Kozarov v Victoria

Case [2022] HCA 12

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
GAGELER, KEANE, GORDON, EDELMAN, STEWARD AND GLEESON JJ

ZAGI KOZAROV  APPELLANT

AND

STATE OF VICTORIA  RESPONDENT

Kozarov v Victoria

[2022] HCA 12

Date of Hearing: 2 December 2021
Date of Judgment: 13 April 2022

M36/2021

ORDER

1. Appeal allowed.

2.Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 24 November 2020 and 7 December 2020 and, in their place, order that the appeal to that Court be dismissed with costs.

3. The respondent pay the appellant's costs. 

On appeal from the Supreme Court of Victoria

Representation

J T Rush QC and A M Dinelli with J B Richards QC and G D Taylor for the appellant (instructed by Bowman & Knox)

B W Walker SC with G A Worth and N A Wootton for the respondent (instructed by Russell Kennedy Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Kozarov v Victoria

Negligence – Causation – Workplace injury – Psychiatric injury – Where appellant employed in Specialist Sexual Offences Unit of Victorian Office of Public Prosecutions ("OPP") – Where appellant found to have suffered psychiatric injury resulting from vicarious trauma suffered in employment – Whether respondent failed to take reasonable measures in response to evident signs of psychiatric injury – Whether respondent's failure caused exacerbation of psychiatric injury.

Negligence – Duty of care – Content of employer's duty to employee to take reasonable care to avoid psychiatric injury – Where OPP adopted Vicarious Trauma Policy to protect psychiatric health of employees – Whether appellant needed to show evident signs warning of possibility of psychiatric injury – Effect of decision in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.

Words and phrases – "duty of care", "evident signs", "psychiatric injury", "real review", "safe system of work", "sentinel event", "tort", "vicarious trauma".

  1. KIEFEL CJ AND KEANE J.   The issues for determination in this appeal, the findings of fact, the reasons of the courts below and the arguments of the parties in this Court are summarised comprehensively in the reasons of Gageler and Gleeson JJ. We agree with their Honours that the appeal should be allowed. We write separately because it would be unfortunate if it were to be thought that the formulation and presentation of Ms Kozarov's case is a model to be emulated by others. The unduly complicated way in which this case was pursued on behalf of Ms Kozarov raised for determination issues that did not necessarily arise and which may have resulted in an artificially narrow view of her compensable injuries. The course taken should not be followed as a guide by plaintiffs who come after. Gratefully accepting the summary by Gageler and Gleeson JJ, we proceed directly to state the reasons for our concern.

  2. It is apparent that the issues with which this Court is concerned would not have arisen but for what seems to have…

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Kozarov v Victoria [2022] HCA 12
Case
[2022] HCA 12
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning a claim for psychiatric injury brought by the appellant, Ms Kozarov, against her employer, the respondent, Victoria. Ms Kozarov, employed in the Specialist Sexual Offences Unit of the Victorian Office of Public Prosecutions, alleged she suffered chronic post-traumatic stress disorder and major depressive disorder due to vicarious trauma from her work. She contended that Victoria failed to take reasonable measures in response to evident signs of her psychiatric injury, thereby causing its exacerbation and prolongation.

The central legal issues before the High Court were whether Victoria breached its duty of care to Ms Kozarov by failing to provide a safe system of work, and if so, whether this breach caused the exacerbation and prolongation of her psychiatric injury. Specifically, the Court considered whether Victoria was on notice of the risk of psychiatric harm to Ms Kozarov by a certain date, and whether the Court of Appeal erred in overturning a trial judge's finding that Ms Kozarov would have cooperated with measures to reduce her exposure to trauma. The Court also examined the content of an employer's duty of care in relation to psychiatric injury, referencing the principles established in *Koehler v Cerebos (Australia) Ltd*.

The High Court found that the Court of Appeal had erred in rejecting the trial judge's "rotation finding," which concerned whether Ms Kozarov would have cooperated with steps to mitigate her exposure to trauma. While acknowledging material that suggested Ms Kozarov's commitment to her work, the Court determined that these factors were of relatively little weight when assessing the counterfactual scenario of her suffering serious psychiatric illness and receiving appropriate advice. The Court concluded that, on the whole of the evidence, the trial judge's finding on this point was preferable.

Consequently, the High Court allowed the appeal, setting aside the orders of the Court of Appeal and ordering that the appeal to that Court be dismissed with costs. The respondent, Victoria, was ordered to pay the appellant's costs.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 24 November 2020 and 7 December 2020 and, in their place, order that the appeal to that Court be dismissed with costs.

3. The respondent pay the appellant's costs.

Background

Background to the litigation

For the following reasons, the Court of Appeal did not err in accepting the notice finding, but the Court of Appeal erred in rejecting the rotation finding. Accordingly, the appeal must be allowed.Background facts The SSOU was set up in April 2007 as a specialist unit within the OPP to prosecute all serious indictable sexual offences heard in the Magistrates', County and Supreme Courts of Victoria whether the victim was an adult or a child. At the relevant times, the SSOU comprised 25 solicitors of varying seniority, together with other professional and administrative staff.Appellant's work in the SSOU In June 2009, the appellant joined the SSOU as a recently admitted solicitor, in a "VPS Grade 4" role. The appellant's work in the SSOU routinely involved interaction with survivors of trauma and exposure to their traumatic experiences including by attending court to instruct in sexual assault trials, meeting with child and adult alleged victims of sexual offences and their families, viewing explicit child pornography and preparing child complainants for cross-examination[17]. From time to time, the appellant worked in a more senior "VPS Grade 5" role, in temporary "backfilled" positions within the SSOU[18].[17]Kozarov v Victoria (2020) 294 IR 1 at 17-19 [59]-[72].[18]Kozarov v Victoria (2020) 294 IR 1 at 14 [45]. In 2009 or 2010, the appellant attended a one-day training workshop at the OPP on the topic of "Understanding and working with victims of trauma" ("the Benstead workshop"). The workshop became a forum for intense discussions about the emotional effects of work in the SSOU. On that occasion, the appellant asserted that there was not enough being done to assist SSOU staff, and she gave examples of how her work was affecting her as a mother. The appellant became increasingly vocal at staff meetings from late 2010 onwards about how work was affecting her daily life, including describing feelings of paranoia about leaving her children with other people, including at activities and with school teachers, her refusal to allow her son to be an altar boy, and dreaming of her children being the complainants in her matters. By 2011, the appellant was known by the manager of the SSOU, Mr Brown, and the deputy manager of the SSOU, Ms Robinson, to be a dedicated, hard-working, ambitious and loyal employee of the OPP. Mr Brown and Ms Robinson also knew that the appellant had upwards of 25 files, when the desirable file load was no more than 20; that she had been experiencing physical health ailments, including the need to take time off for medical appointments from time to time; and that she was a mother of young children and a sole parent. On 7 March 2011, the appellant applied for a permanent promotion to a VPS Grade 5 role at the OPP, either in Principal Prosecutions or in the SSOU. In early May 2011, she accepted an acting VPS Grade 5 role in the SSOU for a fixed term from 28 April 2011 to 15 August 2011.Events between April and August 2011 On 18 April 2011, SSOU staff including the appellant signed a memorandum addressed to Mr Brown and Ms Robinson concerning staff wellbeing ("the staff memorandum"). The staff memorandum followed an after-hours meeting in the absence of management at which significant concerns about wellbeing were discussed. The staff memorandum recorded that the SSOU solicitors were experiencing increasing court commitments; that solicitors were working long hours and taking work home on weeknights and on weekends; and that "solicitors ... reportedly experienced a marked increase in the symptoms associated with stress". The memorandum included a lengthy list of stress-related symptoms said to be experienced by SSOU solicitors, as well as a list of "unhealthy behaviour/lifestyle choices" that solicitors reported themselves to have made as a result of the stress-related symptoms.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ KEANE J (dissent) GAGELER AND GLEESON JJ GORDON AND STEWARD JJ EDELMAN J
It is true that there was a body of material that tended against the rotation finding. This material included the appellant's commitment prior to February 2012 to the SSOU's work and the social importance of that work; the commitment of SSOU staff, including the appellant, to specialisation in sexual offence work with the accompanying inevitability of vicarious trauma and the limited opportunities for "time out"; the instances of the appellant's applications for promotion within the SSOU as further indication of her strong desire to do the traumatic work involved; and the appellant's apparent outrage at the possibility that Mr Brown thought that the appellant should no longer be in the SSOU. However, these factors were of relatively little weight in assessing the counterfactual, which involved a diagnosis of serious psychiatric illness and appropriate advice. On the whole of the evidence, the trial judge's rotation finding was the preferable one.Conclusion The appeal should be allowed with costs. The orders of the Court of Appeal should be set aside. In their place, it should be ordered that the appeal to that Court be dismissed with costs. The appellant, Ms Kozarov, was employed by the respondent, the State of Victoria ("Victoria"), in the Specialist Sexual Offences Unit ("the SSOU") of the Office of Public Prosecutions ("the OPP") between June 2009 and April 2012. During the course of her employment, Ms Kozarov suffered a psychiatric injury, namely, chronic post-traumatic stress disorder ("PTSD") and a major depressive disorder ("MDD"), as a result of her cumulative exposure to vicarious trauma in SSOU casework. There were numerous signs, some more obvious than others, that Ms Kozarov was at risk of harm. She became increasingly outspoken at staff training sessions and monthly team meetings about her hypervigilance and abnormally overprotective parenting practices as a result of her work, she signed a staff memorandum to the SSOU management on staff well-being which identified the stress-related symptoms being experienced by solicitors in the SSOU, she became dizzy at work one day and went on sick leave for two weeks thereafter, and upon her return to work she was involved in a dispute with her manager about whether she was coping with her workload. Ms Kozarov ultimately requested to be rotated out of the SSOU and, after several unsuccessful attempts by the OPP to return her to work in different areas, her employment was terminated. The primary question in this appeal is whether Victoria's failure to provide Ms Kozarov with a safe system of work caused the exacerbation and prolongation of her PTSD, and subsequent development of MDD. The answer is "yes". Ms Kozarov's two grounds of appeal challenged, in different ways, the finding of the Court of Appeal of the Supreme Court of Victoria that causation could not be made out because Ms Kozarov would not have co‑operated with steps to reduce her exposure to trauma in the SSOU. The first ground was directed to whether the Court of Appeal erred in overturning the trial judge's inference that Ms Kozarov would have co-operated with steps to reduce her exposure to trauma in the SSOU. The second ground was directed to whether the Court of Appeal, in finding that causation had not been made out, erred in failing to consider the nature and content of Victoria's duty of care. An ancillary issue, raised by Victoria's notice of contention, was whether Victoria was on notice of a risk of psychiatric injury to Ms Kozarov by the end of August 2011. It is convenient to deal with the notice of contention first and the grounds of appeal second.Notice of contention: When was Victoria on notice of risk of harm?

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, GAGELER AND GLEESON JJ, GORDON AND STEWARD JJ, EDELMAN J

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