The High Court of Australia recently made a decision in the case of Kozarov v Victoria [2022] that we hope will make it easier for workers to bring common law claims for psychiatric injuries.
Kozarov was an employee of the Office of Public Prosecutions (OPP) whose role involved interacting with victims of sexual offences, watching video evidence of such offences, and frequently observing sexual assault trials. Through exposure to such subject matter, her mental health deteriorated, and she was eventually diagnosed with posttraumatic stress disorder (PTSD).
Kozarov successfully lodged a WorkCover claim and sued the OPP on the basis they were negligent in failing to take reasonable steps to prevent the risk of psychiatric injury.
When will an employer be found negligent for work related psychological Injury
The High Court accepted that Kozarov’s PTSD was “work-related” and the main issue it faced was whether the OPP was negligent.
Previously, it was difficult for workers like Kozarov to prove negligence, and the guiding principle came from the case ofKoehler v Cerebos (2005). In that case, the court held that an employer would only be liable for a psychiatric injury where they had been put on notice of the injury; either by the worker expressly informing them, or where the worker exhibited clear signs of injury. Such signs might include crying, having outbursts, missing deadlines, or requesting to be rotated to a different area. The court reasoned that an employer is not expected to inquire into one’s private internal affairs.
Though true to an extent, the implication was that for one to be entitled to Common Law compensation, the employee’s mental illness must be “obvious”. In other words, if you weren’t crying at work, then how is an employer to know you were ill?
This approach failed to recognise that there may be many reasons why individuals do not disclose (and in some instances may actively seek to conceal) mental injury in the workplace.
Thankfully, in Kozarov, the High Court found that warning signs that an employee is at risk of psychiatric injury are not always necessary to enliven an employer’s duty to avoid the risk of injury. They held there are certain jobs where the risk of psychiatric injury is inherent to the role. In such roles, the employer will be required to take steps to prevent the risk of injury.
What jobs are considered at inherent risk of psychological injury?
Such roles may include paramedics or police officers dealing with death and serious injury, but as shown by Kozarov, also extends to someone who is reading or hearing about traumatic events. Therefore, you may be covered by this legal principle if you are in an office job dealing second-hand with clients who have experienced trauma.
It’s unclear how far the category of “inherent” risk goes, but Kozarov suggests it is broader than might first have been anticipated.
Importantly, Kozarov puts pressure on employers to ensure they have effective measures in place to prevent the risk of psychiatric injury, such as Vicarious Trauma training, an active Occupational Health and Safety (OH&S) program, welfare checks, and greater training for management in identifying and managing mental illness.
It also reveals a profound development in public perceptions of mental illness; in recognising that psychiatric injury is not inferior to physical injury, that even if a job isn’t physically taxing, it may be emotionally challenging and that mental illness is not a weakness, but a natural response.
In recent years, RCT has experienced a significant increase in clients seeking compensation for psychological injury. The RCT Injury Law team has extensive experience and a track record of outstanding results for clients.
