A working understanding of employment law is paramount to ensure awareness of your rights as an employee and the duty owed to you by your employer. Further, employers must ensure they are fulfilling their legal obligations to their employees.

Duty of Care

The duty of care owed by an employer to their employee is well established. All Australian jurisdictions have implemented laws pertaining to occupational health and safety. However, there is also a duty of care established by the common law. The court in O’Connor v Commission for Government Transport (1959) 100 CLR 225 observed (at 229) that, “The standard of care for an employee’s safety is not a low one.”

The test to be applied when determining an alleged breach of this duty is the reasonable care test. What amounts to reasonable care will vary depending on the work environment and duties involved. Essentially, the question is whether a reasonable employer would have foreseen the risk or injury and should therefore have taken steps to prevent it.

Kozarov v State of Victoria (2022) HCA 12

The decision of the High Court in this case has strong implications for employment law, as it considered the scope of the duty of care and its extension to psychiatric injury. This was an appeal case from the Court of Appeal of the Supreme Court of Victoria.

The plaintiff, Ms. Kozarov, was employed by the Victorian Office of Public Prosecutions and was part of the Specialist Sex Offences Unit. The nature of her work involved regular interaction with victims and evidence of trauma, leading to Ms. Kozarov sustaining a psychiatrist injury and ultimately being diagnosed with major depressive disorder as well as post-traumatic stress disorder. She proceeded to sue her employer, claiming that the risk of her sustaining such an injury was reasonably foreseeable, and steps should therefore have been taken to prevent said injury.

This was not the first time the High Court has considered mental injury and its relationship to the duty of care owed by an employer. The High Court addresses this, stating (at 2) that “the issues with which this Court is concerned would not have arisen but for what seems to have been a misunderstanding of the effect of this Court’s decision in Koehler v Cerebos (Australia) Ltd.” In Koehler, the Court ruled that an employer will only be liable for psychiatric injury in the circumstance where the harm was reasonably foreseeable.

In Kozarov, a key observation of the High Court was (at 6) that, “the circumstances of a particular type of employment may be such that the work to be performed by the employee is inherently and obviously danger to the psychiatric health of the employee.” In consideration of this case alongside the principles established in Koehler, the High Court has demonstrated further the factors that give rise to an employer being liable for a psychiatric injury of its employee. Furthermore, the comparison of the two decisions highlights the fact that a claim of negligence arising out of psychiatric injury is met with the same judicial rigor as a claim characterised by a physical injury having occurred.

A key indicator of a reasonably foreseeable risk of mental injury was examined by the High Court, which is the fact that the appellant had put her employer ‘on notice’ of the declining state of her mental wellbeing. That is, the respondent had been provided with evidence of this decline and failed to take reasonable steps to prevent the harm from occurring. This would appear to be a pivotal indicium of whether a breach of duty has occurred given that it was noticed in Koehler v Cerebos (Australia) Ltd that the complaints the applicant, who was ultimately unsuccessful in her claim, about her workload did not provide sufficient evidence that her mental health had been affected.

Where to from here?

Society has placed a newfound emphasis on mental health and wellbeing, and it is therefore unsurprising that the common law is growing and expanding the way it evaluates an employer’s duty of care. Undoubtedly, the case law in this area will continue to grow and develop.

The team here at Affinity Lawyers is here to assist. If you are encountering issues in the workplace and want to know where you stand, our experienced team is on the case. Book online or contact our office to arrange a time to meet with one of our solicitors.