State of Victoria v Zagi Kozarov

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0032

STATE OF VICTORIA	Applicant
v
ZAGI KOZAROV	Respondent

---

JUDGES:	BEACH, KAYE JJA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 November 2020
DATE OF JUDGMENT:	24 November 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 301
JUDGMENT APPEALED FROM:	[2020] VSC 78 (Jane Dixon J)

---

ACCIDENT COMPENSATION – Workplace injury – Psychiatric injury – Negligence – Duty of care – Foreseeability – Whether employer on notice of work-related risk to plaintiff’s mental health – Whether ‘evident signs’ existed which disclosed heightened risk regarding plaintiff’s mental health in connection with work – Causation – Whether steps open to be taken would have averted risk of injury – Causation not established.

WORDS AND PHRASES – ‘Litigious hindsight’.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr B Walker SC with Mr G A Worth and Ms N Wootton	Russell Kennedy Solicitors
For the Respondent	Mr J T Rush QC with Mr G Taylor	Bowman Knox

BEACH JA
KAYE JA
MACAULAY AJA:

Zagi Kozarov (‘the plaintiff’) is a solicitor and former employee of the Victorian Office of Public Prosecutions (‘the OPP’). Between June 2009 and April 2012, she worked in the OPP’s Specialist Sexual Offences Unit (‘the SSOU’). During the course of this employment, she suffered a psychiatric injury, namely, chronic post-traumatic stress disorder and a major depressive disorder.

In October 2016, the plaintiff commenced proceedings in the Trial Division against the State of Victoria (‘the defendant’) claiming damages for personal injury in respect of the injuries she sustained during the course of her employment in the SSOU. She alleged that her injuries were caused through ongoing, repeated exposure to a high volume of sexual offence cases, which included the commission of serious offences against children and other cases of an abhorrent nature. The causes of action relied upon by the plaintiff were negligence, breach of contract and breach of statutory duty.

By its defence, the defendant admitted that the plaintiff was employed by the OPP and that she commenced work as a solicitor with the SSOU in June 2009. The defendant, however, denied liability for any injury the plaintiff might have suffered in the course of her employment, and alleged contributory negligence. In answer to a pleading by the plaintiff that the defendant owed her a duty to take reasonable care, ‘in particular when subject to the reasonably foreseeable risk of psychiatric injury through repeated and continual exposure to graphic, vivid and disturbing media … depicting the course of, and aftermath of, serious sexual offences’, the defendant pleaded that ‘it had no relevant duty, prior to 9 February 2012, to reduce or eliminate the risk of the plaintiff sustaining recognisable psychiatric illness’.

The plaintiff’s proceeding was heard by Jane Dixon J over 12 days between 20 May and 12 June 2019. On 19 February 2020, her Honour delivered reasons for judgment in which she upheld the plaintiff’s claim, rejected the defendant’s defence of contributory negligence, and assessed the plaintiff’s damages in the sum of $435,000.[1] Two days later, on 21 February 2020, her Honour entered judgment in favour of the plaintiff in accordance with her reasons for judgment.[2]
[1]Kozarov v State of Victoria [2020] VSC 78 (‘Reasons’).
[2]Judgment was entered for the plaintiff in the sum of $247,655, being the amount assessed ($435,000) together with damages pursuant to the principles in Fox v Wood (1981) 148 CLR 438 agreed in the sum of $32,248, and then reduced by $219,593 in accordance with s 134AB(25) of the Accident Compensation Act 1985.

The defendant now seeks leave to appeal. Its two proposed grounds of appeal are as follows:

1The judge erred by holding that a sentinel event had occurred and evident signs from the plaintiff were apparent so as to require from the defendant by way of reasonable response:
(a)additional supervision of the health and well-being of the plaintiff;[3]
[3]Reasons [461].
(b)inquiry as to whether the plaintiff was in need of support, assessment or other intervention;[4]
[4]Ibid [597].

(c) consultation with HR about how to manage the issue;[5]
[5]Ibid.
(d)additional supervision or monitoring of the plaintiff;[6]
(e)a welfare enquiry and offer of referral for screening;[7]
(f)adjusting the plaintiff’s allocation of work or rotating her out of the SSOU;[8]
(g)a supportive welfare inquiry, offer of referral for occupational screening by a trained clinician, and a process for implementing temporary or permanent rotation to a different part of the OPP if required;[9] or
(h)systemic responses in the nature of ‘An active OH&S framework within the SSOU’,[10] a ‘system of open collaboration between SSOU staff and management on targets for reducing the risks of vicarious trauma and staff burnout’,[11] and ‘a strongly reinforced program of training about vicarious trauma and symptoms of PTSD, and how to recognise when intervention is needed to protect staff’,[12] and the matters identified.[13]

2The judge erred in holding on the balance of probabilities that the injury and loss suffered by the plaintiff would have been avoided had the defendant done those things the Court held reasonably required in order not to breach the duty of care.

[6]Ibid [600].

[7]Ibid [670], [680]–[682].

[8]Ibid [690].

[9]Ibid [692].

[10]Ibid [636].

[11]Ibid [637].

[12]Ibid [646].

[13]Ibid [702]–[704].

For the reasons that follow, the defendant’s argument under ground 2 must be upheld, the application for leave to appeal granted, and the appeal allowed.

The issues in this Court

After a detailed analysis of the evidence, the judge found that a ‘sentinel event’[14] occurred in late August 2011 when the plaintiff came into serious conflict with the then directorate manager of the SSOU, Mr Brown.[15] The judge held that by the end of August 2011, ‘the defendant was on notice as to risks to the plaintiff’s mental health’;[16] the defendant knew or ought to have known ‘that the plaintiff was at risk of workplace-related psychiatric harm’;[17] and a reasonable person in the position of the defendant ‘would have adverted to the evident signs regarding the plaintiff and observed that she was failing to cope with her allocated work and that her mental health was at risk’.[18] In proposed ground 1, the defendant contends that the judge erred in so finding. The defendant’s case at trial, and in this Court, is that it was not put on notice of any risk of psychiatric injury to the plaintiff until the plaintiff sent an email on 9 February 2012 to Stuart Ward (OPP legal practice manager) in which she referred to being anxious and distressed about returning to work in the SSOU, and said that she could no longer continue to work in the unit because it would have serious repercussions on her mental health. Notwithstanding the width of the terms of ground 1, and passing criticism made by it in argument of the content of some of the ‘reasonable response’ identified by the judge, the defendant did not make any specific argument in this Court that the judge’s finding on liability should be set aside because one or more of the steps identified in ground 1 were not reasonable responses the defendant could have taken if in fact it had been put on notice as to a significant risk to the plaintiff’s mental health, as at the end of August 2011.
[14]Ibid [598], [609].
[15]Mr Brown is a pseudonym used by the judge: Reasons n 9.
[16]Reasons [604].
[17]Ibid [622].
[18]Ibid [623].

In relation to causation, the judge concluded that ‘if action had been taken to reduce the plaintiff’s exposure to vicarious trauma by around the end of August 2011, she would not have suffered PTSD of the same severity and chronicity’; and that the plaintiff’s later diagnosis of a major depressive disorder arose as a corollary of her PTSD.[19] She then concluded that various measures (which she summarised as being ‘an active OH&S system, adequate training, a system of welfare intervention accompanied by the offer of the occupational screening and flexibility regarding case/work allocation and rotations’) ‘if offered in combination, would have prevented the plaintiff’s severe and chronic PTSD’.[20] The judge then concluded that the defendant’s failure to implement these measures materially contributed to the exacerbation and prolongation of her PTSD and the subsequent development of the major depressive disorder.[21] In proposed ground 2, the defendant challenges these conclusions.
[19]Ibid [738].
[20]Ibid [739].
[21]Ibid.

Relevant background

Before proceeding to analyse the issues in dispute in this Court, it is necessary to describe the background circumstances of this case in some detail as revealed by the evidence which was either not in dispute in the court below, or not now in dispute.

The establishment and early history of the SSOU

The SSOU was set up in April 2007 as a specialist unit within the OPP with a number of solicitors of various grades and seniority, paralegals, and administrative staff. According to its manual (‘the SSOU manual’), it was established to provide a specialised approach to prosecuting serious sex offences. The approach aimed 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 to the conduct of prosecutions. The SSOU manual contained a section on occupational health and safety which contained provisions of a general nature regarding the occupational health and safety of staff members. This section of the manual included a section that described management responsibilities as including:

·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.

In January 2008, the OPP published a policy document headed ‘Vicarious Trauma Policy’ relating to the SSOU (‘the VT policy’). The VT policy formed part of the SSOU manual. In the VT policy, vicarious trauma was described as ‘a recognised, cumulative effect of working with survivors of trauma where some effects parallel those experienced by the primary victim/survivor’; ‘an unavoidable consequence of undertaking work with survivors of trauma … in particular, the survivors of sexual assault’; and ‘a process rather than an event’ which could have ‘detrimental, cumulative and prolonged effects’ on staff members. ‘Secondary traumatic stress’ was described as a recognised response by staff dealing with victims of sexual offending, particularly offending involving children.

The VT policy contained an acknowledgment that the OPP recognised the importance of supporting staff in all aspects of their work. The policy listed potential impacts on individuals experiencing vicarious trauma, and contained personal and professional strategies for staff to use in dealing with such trauma, including avoiding long hours at work, and having manageable and balanced workloads. The policy also contained provisions specifying options available to management, including rotations within the OPP, counselling, debriefing, the relocating of files, specific ‘time outs’ and the provision of assistance to staff members.[22]
[22]For a more detailed description of the VT policy, see Reasons [94]–[100].

In March 2009, a psychologist, Ursula Benstead, developed and delivered a day training program to OPP staff within the SSOU. The training was aimed at enhancing staff understanding of victim presentations and staff understanding of vicarious traumatisation. Further sessions were held by Ms Benstead in September 2009 and March 2010.

Plaintiff’s background

The plaintiff was born in 1973. She completed her VCE in 1991, and thereafter obtained a Bachelor of Arts, with a double major in criminology and psychology. She then undertook a Postgraduate Diploma in Social Science, majoring in legal studies, while at the same time obtaining work as a community corrections officer.

Between 1999 and 2004, the plaintiff undertook a law course. Between 1999 and 2009, she worked as a paralegal at the OPP, rotating through several different sections — including a rotation in the sexual offences section between 1999 and 2001.

In 2001 the plaintiff married. 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 plaintiff subsequently separated from her husband.

In 2008, the plaintiff commenced her articles at the OPP. In March 2009 she was admitted as a legal practitioner while still working at the OPP. In June 2009, she began working in the SSOU. The plaintiff was employed in a VPS Grade 4 role. At times, however, during the course of her employment she worked in a VPS Grade 5 role, in temporary ‘backfilled positions’ within the unit.

The plaintiff’s work in the SSOU

The plaintiff’s work in the SSOU involved her attending court to instruct on a daily basis, and meeting with child and adult victims and their families. She said that when she started in the SSOU, about 50 per cent of her cases involved child complainants. By the second half of her time there, however, the majority of her cases involved child complainants. In relation to graphic images of rapes or assaults on children, she said: ‘There is not a day that I wasn’t exposed to it’.

In relation to some of her cases, the plaintiff had to watch explicit child pornography, sometimes repeatedly, in order to shed light on patterns of behaviour, fetishes, or the age group that offenders were targeting, so as to draft documents such as tendency notices. When she commenced work in the SSOU, her own children were only three and five years old. She said that the content of the work was very confronting for her.

Working with child complainants required the plaintiff to watch their video recorded evidence and then to prepare them for cross-examination. She said that child complainants were often ‘fearful of the whole process’ and ‘very distressed by the whole ordeal’. She said she would try to comfort them and make them feel safe. She would be at court while they gave their evidence, and then see them later ‘to make sure that they were okay’.

The plaintiff’s role included informing complainants when a jury returned a not guilty verdict. She had to deal with the aftermath of that result. This was sometimes extremely distressing, and some complainants attempted to take their own lives in such circumstances.

The plaintiff said that while she was in court nearly every day, she would also take work home most days. She usually left the office after 5:00 or 6:00 pm, having collected work in a large suitcase for completion at home. She would work at home until at least midnight, and sometimes until 1:00 or 2:00 am. The latest that she stayed up was until 4:00 am.

The plaintiff’s description of her workload and its heavy nature was supported by evidence given by four fellow employees called on her behalf as part of her case at trial.[23] The evidence disclosed that the plaintiff was a dedicated, hard-working, ambitious and loyal employee of the OPP. As the judge put it, ‘she had upwards of 25 files, when the desirable file load was no more than 20’.[24] The judge found that all of this was ‘known by the SSOU managers’.[25]
[23]Reasons [22]–[25], [73]–[89].
[24]Ibid [569].
[25]Ibid.

Internal OPP documentation in 2007–2009

In the period from 2007 to 2009 a number of internal documents and communications (‘the 2007-2009 internal documents’) were created and/or received within the OPP dealing with vicarious trauma and the wellbeing of staff working in the SSOU.[26] The documents included:
[26]The judge identifies, and describes in some detail, these documents at Reasons [120]–[145].

·An email passing between managers in October 2007, headed ‘Vicarious trauma associated with working on sexual assault issues — Article for your information/interest’. While the article was said to relate mostly to sexual assault counsellors, the issue of whether it had any application to lawyers was raised.[27]

·An evaluation prepared by Ms Benstead in March 2009, in which she reported that an overwhelming majority of participants in the March 2009 day training program ‘related to the signs and symptoms of VT and the importance of self-care in their work’ which Ms Benstead said supported ‘management identification of VT as an important OHS and risk management issue to be addressed by the specialist sex offences unit’.[28]
·A briefing paper emailed between managers in May 2009 in which it was observed that five staff had been ‘lost in quick succession’ between March and April of that year, resulting in the reallocation of 150 files ‘which had in large part been absorbed’.[29]
·A memorandum sent in May 2009 by the then principal solicitor of the SSOU, Suzanne Penhall, to the directorate manager on the topic of staff wellbeing. This memorandum dealt in detail with the issue of stress caused by ‘the very nature of the work of prosecuting sex offences’, and listed an array of symptoms that had been reported by staff. The memorandum also dealt specifically with vicarious trauma, ‘the labour (and emotional) intensity’ of the work, and the short timeframes in which staff were given to complete certain work.[30]

[27]The Drysdale email (2007); see Reasons [121]–[123].

[28]Benstead evaluation and recommendations (2009): Reasons [125]–[132].

[29]SSOU 2009 briefing paper on workload and staffing issues: Reasons [133]–[137].

[30]2009 Penhall memo on staff health and well-being concerns: Reasons [141]–[145].

Mr Brown and the deputy manager of the SSOU, Ms Robinson,[31] were unaware of these documents. The judge described the knowledge of VT policy by staff and management in the unit as ‘desultory’.[32] When asked about the VT policy in cross-examination, Mr Brown said that he was not aware of it or of the matters explained in it.[33]

Employee assistance program

[31]Ms Robinson is a pseudonym used by the judge: Reasons n 10.

[32]Reasons [149].

[33]Ibid.

The OPP offered an employee assistance program to all staff, including SSOU staff. The program entitled staff to four free counselling sessions each year with CARFI Psychological & Rehabilitation Services (‘CARFI’). CARFI was based in Carlton, but CARFI staff would attend the OPP and walk around making themselves known and available to staff. While the plaintiff agreed that a psychologist from CARFI would ‘walk the floor’ of the OPP, she said that she was often in court when that happened. Moreover, she did not feel comfortable speaking with a CARFI psychologist at the SSOU offices because of privacy concerns.[34]
[34]For a fuller description of the employee assistance program, see Reasons [101]–[111].

Monthly team meetings

There were monthly team meetings held in the SSOU, which staff were required to attend ‘unless held back in court’.[35] The meetings were fairly informal. Things such as workload, new areas of law and matters affecting the office were discussed. The plaintiff described the meetings as follows:

Once all the legal issues had been discussed, it was basically an open forum to discuss any issues, and that’s when a lot of us opened up issues of feeling overwhelmed, overworked, things that may affect us emotionally in relation to our cases.

[35]Reasons [200].

The plaintiff said that she became increasingly vocal at staff meetings from late 2010 onwards. The judge summarised her evidence on this topic as follows:

She recalled instigating discussions about how work was affecting the daily lives of staff. She said she began speaking at meetings about how matters with child complainants were affecting her as a mother. She spoke of her extreme caution in relation to her children and being paranoid about leaving her children with other people, including at activities and with schoolteachers. She said at one meeting that she had refused to allow her son to be an altar boy. She mentioned dreaming of her children being the complainants in her matters and raised the fact that a lot of the complainants she dealt with were the same age as her kids.[36]
[36]Ibid [203] (footnotes omitted).

March–April 2011

On 7 March 2011, the plaintiff applied for a permanent promotion to a VPS–5 role at the OPP, seeking a position either in Principal Prosecutions, or in the SSOU.

On 30 March 2011, SSOU staff held a meeting after hours in the absence of management. Subsequently, they prepared a joint memorandum, dated 18 April 2011, on staff wellbeing (‘the 2011 staff memorandum’). The memorandum was addressed to the management team and placed in Mr Brown’s office. Mr Brown’s evidence in relation to its receipt was, ‘I just came in and found it from memory’. While there was debate at trial about the number of people who signed the memorandum, the judge accepted that it was ‘signed by the majority of staff who went to the meeting’.[37] The memorandum provided:

As you know, we are experiencing increasing court commitments of solicitors working within the SSOU. As a consequence, solicitors have been working long hours not only in the office but by taking work home on weeknights and at weekends.
While the very nature of the work of prosecuting sex offences can of itself elevate stress levels, solicitors have reportedly experienced a marked increase in the symptoms associated with stress.

[37]Reasons [153].

There was then a reference in the memorandum to earlier periods of time when ‘similar periods of extreme workload pressure were reported’. Stress-related symptoms experienced by solicitors in the SSOU were identified in the memorandum as follows:

·Fatigue
·Extreme Anger and lack of job satisfaction
·Insomnia and other sleep disturbances
·Anxiety/nervousness (at times requiring medication)
·Feelings of hyper arousal (particularly during the night)
·Weight loss/gain
·Inappropriate thoughts/flashes relating to subject matter of our work
·Irritability
·Mood changes
·Sense of being overwhelmed
·Relationship problems/arguments with partners or other family
·Lack of concentration
·Upset digestive systems
·Bad dreams (involving feelings of panic or anxiety)
·Persistent muscle twitching/spasms (eg eyelids, facial twitching)[38]

[38]Apart from the inclusion of ‘Extreme Anger and lack of job satisfaction’, this list of symptoms replicated the list of symptoms in Ms Penhall’s memorandum of May 2009.

Under the heading, ‘What can we do?’, it was asserted that there had been a ‘gross underestimation of the number of staff required to run a specialist unit’. A number of suggestions were then made to improve working conditions and to discourage ‘burn out’, including specific suggestions about workloads, the allocation of files and additional training.

As part of her description of the memorandum, the judge set out the following extracts:

[S]taff reported an inability to keep abreast of emails, recent judgements and files because it felt as though they were constantly ‘putting out spot fires’ leaving little time to specialise ... It was also reported that significant unpaid overtime was occurring simply to stay on top of the work load … some staff members are left feeling like they are not coping and failing in this area of law.
…
[S]taff expressed a fear that it will not be until something ‘goes wrong’ that there will be a genuine acknowledgement that work load is inhibiting specialisation and general file conduct. In other words, we cannot be in two places at once and we cannot continue to run between a number of matters. It cannot be the case, that where the recruitment process is as slow as to not replace maternity leave positions (even with 6 months’ notice), that the policy insists on instructors in each and every matter.
…
Staff have indicated that while they feel comfortable with present management they feared that they would be overlooked for promotions and be seen in a negative light for voicing concerns … almost all indicated that they would play down the [sic] stress levels and concerns. Some staff members indicated that they have previously approached management regarding issues however felt that although acknowledged at the time, management have not done anything to address their concerns. The consensus was that no one staff member wanted to be seen as whining and they wanted to be sure that their concerns would be met with genuine appreciation and validation before opening up. The majority of staff however will be comfortable in discussing the contents of this memorandum in a group meeting …
Further, the lack of physical presence of managers across the Unit was noted by staff and a desire was expressed for management to visit offices, see how staff are progressing and to be willing to take the time to discuss any issues.[39]

[39]Reasons [160]–[163].

In its final paragraph, the memorandum concluded:

On the whole, solicitors indicated that they enjoy the challenges of sex offence files but complained about the amount of work they must complete, particularly given the short time frames. Many felt they cannot do justice to their files when there are simply so many of them. Others found that being in court every day is wearing them out and they fear that they will soon ‘slip up’ or miss something.

On 20 April 2011, Gus Carfi ran a resilience training session at the SSOU. OPP records show that the plaintiff attended the session, but she could not recall it. The judge summarised the evidence of Mr Brown and Ms Robinson in relation to the session as follows:

Mr Brown had a memory of the plaintiff speaking about being alert to paedophiles at swimming pools at that session. She spoke of being at the swimming pool and of her sense of being uncomfortable with people looking at her children. However, he saw her remarks as an example of the effect that working in the unit could have, and of ‘sharing a feeling that probably everybody had experienced at some point’, and a hypervigilance about paedophiles ‘we probably all think about anyway’. He continued by saying, ‘it didn’t to me set off an alarm bell that she had a particular problem. She was merely providing this as an example, ah, of the, um – the effect that this sort of work we do, um, might make you a bit more, um, sensitive to that type of concern’.
Ms Robinson said the session with Mr Carfi was a ‘free flowing discussion forum’ where staff could share their experiences on how their work impacted upon their personal lives and have their experiences validated. Staff made ‘sweeping, broad statements’ at the session, such as saying that each time they got into a taxi they thought the driver was a paedophile. She said the plaintiff spoke of being with her children, looking around, and regarding everyone as a paedophile. She believed the plaintiff was sharing what ‘appeared to be a collective sentiment’ and was ‘very engaged’ in the training. She did not believe the plaintiff’s comments related to mental ill-health and they did not make her concerned. After the session, she said that ‘we debriefed with Gus Carfi’ and nothing urgent was flagged as requiring attention.[40]
[40]Reasons [244]–[245] (footnotes omitted).

May–July 2011

On 18 April 2011, Mr Brown emailed a copy of the 2011 staff memorandum to Craig Hyland, the solicitor for the OPP, and Stuart Ward, the OPP legal practice manager. On 13 May 2011, Mr Brown sent an email to staff, outlining the steps he and Ms Robinson intended to take in response to the issues identified in the 2011 staff memorandum.[41] In June 2011, he prepared a business case for the OPP executive in which he referred to staffing levels in the SSOU as being insufficient to cope with the workload of the unit. The business case referred to staff in the SSOU ‘reporting burn out’ and ‘staff turnover is increasing’. Mr Brown made a case to the OPP executive for additional solicitors to be employed in the unit.
[41]Details of which can be found at Reasons [167].

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. She formally accepted that offer of employment on 5 May 2011.

On 29 July 2011, Mr Ward emailed Mr Brown in response to the business case, advising that the executive had decided to, amongst other things, employ two additional solicitors in the unit. Notwithstanding the efforts of Mr Brown, the plaintiff’s evidence was that after the 2011 staff memorandum, there was no change to the volume, or nature of the work she was required to do.

Plaintiff’s reaction to being allocated the Lim case

On 9 June 2011, the respondent resisted the allocation of the case of Lim,[42] to her, saying that she was unable to handle the Lim file with her current workload. She emailed Mr Brown and Ms Robinson as follows:

I have noticed that I have been allocated the above matter [Lim] and I must say to you both that realistically I am unable to handle this file with my current load. I have trials for the next three weeks and am struggling to prepare things in between. I will have to come in on the weekend just to get back on top of my other work.
…
I am sorry, but I must have realistic expectations of myself and my workload at the moment.
Let me know your views or if you wish to discuss further.

[42]A pseudonym.

The plaintiff was required to keep the Lim file and gave evidence of the extensive work she was required to perform to get it ‘back on track’, while running multiple other trials.

August 2011

On 11 August 2011, the plaintiff became unwell at work. She gave evidence that she recalled becoming extremely dizzy while in the office of another SSOU solicitor. After sending an email saying that, ‘I truly am not feeling well’, and after arranging for another solicitor to attend a Witness Assistance Service (‘WAS’) conference, the plaintiff went home early that day.

The plaintiff was on sick leave until 29 August 2011. While on sick leave, she was admitted to hospital and underwent an iron infusion. During the course of her sick leave, she was informed that the more vulnerable of the two complainants in the Lim matter had attempted to commit suicide.

On 22 August 2011, the plaintiff attended her general practitioner, Dr Omkar, and was referred to a psychologist, George Foenander. The plaintiff attended Mr Foenander on 23 August 2011.

On 28 August 2011, while the plaintiff was still on sick leave, she applied for a promotion to a permanent VPS–5 role in the SSOU.

29 August 2011 (the ‘sentinel event’)

The plaintiff returned to work on 29 August 2011. Upon her return, she was involved in a dispute with Mr Brown. The dispute arose out of Mr Brown’s perception that the plaintiff had come in late that day, when in fact she had come in early that morning to get a head start and check emails. The dispute culminated in the plaintiff sending a long, detailed and emotionally charged email to Mr Brown, to which he responded, and to which the plaintiff then further responded. In view of the importance of these emails it is necessary to set them out in full.

In the first email, sent by the plaintiff to Mr Brown at 12:00 pm, the plaintiff said:

This morning I came to you at 9:05 am to say good morning and to advise you that I was prepared to baby sit Antoinette Ellul's matter despite having a last minute s 32c listed at noon in my matter of [TT]. Belinda Bleazby was present in your office when I then mentioned that I had a doctors appointment at 4:30 pm and asked permission to leave at 4 pm. I told you I had come in at 8.30ish and was prepared to make up time during lunch time. You responded to me abruptly saying ‘what does that have to do with anything, I thought you had not turned on your computer’. I responded saying I had been looking at paper work on my desk that was accumulated during me being away on sick leave and that my computer was not letting me in and I had reported difficulty to IT. I left your office and came back to see you approximately 10 minutes later as I felt confused and surprised by your words especially after what happened on Thursday afternoon 2 weeks ago when I was sick and asked if I could please leave at 3:30 pm to see doctor as I felt dizzy. You responded to me saying ‘I had other issues in my life’ when I asked what you meant by that you responded saying my children being sick. You were well aware at that time that my mother was looking after my sick children so I could continue working. I could have taken carers leave but I did not want to place my files in another solicitors hands as the unit is always under strict deadline pressures. That week I worked back late every night and there are other staff that can confirm that.
Today was my first day back at work after two weeks off on sick leave as I have genuinely been unwell I have medical certificates to confirm. Steve,[43] I apologized to you on the phone for being unwell as it was beyond my control. I spoke to you over the phone several times and even continued working on my matters from home despite being on sick leave. I have file notes confirming conversations with Informants, counsel and child witness services. I have come back today ready to do my normal duties despite my doctor recommending I take further time to recover. I approached you in your office and asked to speak to you as my manager. I asked you if I had done anything wrong or failed you and the unit in any way as I was most concerned and surprised by the way you have spoken to me of late and your general attitude towards me. You responded saying Zag ‘you are just not coping with your work, I can’t allocate any files to you’. I responded saying that I wanted you to point out where you feel I was not coping? That we discussed any new files could be allocated to start after November due to my work load calendar showing [it is] impossible for me to take on any more files at present. You could not point to anything in my work but responded that I was the only mother of two you knew that worked full time and now was a single mother and that I should not be working full time in a busy unit like ssou. I responded saying that my work load report showed I have been in back to back complex trials since July to October the majority of them being child complainants with strict deadlines and notices to prepare. You made me aware that only recently you have reallocated my files due to the clashes, but I reiterated to you that all the files have been fully prepared and all the solicitors that now have my files due to clashes would only need to instruct. You then responded saying ‘well then I am a shit manager’! I corrected you and said I never said or felt that, hence [the] reason I was coming to you with concern and wanted to address any issues. I always work hard, I have never let my personal issues interfere with my professional life. I am grateful for all your understanding and assistance during my family law matters and during times my children were sick and I would come into work and continue working as I had no care for them with them sleeping in my office. I thought I was doing the right thing by the unit, I thought I was being dedicated and conscientious of my work. Despite having the leave, I did this as a dedicated solicitor to ssou. In a recent file review you praised me for ‘not dropping the ball despite all going on in my life’ and now you are saying I am not coping? I fail to see how? My work apart from time I have been away has all been prepared including the trials you recently allocated not to mention prism. Recently when ·you and Nia[44] allocated matter of [NS] to me after Carla leaving I expressed major concern that I had only 2 weeks to prepare a full trial including tendency and coincidence notices. I expressed concern twice yet I was told to keep the file. I kept it and worked till 1 am most nights from home preparing the notices and trial. Many other matters had not been completed in this file yet I kept it and completed it, the trials are still running to date. You and Nia were made fully aware it would interfere with my other trials. I worked every night from home and came in on weekends even public holidays to produce the best work possible and keep on top of all my matters to have you today say to me ‘you can't allocate anything to me and I am not coping’ ‘you have too much on in your life and should not work full time’, it’s not just me, others think you not coping’ yet you can't tell me where I have failed you despite saying it’s always my matters that need covering. Of course they need covering I cannot physically be in more than one matter in court to instruct. I have resolved several matters and have accomplished great results in a lot of my matters. I have completed my work other staff are not covering any preparation of files it’s instructing as matters have been listed back to back. I work hard, I am dedicated and committed to ssou. You have stripped my pride from me today I feel discriminated against as a single mother working full time and you have labelled me as you clearly stated that you are not the only person with this view. You have made me feel I have no hope for permanent 5 that I submitted [an] application for yesterday. I feel surprised to hear this all today as my manager I gave you several opportunities to discuss this with me if you had an issue. You have only given me positive feedback about my work.
I then asked if you felt I should no longer be in the unit and you stated it may need to be addressed with Stuart Ward. I am surprised and lost for words with what I have heard today. I am a passionate member of staff. You have shamed me today and made me feel that I have no incentive to work in ssou. If you had an issue with me why was it not addressed earlier? I cannot see where my work is lacking? When I asked you repeatedly you could not answer. The work load calendar shows I had one of the highest file loads from July to October. Again, I reiterate all my work you have allocated only recently as recent as last Thursday has been prepared for trial as I work back and on weekends to stay on top of my work.
My personal matters I have confided in you as my manager you are aware are not fresh. My marital issues have been ongoing for years yet no one at work till recently knew. That shows my personal life has never interfered with the pride I take in my work. Me working full time as a mother of two has always been the case even when I was married. You accommodate for all mothers in the unit, I am dedicated enough to not even ask to work a day from home. I see that I am coping at work and have managed to complete my work and meet all deadlines. I have never failed the unit and team. I believe I am a strong team player and a dedicated member of staff of the OPP.

I am sorry despite you telling me you have no time to deal with this confrontation today and me saying I can’t stay now at work as I am upset and you suggesting I go out for a coffee ‘you can't just leave’ I don't think I can come back today as I am surprised about your views and those that others you say have too.
Steve, with the greatest of respect I am sorry but I cannot come in for the rest of the day. I will fax my medical certificates in relation the last 2 weeks. I will be asking to make an appointment with Stuart Ward in the next day or so as I feel clearly discriminated against that now I will never stand any chance of promotion in the unit and that I have been topic of conversation within the team as· you clearly stated you are not the only one that holds this view.
I still fail to see how I have failed you, my work is up to date.

[43]Mr Brown.

[44]Ms Robinson.

At 12:43 pm, Mr Brown responded by email in the following terms:

There are a number of matters you have referred to here which are not accurate. Your text below is not a fair record of our conversation. I have been round to your office to speak with you to clarify but you were not there. I have also left a message on your mobile asking you to speak with me before you left.
Most importantly, I did not say to you that others in the team have been talking about you. Also, it is unfair to say that you now feel discriminated against in any future job applications and I am disappointed that you would imply that that would be the case. I’m also disappointed that you have chosen to just leave for the day following our conversation rather than getting on and dealing with your matters. Other members of the team have agreed to Instruct for you this morning in two of your matters so that you could get on top of your emails and sort through things after your absence.
I believe I have been exceptionally understanding and flexible as your manager. I’m really surprised that would say that you will take things up with Stuart.
I hope we can talk sensibly about this.

At 2:36 pm, the plaintiff responded as follows:

I did not just leave work. I told you that as a result of our conversation I felt emotional and could not stay rest of the day. You suggested I go get a coffee rather than leave. I went to get a coffee and became more emotional upon reflection of our conversation and felt it best to let the dust settle rather than come back to work emotional. I wrote you an email stating I was not up to coming back today under the circumstances. Yes, I got your message on my mobile and called you and you were unavailable and I reiterated to Stephanie Clancy to tell you I would not be back. I even dealt with issues over the phone and responded to work enquiries during that time on my mobile.
I have Not gone to Stuart Ward about this, I am merely refereeing (scil, referring) to the comment you made about me not being suitable for the demanding unit and the discussion about perhaps I should be thinking about going to the other building and Stuarts name was mentioned.
I want to make it clear that I am passionate about continuing my work in the sexual offences unit and l don’t want to leave the unit and don’t believe that I should be made to feel like I am not coping when the work load calendar clearly reflects my deadlines and workload. I have kept up to date with my work and always remained committed and dedicated to ssou. I believe we can discuss this together, I am even open to having an independent person present if necessary. You did state that you were not the only person that held the view, perhaps that person could help shed some light as to how I am not coping due to my ‘other issues’. If you feel it necessary to go to Stuart Ward about any issues of concern you may have with me, then I am happy to attend a meeting with him too.
I am very hurt and emotional at the moment as this was the last thing I expected returning to work today. I want to reiterate that I am grateful for all your support but I can’t get my head around some comments you have made recently.

End of August to end of December 2011

From 29 August 2011 until the end of December 2011, the plaintiff continued to deal with serious sex offences in the SSOU. When asked what her workload was like, she said:

It was intense. It was high. I was running complex matters. I was also running historical matters which are very difficult matters to run.

On 13 September 2011, Mr Brown and the plaintiff signed a performance assessment document relating to the plaintiff’s work. The performance assessment document recorded that the plaintiff had met all her key performance requirements.

On 10 October 2011, the respondent applied to take annual leave and long service leave at the end of 2011, with the intention of taking off the month of January 2012. She was subsequently absent from work on 24, 25 and 31 October, 3, 10, 15,
16 and 25 November, and 2 and 8 December 2011. On those days, she either took annual leave, carer’s leave or sick leave.

On 27 October 2011, the plaintiff attended a meeting with Mr Ward. She went with another SSOU solicitor and a support person. At the meeting, amongst ‘other concerns’, the plaintiff told Mr Ward that junior lawyers were approaching her regarding the confronting nature of the work in the SSOU, and asking her for guidance.

On 3 November 2011, the plaintiff was offered a promotion which she subsequently accepted on 9 November 2011. From that time, she was employed on a permanent basis as a senior solicitor within the SSOU at a VPS–5 level. At trial, the plaintiff agreed that she knew that a promotion to a permanent VPS–5 position would increase her workload.

January–February 2012

Having worked to the end of December 2011, the plaintiff was on leave throughout January, as had been arranged earlier. On 31 January 2012, she sent an email to her managers asking for an extension of her leave from 7 February to 10 February 2012. At 8:00 am on 9 February 2012, the plaintiff sent an email to Mr Ward and Mr Hyland containing the following:

The purpose of this email is to inform you that I am anxious and distressed about returning to the SSOU now that I have had time off work and have been able to assess the effects of working in this unit and the subject matters I am exposed to as mother of two very young children. As such, I am demanding that my issues with working in this unit be taken seriously and that I be immediately transferred from this unit … and be placed in another section.
Stuart, I have previously raised serious issues of concern with this unit along with major issues I have had with management within the unit and specifically comments made to me by [Mr Brown] that effect me [sic] and makes me feel discriminated against still to this day hence the reason I have not included him or [Ms Robinson] into this email …
It is obvious that my previous endeavors [sic] to address these issues have been ‘swept under the carpet’ and despite applying for positions at level in the other building I am not even considered for an interview. This in itself is concerning as I cannot comprehend how I am not suitable for a mere interview for positions that I am already at that level. I was not applying for a promotion but a transfer.
My time off work with my children has highlighted the effects that all the child sexual offending cases has had on me and it is clear to me now being removed from the work environment that it is effecting me [sic] as a parent and psychologically ... something as simple as taking my children to the local swimming pools becomes a panic attack for me as I find myself constantly on edge and scanning the surroundings for potential pedophiles that may be taking photos … or using their goggles to swim under water to look at them or better still accidentally touch them. I can give you several more examples …
I am returning to work to major lengthy back to back child complainant trials and believe that as a single mother that needs to be in the best possible mind set to raise her young children I can no longer work in this unit as it will have serious repercussion on me, my mental health and most importantly on my children.
Please take this email seriously and address my issues immediately. In the event that this is not immediately addressed upon my return to work I will have no choice but to take matters further.

Mr Ward responded by email later that day, saying that in order to consider an immediate transfer from the SSOU, the OPP would require ‘some medical material that supports the basis for [the] request, and identifies the nature of the work that causes [the plaintiff] distress and anxiety’.

In what the judge described as a ‘lengthy and emotionally charged’ email sent at 11:30 pm on 9 February 2012, the plaintiff replied:

I find it disturbing that an employer such as the OPP who prides itself on offering external services such as Carfi and psychologist Ursula, who specialises in workshops … to assist with trauma suffered by staff as a result of images, content, and one on one dealings with complainants and families of some of the most horrific crimes of our society, yet you now question me as to why I request a transfer when these experts have lectured us as staff to seek a transfer when signs are present and it is getting to be all too much on our mental health. I find this rather contradictory of what is portrayed as being a caring work environment in relation to staff being exposed to material or subject matter that could scar someone for life.
My medical files are confidential and contain material I do not wish to share with management, as it is clear that when I opened up to my manager [Mr Brown] and deputy [Ms Robinson] as to why my marriage ended, it was used against me and I quote ‘you have other issues in your life Zagi’ referring to me not having dealt with my marriage breakup or the personal reasons for it. Better still [Ms Robinson] took it upon herself to make enquiries within the legal field about my personal life. I addressed this with her. For these reasons I do not want to include [Mr Brown or Ms Robinson] in any further discussions as their previous behavior [sic] has shown no confidentiality or respect for ones privacy [sic] once matters are disclosed.

The defendant’s case at trial, and in this Court, was that its duty of care to the plaintiff was not engaged prior to its receipt of the plaintiff’s 9 February 2012 emails, because it was, until that time, unaware of any reasonably foreseeable risk of the plaintiff suffering a recognisable psychiatric illness as a result of her work in the SSOU.

From 9 February to 20 April 2012, there were attempts to return the plaintiff to work at the OPP in different areas. Those attempts, however, were ultimately unsuccessful, and the plaintiff’s employment was terminated thereafter.

The judge’s reasons

In commendably comprehensive and detailed reasons, the judge described and analysed the issues in dispute between the parties, the evidence tendered before her, and the relevant authorities to which the parties took her.[45] No complaint is made by the parties in relation to any of this analysis or her Honour’s findings of primary fact. As we have already identified, the two proposed grounds of appeal advanced by the defendant relate to her Honour’s conclusion that by the end of August 2011, ‘the defendant was on notice as to risks to the plaintiff’s mental health’;[46] and that steps which the defendant could have taken, on the balance of probabilities, would have prevented the plaintiff’s injury.[47]
[45]New South Wales v Seedsman (2000) 217 ALR 583; Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 (‘Koehler’); State of New South Wales v Fahy (2007) 232 CLR 486; Hegarty v Queensland Ambulance Service [2007] QCA 366 (‘Hegarty’); Taylor v Haileybury [2013] VSC 58; Doulis v State of Victoria [2014] VSC 395; Swan v Monash Law Book Cooperative [2013] VSC 326; State of New South Wales v Briggs (2016) 95 NSWLR 467; Wearne v State of Victoria [2017] VSC 25; Sills v State of New South Wales [2019] NSWCA 4; The Age Co Ltd v YZ (a pseudonym) [2019] VSCA 313.
[46]Reasons [604].
[47]Ibid [739].

In relation to the issue of knowledge, the judge concluded that the defendant was ‘on notice that health and well-being concerns have been prominent for SSOU staff for some years prior to the claim period’.[48]
[48]Ibid [558].

The judge said that that notice, of the risks to SSOU staff from burnout, work stress and/or exposure to vicarious trauma, consisted of the VT policy, the 2007–2009 internal documents, the 2011 staff memorandum, monthly staff meetings and direct encounters by management with SSOU staff.[49]
[49]Ibid [559], [561].

As to the defendant’s knowledge of a risk specific to the plaintiff, the judge summarised the plaintiff’s case as being one that the defendant’s duty of care to her, as an individual, was enlivened after signing the 2011 staff memorandum in April 2011, and ‘when she was seen to be failing to cope in the SSOU towards the end of August 2011’. The judge analysed the evidence as to the existence of any ‘evident signs’ warning of the possibility of psychiatric injury to the plaintiff. The judge’s reference to ‘evident signs’, in quotation marks,[50] was no doubt a reference to the following passage in the judgment of the plurality[51] in Koehler:

Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer's obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied.[52]

Having analysed the evidence, the judge concluded that there were ‘evident signs’ at the end of August 2011 which disclosed ‘heightened risks regarding the plaintiff’s mental health in connection with her work’.[53] Her Honour also found that there were evident signs of the plaintiff’s declining mental health’.[54]

[50]See, eg, Reasons [570] and [578].

[51]McHugh, Gummow, Hayne and Heydon JJ.

[52]Koehler (2005) 222 CLR 44, 57–8 [36] (citations omitted).

[53]Reasons [578].

[54]Ibid [579].

As part of her discussion of the issue of reasonable foreseeability, the judge acknowledged that she had to be wary of ‘litigious hindsight’.[55] The reference to ‘litigious hindsight’ was undoubtedly a reference to the following passage in Hegarty:

Further, ‘litigious hindsight’ must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law’s insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and remitting solicitude for an employee’s mental health even in the most stressful of occupations.[56]

[55]Ibid [598].

[56]Hegarty [2007] QCA 366, [47]. See also Koehler (2005) 222 CLR 44, 56 [28].

The judge described the plaintiff’s behaviour and presentation leading up to and around the time of her disagreement with Mr Brown as ‘abnormal and out of character’.[57] She then said that this conflict with Mr Brown ‘constituted a sentinel event showing that all was not well with the plaintiff’.[58] When considered against the backdrop of the plaintiff’s earlier expressions of hypervigilance about herself and her children, her participation in the 2011 staff memorandum, and the changes in her demeanour at work, ‘the evident signs concerning the plaintiff were there to be seen’.[59]
[57]Reasons [598].
[58]Ibid.
[59]Ibid.

Additionally, the judge held that the signing of the 2011 staff memorandum by the plaintiff ‘notified the defendant of ongoing health and wellbeing impacts’ being experienced by her.[60] In the alternative, the judge said that even if the 2011 staff memorandum was not accepted as an express notification of risk to the plaintiff, ‘it provide[d] the context in which subsequent signs of risk attaching to the plaintiff, many of which were implied, must be viewed and assessed’.[61]
[60]Ibid [620].
[61]Ibid [621].

The judge then expressed her conclusion on the issue of foreseeability in the following terms:

I am satisfied on the balance of probabilities that the combination of circumstances particular to the plaintiff, viewed prospectively, meant that the defendant knew or ought to have known, by around the end of August 2011, that the plaintiff was at risk of workplace-related psychiatric harm. Her specific caseload and work allocation,[62] which required her to accept extended exposure to traumatic and confronting material, along with her ongoing conduct and presentation following on from the staff memo, was such that harm to her mental health from the nature and intensity of the work was foreseeable by the defendant.
Viewed prospectively, by the end of August 2011 and thereafter, a reasonable person in the position of the defendant would have adverted to the evident signs regarding the plaintiff and observed that she was failing to cope with her allocated work and that her mental health was at risk. The risk that she was suffering symptoms of psychiatric injury from the cumulative effects of vicarious trauma was not farfetched or fanciful. The duty of care to the plaintiff was enlivened by that time.[63]

[62]Including a high proportion of child sexual assault cases.

[63]Reasons [622]–[623] (footnote in original).

Under the heading ‘What was the content of the defendant’s duty of care and was it breached?’, the judge then discussed the steps that a reasonable employer should have taken to avoid psychiatric injury.[64] The judge concluded that the defendant breached its duty of care to the plaintiff, saying:

I am satisfied on the balance of probabilities that a safe system of work during the claim period should have included: an active OH&S framework; more intensive training for management and staff regarding the risks to staff posed by vicarious trauma and PTSD; welfare checks and the offer of referral for a work-related or occupational screening in response to staff showing heightened risk; and a flexible approach to work allocation, especially where required in response to screening, including the option of temporary or permanent rotation from the SSOU where appropriate.[65]

[64]Ibid [624]–[704].

[65]Ibid [702].

Her Honour then turned to the issue of causation (relevant to proposed ground 2). Having already referred to, and described, the evidence of Professor McFarlane (a psychiatrist, with expertise in the field of traumatic stress, who had examined the plaintiff for medico-legal purposes) and Dr Dharwadkar (the plaintiff’s treating psychiatrist between May 2012 and August 2014), the judge said that, based on their evidence, she was satisfied that, if action had been taken to reduce the plaintiff’s exposure to vicarious trauma by around the end of August 2011, the plaintiff ‘would not have suffered PTSD of the same severity and chronicity’.[66] Moreover, as the plaintiff’s major depressive disorder arose as a corollary of her PTSD, it too was causally linked to the defendant’s negligence. The judge expressed her conclusion on the issue of causation in the following terms:

I am satisfied on the balance of probabilities that supportive and appropriate intervention at the end of August 2011 would have resulted in work-related screening and in all likelihood would have revealed that the plaintiff needed to be rotated out of the SSOU because of the connection between her work and her symptoms at that time. Had those actions been taken, the plaintiff would very likely not have suffered the severe chronic psychiatric injury that occurred in this case. Properly managed, she should have been able to continue working at the OPP.[67]
[66]Ibid [738].
[67]Ibid [742].

Ground 1: liability

As was said in Koehler,[68] the duty of care which an employer owes an employee in respect of a risk that the employee might suffer psychiatric injury arising from the performance of work is only engaged if psychiatric injury to the particular employee is reasonably foreseeable. Moreover, an employer engaging an employee to perform specified duties is entitled to assume, in the absence of evident signs warning of the possibility of the psychiatric injury, that the employee considers that he or she is able to do the job for which they have been employed.[69]
[68](2005) 222 CLR 44, 57 [35].
[69]Ibid 57 [36].

Under ground 1, the defendant challenged the judge’s conclusion that, in all the circumstances, there were relevant ‘evident signs’ warning of the possibility of the plaintiff suffering psychiatric injury at the end of August 2011. The defendant submitted that ‘evident signs’ did not manifest themselves until 9 February 2012, at which time it took appropriate action to protect the plaintiff from the risk of further psychiatric harm. The defendant contended that the judge’s conclusion, of evident signs by the end of August 2011, involved impermissible ‘litigious hindsight’,[70] and was erroneous because it failed to consider the evidence of events as they unfolded in the light of what was known from time to time. The plaintiff rejected this contention, noting that the judge specifically referred to the need to guard against ‘litigious hindsight’,[71] and submitted that her conclusion was one arrived at having viewed the evidence ‘prospectively’.[72]
[70]Koehler (2005) 222 CLR 44, 56 [28]; Hegarty [2007] QCA 366, [47].
[71]Reasons [598].
[72]Ibid [623].

The judge’s ultimate conclusion was made after her Honour had given detailed consideration to all of the evidence. While there was a large body of evidence that had to be considered, there were specific items of evidence that assumed greater importance in the judge’s analysis. One of these was the 2011 staff memorandum signed by the plaintiff in April 2011. The circumstances in which this document came to be created and its terms assumed significance in the judge’s analysis. The judge referred to it as giving management notice that the plaintiff ‘was joining in a complaint about a range of health impacts, including psychologically-based impacts caused by the work’.[73] The plaintiff supported the judge’s analysis and characterisation of this document. The defendant, on the other hand, submitted that, viewed at the time it was given to management, the document was more properly characterised as being ‘industrial not clinical’.
[73]Ibid [578(a)].

The 2011 staff memorandum referred to ‘the very nature of the work of prosecuting sex offences’ being capable of elevating stress levels, and solicitors within the SSOU experiencing stress-related symptoms. As senior counsel for the plaintiff fairly conceded in argument, however, the document did not specifically refer to vicarious trauma. Equally, it did not make complaint about the confronting nature of the work or any particular aspect referable to viewing images or descriptions of an abhorrent nature.

In our view, there is force in the defendant’s submission that, in substance, the 2011 staff memorandum was one that made complaint about heavy workloads and the amount of time that solicitors in the unit had to perform their work. The document called for more people to be employed performing the same kind of work, and for more time to be given to staff so that they could perform their work well, rather than for changes because of the confronting nature of aspects of the work which exposed them to abhorrent material. The opening sentence of the last paragraph of the 2011 staff memorandum is particularly telling in this respect:

On the whole, solicitors indicated that they enjoy the challenges of sex offence files but complained about the amount of work they must complete, particularly given the short timeframes.

The judge identified 13 ‘evident signs’ which ‘provided notice to the defendant of the heightened risks regarding the plaintiff’s mental health in connection with her work, prior to 9 February 2012,’ as follows:

(a)First, the plaintiff was a signatory to the memo. Management therefore had notice that she was joining in a complaint about a range of health impacts, including psychologically-based impacts caused by the work.
(b)Second, the plaintiff had been outspoken at staff meetings, at the Benstead workshop she attended, and at the 20 April 2011 Carfi session, regarding her hypervigilance and abnormally overprotective parenting practices as a result of her work. This was a sign that the plaintiff’s work was intruding into her home life.
(c)Third, as explained above, the plaintiff was known to be carrying an excessive file load with a case mix involving a high proportion of child complainant cases. She frequently took work home in an airport luggage bag to work on after her own children had gone to bed. At times, she also worked on weekends and on public holidays.
(d)Fourth, the plaintiff showed observable signs of emotional involvement in some of her cases; signs which ought to have been noticed by her managers (such as using a nickname for her ‘favourite’ child complainant).
(e)Fifth, the plaintiff sought to avoid taking on the child incest case of Lim because she was struggling with her existing case load. Ultimately, she took on the case which dealt with complex issues and had tight deadlines, despite already being overloaded with work.
(f)Sixth, Mr Brown was aware of the plaintiff leaving work rather suddenly during the Lim trial after an episode of dizziness on
12 August 2011. He was aware that she did not return to work until 29 August 2011.
(g)Seventh, the attempted suicide of the child complainant in the Lim case occurred when the plaintiff was away from work and was in hospital. The incident was communicated to the plaintiff at that time, causing her distress. Ms Robinson became aware of the incident, but did not raise it or discuss it with the plaintiff.
(h)Eighth, there were indications that the plaintiff was not coping with the demands of the work by the end of August 2011. When she attempted to resume work after two weeks’ sick leave, Mr Brown told her that he and others believed she was not coping in the SSOU. In their oral evidence, the SSOU managers referred to the plaintiff having become less reliable around this time.
(i)Ninth, the plaintiff had a highly emotive and agitated reaction to her disagreement with Mr Brown on 29 August 2011, which was telling as to her state of mind at that time.
(j)Tenth, the rupture in the plaintiff’s professional relationship with
Mr Brown at the end of August 2011 was significant. Mr Schrapel said the plaintiff expressed disappointment in her former mentor. According to her emails to Mr Ward in February 2012, the plaintiff felt that Mr Brown continued to ‘sweep things under the carpet’. The plaintiff held a belief that Mr Brown had deliberately reduced her pay rate, leading to underpayment, for the period when she was working as an acting Grade 5 employee. She raised this grievance at a meeting with Mr Ward accompanied by Ms Aitken in September 2011. She was observed to be distressed at the meeting.
(k)Eleventh, the plaintiff’s personality and demeanour were observed to have changed towards the end of her time in the SSOU. Mr Schrapel and Ms Aitken spoke of these changes. Mr Schrapel said that the spark went out in the plaintiff and that he was aware of the plaintiff’s disillusionment with Mr Brown’s management of the unit, despite her previously friendly relationship with him. Ms Robinson described seeing the plaintiff in tears at times (which she attributed to family issues).
(l)Twelfth, the plaintiff, together with Ms Ellul, convened a meeting with Mr Ward in October 2011 to discuss grievances about the operation of the SSOU. The meeting sought improvements on several topics including junior staff being exposed to challenging material, and staff mentoring.
(m)Thirteenth, in October 2011, the plaintiff applied to combine a period of annual leave with long service leave at the end of that year. Along with the ongoing and known staff retention problems in the SSOU, this was a sign that the plaintiff may have been suffering from ‘burnout’. She later applied to extend her long service leave, before notifying of serious return to work issues on 9 February 2012.[74]

[74]Reasons [578].

The defendant submitted that none of the matters referred to by the judge, either alone or in combination, put the defendant on notice of any relevant risk to the plaintiff’s mental health. With respect to each of the matters identified in sub-paragraphs (a) to (m) set out above, the defendant made the following points:

(a)The 2011 staff memorandum was not ‘special to the plaintiff’. It could not reasonably be suggested that the defendant’s response to that ‘impressive presentation of grievance by professionals and colleagues should have been to screen them for occupational fitness’.
(b)Outspokenness could not be an ‘evident sign’. The sign referred to in (b) was ‘an artefact of backwards reasoning’.
(c)The reference to the plaintiff carrying an ‘excessive’ workload carried with it the danger of turning the case into one of ‘simple overwork’, and one which did not conform with what the High Court said in Koehler.[75]
[75](2005) 222 CLR 44.
(d)The judge’s reference in (d) to ‘observable signs of emotional involvement in some of [the plaintiff’s] cases’, was not supported by any evidence concerning what ought to have been apparent ‘to medically lay managers of a kind that it was perfectly appropriate to be in charge of this aspect of the plaintiff’s allocation of work’. Moreover, the judge’s reference to these matters placed no weight on the autonomy an employee is entitled to enjoy about the way in which he or she thinks, or talks, about work.
(e)The plaintiff’s resistance to being allocated the case of Lim was in the context of having too much work to do, and recognising that she would not have the capacity to do more. The fact that the plaintiff took the case on may be of ‘considerable industrial significance’ but was not otherwise relevant.
(f)The episode of dizziness referred to in (f) was by no means specific either to anxiety or PTSD. It was not reasonably arguable that such an episode required ‘occupational screening’.
(g)Neither the attempted suicide of the more vulnerable of the Lim complainants, while horrific (and not unknown in other areas of legal practice), nor its communication to the plaintiff, could constitute an evident sign of a heightened risk to the plaintiff’s mental health.
(h)The plaintiff’s resumption of work and unhappy exchange with Mr Brown referred to in (h) did not indicate any inability to cope with the work of the unit. To the contrary, in her emails of 29 August 2011, the plaintiff made it clear that she was ‘passionate about continuing my work in the sexual offences unit’, and that she did not want to leave the unit.
(i)The ‘highly emotive and agitated reaction’ referred to in (i) could not, of itself or in combination with other factors, indicate a risk of mental illness so as to require special steps to be taken. Employees are entitled to be upset or angry if they sincerely believe that a manager has been unfair. While the plaintiff’s reaction might now retrospectively fit a picture that subsequently emerged, it was ‘entirely insufficient on its own or in combination with anything else to indicate prospectively’ a relevant risk.
(j)The ‘rupture’ in the plaintiff’s professional relationship with Mr Brown might, again, retrospectively fit a picture. Disagreements amongst colleagues would not ordinarily be an indicator of the existence or risk of mental illness unless it involved ‘histrionic exaggeration or a deluded false account of events’. The pay dispute referred to in (j) was ‘a glitch’, and was ‘entirely beside the point with respect to evident signs of risk of mental illness’.
(k)There was nothing specific in relation to any change in the plaintiff’s personality or demeanour, as referred to in (k), which was an evident sign of a risk of mental illness.
(l)The meeting which the plaintiff convened referred to in (l) was a serious professional meeting to discuss the topics of junior staff being exposed to challenging material, and staff mentoring. It was not a sign of mental illness for a responsible professional such as the plaintiff to convene such a meeting.
(m)The application by the plaintiff to combine a period of annual leave with long service leave could not, on its own or in combination with other matters, provide the defendant with notice of any risk to the plaintiff’s mental health. The plaintiff’s application was ‘entirely unexceptional’ and ‘anodyne’ for someone in a demanding job, the terms of which permitted her to apply for aggregate annual leave with long service leave. As senior counsel for the defendant said:
The diagnostic manuals don’t contain references to people taking holidays, which they’re due, in a way that suits them, as being diagnostic of any illness.

The points made by the defendant are not entirely without substance. When viewed in isolation, each of the matters relied on by the judge might not individually constitute relevant notice to the defendant that the plaintiff was at risk of suffering psychiatric injury as a result of the nature of her work. However, the correct approach, which was taken by the judge, was to analyse and consider all of those matters in combination, rather than in a piecemeal manner.

In particular, it was relevant for the judge to consider each of the thirteen matters outlined above, in the context of the work that was performed by the plaintiff. It is self-evident that cases involving sexual offending, of themselves, invariably involve a degree of stress to a legal practitioner. In the period in question, the case load on the plaintiff, and her colleagues, was increasing significantly. At the same time, the content of the work became more confronting, particularly as the proportion of child sex offences handled by the plaintiff increased quite substantially. The work required the plaintiff to comply with a number of tight time limits that were prescribed by statute and by judicial direction. In those circumstances, there was little opportunity for the plaintiff to gain relief from the stresses of her work by stepping back and separating herself from it.

It was in that context that the thirteen factors, identified by the judge, were relevant. While, as the defendant has submitted, the 2011 staff memorandum was primarily concerned with the issue of excessive workload, a number of matters contained in it referred specifically to potential stresses arising from the nature of the work that was involved in the SSOU. The memorandum itself noted that the ‘very nature of prosecuting sex offences can of itself elevate stress levels’. It then referred to a number of symptoms, some of which were potentially specific to the type of work being undertaken, including ‘inappropriate thoughts/flashes relating to the subject matter of our work’ and ‘bad dreams (involving feelings of panic or anxiety)’.

The first eight matters — specified in sub-paras (a) to (h) by the judge — were all part of the context, individual to the plaintiff, that preceded the circumstances that occurred in August 2011. They were each matters of which the defendant was aware at the time at which the plaintiff became embroiled in the very fraught disagreement she had with Mr Brown at the end of August 2011. In other words, the highly emotional reaction by the plaintiff to her meeting with Mr Brown on 29 August did not occur in isolation or ‘out of the blue’. Rather, it occurred in the context of the matters discussed by the judge relevant to the plaintiff, and in the context of the nature, content and volume of the workload that she was bearing. The emails sent by the plaintiff on 29 August — which the judge aptly described as being ‘long, detailed and charged with emotion’[76] — in that context, would fairly be viewed as a clear indication, which should have been taken as a warning sign to the defendant, that all was not well with the plaintiff’s emotional state at that time.
[76]Reasons [268].

It might have been expected that the plaintiff might have resisted, and indeed resented, a suggestion that she was not coping with the workload at that time. However, the histrionic nature and loaded tone of her reaction to Mr Brown’s remark to that effect was such that it was open to the judge to consider that, in the context of the events that had preceded it, the plaintiff’s email, and her responses at that time, constituted a ‘sentinel event’ which ought to have put the defendant on notice that the plaintiff was suffering genuine emotional distress as a result of the nature and content of her work. Accordingly, notwithstanding the submissions made on behalf of the defendant, it was reasonably open to the judge to conclude that, by the end of August 2011, the defendant knew, or ought to have known, that the plaintiff’s mental health was at risk arising from the nature of her work that she was performing in the SSOU.

Notwithstanding the plaintiff’s passionately expressed wish to remain in the SSOU, as disclosed in at least her second email on 29 August 2011, we do not see any error in the judge’s ultimate conclusion that by that time the defendant was on notice of heightened risks regarding the plaintiff’s mental health arising out of the performance of her work in the SSOU.

The first of the plaintiff’s emails sent on 29 August 2011 to Mr Brown was very emotional, dense, and long. That is not to say that any communication that satisfies that description might raise an issue as to the state of mental health of its author, but it is a matter that her Honour was required to look at (as is this Court) in the context of all of the available evidence. It is a communication from a hardworking, ambitious, professional solicitor. We see no error in the judge accepting that its very terms, in the context of all that was known about the work being performed by the plaintiff, put the defendant on notice as to there being a risk to the plaintiff’s mental health in the continued performance of work involving cases that were significantly confronting.

The judge was alive to the risks of ‘litigious hindsight’ and, as we have already observed, specifically addressed that issue. The fact that the matters relied upon by her Honour in support of her Honour’s ultimate conclusion can be seen to be correct in retrospect, does not gainsay the proposition that prospectively analysed they demonstrated notice of a risk to the plaintiff’s psychiatric wellbeing from the end of August 2011. We do not accept that her Honour, contrary to what she said in her reasons, engaged in any form of ‘litigious hindsight’.

The issues raised in ground 1 are not free from difficulty. Accordingly, there should be a grant of leave to appeal in respect of it. For the reasons given above, however, the ground must ultimately be rejected.

Ground 2: causation

Ground 2 deals with causation. The defendant did not contest the judge’s findings on causation at the level of whether the performance of work in the SSOU by the plaintiff was a cause of her psychiatric injuries. The causation issue upon which the defendant seeks leave to appeal concerns the requirement for the plaintiff to prove on the balance of probability that the steps which the judge said ought to have been taken in order to meet the standard of care would have prevented the plaintiff from suffering the psychiatric injury for which damages were assessed by the judge.[77]
[77]See Amaca Pty Ltd v Ellis (2010) 240 CLR 111.

In order to understand the causation issue in this case, it is necessary to describe, in brief compass, the plaintiff’s case at trial on the issue of breach and the judge’s conclusions. It will also be necessary to refer to some of the evidence on causation, and to describe further some of the judge’s causation findings. The critical evidence on causation was given by Professor McFarlane,[78] Dr Dharwadkar[79] and an occupational health consultant, Dr Sharann Johnson.[80]
[78]This evidence is described in some detail at Reasons [373]-[418].
[79]Described at Reasons [359]-[366].
[80]Described at Reasons [419]-[429].

Breach of duty: plaintiff’s case and judge’s findings

The plaintiff’s case at trial was that there were a number of steps that the exercise of reasonable care required the defendant to take in respect of staff in the SSOU generally, and a number of steps which it was required to take in respect of the plaintiff, once it knew or ought to have known of a risk specific to her. Those steps may be summarised as follows:

(1)On the evidence of Professor McFarlane and Dr Johnson, the defendant should have openly acknowledged the potential mental health risks to staff from work stress, burnout and vicarious trauma in the SSOU, and there should have been a system of work in place that was responsive to those risks.[81]
(2)On the evidence of Professor McFarlane and Dr Johnson, there should have been training relating to strategies for staff and management to avoid staff burnout or vicarious trauma; and strategies explaining what to do if signs of vicarious trauma were present, and how to identify ‘red flags’ that showed an increased risk to a staff member’s mental health. Additionally, there should have been training on PTSD, including the signs and symptoms of PTSD.[82]
(3)On the evidence of Professor McFarlane, there was a need for a system of clinical screening[83] of staff because of the known risks attached to the work being performed in the SSOU. Indeed, the plaintiff submitted that the 2011 staff memorandum should have resulted in the defendant requiring a medical clearance for SSOU staff in respect of their fitness for the inherent requirements of the job.[84] As an alternative, the plaintiff submitted (again based on the evidence of Professor McFarlane) that she should have been requested to provide an opinion from her general practitioner or psychologist.[85]
(4)Relying on the evidence of Professor McFarlane, the plaintiff submitted that there should have been a system involving ‘fixed-term rotations’, and that rotation of SSOU staff members should have occurred every two years; alternatively every three years.[86]

[81]Reasons [628].

[82]Ibid [644].

[83]The process of screening is described at Reasons [402]-[410], by reference to the evidence of Professor McFarlane.

[84]Reasons [655].

[85]Ibid [656].

[86]Ibid [683], [687].

In respect of welfare checks and screening assessments, the judge concluded that, because of the inherent and known risks of working in the SSOU, the defendant ‘ought to have recognised the need for a welfare enquiry to be made if individual staff members showed evident signs or red flags indicating a heightened level of risk to their mental health and wellbeing’. By the end of August 2011, ‘when there was an accretion of red flags specific to [the plaintiff], a reasonable person in the defendant’s position would have directly enquired about the plaintiff’s welfare and wellbeing and the impact of her work allocation’.[87]
[87]Ibid [680].

The judge found that, on the balance of probabilities, she was satisfied that, ‘by around the end of August 2011’, the plaintiff’s circumstances ‘plainly required intervention so that there could be proper supervision of her work and wellbeing’.[88]
[88]Ibid [682].

The judge concluded that SSOU staff and management were not adequately trained on the risks to staff mental health from vicarious trauma.[89] Her Honour used this conclusion as the basis for a finding that the failure to provide proper training, such that evident red flags were not detected by management, should not enable the defendant to escape responsibility on the basis that those red flags were not perceptible to management, or were wrongly attributed to another cause.[90] In relation to a flexible system of work allocation and rotation of SSOU staff, the judge said:

I am persuaded that in a unit such as the SSOU, where a staff member such as the plaintiff shows signs of impaired mental health or ‘burnout’, proper supervision requires a welfare check and offer of screening as a step toward further intervention by way of adjusting the staff member’s allocation of work or rotating them out of the SSOU. Professor McFarlane’s testimony, supported by Mr Foenander and Dr Dharwadkar, underlined the importance of reducing exposure to triggers for PTSD in order to successfully mitigate psychiatric injury.
I am satisfied on the balance of probabilities that a reasonable measure to meet the risks of vicarious trauma and burnout from staff exposure to SSOU work was one that encouraged management and HR to modify an employee’s work allocation or role, including ‘time out’ or rotation from the SSOU.
A system that reduced exposure, in response to signs that a staff member was at risk, including by altering caseload or casemix to avoid ‘repetitive themes’, would help to protect that person. Such a system ought to have been capable of being responsive to recommendations following screening and would give appropriate priority to staff well-being as a concomitant of proper managerial supervision in the workplace. Rotation or ‘time out’ from the SSOU ought be available to reduce exposure to trauma if required by a staff member, who, like the plaintiff, shows signs of impaired mental health from the work.[91]

[89]Ibid [650].

[90]Ibid [652]–[654].

[91]Ibid [690]–[691] (footnote omitted).

In summary, the judge concluded that a safe system of work during the time the plaintiff was employed should have included:

·‘an active OH&S framework’;
·‘more intensive training for management and staff regarding the risks to staff posed by the vicarious trauma and PTSD’;
·‘welfare checks and the offer of referral for a work-related or occupational screening in response to staff showing heightened risk’; and
·‘a flexible approach to work allocation, especially when required in response to screening, including the option of temporary or permanent rotation from the SSOU where appropriate’.[92]

[92]Ibid [702].

With respect to the plaintiff, the judge said that she was satisfied that SSOU managers had failed to respond ‘to the express and implied signs that she was at risk of psychiatric injury from her work’.[93] As the judge put it:

At a time when a welfare enquiry was plainly required (around the end of August 2011), this did not occur, and there was no offer of occupational screening nor any system in place to respond to the outcome of any such screening.[94]
[93]Ibid [704].
[94]Ibid.

Causation: evidence and judge’s findings

Professor McFarlane gave evidence of the importance of the early identification of psychiatric symptoms in a case such as the plaintiff’s. He said that a critical management strategy in cases like the present is to ‘limit the time of exposure of employees to the types of traumatic material and to rotate them out of these roles if symptoms begin to emerge’. With specific reference to the plaintiff, he said:

The continued traumatic exposures experienced by [her] once she was suffering from symptoms of post-traumatic stress disorder and depression led to sustained changes in the biological systems involved in stress sensitisation, fear conditioning and the failure of extinction and contributed to the chronicity of her PTSD and the probability of a poorer prognosis for her. The scientific literature highlights how these further exposures strengthened the conditioned link between her traumatic memories and her fear and horror responses, leading to the further increase in severity of her symptoms.

Professor McFarlane also gave evidence that, at the time the plaintiff signed the 2011 staff memorandum in April of that year, she was suffering from a post-traumatic stress disorder. He then said, as part of the answer to a question about the appropriateness of the plaintiff continuing to be involved in the prosecution of sexual offences for a further eight months (from the end of April 2011 to the end of December 2011):

[T]here’s a substantial body of evidence as to how repeated and ongoing exposures make the underlying neurobiological changes in PTSD more entrenched, which in turn increases the probability of her disorder becoming more severe and more chronic and less responsive to treatment.

Dr Dharwadkar’s evidence was that once the plaintiff had begun to experience symptoms of PTSD, it was necessary for her work duties to be altered so that ‘work in sex offence cases [was] excluded’. Continued work involving such cases would, he said, provide triggers and exacerbate the plaintiff’s condition.

The judge concluded that if ‘an appropriate welfare enquiry’ had been made of the plaintiff at around the end of August 2011, the plaintiff would have taken up an offer of screening, which screening ‘would have revealed her work-related symptoms of PTSD’.[95] The judge relied upon the following pieces of evidence as supportive of that conclusion:

·The plaintiff had previously been outspoken about the impacts of her work in the SSOU at staff meetings and during the resilience training session with Mr Carfi on 20 April 2011.
·The plaintiff was prepared to accept a referral to Mr Foenander by her GP when she was unwell in August 2011.
·The plaintiff had been willing to liaise with Mr Carfi and an HR manager about her future role at the OPP after 9 February 2012.
·The plaintiff agreed to be assessed by Mr Carfi at the request of the OPP in March 2012.[96]

[95]Ibid [732].

[96]Ibid.

The judge then said that if the plaintiff had been screened by an appropriately briefed clinician, this would have prompted the taking of steps to reduce her exposure to trauma by altering her work allocation, ‘or arranging time out, or rotation to another role, if required’.[97] Her Honour explained this conclusion as follows:

The plaintiff’s cooperation with exploring alternative roles at the OPP after 9 February 2012 supports the likelihood that she would have cooperated at the earlier stage if appropriately informed of the rationale for such actions. Professor McFarlane opined that because the plaintiff was not rotated out of her position at an earlier time, she faced risks of further exposure to the trauma. On the evidence before me, no good reason was advanced by the defendant showing why the plaintiff could not have been rotated to another part of the OPP that did not manage sexual offences.[98]

[97]Ibid [733].

[98]Ibid.

Thus, relying upon the evidence of Professor McFarlane and Dr Dharwadkar, the judge said that she was satisfied that if action had been taken to reduce the plaintiff’s exposure to vicarious trauma by the end of August 2011, the plaintiff would not have suffered PTSD of the severity and chronicity that ultimately arose, or from the consequential major depressive disorder.[99] Ultimately, as we have already observed, the judge held that but for the defendant’s breach of duty at the end of August 2011, the plaintiff would have been rotated out of the SSOU and would ‘very likely not have suffered the severe chronic psychiatric injury that occurred in this case’.[100]
[99]Ibid [738].
[100]Ibid [742].

Analysis

The defendant submitted that the judge’s conclusions about the steps that might have been taken, if the defendant had realised at the end of August 2011 that work in the SSOU was putting the plaintiff’s mental health at risk, were entirely speculative. While a number of possible courses might have been taken, it could not be said, on the balance of probabilities, that any particular course would have obviated the risk of injury.

In response, the plaintiff submitted that the judge’s causation finding was well made and supported by the evidence to which her Honour referred. The plaintiff relied, in particular, on Mr Carfi’s report sent to a manager in the OPP’s department of human resources, after the plaintiff consulted Mr Carfi on 22 March 2012, for the purpose of exploring the difficulties she had been experiencing with work, as showing that if she had been appropriately screened and referred in August 2011 she would have agreed to an appropriate rotation out of the SSOU. In his report of his consultation with her on 22 March 2012, Mr Carfi said:

In discussing this situation with [the plaintiff] it appeared that although she feels unable to prosecute sex offender cases she remains ambivalent about letting go of this work as she interprets this as a failure on her part and is loathe (scil, loath) to step away from the work that she sees as valuable. However in discussing the matter fully and considering the impact it has been having on her she indicated that she has finally acknowledged that for her own wellbeing and the wellbeing of her children she should absent herself from conducting these prosecutions.

The judge concluded[101] that, based on the evidence of Professor McFarlane and Dr Dharwadkar, she was satisfied that if action had been taken to reduce the plaintiff’s exposure to vicarious trauma by around the end of August 2011, she would not have suffered PTSD ‘of the same severity and chronicity’. That conclusion was well founded, being based on the evidence of those two witnesses. The defendant did not make any attempt at trial (or indeed on appeal) to disaggregate the degree of PTSD suffered by the plaintiff before August 2011, with the extent to which that condition was exacerbated by her ongoing exposure to trauma between August 2011 and February 2012.[102] Thus, if the judge correctly concluded that if the defendant had taken appropriate steps after August 2011, the plaintiff would not have suffered that exacerbation of PTSD, it would follow the defendant was liable for damages for the whole of the plaintiff’s condition. That proposition was not in issue.
[101]Ibid [738].
[102]See Purkess v Crittenden (1965) 114 CLR 164.

The critical question was whether the plaintiff had established, on the balance of probabilities, that the measures, which her Honour considered were required to be taken by the defendant to protect the plaintiff’s health, would have prevented the exacerbation of the plaintiff’s PTSD from that date. The judge’s conclusion that if the defendant had taken appropriate steps, it was probable the plaintiff would not have suffered the exacerbation of PTSD was based on three essential steps, namely:

(a)after the defendant was placed on notice at the end of August 2011 of the plaintiff’s state, it should have offered the plaintiff occupational screening, and the plaintiff would have accepted that offer;[103]
(b)work-related occupational screening at that time would probably have revealed the plaintiff’s work-related symptoms of PTSD;[104] and
(c)the screening by the clinician, and notification to the defendant of that outcome, would have prompted reduction of the plaintiff’s exposure to trauma by ‘altering work allocation, or arranging time out, or rotation to another role, if required’, because the plaintiff would have co-operated with those steps if appropriately informed of the rationale for such actions;[105]

[103]Reasons [731]-[732].

[104]Ibid [732].

[105]Ibid [733].

On appeal, the defendant submitted that each of those three steps involved possible outcomes, but, on the evidence, none of them were established as probable outcomes.

There was, necessarily, a significant degree of hypothesis involved in the judge’s conclusions in respect of each of those three steps. Such a process is not uncommon where the negligence alleged against the employer (or another defendant) is negligence by omission, rather than commission. However, the first and third steps each involved co-operation by the plaintiff. While evidence from a plaintiff as to what he or she might have or would have done is, appropriately, treated with some circumspection by a court, nevertheless it is relevant and admissible. No such evidence was elicited from the plaintiff in this case. In the absence of direct evidence to that effect, the conclusions of the judge, on those two steps, were based on inferences. The principles relating to the drawing of inferences in civil cases were conveniently summarised in Masters Home Improvement Pty Ltd v North East Solution Pty Ltd,[106] as follows:

First, any inference must be based on facts established by admissible evidence. Secondly, the process of reasoning must constitute a valid inference, as distinct from speculation or guesswork. Thirdly, and importantly, where the inference is drawn in favour of the party which bears the burden of proof in the case, the conclusion must be ‘the more probable inference’ from those facts. In other words, the inference drawn by the judge must be reasonably considered to have a greater degree of likelihood than any competing inference.[107] Fourthly, in determining whether an inference is to be drawn as a matter of probability, the tribunal of fact is not required to consider each primary fact, established by the evidence, in isolation. Rather, the Court considers the totality of those facts together, giving effect to their united and combined force.[108]^{, [109]}

[106][2017] VSCA 88 (‘Masters Home Improvement’).

[107]Luxton v Vines (1952) 85 CLR 352, 358 (Dixon, Fullagar and Kitto JJ); Holloway v McFeeters (1956) 94 CLR 470, 480–81 (Williams, Webb and Taylor JJ); Naxakis v Western General Hospital & Anor (1999) 197 CLR 269, 284–5 [45] (McHugh J); Transport Industries Insurance Co Limited v Longmuir [1997] 1 VR 125, 129-130 (Winneke P), 141 (Tadgell JA); Chapman v Cole (2006) 15 VR 150, 154 (Callaway JA).

[108]Plomp v R (1963) 110 CLR 234, 242 (Dixon CJ); Chamberlain v R (No 2) (1984) 153 CLR 521, 535–536 (Gibbs CJ, Mason J); Shepherd v R (1990) 170 CLR 573; R v Baden-Clay (2016) 334 ALR 234 [4], 248–249 [70]–[71].

[109]Masters Home Improvement [2017] VSCA 88, [101] (citations in original).

The judge gave reasons[110] for her conclusion in relation to the first step, namely, that if the plaintiff had been offered an appropriate welfare enquiry, she would have taken up that offer. In those circumstances, the conclusion by the judge, as to that step in the causation chain, was open to her Honour, and we are not persuaded that the conclusion was erroneous. As for the second step, given the evidence (which was not challenged) from Professor McFarlane that the plaintiff was likely suffering from a post-traumatic stress disorder in April 2011, we think it was open on the evidence for the judge to find that screening by a clinician at or about the end of August 2011 would probably have revealed the plaintiff’s work-related symptoms of PTSD. We are not persuaded that her Honour’s conclusion in relation to the second step was erroneous.
[110]Reasons [732].

It is the third step in the reasoning chain that is significantly open to question. Although the third step contemplated several possible responses to the defendant being notified of a screening outcome, based on the evidence of Professor McFarlane and Dr Dharwadkar, the only outcome or response, which would have prevented the exacerbation of the plaintiff’s condition, would have been for the plaintiff to be rotated out of the SSOU. It was not suggested that the defendant could have compelled the plaintiff to move to another unit that did not involve work relating to sex offences. Such action by the defendant would have been precluded by the terms of the plaintiff’s contract of employment with the defendant within the SSOU. Thus, step three necessarily involved a finding by the judge that, in the relevant period from late August 2011, the plaintiff would have co-operated if the defendant had offered to rotate her to a different unit.

The judge’s conclusion on that question was as follows:

The plaintiff’s co-operation with exploring alternative roles at the OPP after 9 February 2012 supports the likelihood that she would have co-operated at the earlier stage if appropriately informed of the rationale for such actions.[111]

[111]Ibid [733].

The circumstances of 9 February 2012 were, on the evidence, plainly very different to the circumstances that took place on 29 August 2011 and in the following months. In February 2012, the plaintiff had had time away from work. In her email to Stuart Ward and Craig Hyland at 8:00 am on 9 February 2012, she stated that since she had had time off work and had been able to assess the effects of working, she sought an immediate transfer from the SSOU. By contrast, as noted, on 29 August 2011, she had reacted strongly against the suggestion that she was not then coping with the workload at SSOU. In her second email sent on 29 August, she stated:

I want to make it clear that I am passionate about continuing my work in the sexual offences unit and I don’t want to leave the unit and don’t believe that I should be made to feel that I am not coping when the workload calendar clearly reflects my deadlines and workload. I have kept up-to-date with my work and always remained committed and dedicated to SSOU.

At the same time, the plaintiff was then seeking promotion to VPS–5 in the SSOU, and on 9 November 2011 she signed a contract for that permanent position. The contract specified the ‘Employment Status’ in that unit as ‘Full Time, Ongoing’.

Accordingly, having looked afresh at the evidence, and making due allowance for the advantage of the trial judge in observing the witnesses and in construing the evidence as the case unfolded at trial, we are of the view that it could not be concluded that the plaintiff proved, on the balance of probabilities, that the appropriate exercise of care by the defendant would have resulted in the plaintiff accepting a rotation out of the SSOU at any time between the end of August 2011 and February 2012. It follows that the plaintiff has failed to establish that if the defendant had exercised reasonable care by taking the steps specified by the judge from August 2011, those steps would have avoided or reduced the exacerbation of the plaintiff’s PTSD that occurred between August 2011 and February 2012. It follows that ground 2 must succeed.

Conclusion

We will grant leave to appeal. The appeal will be allowed on ground 2. The judgment below must be set aside, and in its place there will be judgment for the defendant.

- - -

[2020] VSCA 301

24 November 2020