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Kozarov: A key lesson on causation for PI practitioners

One of this year’s most significant personal injuries decisions is Kozarov (Kozarov v State of Victoria [2022] HCA 12).

Ms Kozarov was diagnosed with post-traumatic stress disorder and secondary major depressive disorder from vicarious trauma suffered in the course of her employment. She subsequently sued her employer (Specialist Sex Offences Unit of the Victorian Office of Public Prosecutions), alleging they failed to prevent her from developing a workplace injury.

The High Court ruled in favour of Ms Kozarov, after overturning the decision of the Court of Appeal, reiterating that the employer’s duty of care is to provide a safe system of work and mitigate foreseeable risks of both physical and mental harm.

Rockhampton barrister Meghan Rothery, above, will provide attendees at this year’s Queensland Law Society Personal Injuries Law Conference with her insights into this case and what it means for PI practitioners.

Kozarov reinforces the significance of the question of foreseeability in master/servant cases at the point of duty,” Meghan said. “It does not reconsider or amend the effect of Koehler,1 but rather, confirms, in occupations which pose an obvious or known risk to the psychological health of employees, a duty to take reasonable care to guard against psychological harm that might arise from the date of commencement of employment.

“This is to be contrasted with occupations which do not involve such risk and where, for a duty to protect against psychological harm to arise in respect of an individual employee, there must be evident signs warning of the possibility of psychiatric injury.”

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Meghan said that the key lesson for employers in industries where it is well established that psychological injury is a risk resulting from the performance of an employee’s duties was that it will not be sufficient to defend a case on the basis there was no sign that the plaintiff in particular was at risk of developing psychological injury.

She said that claims for pure psychological injury often present real practical difficulties for practitioners in terms of formulating case strategy.

“At an early stage it is necessary to determine the basis for duty and breach on the facts of the case and restrict the relevant factual matrix to those matters,” she said. “For claimants with multiple stressors, practitioners may need to work backwards from causation and involve an expert psychiatrist early on to appropriately confine the facts on which the case is to presented.

“For defendant solicitors, a careful approach is required in briefing medico-legal experts so as not to ‘do the job’ of satisfying an unmet evidentiary burden for the plaintiff.

Registrations for this year’s PI conference – to be held online on 1 September – close on Monday.

Footnote
1 Koehler v Cerebos (Australia) Ltd [2005] HCA 15).

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