The Duty of Care to Protect Employees against the Risk of Psychiatric Harm from Vicarious Trauma: Kozarov v Victoria.

Abstract

An employer owes every employee a duty to take all reasonable steps to provide a safe place and system of work. Whether an employer will be liable for psychological harm suffered by an employee will depend on the particular circumstances of the case. In Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12 (Kozarov), the High Court considered whether the Victorian Office of Public Prosecutions had been placed on notice of a risk of "vicarious trauma" to a solicitor employed in the Special Sexual Offenders Unit and whether it was required to make a response by taking active steps including offering a rotation to another section where the solicitor did not to have to manage cases of child rape and other sexual offences of gross depravity. The High Court also considered whether by failing to advise her employer of her developing mental illness in a timely way and not accessing the Employee Assistance Program, the solicitor had failed to take reasonable care of her mental health. The article argues that the Kozarov decision is likely to prove a landmark in terms of employers' occupational health and safety responsibilities in respect of exposure to vicarious trauma.