Torts, Unintended Consequences and Other Laws

The wait for the judgment of the High Court in Kozarov v Victoria, had many speculating that the Court was going to say some significant things about the duty of employers to safeguard against the risk of psychiatric injury to their employees.

It did, but perhaps not what was expected!

It reminded lawyers that every torts case turns on its own facts, they all require the fundamentals of duty, breach and causation to be made out, and not to overquote prior cases!

A summary of the decisions follows (references are to the plaintiff/appellant and defendant/respondent).

Kozarov v Victoria                            (13/4/22)

The plaintiff was employed as a prosecutor in the Sexual Offences Unit of the Office of Public Prosecutions from 2009.

The defendant had maintained a “Vicarious Trauma Policy” since 2008 .

In 2011, a number of matters involving the plaintiff occurred or came to a head:

    • A group of staff signed a memorandum complaining about their workloads and associated stress
    • At a resilience training session, the plaintiff showed signs of hypervigilance
    • The plaintiff resisted being given a file on the basis that she couldn’t cope with it, but it was allocated to her anyway
    • She had a dizzy spell, took sick leave and attended a psychologist
    • She came into conflict with her supervisor and obviously overreacted

She continued to work and obtained a promotion before ceasing in early 2012.

She succeeded at first instance on the basis that the events described above constituted notice to the defendant, and had it offered her “occupational screening”, her illness would have been identified, she would have been rotated away from her position, and the psychiatric injury would have been prevented or significantly ameliorated.

On appeal, the Court agreed that the events constituted notice, but held that the plaintiff had not made out causation, because there was no evidence that she would have complied with any initiative of the defendant to move her.

The plaintiff succeeded in her appeal to the High Court.  Four separate judgments upholding the appeal were delivered:

    • There are certain types of employment that are inherently and obviously dangerous, in which case “notice” is irrelevant, and the employer is duty bound to be proactive in the provision of measures to enable the work to be performed safely (Justices Keifel and Keane, Gageler and Gleeson)
    • The existence of the vicarious trauma policy indicated that the defendant had a “lively appreciation” of the serious risk imposed to mental health by the work in the Sexual Offences Unit (Justices Keifel and Keane)
    • The “evident signs” in combination with the inherently difficult nature of the work performed within the unit ought to have put the defendant on notice that the plaintiff was or was at risk of suffering psychiatric injury by no later than August 2011 (Justices Gordon and Steward)
    • None of the measures identified in the policy, notably rotation, were in place or encouraged (Justices Keifel and Keane)
    • Had occupational screening been offered as required, the plaintiff’s illness would have been identified (Justices Keifel and Keane, Gordon and Steward)
    • Had the plaintiff’s case been properly formulated, the “evident signs” would not have been relevant (Justices Keifel and Keane)
    • The “evident signs” signified more than merely the inevitable and universal experience of trauma in the unit and ought to have put the defendant on notice that the plaintiff was or was at risk of suffering from psychiatric injury (Justices Gageler, Gleeson and Edelman)
    • The Court of Appeal ought to have found that the plaintiff would have cooperated with a direction that she be rotated, because that is what a reasonable person would do if advised that they were or were at risk of suffering psychiatric harm, and there was expert medical evidence that that’s what people usually do (Justices Gageler and Gleeson, Gordon and Steward, and Edelman)
    • The defendant’s duty of care was to both provide and maintain and enforce a safe system of work.  It was conceded that the duty included doing “almost everything…short of forcing rotation,” to protect the plaintiff (Justices Gordon and Steward)

Many of these matters are nothing more than a re-statement of the law of torts; the notion that particular sorts of employment clearly entail risk to psychological health is not a new one.  Neither is failing to apply a stated policy or procedure.  Practitioners may not quote Koehler v Cerebos Australia so freely, but instead undertake a closer examination of the policies and procedures – indeed the contract, governing that employment.

What might be less obvious is that at least some of the judges looked further down the road that employer employee interactions in this area might be travelling, and either sent out a signal that the brakes might need to be applied, or some unintended consequences might flow.

Justices Keifel and Keane pointed out that employers responding to employee complaints might feel compelled to take drastic action to protect themselves.

Justices Gordon, Steward and Edelman suggested than an employer might be required to override an employee’s wishes if discharging their duty required it.

Apart from torts, the other law that may have survived the decision is the one of unintended consequences.