duty to provide a safe system of work extends to both physical and psychological health.
Employers must identify, assess and manage foreseeable psychosocial hazards in the same way they manage physical workplace risks.
3. Workplace Policies Create Expectations
An employer's own policies may be used as evidence that it understood the risks faced by employees.
In Kozarov, the existence of a Vicarious Trauma Policy demonstrated that the employer already appreciated the dangers associated with the work being performed.
4. "Evident Signs" Are Not Always Required
One of the most significant aspects of the decision is the clarification that employees do not always need to prove obvious warning signs of psychiatric injury before an employer's duty arises.
Where the risk of psychiatric harm is inherent in the work and known to the employer, a duty to take preventative action may exist regardless of whether the employee has specifically complained.
Why This Case Matters
Kozarov v Victoria is now one of Australia's leading authorities on workplace psychiatric injury. The decision highlights the increasing importance of psychological safety in the workplace and confirms that employers must take active steps to protect workers from foreseeable mental health risks.
The case is particularly relevant to occupations involving exposure to trauma, including lawyers, prosecutors, police officers, emergency service workers, healthcare professionals, child protection workers and other professionals who regularly deal with distressing material.
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