Written by Peter CarterApril 19, 2022
The High Court has rejected the contention that an employer enjoys immunity from liability for adverse health and safety outcomes to personnel who voluntarily sign up to do high-risk jobs.
Zagi Kozarov was recruited in 2009 to a Specialist Sexual Offences Unit in Melbourne to work with 24 other lawyers prosecuting serious sexual offences involving adult and child victims.The newly admitted solicitor interacted with survivors of abuse and was intimately exposed to their traumatic experiences via trials, meetings, witness preparation and viewing explicit child pornography.
A sole parent of young children who was dedicated, hard-working, ambitious, she was one of many staff who met after hours in April 2011 to discuss concerns about their wellbeing.
The group signed a memo to management expressing concerns about increasing court commitments; being required to take work home on weeknights and on weekends; and that they were experiencing a marked increase in symptoms of stress.
A “sentinel event” – after a confrontation with a supervisor who incorrectly accused her of turning up to work late – marked her return to work in August 2011 following a two-week absence on sick leave.
Her highly emotive and agitated response to the incident was so disproportionate to what had occurred and so dramatic that – according to the Supreme Court judge adjudicating her injury compensation claim – management ought to have known that her mental state was at breaking point.
By the end of August 2011, a reasonable person in the position of the respondent would – ruled Justice Jane Dixon in the Supreme Court of Victoria – “have adverted to the evident signs and observed that she was failing to cope with her allocated work and that her mental health was at risk”.
The trial judge also found that Ms Kozarov would have accepted an offer of rotation out of the SSOU to work in another section, thereby avoiding the exacerbation of her PTSD that occurred after that time.
That finding was rejected by the Court of Appeal which concluded she would have been unlikely – because she had applied for a promotion and was committed and dedicated to her work – to have accepted any rotation out into another section of the Office of Public Prosecutions.
On appeal to the High Court, their Honours observed that an employer engaging a worker to perform specified duties is entitled to assume – in the absence of evident signs warning of the possibility of psychiatric injury – that the employee considers that he or she is able to do the job.
But the assignment of potentially dangerous tasks imposes on the employer a duty to be proactive in the implementation of measures to ensure the work is performed as safely as possible and to act on information it later acquires about – in the case of psychiatric injuries – the vulnerability of a particular worker.
Applying those principles to the current case they noted that the employer was obliged – by reason of the nature of her work – to take such precautions from “the moment that Ms Kozarov commenced work”.
The risk of injury was already recognised by the employer in its “Vicarious Trauma Policy”, 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”.
Her signature upon the staff memo, an excessive file load, the high proportion of child cases in her file load and her patterns of working late and on weekends and public holidays, were all “evident signs” of a potential mental crisis.
As more “evident signs” of psychiatric injury emerged, the employer ought to have appreciated a considerable increase in the likelihood and seriousness of a psychiatric injury and the greater need to take precautions to mitigate against those risks.
Psychiatrist Professor Alexander McFarlane – an expert in PTSD – supported the view that Kozarov would have ultimately accepted a rotation out given that a “significant majority” of people he advised accepted his recommendation to do so.
And although it was “inherently likely” that Kozarov – once advised of the risks of serious psychiatric injury – would have accepted advice to avoid those risks, their Honours concluded that the employer would not been entitled to accept her refusal to be rotated out.
“An employer will not comply with the common law duty to ensure a safe place of work by acquiescing in the refusal of an employee to be rotated from a position that involves a high risk of serious injury,” observed Justice James Edelman.
Kozarov’s appeal on the “rotation out” point succeeded and the order of the trial judge that she be paid $435k by way of damages was reinstated.
Kozarov v Victoria  HCA 12 Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward, Gleeson JJ, 13 Apr 2022