High Court mental injury ruling reaffirms employer duty of care

The following article is a news item provided for the benefit of the Workplace Health and Safety profession. Its content does not necessarily reflect the views of the Australian Institute of Health & Safety.
Friday, 24 June, 2022 - 12:00
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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 case, Kozarov v State of Victoria [2022] HCA 12, detailed how Zagi Kozarov worked for the Specialist Sex Offences Unit of the Victorian Office of Public Prosecutions, and in this role Kozarov routinely interacted with victims of trauma and was exposed to evidence of trauma.

She 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 Kozarov in her claim against her employer, however on 24 November 2020, the employer successfully appealed the original judgment.

On 13 April 2022, the High Court of Australia ruled in favour of 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.

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,” said WorkCover Queensland in a statement.

“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 (Australia) Ltd (2005) CLR 44 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,” said WorkCover Queensland.

“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.”