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Negligence – causation

In Kozarov v Victoria [2022] HCA 12 (13 April 2022), the High Court was required to determine whether the failure by the respondent to provide the appellant with a safe system of work caused the exacerbation and prolongation of her post traumatic stress disorder (PTSD), and subsequent development of a major depressive disorder (MDD).

Shortly after being admitted to practise law, the appellant (Kozarov) was employed, in 2009, by the Victorian Office of Public Prosecutions (OPP) in the Specialist Sexual Offences Unit (SSOU). The SSOU was set up to prosecute all serious indictable sexual offences.

Kozarov’s work in the SSOU routinely involved interaction with survivors of trauma and exposure to traumatic material. This included instructing in sexual assault trials, meeting with alleged victims of sexual assault, viewing explicit child pornography and preparing child complainants for cross-examination.

In 2012 Kozarov was diagnosed with PTSD resulting from vicarious trauma suffered during the course of her employment. Later Kozarov was diagnosed with MDD which was found to be a corollary of her PTSD.

Kozarov commenced proceedings in the Supreme Court of Victoria against Victoria for damages. The trial judge (Jane Dixon J) found in favour of Kozarov.

Her Honour found that Victoria had been put on notice of a risk to Kozarov’s mental health by the end of August 2011 (notice finding). And Her Honour found that Kozarov would have accepted an offer of rotation out of the SSOU, to work in another section of the OPP, at the end of August 2011 – thereby avoiding the exacerbation of her PTSD (rotation finding).

Victoria successfully appealed to the Victorian Court of Appeal. The Court of Appeal (Beach and Kaye JJA and Macaulay AJA) unanimously upheld the notice finding but rejected the rotation finding.

Their Honours held that Kozarov had failed to prove, on a balance of probabilities, that she would have accepted an offer of a rotation out of the SSOU at the end of August 2011. Their Honours noted that, among other things, Kozarov had signed a contract for a permanent position in the SSOU and had also applied for a promotion in the unit.

Kozarov appealed and the High Court unanimously allowed Kozarov’s appeal. The High Court also unanimously denied Victoria’s notice of contention that it had not been put on notice of Kozarov’s psychiatric injury at the end of August 2011.

On the issue of notice, the High Court observed that there were several clear signs that Kozarov was failing to cope with her allocated work and that her mental health was at risk. This included, on one occasion, sending ‘histrionic’ emails to her supervisor.

On the issue of rotation out of the SSOU, the High Court held that the Court of Appeal erred in rejecting the trial judge’s finding that Kozarov would have accepted an offer of a rotation.

The High Court, in reaching this conclusion, had regard to Kozarov’s cooperative conduct in February 2012 (working in different areas of the OPP), and to expert evidence from a psychiatrist that a ‘significant majority’ of people assessed by him and receiving appropriate advice would accept that advice.

The High Court also held that the Court of Appeal had failed to advert to the inherent likelihood that a reasonable person advised of the risks of serious psychiatric injury might be expected to accept advice to avoid those risks.

Dr Michelle Sharpe is a Victorian barrister practising in general commercial, real property, disciplinary and regulatory law, 03 9225 8722, email msharpe@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.

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