Many of us work stressful jobs… but some jobs are more stressful than others. Doctors, nurses, police officers and social workers are some of the occupations where the pressure of performing in the job combined with what is seen and one each day can sometimes lead to physical and/or psychological breakdown.
The relationship between an employer and an employee is well established as one attracting a duty of care. That means an employer taking reasonable care to ensure its workers are protected against foreseeable injury by providing a safe system of work and supervision, adequate and appropriate support to perform the work with, and staff who are competent in their roles.
In a recent High Court of Australia case, Kozarov v State of Victoria [2022] HCA 12, the duty of care of an employer to an employee was considered for a lawyer who claimed she suffered ‘vicarious trauma’ in performing her role which resulted in a psychiatric injury. Unlike the duties of some of those mentioned in the introduction, who directly deal with the consequences of violence and neglect, the lawyer’s injury resulted from exposure to cases ‘of an abhorrent nature involving child rape and offences of gross depravity’. She was diagnosed with post-traumatic stress disorder and an associated major depressive disorder.
The issues constituting vicarious trauma will be explored in this post.
What are the elements of vicarious trauma?
Vicarious trauma is often experienced by those who work in jobs where they are exposed to the trauma and violence of victims of abuse. Hearing and seeing stories of those who have suffered child sexual abuse, domestic violence and mass trauma events, for example, can result in a range of a responses among individuals constantly exposed to such information.
A negative response can result in a psychiatric injury that can manifest itself in a wide range of reactions, from feeling numb and emotionally unavailable, fatigue, sickness, distraction, feelings of hopelessness, relationship problems, anger, unsociability, irritability and problems with addiction and substance abuse.
How employers should approach vicarious trauma after the case of Kozarov v State of Victoria
Ms Zagi Kozarov worked for the Specialist Sex Offences Unit (SSOU) of the Victorian Office of Public Prosecutions, a role that involved her regularly dealing with victims of trauma.
After she was diagnosed with post-traumatic stress disorder and secondary major depressive disorder as a result of the vicarious trauma she had suffered in her job with the Victorian OPP, Ms Kozarov sued the organisation alleging it failed to prevent her from developing the psychological injury.
In February 2020, Ms Kozarov won her case against her employer in the Supreme Court of Victoria for negligence in failing to protect her from psychiatric harm. That decision was overturned on appeal by the Full Court, however, in November of the same year, the Court finding a lack of causation between the employer’s breach of its duty of care and the appellant’s injury.
In April 2022, the High Court of Australia reinstated the original decision of the Supreme Court finding Ms Kozarov’s employer had known of her risk of harm associated with from her work by August 2011 after ‘occupational screening’ (an assessment by a psychologist). The High Court found the Court of Appeal erred in rejecting the trial judge’s finding that Ms Kozarov would have co-operated with steps to rotate her out of her work unit after the occupational screening; that she cooperated with her employer about a future role, and; in light of expert evidence that most people, if assessed as having a work-related psychiatric injury where the diagnosis and its relevant consequences were explained to them, would accept the advice of a clinician in respect of that injury.
What is the significance of the decision?
In earlier decisions, Courts tended to allow employers the presumption that employees were competent and able to perform the role for which they were employed. The High Court held this presumption was irrelevant in cases such as Ms Kozarov’s, where her workplace carried an inherent risk of injury to an employee’s mental health. The SSOU, in fact, had a Vicarious Trauma Policy to protect the mental health of employees, an indication of the foreseeable risk of psychiatric harm of the type suffered by Ms Kozarov.
Notably, the policy stated that employees should be encouraged by the employer to rotate through different units within the office to minimise adverse mental health impacts from their roles. The Court found the employer neither encouraged this rotation nor had a formal procedure in place to make it happen.
How specialist legal advice can help
As the above case example illustrates, certain jobs and professions are more vulnerable to the possibility of vicarious trauma than others. If you believe you have suffered vicarious trauma at work, the essential elements of a compensation claim for negligence must be proved – that there was a foreseeable risk of injury in the role, that the employer breached their duty of care to you, and that the breach caused your psychiatric injury. That being the case, the guidance of established, award-winning professionals who specialise in all forms of compensation is essential in bringing a claim for the effects of vicarious trauma. Contact Sydney Lawyers today for further advice if the issues discussed in this post are relevant to your situation.