Kozarov v State of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2016 04411

ZAGI KOZAROV	Plaintiff
v
STATE OF VICTORIA	Defendant

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 21, 22, 27, 28, 29, 30, 31 May 2019, 4, 5, 6, 12 June 2019
DATE OF JUDGMENT:	19 February 2020
CASE MAY BE CITED AS:	Kozarov v State of Victoria
MEDIUM NEUTRAL CITATION:	[2020] VSC 78

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TORTS – Negligence – Claim for damages by solicitor for workplace psychiatric injury – Plaintiff worked in specialist unit prosecuting sexual offences – High volume of child sexual assault cases – Post-traumatic stress disorder – Major depressive disorder – Foreseeability – Whether employer on notice of risk – Duty of care – Scope and content of duty – Breach – Causation – Damages for pain and suffering and loss of earning capacity – Seedsman (2000) 217 ALR 583; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; State of New South Wales v Fahy (2007) 232 CLR 486; Hegarty v Queensland Ambulance Service (2007) Aust Torts Reports 81-919; Taylor v Haileybury [2013] VSC 58; Doulis v State of Victoria [2014] VSC 395; Swan v Monash Law Book Co-operative (2013) 235 IR 63; State of New South Wales v Briggs (2016) 95 NSWLR 467; Wearne v State of Victoria (2017) 268 IR 401; Sills v State of New South Wales (2019) 285 IR 198; YZ v The Age Company Limited [2019] VCC 148; The Age Company Limited v YZ [2019] VSCA 313.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr JB Richards QC with Mr G Taylor	Bowman Knox
For the Defendant	Mr JP Gorton QC with Mr GA Worth	Russell Kennedy

TABLE OF CONTENTS

Introduction------------------------------------------------------------------------------------------------------------- 1

Judgment structure and content overview------------------------------------------------------------------- 2

Key facts alleged by each party---------------------------------------------------------------------------------- 5

Witnesses at trial------------------------------------------------------------------------------------------------------- 6

OPP employees (past and present)--------------------------------------------------------------------------- 6

Expert witnesses---------------------------------------------------------------------------------------------------- 8

Factual Matrix--------------------------------------------------------------------------------------------------------- 10

Plaintiff’s background------------------------------------------------------------------------------------------- 10

Plaintiff’s employment contract------------------------------------------------------------------------------ 11

Creation, purpose and structure of the SSOU----------------------------------------------------------- 13

Nature and intensity of SSOU work and its impact on staff--------------------------------------- 15

OH&S policy------------------------------------------------------------------------------------------------------- 23

Vicarious Trauma Policy--------------------------------------------------------------------------------------- 24

Employee Assistance Programme (‘EAP’)--------------------------------------------------------------- 29

2009–2010 Benstead Workshops----------------------------------------------------------------------------- 32

Internal OPP documentation in 2007–2009--------------------------------------------------------------- 34

Response to the 2007–2009 internal documents-------------------------------------------------------- 42

2011 Staff Memo to management---------------------------------------------------------------------------- 44

Response to the 2011 Staff Memo---------------------------------------------------------------------------- 47

Effectiveness of the response to the 2011 Staff Memo------------------------------------------------ 54

Monthly team meetings---------------------------------------------------------------------------------------- 57

One-on-one file reviews---------------------------------------------------------------------------------------- 59

Oral evidence from SSOU management about their awareness of the risk to staff--------- 62

Risk factors and signs or symptoms of illness affecting the plaintiff---------------------------- 66

Notification of serious return to work issues in February 2012----------------------------------- 89

Failed attempts to return to work--------------------------------------------------------------------------- 94

Evidence of treating clinicians-------------------------------------------------------------------------------- 100

Mr Foenander---------------------------------------------------------------------------------------------------- 100

Dr Dharwadkar-------------------------------------------------------------------------------------------------- 101

Dr Williams------------------------------------------------------------------------------------------------------- 103

Expert medico-legal evidence---------------------------------------------------------------------------------- 104

Dr Jager------------------------------------------------------------------------------------------------------------- 104

Professor McFarlane------------------------------------------------------------------------------------------- 106

Expert OH&S evidence (Dr Sharann Johnson)---------------------------------------------------------- 120

Credibility of witnesses----------------------------------------------------------------------------------------- 124

Applicable legal principles------------------------------------------------------------------------------------- 136

New South Wales v Seedsman (‘Seedsman’)------------------------------------------------------------ 137

Koehler v Cerebos (Australia) Ltd (‘Koehler’)---------------------------------------------------------- 140

State of New South Wales v Fahy (‘Fahy’)-------------------------------------------------------------- 143

Hegarty v Queensland Ambulance Service (‘Hegarty‘)--------------------------------------------- 145

Taylor v Haileybury (‘Taylor’)------------------------------------------------------------------------------ 146

Doulis v State of Victoria (‘Doulis’)------------------------------------------------------------------------ 147

Swan v Monash Law Book Co-operative (‘Swan’)---------------------------------------------------- 149

State of New South Wales v Briggs (‘Briggs’)---------------------------------------------------------- 152

Wearne v State of Victoria (‘Wearne’)--------------------------------------------------------------------- 155

Sills v State of New South Wales (‘Sills’)---------------------------------------------------------------- 157

YZ v The Age Company Limited (‘YZ’)----------------------------------------------------------------- 161

Was there a reasonably foreseeable risk of psychiatric injury to the plaintiff?------------- 168

What was the content of the defendant’s duty of care and was it breached?---------------- 193

Causation-------------------------------------------------------------------------------------------------------------- 217

Did the SSOU work materially contribute to the plaintiff’s psychiatric injury?------------ 217

If reasonable preventative measures had been in place, would they have been effective in preventing her injury?----------------------------------------------------------------------------------------- 221

Breach of contract-------------------------------------------------------------------------------------------------- 231

Breach of Statutory Duty---------------------------------------------------------------------------------------- 237

Contributory negligence----------------------------------------------------------------------------------------- 237

Quantum-------------------------------------------------------------------------------------------------------------- 239

Pain and suffering---------------------------------------------------------------------------------------------- 240

Loss of past earning capacity-------------------------------------------------------------------------------- 245

Loss of future earning capacity----------------------------------------------------------------------------- 251

HER HONOUR:

Introduction

This case deals with the extent of an employer’s duty to protect their employees from psychiatric harm. That issue has been examined in the past, often in the context of the duty of the State to protect police officers who have been exposed to stress or trauma in the course of their work.[1] Psychiatric injury in the workplace has also arisen in a range of other occupational settings, including that of schoolteachers, ambulance personnel, social workers, news photographers, and journalists.[2]
[1]Of course, cases involving police officers raise some distinct considerations because of the positive duty imposed upon police to investigate and prevent crime.
[2]Recently, the Court of Appeal handed down a key decision in a case involving a journalist: The Age Company Limited v YZ (a pseudonym) [2019] VSCA 313 (‘The Age v YZ’).

While general principles can be distilled from the authorities, each case must be considered in light of its own particular facts. In the context of those facts, the Court must determine the content and scope of the employer’s duty to protect their employee from psychiatric harm, whether that duty has been breached and, if so, whether any such breach caused the employee’s psychiatric harm.

In undertaking this task, there are a range of factors that the Court must consider, which include:[3]
[3]See Hardy v Mikropul Australia Pty Ltd [2010] VSC 42, [218]; The Age v YZ, [100]–[107].

(a) the employment contract;

(b) the nature and extent of the employee’s work;

(c) the assumption that an employee is capable of performing the job that they contracted to do;

(d) the foreseeability of the risk of psychiatric harm in the particular workplace and for the particular employee;

(e) any notice to the employer, express or implied, that a particular employee is at risk of harm (implied notice may arise where there are evident signs that an employee is at risk, even though notification is not expressly communicated);

(f) the measures that an employer has put in place to create a safe system of work;

(g) any other reasonable measures that the employer ought to have put in place to protect employees generally, or a specific employee in particular;

(h) the application of the Shirt[4] calculus; and

(i) the likely effect that proposed measures would have had, if implemented, and whether they would have prevented the injury sustained.

[4]Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (‘Shirt’).

In this case, the plaintiff, Zagi Kozarov, is a solicitor and former employee of the Victorian Office of Public Prosecutions (‘the OPP’). From June 2009 to April 2012, she worked in the OPP’s Specialist Sexual Offences Unit (‘the SSOU’). The plaintiff alleges that she sustained psychiatric injury, namely chronic post-traumatic stress disorder (‘PTSD’) and major depressive disorder (‘MDD’), during the course of her employment in the SSOU. She alleges that her injuries were caused through ongoing, repeated exposure to a high volume of sexual offence cases, including many cases that involved child exploitation and pornography.

The plaintiff alleges that there was an unsafe system of work at the SSOU and a failure by her employer to take reasonable steps to protect her from harm. The plaintiff makes claims against the State of Victoria[5] in negligence, breach of contract, and breach of statutory duty, in relation to her injuries.
[5]The defendant issued proceedings pursuant to the provisions of Part 2 of the Crown Proceedings Act1958 (Vic). The statement of claim alleges that, at all relevant times, the defendant was liable for the torts of any servants or agents of the Crown or independent contractors employed by it.

Judgment structure and content overview

The first part of the judgment sets out the evidence presented at trial.[6] It begins with a list and description of the witnesses who gave evidence at trial, followed by overview information about the plaintiff’s employment contract, the structure of the SSOU, and the nature and intensity of the work in the unit.
[6]It is best navigated via the table of contents.

I then set out two relevant SSOU policies: an OH&S policy, and a Vicarious Trauma policy (‘the VT policy’). The Vicarious Trauma policy is especially important. It is relevant to the Court’s later analysis of the foreseeability of the risk of harm to SSOU employees, including the OPP executive’s actual knowledge and awareness regarding the nature and extent of that risk. It is also relevant to the Court’s discussion of what measures a reasonable person in the position of the defendant would have taken to protect the plaintiff from psychiatric harm. The policy lists a range of measures and practices intended to protect SSOU staff from vicarious trauma, which were largely not implemented by the defendant.

Regarding the foreseeability of the risk of harm to SSOU employees, the judgment sets out:

(a) evidence from OPP staff about the nature and intensity of the work in the SSOU and its impact on staff;

(b) evidence from SSOU management during the claim period;

(c) internal OPP documentation from 2007–2009, which was tendered at trial and is relevant to the defendant’s knowledge of the risk of harm prior to the claim period; and

(d) a memo from SSOU staff to management in mid-2011, detailing their urgent concerns about the pressures and workload in the unit, and a range of stress-related health symptoms that they had experienced.

The judgment also sets out measures taken by the defendant to protect SSOU staff, namely:

(a) a workshop on working with victims of trauma run by psychologist Ursula Benstead;

(b) the Employee Assistance Program (‘EAP’);

(c) a 2-hour resilience training session (run by Gus Carfi, EAP psychologist);

(d) monthly team meetings; and

(e) specific measures in response to the 2011 staff memo, including the introduction of one-on-one file reviews.

In relation to the plaintiff specifically, the judgment sets outs:

(a) the particular risk factors for the plaintiff;

(b) the signs that the plaintiff was becoming unwell prior to February 2012;

(c) the plaintiff’s notification to the defendant, in February 2012, that she was unable to return to work at the SSOU;

(d) the failed plans for the plaintiff to return to work in early 2012 (in a different area of work at the OPP, outside the SSOU); and

(e) expert evidence on the plaintiff’s psychiatric injuries, including the cause of those injuries.

The judgment also sets out expert opinion evidence regarding the measures taken to protect SSOU staff, and the plaintiff, specifically from psychiatric harm and other measures that could have been taken. I then assess the credibility of the witnesses at trial, including the plaintiff.

The latter part of the judgment looks at the relevant authorities and legal principles, and seeks to apply those principles to the plaintiff’s claims. The content of the duty of care owed by an employer to protect its employees from psychiatric harm is considered, along with the scope and content of the defendant’s duty to protect the plaintiff in this case. A determination is made about the alleged breaches of the defendant’s duty of care and on the issue of causation. I also examine the plaintiff’s claims of breach of contract and statutory duty. I then consider whether there was contributory negligence on the part of the plaintiff. Finally, the judgment assesses quantum of damages.

Key facts alleged by each party

The plaintiff’s case is that, in her role as a solicitor preparing and prosecuting sexual offences, she dealt with cases of an abhorrent nature, including child rape and offences of gross depravity. She was required to familiarise herself with detailed allegations of sexual offending, including by reviewing witness statements and video and audio recorded evidence with graphic and disturbing content. At times, she was required to view child pornography materials. She met with complainants, including children, who appeared in recordings that she had viewed. Further, she had an intense workload and worked long hours, often taking work home after hours.

The plaintiff alleges that her employer was on notice about the psychological health risks to SSOU solicitors generally, and to her specifically. She says that she was not adequately screened, supported, or protected from the obvious and known risk of psychiatric injury from working in the SSOU. She alleges institutional failings, such as the failure by the defendant to implement its policies or to adequately respond to concerns, including responding to a staff memo raising alarm about SSOU staff health and well-being. The plaintiff also alleges a failure to take adequate steps to protect her once she began to exhibit signs of impaired mental health.

The defendant denies liability for negligence, breach of contract, or breach of statutory duty. The defendant acknowledges that the SSOU was a busy unit that experienced staff shortages during 2011, but submits that its managers endeavoured to spread work fairly within the unit. The plaintiff agreed to the terms of her employment, which implicitly included exposure to graphic images and distressing content. The defendant was entitled to assume that SSOU employees were fit to perform their contracted work, unless otherwise notified.

The defendant submits that it took all reasonable measures to protect SSOU staff generally. It says that it was not put on notice about the plaintiff’s symptoms of PTSD until 9 February 2012, when the plaintiff sent an email saying that she could no longer work in the SSOU. It alleges that prior to her email, the plaintiff had portrayed that she was coping well with the nature, content, and extent of her work. It further alleges that its duty to protect the plaintiff as an individual was only enlivened on 9 February 2012, when the risk to her became reasonably foreseeable.

At that stage, from 9 February 2012, the defendant says that it took all reasonable steps to protect the plaintiff, including by attempting to find her a position in the OPP, outside of the SSOU, which would not further expose her to sexual offence cases (although those attempts were ultimately unsuccessful).

The defendant submits that the Court must take into account considerations of employee privacy and autonomy in considering what measures the defendant ought reasonably to have taken to protect the plaintiff from harm, as discussed in Hegarty v Queensland Ambulance Service (‘Hegarty’).[7]
[7]Hegarty v Queensland Ambulance Service [2007] QCA 366; (2007) Aust Torts Reports 81-919 (‘Hegarty’).

In the event that the defendant is found to have been negligent, it submits that the Court should find there was also contributory negligence on the part of the plaintiff, who was obliged to take reasonable steps to protect her own health and well-being. The defendant argues that she should have notified the defendant of her symptoms of illness earlier.

Witnesses at trial

The plaintiff gave evidence.

OPP employees (past and present)

The plaintiff called:

Derek Schrapel (former SSOU solicitor)

He worked at the SSOU from September 2009 until March 2013. He remained with the OPP until March 2016.

Penelope (‘Penny’) Lucas (former SSOU solicitor)

She worked at the SSOU Geelong office from 2001–2006. She re-joined the Geelong SSOU as principal solicitor from 2009–2013.

Ms Aitken[8] (former SSOU solicitor)

[8]Ms Aitken is a pseudonym.

She joined the OPP as a junior solicitor in 2000. She worked in General Prosecutions until May 2007, then transferred to the SSOU. She later transferred to a trial division outside the SSOU. Currently, she still works at the OPP.

Rodney (‘Rod’) Hume (former OPP audio visual officer and manager)

He worked for the OPP from August 1996 to December 2017, first as an audio-visual officer, then as a manager of audio-visual officers. He received work from the whole OPP office, including the SSOU (once it was established).

The defendant called:

Mr Brown[9] (former SSOU Directorate Manager)

[9]Mr Brown is a pseudonym.

Mr Brown worked at the OPP from 1990–1994. He then practised at the Bar between 1994 and 2000. He took a break from the law and taught English in Japan for a period before working in recruitment. He returned to the OPP in 2004. In February 2010, he was appointed Directorate Manager of the SSOU. He held that position until 2013. Mr Brown remained with the OPP until September 2018, when he was appointed as a judicial officer in the State of Victoria.

Ms Robinson[10] (former SSOU Deputy Directorate Manager)

[10]Ms Robinson is a pseudonym.

She commenced working at the OPP in September 2007 in the General Prosecutions team. She joined the SSOU in 2009. In September 2010, she was appointed acting Deputy Manager of the SSOU. In 2011, she was appointed permanently to that role and remained in the position until July 2015, when she commenced maternity leave. At the time of giving evidence, she was employed part-time in a legal advice role in Queensland.

Expert witnesses

The plaintiff called the following expert witnesses:

(a)       Professor Alexander McFarlane (Medico-Legal expert);
(b)      George Foenander (Treating Clinical Psychologist);
(c)       Dr Nitin Dharwadkar (Treating Psychiatrist);
(d)      Sharann Heather Johnson (Occupational Health Consultant).
Professor McFarlane

Professor McFarlane holds a Bachelor of Medicine, a Bachelor of Science, and a Bachelor of Surgery, as well as a Diploma of Psychotherapy. He is an international expert on the psychiatric impacts of disasters, and on post-traumatic stress disorder. He has won various awards for his work in the field of traumatic stress and holds an Order of Australia.[11]
[11]The witness adopted his resume, which was included with his first report. He has held the rank of Group Captain in the RAAF Specialist Reserve and has advised many groups in post-disaster settings. Amongst other awards, he received the Robert Laufer Award for outstanding scientific achievement in the field of traumatic stress and the Organon Senior Research Award of the RANZCP for the most outstanding contribution to psychiatric research in the last five years. He also received a Lifetime Achievement Award from the International Society of Traumatic Stress Studies, and the Founders’ Medal of the Australasian Society for Psychiatric Research, awarded to individuals who have made a contribution of significance to psychiatric research over their entire career. In 2016, he was awarded an Honorary Fellowship of the American Psychiatric Association in the field of traumatic stress.

Professor McFarlane is the current Director of the University of Adelaide Centre for Traumatic Stress Studies, and previously held the position of Head of the Department of Psychiatry at the University of Adelaide. He is past president of the International Society for Traumatic Stress Studies and the Australasian Society for Traumatic Stress Studies. He is also a Fellow of the Royal Australian and New Zealand College of Psychiatrists and practises as a clinical psychiatrist, including at the Helen Mayo North Clinic at the University of Adelaide.

George Foenander

Mr Foenander treated the plaintiff between August 2011 and April 2012.

Mr Foenander holds a Bachelor of Arts with Honours in Psychology and a Master of Science in Psychology, as well as a Diploma of Clinical Hypnosis. He is a clinical psychologist and a member of the Australian Psychological Association. He was formerly an independent WorkCover examiner.

Dr Nitin Dharwadkar

Dr Dharwadkar is a psychiatrist holding the qualification of Doctor of Medicine and fellow of the Royal Australian and New Zealand College of Psychiatrists. He treated the plaintiff between May 2012 and August 2014. At that time, he was a consultant psychiatrist at the Melbourne Clinic and an adjunct senior lecturer at Monash University in the discipline of psychological medicine.

Dr Sharann Johnson

Dr Johnson has 40 years’ experience as an Occupational Health professional, including 12 years as a Health, Safety and Environment Manager. She has worked for several global multinational companies. Since 2008, she has run her own consultancy business, consulting for a variety of organisations, including in relation to operational sites, such as mining and manufacturing sites, and office environments, such as accounting and business offices.[12]
[12]Exhibit (Ex) P-35 (report dated 4 April 2019) 3.

Dr Johnson has a PhD in Chemistry from Monash University and completed an Occupational Hygiene Course at the University of Sydney. She is a Fellow of the Australian Institute of Occupational Hygienists and a certified Occupational Hygienist. In 2009, she was President of the Australian Institute of Occupational Hygienists. In 2012, she was awarded the AIOH Pam de Silva Award for her professional contributions to occupational hygiene. From 2012 to 2014, she was also President of the Australian Safety and Health Professional Associations.

Factual Matrix
Plaintiff’s background

The plaintiff is a 45-year-old qualified solicitor born in Carlton, Melbourne.

Professional history (prior to joining the SSOU)

The plaintiff completed her VCE in 1991. From 1993 to 1996, she undertook a Bachelor of Arts at the University of Melbourne, with a double major in criminology and psychology. In 1996–7, she undertook a Postgraduate Diploma in Social Science at Latrobe University, majoring in legal studies. During that same period, she obtained work as a Community Corrections Officer. She began work in that role from 1994 onwards, initially on a part-time basis as a voluntary sessional officer. From 1996 to 1999, she was a full-time paid Community Corrections Officer.

Between 1999 and 2004, the plaintiff studied a Bachelor of Laws online at the University of New England. From 1999 to 2009, she worked as a paralegal at the OPP, rotating through several different sections of the OPP. She did a rotation in the sexual offences section from 1999 to 2001, in County Court Appeals from 2001 to 2002, and in Bails and Breaches from 2002 to 2006.

In 2008, the plaintiff commenced her Articles at the OPP. In March 2009, she was admitted as a legal practitioner whilst working at the OPP. She then worked in Directorate B ‘Principal Prosecutions’ from March 2009 to June 2009.

Employment at the SSOU

In June 2009, the plaintiff began working in the SSOU. She was interested in the role because the SSOU was a specialist unit and she perceived that the best lawyers were selected to go there. She saw it as a good career opportunity.

The plaintiff worked in the SSOU until 9 February 2012, when she notified management of ‘serious return to work issues’, stating in an email that she could not return to work in the SSOU because of how the work was affecting her.

Family history

The plaintiff married in 2001. She and her husband had a daughter in 2004 and a son in 2006. The plaintiff experienced episodes of family violence, which occurred in the first five months of her marriage and then, from time-to-time, before and after the birth of her daughter. The couple separated for a while when their daughter was about ten months old but reunited prior to the birth of their son.

The plaintiff then separated from her husband in 2009 but remained living with him under the one roof. Later that year, the plaintiff moved with her children into her mother’s home in Werribee. She then moved to a rental property in 2010. She later commenced a relationship with David [redacted], a criminal lawyer. In 2011, she moved with her children into Mr [redacted]’s unit. The relationship with Mr [redacted] ended in 2015, at which time, she moved to other accommodation.

Plaintiff’s employment contract

The plaintiff tendered a copy of her initial offer of employment in the SSOU for a fixed-term role at VPS Grade 4 from 22 June 2009 to 21 September 2009. She signed a contract of employment for that role on 12 June 2009.[13] The plaintiff’s initial contract was extended and she remained in the SSOU. At times, she worked at VPS Grade 5 in temporary backfilled positions within the unit. On 7 March 2011, she applied for a permanent promotion to a VPS–5 role at the OPP, either in Principal Prosecutions or alternatively in the SSOU.[14] On 3 May 2011, the plaintiff was offered an acting VPS–5 role in the SSOU for a fixed-term from 28 April 2011 to 15 August 2011.[15] She signed that Offer of Employment on 5 May 2011.[16]
[13]The standard form contract signed by the plaintiff was for a fixed-term role in the SSOU at VPS–4 commencing 22 June 2009 to 21 September 2009: ex P-40.
[14]Ex D-8.
[15]Ex D-10.
[16]Ex D-10.

On 28 August 2011, the plaintiff applied for a permanent VPS-5 role in the SSOU.[17] She was ultimately offered that position on 3 November 2011, commencing that day and accepted the offer by signing a standard form contract of employment on 9 November 2011.[18] The contract stated that the terms and conditions of her employment were set out in the 2006 VPS Agreement (2009 Extended and Varied Version) (a copy of which was tendered by the plaintiff)[19] and the Public Administration Act 2004 (Vic). The terms of the plaintiff’s contract with the OPP are considered later in the judgment; suffice to say that, throughout the entire period of her employment in the SSOU, the terms of her employment incorporated reference to the VPS agreement.
[17]Ex D-11.
[18]This contract was tendered by the defendant: Ex D-13.
[19]Ex P-41.

Section I of the VPS Agreement covers the core terms and conditions of employment.

Clause 11 deals with Workload:

11.1The Employer acknowledges the benefits to both the organisation and individual Employee gained through Employees having a balance between both their professional and family life.
11.2The Employer further recognises that the allocation of work must include consideration of the Employee’s hours of work, health, safety and welfare. Work will be allocated so that there is not an allocation that routinely requires work to be undertaken beyond an Employee’s ordinary hours of work. However, the Employer may require an Employee to work overtime where:
11.2.1 such work is unavoidable because of work demands and reasonable notice of the requirement to work overtime is given by the Employer; or
11.2.2where, due to an emergency, it has not been possible to provide reasonable notice.

11.3When an Employee is required by the Employer to work overtime the Employee must be compensated in accordance with the appropriate overtime clause where the Employee is covered by the provisions of such a clause.
11.4Where an individual or group of individuals believe that there is an unreasonable allocation of work leading to staff being overloaded with work, the individual or group of individuals concerned can seek to have the allocation reviewed by the Employer to address the staff concerns.

…

Under the subject heading of ‘Occupational Health and Safety and Rehabilitation’:

61.1.1This agreement acknowledges and supports the rights of employees to work in an environment, which is, so far as is practicable, safe and without risks to health. The Parties are committed to the promotion of a joint and united approach to consultation and resolution of Occupational Health and Safety (OH&S) issues.
61.1.2The agreement commits the parties to improving health and safety with a view to improving workplace efficiency and productivity. This will be accomplished through the ongoing development, in consultation with Employees and their Health and Safety Representatives, of management systems and procedures designed to, so far as is practicable to:
61.1.2(a) identify, assess and control workplace hazards;
61.1.2(b) reduce the incidence and cost of occupational injury and illness; and
61.1.2(c) provide a rehabilitation system for workers affected by occupational injury or illness.

In addition to outlining the terms and conditions of employment, the offers of employment also required the plaintiff to ‘act in accordance with OPP policies, and the Victorian Public Sector Code of Conduct’.

Creation, purpose and structure of the SSOU

The SSOU was set up in 2007 as a specialist unit within the OPP with a number of solicitors of various grades and seniority, paralegals, and administrative staff. Prior to 2007, there was a much smaller sexual offences section at the OPP.[20]
[20]Transcript (T) 872 (Ms Aitken).

The plaintiff tendered a 19-page excerpt from a document bearing the title: ‘Specialist Sex Offences Unit Practice Manual’ (‘SSOU Manual’).[21] That excerpt included the manual’s table of contents, which showed that the full manual was over 103 pages long. Most of the manual (pages 20–98) provided information relevant to preparing and instructing in sexual offence cases. Pages 12–20 dealt with SSOU office policies. A segment of the manual referring to OH&S procedures will be discussed later.
[21]The document was not dated, but appears to be from 2009, as it refers to the OPP Annual Report of 2007/08 and not any later annual reports: P-38, 6–7.

Regarding the SSOU’s creation and objectives, the excerpt states (at 4):

The Specialist Sex Offences Unit was established in April 2007 to provide a specialised approach to prosecuting serious sex offences. This approach aims to achieve a high success rate in prosecuting these offences, while improving support to victims, developing expertise in prosecuting sex crimes and delivering greater consistency in the conduct of prosecutions. The unit was established in response to the Victorian Law Reform Commission Report Sexual Offences: Law and Procedure Final Report 2004. This report and the 202 recommendations contained therein was intended to make the criminal justice system more responsive to complainants in sexual offence cases whilst at the same time ensuring a fair trial for those accused of these offences.

Regarding the SSOU structure, the excerpt states:

1.1 Who we are
The Specialist Sex Offences Unit is a specialised unit consisting of 25 solicitors and 5 co-located Crown Prosecutors with one being the Head of the SSOU.
The SSOU solicitors form a distinct directorate (Directorate C) within the OPP. The Melbourne SSOU consists of:
·     Directorate Manager
·     Legal Prosecution Specialist
·     25 solicitors ranging from senior to junior practitioners
·     Four Administrative Support Officers
·     Two in-house advocates, who predominantly undertake the Committal Advocacy work for the Unit
·     Project Manager

The Unit prosecutes all serious indictable sex offences heard in the Melbourne Magistrates’, County and Supreme Courts whether the victim is an adult or child.

The excerpt includes diagrams depicting the SSOU organisational structure and OPP office structure at that time. It shows three positions of seniority in the SSOU structure sitting directly above SSOU solicitors, being the Directorate Manager, the Legal Practice Manager and, at the highest level, the Solicitor for Public Prosecutions. The excerpt states that SSOU staff are to report any staff-related issue or concerns to the Directorate Manager.[22]
[22]P-38, 9–10.

According to the excerpt,[23] the ‘Head of SSOU’ is a Crown Prosecutor and ‘has a significant role to play from a high level policy perspective and works in conjunction with the Directorate Manager’. The Head of SSOU reports to the Chief Crown Prosecutor.
[23]P-38, 8.

When the plaintiff joined the SSOU in June 2009, Helen Fatouros was the SSOU Directorate Manager. She departed a few months later and was replaced by Mr Brown, who held the position from February 2010 to 2013. In 2010, an Acting Deputy Manager, Ms Robinson, was appointed to assist Mr Brown. Her role was later made permanent.

Mr Brown and Ms Robinson reported to Stuart Ward, then OPP Legal Practice Manager, and Craig Hyland, OPP Solicitor for Public Prosecutions. [Redacted] was the OPP Manager of Human Resources (HR).

Nature and intensity of SSOU work and its impact on staff
The plaintiff

The plaintiff conceded that when she accepted a job as a solicitor in the SSOU, she knew that she would be dealing with unpleasant offences and damaged people, and that the job was important and had to be done well. She understood that sexual offence trials involved legal complexities and needed to be prosecuted in a prompt manner, which was why there was a specialist unit. However, she said that she was ‘thrown in the deep end’ when she commenced at the SSOU.[24]
[24]T227.

In her role, the plaintiff would attend court to instruct on a daily basis and met with child and adult victims and their families. She liaised closely with social workers from the OPP’s Witness Assistance Service (‘WAS’) and Child Witness Assistance Service (‘CWAS’). After hours, she would take case files home to prepare and research.[25]
[25]T77.

The plaintiff gave evidence that child complainants did not make written statements; their evidence was taken by visual audio or taped recording (VATE or VARE). In such cases, she had to carefully review the recordings, which often depicted the child being distressed or confused.[26] It would be difficult to watch and sometimes she would have to watch the same recording more than once.
[26]T78.

In some cases, the plaintiff had to watch explicit child pornography, sometimes repeatedly, to shed light on patterns of behaviour, fetishes, or the age group that offenders were targeting and to draft evidentiary documents such as tendency notices.[27]
[27]T79.

When she commenced work in the SSOU, the plaintiff’s own children were only three and five years old. The content of the work was very confronting for her. The plaintiff experienced intrusive memories of images of child pornography. She retained and described her memory of very disturbing child pornography that she had viewed. She still experiences intrusive memories of images of children having oral sex performed on them.

The plaintiff would meet child complainants, usually after having seen their video-recorded evidence, to prepare them for cross-examination.[28] The children would often be fearful. She would prepare them to give evidence with the help of workers from the CWAS, using puppets and toys to explain the court process, and to encourage them to tell the truth. She said child complainants were often ‘fearful of the whole process’ and ‘very distressed by the whole ordeal’.[29] The plaintiff said she would ‘try and comfort them and make them feel safe’.[30] She had a lot of empathy and compassion for them. She would be at court while they gave evidence, then go see them and their parents afterwards ‘to make sure they were okay’.[31]
[28]T80.
[29]T82–3.
[30]T82.
[31]T81.

The plaintiff often encountered cases where alleged offenders held a position of trust, such as a teacher, scout leader, football coach, parent or grandparent. Sometimes mothers would disbelieve their children, particularly where the alleged offending involved a family member. The plaintiff said that, in those cases, the child would be isolated and would rely on her for strength.[32]
[32]T80.

When the plaintiff started in the SSOU, about 50 percent of her cases involved child complainants. By the second half of her time there, the majority of her cases involved child complainants. Regarding graphic images of rapes or assaults on children, the plaintiff said: ‘There was not a day that I wasn’t exposed to it.’[33]
[33]T97.

Even with adult complainants, there was disturbing material she had to view such as CCTV footage, phone footage, and pornography. Often there were ‘unusual sex toys and sex exhibits’ that she had to examine. The plaintiff sometimes had to view recordings of the sexual offence and see an incident of rape unfolding, watching it more than once, to correlate what was depicted in the complainant’s statement. She still has intrusive memories of CCTV footage of a woman who was raped in a lift in the Eureka Tower. Some of the footage depicted the accused studying the woman’s routine and stalking her before he struck.

The plaintiff’s role included informing complainants when a jury returned a ‘not guilty’ verdict and dealing with the aftermath of that result.[34] This was sometimes extremely distressing, and some complainants attempted to take their own lives in such circumstances. She recalled a case involving a female complainant from an ethnic group where, in her culture, ‘you would be considered as tarnished if you were not a virgin’. The complainant was extremely distressed by the jury’s verdict and contacted WAS because she wanted to run in front of a bus, and they ‘couldn’t calm her down’. WAS contacted the plaintiff, who then had to calm the complainant.[35]
[34]T86.
[35]T87.

The plaintiff said that everyone worked hard in the unit, but she strongly disagreed with the suggestion put to her that the workload was spread evenly amongst SSOU solicitors. She said some solicitors had more files than others. Some solicitors were more skilled at tendency and coincidence notices, and cases requiring those notices were allocated to them. In her view, ‘complex matters were given to certain solicitors’ who worked ‘a lot harder’.[36] The plaintiff said that, in her own experience, even though she did not have capacity, she was made to hold on to all her files.[37] The complex files were allocated to the solicitors that could manage them and she was one of them.[38]
[36]T230.
[37]T230–1.
[38]T230.

The plaintiff said that she was ‘in court’ nearly every day and would take work home most days. She frequently had to prepare tendency and coincidence notices at home, in the evening, as she did not have time during the day when in court. Work was often required on weekends as well.

Usually, the VARE had to be watched at the SSOU in the morning before court. She would go to court just before 10.00am and meet the complainant and the WAS or CWAS social worker, and then be in court from 10.00am until 1.00pm. She would have to go back to the office and work over lunch, perhaps doing research or obtaining materials needed in court. At 4.15pm, after court, she would return to the office, check emails, and make calls to police informants. She usually left the office after 5.00 or 6.00pm, having collected work in a large suitcase for completion at home. This was the routine, and she always tried to be home by 6.30pm. She would do work at home until at least midnight, and sometimes until 1.00 or 2.00am. Some of the tendency or coincidence notices that she had to draft were very long, running into hundreds of pages. The latest that she stayed up was until 4.00am.

The plaintiff believed many of her colleagues were working under similar constraints.

Derek Schrapel

Mr Schrapel said he was instructing in an incest trial within his first couple of weeks at the SSOU and worked on matters involving graphic material from his first week.[39] The nature of the graphic material that he was exposed to became greater, commensurate with his level of experience at the SSOU. He progressed quite quickly from a Grade 2 to Grade 3, then to a Grade 4 solicitor in less than 12 months. As he progressed, he took on files with higher Case Assessment ratings (‘CAR ratings’)[40] and more graphic content. He said the subject material within witness statements and his experiences with witnesses was such that ‘it will never leave me’.
[39]T762.
[40]Mr Schrapel explained that all files, apart from minor advice files, were allocated a CAR rating from 1 to 4. Cases with a CAR 4 rating were usually not allocated to a solicitor below Grade 5 level. Those matters generally involved multiple complainants and pre-trial applications.

Regarding the kinds of graphic images or written material that still affects him, Mr Schrapel said, ‘the child sex abuse ones stay with you’. As an example, he referred to a case that concerned two sisters being systematically abused by their father over several years and their mother being unsupportive of them. Mr Schrapel referred to another case he was managing with a complainant who was ‘very mentally unstable’ and at various times threatened to commit suicide, including on the morning of pre–trial hearing. He also referred to another file that he handled involving exceptionally repugnant content.

Regarding workload pressures, Mr Schrapel said that once he was promoted to a Grade 4 solicitor, his number of files and workload increased rapidly, so that he had above 20, sometimes 25 court files, along with advice files, and everything required a quick turnaround. When he was in court, his day in the office would sometimes ‘blow out’ until 8.00 or 9.00pm.

Mr Schrapel was quite lucky in that he rarely had to look at matters involving video or photographic material. He recalled two matters where he was required to do so, and one stuck in his mind more, because it was a unique matter. Cross-examined about the frequency of exposure to graphic images or content, he conceded that on some occasions it was possible to avoid looking at evidentiary material classed as child pornography.[41] However, he believed that it was incorrect to say the only source of traumatisation in the SSOU was from video footage or photos. He said: ‘Traumatisation can come on a piece of paper or even easier, that you dealt with every single day.’[42]
[41]T804, T805.
[42]T805.

Mr Schrapel said that he sometimes applied for higher rated cases in order to advance himself within the unit, but in some cases, he would say: ‘I don’t care if that case is going to get me ahead. It’s too dark.’[43] But not taking such cases on would make him feel bad, because he knew someone else was going to have to face them.
[43]T807.

Penelope Lucas

Ms Lucas described her workload as: ‘Horrendous. Um, very demanding, very challenging, constant, unabating, um, very, very taxing.’[44] As a principal solicitor, she was allocated the most complex, challenging, and depraved cases. When asked to describe the level of depravity, she said: ‘I would describe it as fairly extraordinary. Um, I took the view that, after a while, nothing would surprise me anymore.’[45] She went on to give examples of some of the disturbing cases she dealt with.
[44]T842.
[45]T843.

Ms Lucas explained as follows:

I felt the demands on me were both emotionally taxing in terms of the depravity, and taxing in terms of the workload itself. So it was definitely a combination of the two that I think was, I can say in hindsight, um, untenable.[46]

[46]T843.

Ms Lucas said there was no screening of her psychological well-being whilst she was employed at the SSOU. When asked whether Mr Brown and Ms Robinson did their best to distribute the workload fairly, she considered that their hands were tied, as cases needed to be allocated and there was a limited number of staff.[47] She said that rotations were not in place for SSOU staff and that in order to move to a different section at the OPP, it was necessary to apply internally for jobs that had been advertised.
[47]T852.

Under cross-examination, Ms Lucas conceded that as she worked at the SSOU Geelong office, she had limited experience with the Melbourne office, although she was linked in by internal emails and for some meetings, and instructed in an 11-month trial in Melbourne for which she commuted to the Melbourne office.

She agreed she did her job well, despite it being ‘a tough job’, but felt she paid ‘a very high price’.[48]
[48]T852.

Ms Aitken

Ms Aitken described a number of cases involving very confronting content, noting that it was not just the visual material that was confronting, but having to read the facts of the case and then draft tendency and coincidence notices.[49] Ms Aitken became distressed whilst describing the nature of some of her cases and referred to being unable to get certain images out of her head, and having to meet the victims in person after viewing such images.[50] There were many days when she felt that she was treading water and had to put her own feelings aside. She said, ‘I couldn’t go to court and say I haven’t drafted this indictment because every time I open this brief I feel physically sick’. She found the work rewarding but difficult.[51]
[49]T873–4.
[50]T875–6.
[51]T877.

Asked about the confronting nature of the material, she said she tried to put up mental walls, but every year there would be cases that would affect her emotionally, not just because of the subject matter, but from dealing with vulnerable victims and having to work hard to maintain a professional detachment.

She said the workload fluctuated, but that when she was in trial, she often worked through lunch and stayed back to prepare for court the next day, as well as to keep on top of her other files. She regularly worked overtime.[52] She certainly stayed back past six o’clock, sometimes as late as seven or eight.[53] She did not like staying back later as she took public transport to get home. A handful of times she might have stayed back as late as nine. Most days she worked past the core hours, sometimes coming in on the weekend to work. There were other solicitors working back late as well, and it was necessary to do so to keep on top of the workload.[54] Whilst working in the SSOU, her file load averaged around 25 files, and she would also give ad hoc legal advice to more junior staff.
[52]T873.
[53]T882.
[54]T883.

Ms Aitken explained that, with the intensity of her workload, she ultimately approached her manager and said she was worried she might have to be hospitalised. Ms Aitken described very significant impacts that her work had on her mental health and her need for medical treatment and work modifications.[55] She worked at the SSOU for 10 years. When probed further about her well-being during that time, she said:

I became progressively unwell, increasingly irritable. I think that was the case for most of my years in the Unit. I would always exhaust my sick leave, end up eating into my annual leave for sick days. I was getting frequent migraines … a knot of nausea in my stomach, struggled getting out of bed in the morning, I became very negative, irritable.
[55]I note that some of the time period for these experiences would not have coincided with the plaintiff’s claim period.

Rodney Hume

Mr Hume was a technician and manager in the OPP’s audio-visual department, which edited audio visual materials from across the whole OPP (including the SSOU).

Some of the material that he and other staff were forced to deal with was ‘confronting to a point that a normal person shouldn’t see it‘. He found the child pornography to be ‘the worst’.[56] He described being haunted by distressing images that he had seen.
[56]T859.

He put in place a system within the audio-visual department to manage work allocation and content to reduce staff exposure to distressing content.

The above mentioned discussion of the nature and intensity of work in the SSOU leads to consideration of the system of work in the SSOU, including OH&S considerations and processes aimed at supporting staff.

OH&S policy[57]

[57]Noting also, the plaintiff’s reference to pt 7 (‘Occupational health and safety’) of the VPS Agreement, which is included under the ‘core terms and conditions of employment’ in the Agreement.

Pages 16–17 of the SSOU manual, referred to earlier, dealt with occupational health and safety:

2.2 OCCUPATIONAL HEALTH & SAFETY
The Office of Public Prosecutions seeks to provide and maintain a working environment for all staff members and visitors which is safe and without risk to health. The Occupational Health and Safety Act 2004 provides the legislative basis for the two inter-related approaches to the management of occupational health and safety (OH&S). These are:
·A risk management approach to hazard control; and
·Consultation between the employer and their staff.

Details of the names and locations of the Health and Safety Representatives, and copies of OPP OH&S minutes of meetings are available via BruceBase and posted on each floor of the OPP (including Bourke Street).
Functions of a Health And Safety Representative
Each HSR has a range of legislated rights and responsibilities outlined in the Act. Each HSR should be familiar with these and should fulfil their role in accordance with them.
All managers/supervisors should also be familiar with these and facilitate the same.
OH&S Committee
The Occupational Health and Safety Act allows for the formation of a workplace OH&S Committee and provides some direction on how these might operate. The membership of the OH&S Committee must include at least half employee representation. The OH&S Committee generally meets every three months. Its function includes the following:
•To improve cooperation in instigating, developing and carrying out measures designed to ensure the OH&S of staff; and
•To formulate, review and disseminate the standards, rules and procedures relating to OH&S which must be carried out or complied with in the workplace.

Staff Member, Contractor & Visitor Responsibilities
•Observe safe work practices and procedures whilst in OPP facilities.
• Accept personal responsibility for protecting their own health and safety.
• Act in a manner that does not jeopardise the health and safety of other people.
• Wilful acts causing health and safety risks will be regarded as serious misconduct and may lead to disciplinary action.

Management Responsibilities
• Identify, assess and control workplace hazards to minimise injuries and illnesses.
• Comply with all statutory requirements and codes of practice relating to health and safety.
• Implement effective prevention policies and programs through full consultation with staff and the Health and Safety Committee.
• Manage effective rehabilitation and early return to work for injured staff.

Source: OPP HR Manual

The OH&S policy appears to have been taken from a general OPP HR Manual. When asked in Court whether there was an OH&S committee in the SSOU, Mr Brown said that there was not.[58] No direct evidence was called by the defendant regarding the operation during the claim period of specific OH&S specific processes and procedures within the SSOU.

Vicarious Trauma Policy

[58]T1040.

The plaintiff tendered an SSOU health and well-being policy called the ‘Vicarious Trauma Policy’ (‘VT policy’), which was contained in the last section of the SSOU Manual. The last page of the policy states that it is ‘endorsed by the Solicitor for Public Prosecutions’.

The VT policy relevantly stated:[59]
[59]Emphasis added.

The Office of Public Prosecutions (OPP) recognises the importance of supporting staff in all aspects of their work. Vicarious trauma is a recognised, cumulative effect of working with survivors of trauma where some effects parallel those experienced by the primary victim/survivor ... The OPP has identified vicarious trauma (VT) as an organisational and OH&S issue, especially for specialist sex offences staff.
Research regarding Vicarious Trauma (VT) indicates that it is an unavoidable consequence of undertaking work with survivors of trauma … in particular, the survivors of sexual assault … Secondary traumatic stress is a recognised response by staff dealing with these victims and this type of offending which often involves children.
…
VT is a process rather than an event and it can have detrimental, cumulative and prolonged effects on the staff member … The aim of this policy is to limit the impact of VT on OPP staff and to promote the health and wellbeing of staff.
…
The response to working with trauma survivors is often referred to as ‘burnout’ which is a state of physical, emotional and mental exhaustion caused by long term involvement in emotionally demanding situations … Similarly, transference or counter transference is also used to describe the emotional reactions experienced in undertaking work in the area of sexual assault.
This policy refers to VT to reflect the impact of working with trauma survivors. VT refers to the lasting emotional and psychological consequences of continual exposure to the traumatic experience of clients …
Given the impact on all staff working in the area of sexual assault, this strategy applies to all SSOU staff …
…
Whilst VT can be used to describe the experiences of staff working with any clients who experience trauma, the area of sexual assault has some further complexities:
These include:
·Exhibits are often extremely graphic and can include visual images of the commission of the crime (for example child pornography that is recorded on video and depicts a child victim that will be giving evidence as part of the prosecution).
·A proportion of sexual assault offending is linked to recent technology growth. As a result staff are exposed to a greater proportion of extremely graphic material such as video, mobile phone and other photographic images of sexual offending (for example violent commercial child pornography downloaded by accused from the internet) …
…
·Recent legislative reform now requires more interaction with victims through processes such as Special Hearings and VATEs. This can be particularly challenging if staff are dealing with confronting material that can involve images of the commission of the crime and they are then required to interact with those victims and their families. This also coincides with the principle of supporting victims and making their needs more central.
·Sexual assault cases are generally highly emotive and often involve offences committed within a family environment and involve intra-familial offenders and victims, and the associated management of emotionally complex human relationships and interactions, often heightened by the intensity of court proceedings.
·Sexual assault cases often involve multiple victims with complex needs that require more sensitive and intensive management by staff.
·Recent legislative reforms have introduced very strict legislative timeframes for the preparation of certain sexual offence cases, resulting in an increase in court work and appearances, and a reduction in the natural ‘down time’ available between cases.

The VT policy listed potential impacts on individuals experiencing vicarious trauma as follows:

·Intrusive reactions (dreams/nightmares, flashbacks, obsessive thoughts etc.)
·Shift in frame of reference-changes in the way the staff member views their world, relationships and identity.
·Avoidant reactions (general numbing in responsiveness and avoidance).
·Hyper arousal reactions (hyper-vigilance and difficulty concentrating).
·Changes in a person’s belief in themselves and others.
·Impact on a person’s relationships.
·Taking work home (unable to switch off).
·Negative comments/perceptions by peers including a level of being unappreciated and/or misunderstood and disconnected from others. (Morrison 2007)

The policy also listed potential impacts on the organisation, as follows:

·Widespread cynicism and pessimism

·Increased illness or absenteeism
·Ethical or boundary violations
·Reduction in motivation and productivity
·Higher staff turnover
·Decrease in staff morale.

The VT policy included personal and professional strategies for staff to use in dealing with vicarious trauma, including avoiding long hours at work, having ‘manageable case loads’ and a ‘[b]alanced workload so that it includes project work, training and research’. The VT policy also mentioned the need to ‘[s]et clear boundaries and limits with victims/survivors’.[60] Further, it set out organisational strategies, processes, and responses for handling suspected cases of vicarious trauma among staff.
[60]Ex P-24, cl 6.2(c).

Regarding organisational strategies to protect staff, the policy stated:[61]
[61]Emphasis added.

The OPP will provide the following framework to respond to VT:
·Appropriate information is provided to all staff around access to and debriefing resources.
·Management will conduct regular surveys of the work environment to ensure work practices are well supported
·Management will listen to staff concerns and act promptly where action is required.

Additionally, Management will:
·Control access and minimise exposure to the handling of all exhibits for all staff (see attached SSOU Exhibit Management policy).
·Keep abreast of information available relating to the impact of working in this field and as appropriate provide information to staff regularly.
·Ensure staff have access to regular meetings to discuss the effects of working in the area of sexual assault by encouraging discussion and debriefing of cases formally and informally.
·Encourage staff to discuss the impact of the work and to identify when they may need some assistance.
·Take into consideration the impact of working in the sexual assault field when allocating work or managing a staff member’s workload.
…
·Encourage staff to rotate through the Unit to minimise their exposure to some of the traumatic elements of the work and to maximise their generalist skills in other areas.

Rotation options include:
·Fixed, pre-determined rotations (so staff agree at the outset that they will work in the area of sexual assault for a pre-determined period); and
·Negotiated rotations (where staff request that they rotate on a needs basis).
·Seek to accommodate requests from staff to be rotated to another part of OPP either permanently or for a specific period of time or who wish to undertake a placement or secondment at another agency. It is recognised that staff who have worked in the Specialist Sex Offences Unit may wish to take a break from working on sex offence cases after a period of time for a range of reasons, including the challenging and distressing nature of these cases.

Regarding the way in which managers deal with staff suspected to be experiencing vicarious trauma, the policy said:

If a Manager suspects a staff member is experiencing VT they should:
1. Approach the staff member in a confidential and appropriate manner e.g. during supervision or via an informal meeting.
2. Acknowledge affects [sic] of VT and issues of concern with staff member.

3. Discuss possible strategies to assist staff member to deal with concerns
4. Establish appropriate response to the situation.
Some options include:
• Counselling/debriefing either informally or via an Employee Assistance Program. All OPP staff are entitled to access counselling or debriefing from the Employee Assistance Program. Further assistance can be facilitated by the Directorate Manager if required.
·Reallocation of files by the Directorate Manager (note: this option is limited for SSOU staff given all files contain an element of sexual assault). This option can include an increase of advice files being allocated to a staff member whist limiting their court commitments. All reallocation needs to be undertaken by the Directorate Manager and discussed with the relevant staff member specifying the length of reallocation and period of review for this arrangement.
·Specific ‘time-out’ for the staff member to other duties and/or another section within the OPP where appropriate. All ‘time-out’ requests need to be discussed with the Directorate Manager. Where possible the Directorate Manager needs to consider such requests and negotiate with both Human Resources and other relevant Directorate Managers to facilitate.
·Provide the staff member with the appropriate information and assistance to access the support required.
…

Under the heading, ‘policy implementation and review’, the policy stated:[62]
[62]Emphasis added.

9.1 Accountability:
·Management of the OPP is responsible for ensuring this policy meets organisational and legislative requirements and the policy is reviewed regularly.
·Directorate Managers are responsible for the implementation and compliance with the requirements of this policy and procedures within their Directorate.
·Staff are responsible for compliance with the requirements of the policy and should take appropriate steps towards self-care in the work environment.

9.2 Targets:
·Training for Managers at all levels on VT which addresses the organisational and manager’s responsibility towards workers in relation to this issue.
·Staff training on VT including responsibility towards the self, organisation and peers.
·Ensuring staff and managers are aware of internal and external debriefing options available.

9.3 Performance Indicators:
·70% of Managers will attend training in the first year
·70% of staff will attend training in the first year
·Incorporation of VT and related processes, reading material and self-care information into the organisational orientation manual.

Employee Assistance Programme (‘EAP’)

The OPP offered an EAP to all staff, including SSOU staff. The EAP entitled staff to four free counselling sessions each year with CARFI Psychological & Rehabilitation Services (‘CARFI’).[63] There were three counsellors available at CARFI, including Gus Carfi. CARFI was based in Carlton, but CARFI staff would attend the OPP and walk around making themselves known and available to staff.
[63]T1047, T1122.

At trial, the plaintiff and other witnesses who worked at the OPP gave evidence about the EAP. The defendant tendered a pamphlet and A4 poster about the EAP. The pamphlet states the EAP was available 24 hours, 7 days a week, although some staff, including the plaintiff, were unaware of that, and the plaintiff said that she had never seen the pamphlet.[64] The poster indicates that the EAP ‘is aimed at providing short term, confidential and personal counselling services to all staff’ to address ‘any work and personal issues’. The plaintiff accepted that the service was available, confidential,[65] and free. The poster was recognised as being the same or similar to posters on display in the SSOU office,[66] with the plaintiff stating that she had seen a flyer in the unit with the pictures and mobile numbers of CARFI staff.[67]
[64]T261 (Kozarov); T896 (Aitken).
[65]Although regarding confidentiality, as discussed below, certain information was required to be provided by Carfi to the OPP about use of the service by OPP staff.
[66]T261 (Kozarov); T896 (Aitken), and T999 (Brown). Various witnesses confirmed that the EAP was promoted in the SSOU and there was a poster or a flyer about the EAP in the office. It was unclear whether the documents tendered were exactly the same as those on display in the office, but they were at the very least similar to those on display.
[67]T260.

She tried to make appointments twice, but had to cancel them because she did not have the time to attend counselling at the CARFI office.[68] Instead, she engaged her own psychologist after hours.[69] Later (referring to the period after 9 February 2012), when she hit ‘rock bottom’, she approached CARFI again.[70]
[68]T263, T279.
[69]T279.
[70]T262–3.

The plaintiff agreed that a psychologist from CARFI would ‘walk the floor’ of the OPP. However, she said she was often in court when that happened.[71] The plaintiff did not feel comfortable speaking with a CARFI psychologist at the SSOU offices as it was not private there. She said the OPP offices were glass-walled, with cubicles right outside, and she did not want her colleagues to see her in a bad state.[72] The plaintiff was asked if she wanted to avoid management knowing she was seeing a psychologist or if she was concerned it might affect her promotional opportunities. She said that was ‘not the only reason’ and that privacy was important.[73]
[71]T259.
[72]T264–5.
[73]T263–6.

Mr Schrapel gave evidence he was aware of the availability of counselling with CARFI and aware of their psychologists attending the OPP offices. He said he used the EAP service once when his own private psychologist was unavailable.[74]
[74]T816.

Ms Lucas gave evidence that she used CARFI services two or three times. However, she noted the limit on sessions, having used EAPs in the past in other organisations and expressed the belief, ‘it’s pretty useless’.[75]
[75]T851.

Mr Hume was aware of the EAP and that CARFI psychologists would walk the floors of the OPP. He said that, in one case, he arranged for a CARFI psychologist to be on site for him and the audio-visual unit team to assist them in a case ‘that was particularly distressing’ and involved multiple acts of child sex exploitation. He said he went through ‘a lot of red tape’ and a ‘long battle’ to organise that.[76] He said his main purpose in arranging that was to help him deal with his staff and their ‘trauma’ or the ‘impact of what they were watching’.[77] He did not use the EAP for himself, as he was having psychotherapy elsewhere.
[76]T863–4.
[77]T865–6.

Ms Aitken agreed that the EAP was promoted at the OPP and remembered having a one-on-one phone conversation with Mr Carfi about a personal difficulty. She said there were occasions she found the CARFI visits at the SSOU helpful.[78] However, she also identified issues with the ‘walk-arounds’, saying:

[E]verybody could see the psychologist sitting in your office through the glass wall, so there was an element of embarrassment about it … there was [sic] issues when they did the walk-arounds: it was always right in the middle of something ... if you could see the counsellor in your office, people would speculate as to why they were there. There wasn’t much privacy.[79]

[78]T895.

[79]T910–11.

Ms Aitken acknowledged staff could go offsite to see a psychologist at the CARFI office but noted, ‘that was dependent on finding the time – yeah – recognising that one needed it, and actually being able to get there and manage your court commitments’.[80]
[80]T911.

Mr Brown believed staff were aware of the availability of the EAP. Ms Robinson said the EAP was promoted at the SSOU by the flyer and regular ‘walkarounds’ of CARFI staff.[81] The EAP was supported and facilitated by management.[82] When asked about staff not having time to attend the EAP, she said, ‘we could always make that time’. She said that on several occasions it was planned that a solicitor would attend a session off-site on a Friday afternoon and go home from there.[83] However, she conceded that on those occasions it was not confidential that the solicitor was seeing Mr Carfi.
[81]T1121–2.
[82]T1122.
[83]T1134.

The OPP’s contract with Carfi was tendered in evidence. The agreement covering the provision of services by Mr Carfi to the OPP required him to provide a monthly report with data on provision of employee assistance and welfare liaison outlining the number of new clients, their gender and occupational category and the issues with which they were presenting (work related or personal etc).[84] It is presumed that the staff members’ names were not identified. The contract allowed for payment for a fixed number of sessions for employee assistance based on an assumed uptake rate of 10 per cent.[85]

2009–2010 Benstead Workshops

[84]Ex P-49.

[85]Ex P-49, 26.

In 2009–2010, psychologist Ursula Benstead conducted three one-day training workshops[86] at the OPP on the topic of ‘Understanding and working with victims of trauma’ (‘the Benstead workshops’).
[86]The sessions were held in March 2009, September 2009, and March 2010.

The defendant tendered an outline used for the Benstead workshops,[87] which stated:
[87]The exhibit showed the same topic outlines for both the September 2009 and March 2010 workshops, indicating repetition of the same content at the workshops. Ms Aitken gave evidence that a number of sessions were arranged by Helen Fatouros to ensure that everyone in the SSOU could attend.

• 10.00 - 10.30 Introduction (30 mins)
• 10.30 - 12.00 What is trauma and its impact? (1hr 30 m)
o Child Sexual Assault
o PTSD
o Tips for working with traumatised victims

• 12.00 - 12.45 LUNCH BREAK (45)
• 12.45 - 1.45 Complex Post Traumatic Stress Disorder (1hr)
Understanding Revictimization
“The Shark Cage”

• 1.45 - 2.30 How does working with traumatised clients impact on
workers? (45)
- What is compassion fatigue and vicarious traumatisation (VT)?
- Some symptoms of VT
• 2.30 - 2.45 COFFEE BREAK (15)
• 2.45 - 3.30 How to manage vicarious traumatisation (45)
- What helps reduce VT? - self-care and meaning
- What helps sustain you in this work and what are some of the obstacles?
- What can you do personally and what could the workplace do to help reduce VT and make your job easier? (1.5hrs)
• 3.30 - 3.35 Key things to Remember (5)
• 3.35 - 4.00 reflections/ questions/ evaluation (25).

The plaintiff attended at least one of the Benstead workshops.[88] She said she may have had to leave the workshop early, but she was not sure. Derek Schrapel and Ms Aitken, each attended one of the workshops. Regarding attendance by SSOU management, Mr Brown gave evidence that he did not attend the Benstead workshops. Ms Robinson said she attended two of the workshops.
[88]OPP training records tendered by the Defendant as ex D-2 suggest that the plaintiff attended or registered to attend two of the Benstead workshops on 26 March 2010 and 14 September 2009. However, the plaintiff gave evidence that she only attended the workshop once: T236–8.

At the workshop she attended, the plaintiff recalled heated discussion and said, ‘what was actually discussed … was everyone letting off steam’. She said the workshop became a forum for intense discussions about how their work was affecting staff emotionally, and how overwhelmed they felt.[89] She recalled saying that there was not enough being done to assist SSOU staff, and that she gave examples of how her work was affecting her as a mother. She said she spoke of being uncomfortable even leaving her children with their grandparents, because of thoughts of inappropriate behaviour.
[89]T91.

The plaintiff gave evidence that what she said in the workshop opened up a broader discussion with other staff who were present. Staff were told of strategies to use such as yoga or joining a pottery class. However, she did not have time to do such things and did not feel she was given adequate strategies to deal with the pressures of the work. She said the workshop made no practical difference to her and that the pressures of work increased after the workshop, as she was allocated considerably more files. She said the workload seemed to increase for all staff.

In his evidence, Derek Schrapel recalled that the general theme of the workshop he attended was around self-care. He did not recall much else about it and did not recall being informed about vicarious trauma or PTSD, although he accepted that the matters listed in the workshop outline may have been discussed.[90]
[90]T771, T801.

Ms Aitken attended the first workshop in March 2009. She thought the workshop was excellent but had to leave the room at one point, because she became too emotional.

Internal OPP documentation in 2007–2009

It was apparent from the evidence that, after its inception, the SSOU faced a number of challenges as the quantity of work being funnelled through the unit increased. As time went on, SSOU staff were placed under increasing pressure, leading to issues and concerns being ventilated internally at the OPP.

From 2007–2009, the following internal documents and communications were created or received at the OPP[91] (‘the 2007–2009 internal documents‘):
[91]Copies of the listed documents were tendered by the parties.

(a)email from project manager Ms Drysdale to staff and the HR Manager, referencing vicarious trauma, dated 11 October 2007;[92]

(b) VT policy dated 28 January 2008 (referred to above);[93]
(c)email from Ms Aitken to Helen Fatouros on 17 March 2009 suggesting further Benstead training;
(d)Benstead workshop evaluation and recommendations document prepared by Ursula Benstead following her first workshop in March 2009;
(e)SSOU internal briefing paper on staffing and workload issues, prepared by Helen Fatouros (then SSOU Directorate Manager) and emailed to Stuart Ward (then OPP Legal Practice Manager) on 12 May 2009;[94]
(f)brief memo from Helen Fatouros to Stuart Ward on staff well-being, dated 24 May 2009;[95] and
(g)May 2009 memo from Suzanne Penhall (then SSOU principal solicitor) to Helen Fatouros on SSOU staff health and well-being concerns.[96]
[92]Ex P-34.
[93]Ex P-24.
[94]Ex P-39.
[95]Ex P-27 (bears date of 25 May 2019 when it was printed).
[96]Ex P-37.

Drysdale email (2007)

On 11 October 2007, Penny Drysdale, who at the time held the title ‘Project Manager, Sexual Offence Reforms’, emailed the group ‘OPP Sexual Offences’, copying in the then OPP Manager of Human Resources.

The email had the subject heading: ‘Vicarious trauma associated with working on sexual assault issues – Article for your information/interest’. In it, Ms Drysdale shared a link to an article on vicarious trauma, saying: ‘This article is mostly for sexual assault counsellors, but some of it applies to lawyers. See what you think anyway???’

Ms Drysdale went on to say in the email:

If there is interest I can arrange a session on this for staff, incorporating health and well-being issues and self-care etc. Let me know.
One of the most often asked questions when I go out to talk about the work of the unit is – How do staff look after themselves and cope with such difficult work and how does OPP support staff to do so?
OPP has psychologists Gus Mccaffrey [sic][97] and Peter Andrew-Arthur looking at staff health and well-being issues across the whole office. Once it is decided what will be provided OPP-wide we will arrange any additional things that we might specifically need in this unit.

[97]Probable reference to Gus Carfi.

Aitken email (2009)

On 17 March 2009, Ms Aitken emailed Ms Fatouros saying:

As discussed: Ursula’s seminar was very beneficial (it certainly forced me to look at whether I was really travelling as well as I thought I was). I think a regular catch up with her in small groups – for those interested, say every few months – would be really helpful.
…
… I think the office should consider getting her to conduct a seminar targeted at Exec. Management, DMs, LPSs which focuses on ways to recognise and support staff who are suffering from vicarious trauma, other workload-related stress and associated issues.

Benstead evaluation and recommendations (2009)

Following her first workshop at the OPP, Ms Benstead prepared a document dated March 2009, and entitled, ‘Evaluation of Understanding and Working with Victims of Trauma Training’.[98]The document provided information based on evaluation forms completed by 35 participants at the first workshop and made recommendations to management.
[98]Ex P-25.

The defendant argued that there was insufficient evidence for the Court to conclude that the plaintiff would have become a Grade 6 solicitor or higher at the OPP.[784] Further, the defendant submitted that the plaintiff’s ambition to become a Magistrate was ‘too intangible to sound in damages’ as there was no evidence as to when she might have applied to become a Magistrate or as to her chances of success’.[785]
[784]Defendant written submissions, [52] (transcript references omitted).
[785]Ibid [54].

The plaintiff’s case is that she was a hardworking solicitor with good prospects.[786] Ms Aitken gave evidence that the plaintiff had some good qualities that might commend her for promotion to management, had she stayed at the OPP, such as her level of legal knowledge, work ethic, people skills, and the ability to mentor others. She conceded, however, that it is a tough jump from a Grade 5 to a Grade 6 OPP solicitor, that you would need to be capable of handling the most complex cases, and that some OPP solicitors have never been promoted beyond Grade 5.[787] She also acknowledged that it was ‘even tougher’ to go from a Grade 6 solicitor to a management position. She herself had not made that progression at the time she gave evidence.
[786]Plaintiff’s written submissions, [273].
[787]T907-8.

Ms Robinson gave evidence that there was a bottleneck as you moved up in the OPP, so it was difficult to progress from being a Grade 5 to 6 solicitor, and that obtaining a promotion to management was even harder. She did not believe that the plaintiff had the attributes to be a manager. Mr Brown said that the plaintiff was enthusiastic and competent as a junior to mid–level solicitor and that, had she stayed at the OPP, she might have reached Grade 6 level, although he did not necessarily see her as a future manager. Of course, there are limitations on the utility of the opinions of co-workers or previous supervisors regarding the plaintiff’s theoretical career prospects. I am mindful of the plaintiff’s past career trajectory, but also of the evidence about the challenges in moving to higher graded positions in the OPP.

In relation to the general method of assessing the plaintiff’s past economic loss, the plaintiff seeks to compare what she actually earned in the relevant period to what she claims she could have earned but for her injury.[788] The defendant, on the other hand, submits that the Court should (at most) award a figure representing six months’ of lost income[789] due to total incapacity and that, thereafter, the plaintiff had no loss of capacity. It stated:[790]

The defendant accepts that the plaintiff can no longer work in cases that involve sexual offences. However, she is otherwise capable of a wide range of legal work. There is no evidence that work in the area of sexual offences is more remunerative than work in other areas.

[788]See plaintiff’s written submissions, [297]; Cumpston Sarjeant actuarial report. Both the plaintiff’s written submissions and the report rely upon a comparison between the plaintiff’s actual earnings and her but-for hypothetical earnings. Ultimately, they produced different figures due to differences in the underlying assumptions adopted (including as to the relevant date range and as to the plaintiff’s hypothetical career progression but for her injury), and in the precise calculation methods adopted. While it might be assumed that the plaintiff prefers the approach taken in her submissions, given that the submissions pre-date the report, this was never expressly stated.

[789]Based on the plaintiff’s actual salary at the OPP in 2012.

[790]Defendant’s written submissions, [47].

The defendant argued that the plaintiff ‘demonstrated a capacity for employment’ from May 2013, based on her volunteer work with Mr [redacted], her work at Zouki Lawyers, and her success in establishing her own law practice. The defendant also noted that while working for Zouki Lawyers, the plaintiff was ‘earning considerably more than she had in 2011’ at the OPP.[791]
[791]Defendant’s written submissions, [48]–[50]; T1224 (Mr Gorton).

I reject the defendant’s submission that the plaintiff is only entitled to be compensated for a loss of earning capacity for six months. I find that the plaintiff was unable to engage in paid work for a period of over two years until she commenced work at Zouki Lawyers in mid-2014. She is entitled to damages for past economic loss in that period. I accept that once she began work at Zouki Lawyers, she was earning more than she had been at the OPP, prior to her injury. However, that does not mean the plaintiff had no loss of earning capacity from that point in time. The issue is not whether she was earning more at that point in time than her 2012 salary at the OPP. Rather, the relevant question is, what was the extent of her lost capacity to earn because of her injury at that point in time. That question necessarily involves an element of conjecture. It is well established that the Court must engage in the exercise of assessing economic loss, as best it can, regardless of any conjecture or uncertainty involved in that process.[792]
[792]As acknowledged by Gummow ACJ, who said: ‘The cases dealing with the assessment of the measure of damages, whether in contract or tort, are replete with exhortations that precision may not be possible and the trial judge or jury must do the best it can.’: Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537, [39] (‘Tabet’).

In considering the damages to be awarded in this case for past loss of earning capacity, I have calculated the plaintiff’s economic loss in the period from 30 April 2012[793] to 30 June 2018. Ordinarily, the figure for past loss of earning capacity would be estimated up until the date of the trial. In this case, the trial took place in late May to mid-June 2019. However, as the Court does not have complete data for the plaintiff’s actual earnings in the 2019 financial year, it is preferable to determine her earning capacity in that year by reference to what she was able to earn in the previous year.[794] In those circumstances, I consider it more appropriate to determine the plaintiff’s damages for past economic loss up until 30 June 2018 and to determine her future economic loss from 1 July 2018.[795] I note that the expert actuarial report, dated May 2019, likewise calculated her past economic loss up until 30 June 2018, stating: ‘Losses beyond this date have not been estimated due to uncertainties in Ms Kozarov’s current earnings capacity within her newly established business.’[796]
[793]As stated, the plaintiff was certified as being unfit for work from this date and was then unable to continue working at the OPP or obtain work elsewhere at that time.
[794]As previously stated, the plaintiff left her job at Zouki Lawyers in December 2018 and founded her own law firm. While the plaintiff tendered a profit and loss statement for the first four months of operation of her law firm (being December 2018 to March 2019), it is an incomplete basis upon which to estimate earnings in the months that followed. Moreover, an assessment of damages for loss of past earning capacity is not an assessment of lost wages, but of the difference between what a plaintiff hypothetically had the capacity to earn but-for their injury and actually had the capacity to earn after their injury. The earnings that the plaintiff made in the first four months of establishing her new law firm are not necessarily indicative of the earnings that the plaintiff had the capacity to make around that time (for instance, had she decided to stay at Zouki Lawyers or joined another law firm).
[795]See Freudhofer v Poledano [1972] VR 287, 291, in particular (Winneke CJ, Little and Gowans JJ). There has been a practice in Victoria to treat past economic loss as special damages, in part, because it has been determined that the court must not speculate when it knows.
[796]Cumpston Sarjeant report, 1: ex P-42.

In considering the plaintiff’s actual earning capacity in the relevant period, I have used her actual salaries to estimate her earning capacity, which I am satisfied roughly reflect what she had the capacity to earn in that time.[797] I do not accept any insinuation that she was able to earn significantly more in that period than what she did earn.
[797]As provided in the Cumpston Sarjeant report: ex P-42.

Regarding the plaintiff’s likely hypothetical past earning capacity, but for her injury, having considered the positions of each party, I am satisfied that by June 2018, had the plaintiff not been injured, she would have been promoted to a Grade 6.1 OPP solicitor.[798] She was ambitious, hardworking, and capable of doing complex work. However, Ms Aitken, a very experienced and capable OPP solicitor, was still in a Grade 6.1 position at the time of giving evidence before me. Ms Aitken described the Grade 6.1 role as that of a principal solicitor and the Grade 6.2 role as that of a managing principal solicitor (previously also referred to as a team leader role).
[798]I believe that she would have remained a Grade 5.1 solicitor for several years prior to that, until around mid-2017. She would have been promoted from a Grade 5.1 solicitor to a Grade 5.2 solicitor prior to then, likely around mid-2015.

I accept the evidence that it is harder to progress within the OPP in the higher graded roles. I am not satisfied that there is sufficient evidence that, by June 2018, the plaintiff would have been appointed to a Grade 7 role or to a position as a Magistrate.

I have determined that an appropriate figure to compensate the plaintiff for her past loss of earning capacity is $120,000. In fixing this sum, I have considered her hypothetical salaries, according to her hypothetical career progression, but-for her injury, as outlined above, and using the salary figures contained in the relevant VPS Agreements[799] for the years of 2012–2018.
[799]The salary figures in those VPS Agreements are annexed to the expert actuarial report.

That damages figure includes an amount for the plaintiff’s loss of superannuation during the relevant period. Ordinarily, it would also include a Fox v Wood[800] component. Regrettably, the parties did not make submissions as to the appropriate Fox v Wood figure in this case. Instead, they said that if the plaintiff was successful, they would agree to a figure after judgment. Accordingly, I will hear submissions on this point and a Fox v Wood figure will be added to the overall damages sum. I note that the actuarial report calculated the Fox v Wood sum as $39,200. If the parties are unable to agree to a figure, I would adopt that as the amount to be awarded for the Fox v Wood component.
[800][1981] HCA 41; (1981) 148 CLR 438.

In fixing the damages figure above, I have reduced the figure awarded by allowing for an appropriate, modest sum for tax. The figure has also been reduced by 15% (the usual discount) to allow for vicissitudes.[801] Neither party argued that a different rate of discount should be applied in this case.[802]

Loss of future earning capacity

[801]In Club Italia (Geelong) Inc v Ritchie [2001] VSCA 180; (2001) 3 VR 447 (‘Club Italia’), the Court of Appeal held that in personal injury cases, the discount for vicissitudes of life is generally in the order of 15%. That finding has been adopted by numerous Courts since then. Although, it is also widely acknowledged that a different rate of vicissitudes can be applied where warranted by the specific circumstances of the case.

[802]The defendant made no submissions on the appropriate rate of vicissitudes, given its argument that there was no loss of earning capacity beyond six months’ incapacity.

In ascertaining future economic loss, the Court must consider the plaintiff's actual future earning capacity, as well as her hypothetical future earning capacity had she not been injured. As explained, the defendant submitted that the plaintiff has not suffered future economic loss, because she has demonstrated that she is still a capable lawyer and has retained a high earning capacity. The plaintiff, however, argued that she has an ongoing and future reduced earning capacity due to her injuries.

In predicting how her career will progress, in light of her injury, the plaintiff submitted that her earning capacity will continue to be affected by her injury, stating:[803]

The plaintiff cannot give 100 per cent because she lacks motivation and the will and she’s not the person she was. She is on 600 milligrams of Zyban and has panic attacks about once per week where she can’t breathe very well or function properly. The plaintiff sometimes wants to be alone, not want noise and also gets migraines. The plaintiff has memory difficulties, Migraines … has sleep disturbance and no enjoyment of life.

[803]Plaintiff’s written submissions, [291] (footnote omitted).

The plaintiff relied on the evidence of Professor McFarlane that she will be disadvantaged in the legal profession as a result of her injury.[804] Professor McFarlane noted that PTSD symptoms ‘have a disruptive impact on the capacity to sustain and maintain employment’.[805] He explained that while the plaintiff has been able to manage her workload and control her environment, having set up her own legal practice, it required ‘considerable effort to sustain her functioning’.[806] He further explained:

People who are capable of establishing a career as a solicitor often have residual capacity such that you don’t have to necessarily perform with an extraordinary degree of effort to sustain yourself in the role and an individual who becomes unwell will use up that residual capacity but the plaintiff had lost the buffer or the capacity to step up in difficult environments, so there were issues of fatigue, cognitive issues, difficulties managing interpersonal conflict and relationships.[807]

[804]Plaintiff’s written submissions, [294].

[805]Ex P-28, 25-6.

[806]Ibid.

[807]T569.

Dr Dharwadkar was questioned as to how the plaintiff’s symptoms impacted her capacity to work as a lawyer, and said:[808]

[P]eople with PTSD have a lot more difficulty organising information, processing information … there’s a – a neurobiological basis to that … and, essentially, the efficiency of the brain to focus and screen and prioritise information is disrupted and for a, ah, profession such as a legal practitioner which requires an ability to, ah, hold information on line to synthesise and process and form opinions, ah, I believe that she will be, um, significantly disadvantaged as a consequence of her disorder.

[808]T730-1.

While the defendant accepted that the plaintiff can no longer work in cases involving sexual offences, it was submitted that she is ‘capable of a wide range of legal work’,[809] and it was suggested other areas of the law may be equally or more remunerative, stating:

An inability to return to work in sexual offences does not result in a lost earning capacity for an otherwise competent lawyer ... A move from the OPP to private practice does not compel a finding of any loss of earning capacity – indeed it may well be the contrary.

[809]Defendant’s written submissions, [47].

The defendant highlighted the plaintiff's recent employment history and especially the fact that she had started her own criminal defence and family law firm, Kozarov Lawyers, as evidence of her retained capability and earning capacity, stating:[810]

Setting up such a practice, on her own, and making it profitable within a short space of time serves to demonstrate the high level of retained capacity the Plaintiff has. There is no basis for considering that she does not have the capacity to continue to grow her firm … These figures [of the firm’s profit in its first four months] … demonstrate a retained capacity for earning that is not in any way diminished.

[810]Defendant’s written submissions, [50(c)].

The defendant also argued that the Court should not assume that the plaintiff is presently working to full capacity. It suggested that the plaintiff's earning capacity will improve following the court proceeding, noting that she had acknowledged the court case was distressing for her.[811]
[811]Ibid [53] (transcript references omitted).

Further, the defendant submitted: ‘The absence of evidence allowing a detailed examination of her retained capacity to earn in private practice precludes a finding by the Court of an ascertainable ongoing and future loss.’[812] It argued that the plaintiff had not demonstrated ‘that she is now, or into the future, incapable of earning the amounts a Grade 6 employee or a manager of the OPP would earn’.[813]
[812]Ibid [51].
[813]Defendant’s written submissions, [52].

In addressing her recent employment history, the plaintiff stressed the difficulties that she has had while working. The plaintiff gave evidence that her job at Zouki Lawyers was offered to her by a friend (Mr Zouki) as a favour.[814] She testified that she was not her usual self while working there and found it very hard to remain focused maintain energy. There were some days that she could not work.[815] She said that she left her job there to found her own law firm, in part because she wanted to cut down her hours of work, although, when cross-examined, she conceded that she felt she had done a good job for her clients in her professional work since leaving the OPP.[816]
[814]Mr Zouki was a friend who attended university with the plaintiff.
[815]T182–3.
[816]T491.

The plaintiff was 45 years old at the time of the trial and says she would have retired at age 67. She seeks damages for the loss resulting from 22 years’ of reduced earning capacity, based on the difference between the potential earnings she might have made in the future but for her injury, and the amount she says is her retained earning capacity, being $102,000 (gross salary) per annum.[817]
[817]Based on her business’ profit in its first four months: T1269 (Mr Richards). That figure is also said to be similar to her salary at Zouki Lawyers in the 2018 financial year: see ibid and the Cumpston Sarjeant actuarial report at para 2.2.

The plaintiff’s assessment of her actual future earning capacity has tended to assume her earning capacity has plateaued, whereas I consider that position to be unduly pessimistic. Although the plaintiff’s PTSD is a chronic condition, it appears that her treatment, including medication, has helped her over time to more effectively manage her symptoms. She has shown resilience and determination, including in launching Kozarov Lawyers. She was able, just over a year after being certified as unfit to work, to undertake a voluntary role with [redacted] Lawyers, despite being hampered at times by fluctuations in her symptoms.[818] She then held down a paid position with Zouki Lawyers for over four years, until deciding to launch her own practice, which she has done with some success.
[818]T735.

This case can be distinguished from the case of Hand v Morris.[819] In that case, there was cogent evidence that allowed the Court to conclude that the plaintiff would be unable to achieve any future promotions due to injury. In the present case, I am persuaded that the plaintiff retains a substantial earning capacity, which will continue to increase into the future. This is not a case where the plaintiff's earning capacity has been permanently curtailed or has stagnated.
[819][2017] VSC 437 (‘Hand’).

The plaintiff has good prospects of further advancing in her career. Her skill and experience as a legal practitioner give her a significant competitive advantage over many younger, less experienced lawyers. She has shown adaptability and resilience since sustaining her injuries. Whilst working for Mr Zouki, for instance, she was able to venture into areas of law that she was unfamiliar with previously. The fact that she has founded her own business and seen some success very early on, also presents a positive picture of her likely ability to improve her financial outlook, notwithstanding her injuries.

The plaintiff expressed difficulties in her working life resulting from her injuries. The Court acknowledges that she may find it harder and more stressful at times to maintain full employment and may have absences from work. Whilst the plaintiff’s psychiatric injury will continue to affect her to some degree, for some years to come, if not indefinitely (a fact that I have taken into account in my award of damages for pain and suffering), I expect that she will continue to overcome the challenges posed by her PTSD and increase her earning capacity in the future, especially once the current proceedings are over.

Regarding the plaintiff’s hypothetical future earning capacity, the plaintiff submits that she would been a Grade 6.2 or Grade 7.1 solicitor in the future, but for her injury. She further submits that it was her ambition to become a Magistrate[820] and that she had at least a 20 per cent chance of being appointed a Magistrate.[821] She submits that the loss of opportunity to become a Magistrate should be taken into account in assessing her damages.
[820]Plaintiff’s written submissions, [300].
[821]T1272 (Mr Richards).

Assessing damages for future loss of earning capacity is often an uncertain and imprecise exercise. In the oft cited quote from the High Court decision of Malec v JC Hutton Pty Ltd,[822] it was said:

The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. …[823]

[822][1990] HCA 20; (1990) 169 CLR 638 (‘Malec’).

[823]Ibid 643 (Deane, Gaudron and McHugh JJ).

In Tabet v Gett, Kiefel J referred to Malec and went on to observe:[824]

The court may adjust its award to reflect the degree of probability of a loss eventuating. This follows from the requirement that the courts must do the best they can in estimating damages; mere difficulty in that regard is not permitted to render an award uncertain or impossible.

[824]Tabet [2010] HCA 12; (2010) 240 CLR 537, [136] (footnote omitted).

It is now established that, in considering the likelihood of future events, the Court is not required to be satisfied on the balance of probabilities as to whether a particular event will occur. Rather, it must evaluate the possibilities as best it can on the evidence before it.[825] It can also take into account the likelihood of a variety of possible events, both adverse and favourable to the plaintiff, in determining the discount for vicissitudes for an award for future economic loss.[826]
[825]See discussion in Smith v Gellibrand Support Services Inc [2013] VSCA 368; (2013) 42 VR 197, [66]–[73] (Osborn and Beach JJA), and more recently in, Hand [2017] VSC 437, [222], [224]–[230] (Zammit J, now Incerti J); Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; (2005) 3 DDCR 1, [103] (Ipp JA, with whom Mason P agreed); Acir v Frosster Pty Ltd [2009] VSC 454, [264]–[265] (Forrest J); Sellars v Adelaide Petroleum NL [1994] HCA 4, [22]–[40]; (1994) 179 CLR 332, 349–356 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[826]Swan [2013] VSC 326; (2013) 235 IR 63, [255]; Club Italia [2001] VSCA 180; (2001) 3 VR 447, [57].

I do not accept the defendant’s submission that there was no evidence to show the plaintiff will suffer future loss of earning capacity. On the other hand, I do not accept the plaintiff’s submission that she will continue to suffer economic loss until the age of retirement. I consider the main future economic impact of the plaintiff’s injuries will be a delay in achieving equivalence with her without injury trajectory. On the evidence before me, I am persuaded that the plaintiff will continue for some years to be somewhat financially disadvantaged as a result of her injury, but that she will reach the point in the not too distant future where the impact of her psychiatric injury on her future earning capacity will be negligible.

But for her injury, the plaintiff would have continued working as a Grade 6.1 solicitor in the future. As at 1 July 2018, she would have been earning between $116,863 and $136,626.[827] I am prepared to assume that she would have been on the higher end of that salary range, given both my earlier assumption that she would have been promoted to that level by mid-2017 and the progress in her career at the OPP up until that time.
[827]See Schedule B of the VPS Agreement 2016, which is annexed to the Cumpston Sergeant actuarial report.

The plaintiff’s actual future earning capacity, based on the evidence at trial, is presently around $100,000.[828] I believe that the plaintiff will be able to increase her earning capacity in the next few years (whether by developing her law firm or obtaining further paid employment). I estimate that by 2025, she will have closed the gap between her actual and hypothetical future earning capacity.
[828]She had a gross salary of around $100,000 at Zouki Lawyers prior to leaving her role there in December 2018. The plaintiff also predicted she will earn around $102,000 (gross) per year in the future, based on the first four months of profit of her law firm; although, as explained earlier, I do not necessarily consider her early earnings at the firm as a good guide to her future earning capacity.

That evaluation of how long it will take the plaintiff to reach the same earning capacity that she would have had, but for her injury, involves a level of conjecture. But, while not based on a mathematical equation, it is based on my assessment of the evidence before me. In Club Italia, the Court of Appeal acknowledged the difference between speculation, and hypothetical evaluations that are ‘a matter of impression’ based on the evidence.[829]
[829]Club Italia [2001] VSCA 180; (2001) 3 VR 447, [58] (Brooking, Charles and Chernov JJA).

The evidence from the experts, and the plaintiff, regarding the ongoing impact of her injuries on her capacity to work justifies the view that it will take her several more years to reach her pre-injury future earning capacity. I have taken into account the evidence showing that the plaintiff has demonstrated steady improvement and resilience since sustaining her injuries, as well as a capacity to manage her symptoms while working and to increase her earning capacity (which is now higher than what it was pre-injury).

I have determined that an appropriate sum to compensate the plaintiff for future loss of earning capacity is $115,000. In fixing that figure, I have considered the difference between what she would have earned as a Grade 6.1 solicitor and her theoretical future earning capacity based on indications from current figures. I arrived at an estimate of her future weekly net loss of earnings and applied a multiplier for a fixed period of seven years[830] at a 6 per cent discount rate. I also allowed for a modest sum to compensate for future loss of superannuation. Finally, I applied a 15 per cent discount for vicissitudes.
[830]Accounting for the period from mid-2018 (being the period up until which I calculated her past economic loss) to mid-2025.

In applying the discount figure for vicissitudes, I have considered a range of relevant factors. First, my consideration of the plaintiff's future economic loss was initially (pre-adjustment) based on the assumption that, over a seven-year period, she would suffer a weekly loss of earnings of a fixed amount. However, I consider it more likely that the amount of her weekly loss will reduce over time (until she ceases to suffer any economic loss). Secondly, it is plausible that the plaintiff will improve her earning capacity more rapidly than I have predicted, and that she will cease to suffer economic loss earlier than expected.[831]
[831]Especially if she is able to maintain self-employment, which may allow her a greater degree of flexibility in how she chooses to manage her symptoms whilst working.

On the other hand, it is possible that but for her injury, the plaintiff would have been promoted beyond a Grade 6.1 solicitor at the OPP. While I did not consider this the most likely outcome supported by the evidence, it is a factor I can take into account in arriving at the award.[832] Regarding the submission that the plaintiff might have become a Magistrate in the future, but for her injury, I have not accepted that submission in arriving at the award for damages in this case as it involves a high degree of speculation, since such an appointment cannot be safely predicted.
[832]See the discussion on this point in Norris v Blake (by his Tutor Porter) (No 2) (1997) 41 NSWLR 49 (Clarke JA, with Handley and Sheller JJA agreeing).

Finally, while the evidence allows for some optimism regarding the plaintiff's future, her PTSD is chronic. There is the prospect that future stressors in the plaintiff’s life will exacerbate or cause flare ups of her symptoms, necessitating further absences or periods away from work. I have taken that into account in arriving at the award for future economic loss.

I have adjusted the award as appropriate considering the various contingencies in favour and adverse to the plaintiff. In light of all the factors discussed, I still consider the appropriate discount for vicissitudes to be 15 per cent. Therefore, as stated, I will award $115,000 for future loss.

I will hear the parties on interest and costs, and as to the appropriate form of orders.

[390]Ex P-29, 14–15 (citations omitted).

[2020] VSC 78

19 February 2020