QLD - High Court Mental Injury ruling Reaffirms Employer Duty of Care

Original article published by WorkSafe Queensland

A recent High Court of Australia ruling has reaffirmed an employer’s duty of care to its workers to take reasonable care to avoid mental injuries in the workplace.

The judgement of Kozarov v State of Victoria provides helpful guidance to employers on how best to respond to identified risks of mental injury in the workplace.

Background

The worker at the centre of the case, Ms Zagi Kozarov, worked for the Specialist Sex Offences Unit of the Victorian Office of Public Prosecutions. In that role, Ms Kozarov routinely interacted with victims of trauma and was exposed to evidence of trauma.

Ms Kozarov was diagnosed with post-traumatic stress disorder and secondary major depressive disorder from vicarious trauma suffered in the course of her employment, and subsequently sued her employer, alleging they failed to prevent her from developing a workplace injury.

On 19 February 2020, the Supreme Court of Victoria found in favour of Ms Kozarov in her claim against her employer, however on 24 November 2020, the employer successfully appealed the original judgment in favour of Ms Kozarov.

On 13 April 2022, the High Court of Australia ruled in favour of Ms Kozarov, which ultimately meant that the decision of the Court of Appeal was set aside, and the original order of the Supreme Court of Victoria was reinstated in her favour.

What this means for employers

While this decision does not fundamentally change the nature of an employer’s duty to its employees, it does help us to understand what duty employers have to workers around preventing both mental and physical injuries when their workers take part in inherently risky work.

Employers must provide a safe system of work and take steps to reduce or avoid foreseeable risks of both physical and mental harm. The extent of the duty of care that employers have to workers, and the steps they should take to mitigate risks, differs based on the type of workplace and role.

In this case, the work itself was inherently risky, so the employer was obliged to take appropriate steps to reduce the risk to its employees.

The High Court’s earlier decision in Koehler v Cerebos is still relevant and applies where the work isn’t risky by nature, but where the employer should be on notice of the risk to a particular worker because of evident signs of injury.

This decision may prompt employers to consider whether their employees’ roles, or work situations, have an inherent risk of mental or physical injury – that is, whether injury could happen just by the worker doing their role. If so, employers need to put systems in place to meet that risk.

It’s important for employers to be on the lookout for, and have systems in place to detect, early signs of both mental and physical injury so that employees can be supported at work.

Find out more information on psychological or psychiatric injuries.

Mental health support

• Workers’ Psychological Support Service: 1800 370 732 or info@wpss.org.au
• 1300 MH CALL (1300 642 255) is a confidential mental health telephone service for Queenslanders that will link you to public mental health services
• Lifeline: 13 11 14
• Beyondblue: 1300 224 636