Liability for Workplace Psychiatric Injury and Vicarious Trauma: Kozarov v Victoria

Abstract

Work-related psychiatric injury claims are frequent and costly. Workplace psychosocial hazards increase the risk of prolonged workplace stress, which can lead to physical and psychological injury. This article considers the forthcoming appeal to the High Court of Australia from the Victorian Court of Appeal decision in Victoria v Kozarov, which concerns a psychiatric injury because of vicarious trauma in the workplace. The appeal raises important issues about the application of principles enunciated by the High Court in Koehler v Cerebos (Australia) Ltd. In Kozarov, the High Court will consider the test of reasonable foreseeability in a context where an employer had actual knowledge of the risk of psychological injury to all employees as a result of vicarious trauma. Additionally, the appeal raises issues about: the role of employment contracts in determining negligence; the emphasis to be given to issues of privacy and autonomy in defining the scope of an employer’s duty of care; inferential factual reasoning in causation; and the interaction between an employer’s obligation to enforce a safe system of work and counterfactual causation.