Claims for compensation and damages for mental injuries suffered in the workplace are becoming increasingly more common.

In light of the increasing number of cases, whether the psychiatric injury arises as a consequence of a physical injury, out of a particular event, or over a period of time, lawyers have looked to the appellate courts to provide guidance to assess future cases.

There is no doubt that in recent years, people have been made more aware of their own and others’ mental health. And as society changes, legal principles are required to develop or recalibrate.

It was with much anticipation that the High Court considered the appeal in Kozarov v State of Victoria [2022] HCA 12, with judgment handed down on 13 April 2022.

Unfortunately, the judgment of the seven High Court Justices in four separate judgments does not give a unified blueprint for employers, workers (or their respective lawyers) on how to assess legal risk in all workers’ compensation claims for mental injury.

Ms Kozarov worked as a lawyer in the Specialist Sexual Offences Unit in the Victorian Office of Public Prosecutions. Her employment ‘routinely involved interaction with survivors of trauma and exposure to their traumatic experiences including by attending court to instruct in sexual assault trials, meeting with child and adult alleged victims of sexual offences and their families, viewing explicit child pornography and preparing child complainants for cross examination’.

Ms Kozarov’s case does not alter the law regarding mental injury suffered as a consequence of physical injury or arising out of a discrete harmful incident. The case relates to mental injuries which occur over a period of time from exposure to stressors endemic in the work required to be performed.

An employer has a duty to take reasonable steps to minimise the risk of injury whether the injury is physical or mental. The risk of physical injury may be more easily appreciated by employers. Complaints of “stress” or “overwork” are not necessarily indicative of a symptom of a mental injury and ordinarily, an employer is not under any obligation to inquire into a worker’s personal circumstances to investigate a potential mental injury.

“Evident signs” of a psychological injury over and above mere complaints of “stress” need to exist before an employer could be liable for failing to take steps to minimise the risk of psychiatric harm to one of its workers.

In Ms Kozarov’s case, the employer was aware of the risk of psychiatric harm to its workers and formulated a Vicarious Trauma Policy to protect its workers. Unfortunately, it appears the policy was not applied in Ms Kozarov’s case.

While the High Court did not define a class of workers who may foreseeably suffer mental injury merely performing their job, it has ruled that if the employer itself concedes the risk of mental injury in the day-to-day performance of their workers’ duties (for example by developing a Vicarious Trauma Policy) employers should abide by those policies. Subject to the content of those policies, employers should not wait until a worker demonstrates “evident signs” of a mental injury before taking reasonable steps to minimise the risk of injury.

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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