Kozarov v Victoria [2022] HCA 12
HIGH COURT OF AUSTRALIA
Delivered on 13 April 2022
“Kozarov’s traumatic role causes more trauma for her employer”
Background Facts
In February 2012, Ms Kozarov was diagnosed with post-traumatic stress disorder (“PTSD”) and major depressive disorder as a result of vicarious trauma she had suffered in the course of her employment. Ms Kozarov was a solicitor in the Specialist Sexual Offences Unit (“SSOU”) for the Victorian Office of Public Prosecutions. Ms Kozarov’s role as a solicitor in the SSOU involved interacting with survivors of trauma, attending court to instruct sexual assault trials, meeting with child and adult victims of sexual offences, and viewing explicit child pornography and preparing child clients for cross-examination.
Legal Context
Before discussing the ruling, it is important to establish some context regarding negligence of an employer.
An employee seeking to recover damages in negligence for a workplace injury must establish that:
- Their employer was on notice of a reasonably foreseeable risk of injury,
- The employer failed to take reasonable steps to reduce that risk (i.e. the employer breached its duty of care); and
- As a result of breaching its duty of care, the employer thereby caused the employee’s injury.
Issue
Whether the employer’s failure to provide Ms Kozarov with a safe system of work caused the exacerbation and prolongation of her PTSD and subsequent development of Major Depressive Disorder. More specifically, Ms Kozarov was required to prove that on the balance of probabilities that, if offered rotation out of the SSOU, she would have accepted it.
Allegations
Ms Kozarov claimed that her employer’s liability arose from its failure to take reasonable measures in response to “evident signs” of her work-related PTSD.
While the nature and intensity of the SSOU’s work carried an obvious risk of serious psychiatric injury, Ms Kozarov alleged that her employer needed to conduct more to prevent this injury from occurring.
Initial Decision – Supreme Court of Victoria
The trial judge held the Victorian Office of Public Prosecutions liable in negligence and awarded damages in her favour. Justice Jane Dixon found that a reasonable person in the position of the employer would have adverted to the evident signs regarding Ms Kozarov’s mental health and should have observed that she was failing to cope with her allocated work.u
The trial judge ultimately reached the conclusion that Ms Kozarov would have revealed that she needed to be rotated out of the SSOU. This ruling was largely because of the connection between her work and her symptoms at that time. The trial judge found that there was no good reason why Ms Kozarov could not have been rotated to another part of the Public Prosecutions department that did not manage sexual offences.
The trial judge found that Ms Kozarov likely would have accepted this rotation given that she recognised she needed professional psychological help in August 2011, and she was exploring alternative roles after 9 February 2012.
Supreme Court of Appeal
The Victorian Office of Public Prosecutions then appealed the decision in the Court of Appeal. While the Court of Appeal also held that these evident signs were all matters of which the employer was aware of at the time of the disagreement, they could not find evidence that Ms Kozarov would have agreed to rotate out of the SSOU. This was namely due to her actively seeking promotion within the SSOU and that she signed a contract for a permanent position in November 2011. That along with an email of her stating that she was “passionate about continuing [her] work in the [SSOU]” indicated that she was committed to her role and that she would not have accepted a rotation to a different role.