With thanks to Patrick Thompson for drawing my attention to today’s decision in State of Victoria v Kozarov [2020] VSCA 301, available on Austlii.
The respondent (a solicitor) was an employee of the Office of Public Prosecutions working in the Specialist Sexual Offences Unit (SSOU) who developed a major depressive disorder and chronic post traumatic stress disorder. She brought proceedings against her employer (the State) alleging that her injuries were caused by continual exposure to a high volume of sexual offences cases including offences against children. Her claim had succeeded at trial.
The State appealed, asserting that the primary judge erred in two ways. As to breach, in holding that a sentinel event occurred and evident signs from the respondent were apparent so as to require certain responses from the State. As to causation, in holding that the injuries suffered by the respondent would have been avoided had the appellant done those things the Court held were reasonably required in the exercise of reasonable care.
In a single judgment the Court (Beach JA, Kaye JA and Macaulay AJA) rejected the first ground of appeal but accepted the second. The appeal was therefore allowed and judgment entered in favour of the State.
In relation to breach, the Court commented at [76]: “When viewed in isolation, each of the matters relied on by the judge might not individually constitute relevant notice … that the (responent) 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.” The 13 matters relied on by the primary judge are listed in the Court’s decision at [74] and included the respondent’s complaints, her excessive file load and her emotional involvement in some cases.
In relation to causation, the appellant did not contest the primary judge’s findings on causation at the level of whether the performance of work in the SSOU by the respondent was a cause of her psychiatric injuries. Rather, it argument concerned the requirement for the respondent 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 her from suffering the psychiatric injury for which damages were assessed by the judge (at [85]). However as stated at [106}, “the only outcome or response, which would have prevented the exacerbation of the (respondent’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.”
At around that time the respondent had said in an email “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.”
Accordingly the Court held at [110] that “we are of the view that it could not be concluded that the (respondent) proved, on the balance of probabilities, that the appropriate exercise of care by the (appellant) would have resulted in the (respondent) accepting a rotation out of the SSOU at any time between the end of August 2011 and February 2012. It follows that the (respondent) has failed to establish that if the (appellant) 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 (respondent’s) PTSD…”.