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The recent decision of the High Court in Kozarov v State [2022] HCA 12 has reaffirmed the nature of an employer’s duty of care to its workers in respect of taking reasonable care to avoid mental injuries in the workplace. Whilst the decision does not represent a fundamental change to the nature of the duty of care owed by employers, it does provide guidance for employers on how best to respond to risks of mental injury in the workplace, and provides workers’ with clarity regarding what protective measures employers should affect.
The Appellant, Ms. Zagi Kozarov, was employed as a solicitor in the Specialist Sex Offences Unit of the Victorian Office of Public Prosecutions. Through the course of that employment, Ms. Kozarov was regularly required to interact with victims of trauma, and was also exposed to evidence of trauma, such as visual material related to the prosecution of child sexual offences.
In February 2012, Ms. Kozarov was diagnosed with post-traumatic stress disorder (‘PTSD’), resultant from the vicarious trauma she had suffered in the course of her employment. Thereafter, she was also diagnosed with major depressive disorder, being a corollary of the PTSD.
Ms. Kozarov commenced proceedings in the Supreme Court of Vicotira for damages arising out of her employer’s negligent failure to prevent psychiatric injury to her in the course of her employment.
At first instance, Justice Jane Dixon held in favour of Ms. Kozarov, opining that the employer had been placed on notice with respect to the risk that the nature of Ms. Kozarov’s employment had on her mental health by the end of August 2011, and that appropriate steps had not been taken by the employer subsequent to this notice.
The original judgment was then successfully appealed by the employer in the Victorian Court of Appeal.
Justices Gordon and Gleeson of the High Court subsequently granted Ms. Kozarov’s special leave application.
The High Court unanimously found in favour of Ms. Kozarov, in four separate judgments.
The court found that the employer had a duty to act proactively to reduce the risk of Ms. Kozarov’s psychiatric injury, as her work was “inherently and obviously dangerous to the psychiatric health” of Ms. Kozarov and other employees in Specialist Sex Offences Unit of the Victorian Office of Public Prosecutions. As opined by Chief Justice Kiefel and Justice Keane, the employer is “duty-bound to be proactive in the provision of measures to enable the work to be performed safely by the employee.” In the court’s opinion, the employer’s failure to take reasonable steps to avoid risk of psychiatric injury, such as their failure to rotate Ms. Kozarov out of the Specialist Sex Offences Unit in August 2011, amounted to a breach of the duty of care it owed to Ms. Kozarov.
The High Court’s decision in Kozarov was decided upon the unique set of facts of the matter, and as such, it is unclear which other occupations or roles may be found to be “inherently and obviously dangerous to the psychiatric health” of those individuals working in those occupations or roles. Nevertheless, the decision does clarify that the extent of an employer’s duty of care to employees, and the steps that an employer should take to mitigate risks associated with employee psychiatric injuries, differs based on the type of workplace and role. As such, for practitioners, a careful analysis of the factual matrix of the matter will be required when assessing common law liability.
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