When a Solicitor sues for psychiatric injury

19 March 2020

The Victorian Office of Public Prosecutions was found to have breached its duty to prevent psychiatric injury to an employed solicitor who was exposed to graphic and disturbing content in the course of her employment in the Specialist Sexual Offences Unit.

In issue

  • Whether an employer still breaches its duty of care to employees if it has in place measures to prevent psychiatric harm.

The background

The plaintiff in this matter was a solicitor employed by the Victorian Office of Public Prosecutions (OPP). Between June 2009 and April 2012, the plaintiff was employed by the OPP in the Specialist Sexual Offences Unit (SSOU). The plaintiff alleged that in the course of her work in the SSOU she was exposed to a high volume of sexual offence cases, including those that involved child exploitation and pornography.

The plaintiff alleged that she was required to familiarise herself with detailed allegations of sexual offending, including reviewing witness statements and video and audio evidence with graphic and disturbing content. In addition to exposure to the nature of the work, the plaintiff also reported having an intense workload and worked long hours.

Although the plaintiff conceded that she was aware the job would consist of dealing with unpleasant offences and damaged people when she accepted the position in the SSOU, she alleged that the OPP failed to have in place policies or measures to adequately respond to concerns raised, such as the psychological health risks of solicitors working in the SSOU (including the plaintiff specifically). In addition, she alleged that the OPP failed to respond to a staff memo raising the alarm about SSOU staff health and well-being. The plaintiff also alleged that the OPP did not take adequate steps to protect her once she began to show signs of impaired mental health in approximately August 2011 when she first took sick leave. The plaintiff returned to work after two weeks but had issues with her manager and performance to the extent that she raised concerns with the confronting nature of the work and the lack of training for junior staff in a meeting with one of her managers on 27 October 2011. On 9 February 2012, whilst on extended leave, the plaintiff sent an email to her managers advising of her serious concerns with the nature of her work and how it impacted her, as well as concerns with management in the SSOU.

As a result of her work and the OPP’s failings, the plaintiff alleged that she sustained chronic post-traumatic stress disorder (PTSD) and major depressive disorder. Despite changing departments in 2012, the plaintiff was still exposed to confronting evidence and ultimately ceased working for the OPP. The plaintiff commenced proceedings against her employer, the OPP.

The OPP denied liability on the basis that it took all reasonable measures to protect SSOU staff generally. The OPP argued the risk to the plaintiff did not become reasonably foreseeable until 9 February 2012, when she sent an email advising she could no longer work in the SSOU. Prior to that date, the plaintiff appeared to be coping well in her work. The OPP argued that it took all reasonable steps to protect the plaintiff, including by attempting to find her an alternate position.

The OPP argued that in making its decision, the court ought take into consideration employee privacy and autonomy in determining what measures the OPP ought reasonably to have taken to protect its employees from harm. The OPP also argued that in the alternative, there should be a finding of contributory negligence against the plaintiff as she was obliged to take reasonable steps to protect her own health and wellbeing.

The decision at trial

Evidence was led that the OPP had in place a Vicarious Trauma policy, which identified vicarious trauma as an organisational and occupational health and safety issue ‘especially for specialist sex offences staff’. The policy included personal and professional strategies for staff to use in dealing with vicarious trauma, as well as organisational strategies and processes to handle vicarious trauma (for example, ensuring regular debriefing of cases, encouraging staff to discuss the impact of their work and identify where support may be needed, and management speaking with, and providing assistance to, staff who they considered were experiencing vicarious trauma). The OPP also had in place an Employee Assistance Program and in-house psychologists who would conduct ‘walk-arounds’.

However, the court found that the OPP’s response to the risks to its SSOU employees and the plaintiff, was not that of a reasonable employer and the OPP failed to implement the steps required to prevent injury. The court considered that while the OPP had in place measures to deal with vicarious trauma, those measures were ‘woefully inadequate’ generally in that they did not properly train staff or managers about symptoms of PTSD that might arise as a result of the work in the SSOU. There was also a finding that inadequate training was provided to identify the risks of vicarious trauma and how to respond to the risks once recognised.

The court considered that if the OPP had in place the appropriate measures, a welfare enquiry might have been performed throughout the course of the plaintiff’s employment in the SSOU thereby appropriately identifying the plaintiff’s need to be rotated away from the SSOU and any work where she was exposed to similar material. In that regard, the plaintiff would likely have avoided suffering the severe chronic psychiatric injury that ultimately occurred.

The court found in favour of the plaintiff and awarded damages in the sum of $435,000.

Implications for you

The clear message from this case is that it is not sufficient for an employer to have in place just any measures to ameliorate risks of injury in the workplace. It is necessary for an employer to ensure that the measures are adequate to identify and address the risk of injury and prevent it from occurring.

Kozarov v State of Victoria [2020] VSC 78

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