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Angelowitsch, Genna --- "A worthwhile cause: Establishing causation in industrial psychiatric injury cases" [2023] PrecedentAULA 21; (2023) 175 Precedent 40

A WORTHWHILE CAUSE

ESTABLISHING CAUSATION IN INDUSTRIAL PSYCHIATRIC INJURY CASES

By Genna Angelowitsch

While it has long been recognised that employers have an obligation to provide their employees with a safe place of work, it is still often unclear what this obligation looks like through the messy, distorting kaleidoscope of human interaction. When a person suffers a psychiatric injury at work, the burden continues to rest with the injured employee to establish not only what their employer should have done to protect their mental health, but how those actions would have prevented the development of their trauma.

It is one of the first things a bright-eyed, bushy-tailed law student is taught: the elements of negligence. This early tutelage decrees that to bring a claim under this particular tort, a plaintiff must demonstrate that the defendant/s owed them a duty of care, the defendant breached that duty of care, and the breach of that duty of care has caused the plaintiff some form of injury or loss.

While all three elements must be established in every negligence case regardless of the jurisdiction, the attention paid to each of the elements varies depending on the nature of the action. For example, in medical negligence claims, it is rarely controversial that a medical practitioner or health services provider owes a patient a duty of care. What is often hotly contested is whether any apparent breach of that duty has caused the patient an injury, particularly in circumstances where the plaintiff likely requires medical services for a pre-existing medical condition.

In negligence claims arising from industrial accidents, the establishment of a duty is also equally uncontroversial in most instances. It is well accepted that employers owe their staff a non-delegable duty of care to provide them with a safe place and system of work. The focus of these disputes is usually whether an employer’s actions (or inaction, as the case may be) has resulted in a breach of that duty of care.

With the exception of specific types of claims, causation is rarely a focus of negligence claims for workplace accidents. It is a matter of common logic that if an employer removes a guard from a highly dangerous machine and an employee slices off a finger on that machine, the employer’s negligence has caused that employee’s injury. There are, however, some types of claims where causation can be the subject of some debate: for example, in cases where the worker has sustained a heart attack or developed cancer as a result of alleged exposure to carcinogenic chemicals as part of their ordinary duties. It is the responsibility of the plaintiff to establish, on the balance of probabilities, that their employment-specific duties have contributed in some prescribed way to the development of that particular condition.

The question then arises: what obligation, if any, does a plaintiff who has allegedly suffered a psychiatric injury in the course of their employment have in respect to the establishment of causation? Clearly, the circumstances of the injury are usually determinative of this question and, in a similar fashion to claims brought for physical injuries arising from discrete incidents, claims of post-traumatic stress disorder (PTSD) arising out of a singular traumatic event or experience are unlikely to centre on disputes about causation (unless, of course, the plaintiff has a pre-existing, unrelated history of PTSD). The basis of a causation argument is less clear in circumstances where a plaintiff is arguing that their psychiatric condition arose over a period of time, after multiple incidents or traumas, or perhaps as a result of an excessive workload. With psychiatric injuries now becoming one of the most common types of claims brought by injured workers across the country, a recent decision of the High Court seeks to shed light on the obligations of plaintiffs in relation to establishing the third element of the negligence equation.

KOZAROV v VICTORIA: THE FACTS

In June 2009, the plaintiff commenced work as a solicitor in the Specialist Sexual Offences Unit (SSOU) of the Victorian Office of Public Prosecutions. There, according to her evidence, she was required to work on ‘cases of an abhorrent nature involving child rape and offences of gross depravity’.^[1] It was accepted at trial that, by August 2011, the defendant was on notice of a deterioration in the plaintiff’s mental health and, by February 2012, she left the unit entirely. The plaintiff brought a claim in negligence, alleging that the defendant had failed to provide her with a safe workplace and as a result, she had developed PTSD and major depressive disorder.

The trial judge accepted that the plaintiff had placed the defendant on notice of her deteriorating mental health by August 2011, and that such notice required the defendant to adopt reasonable measures to provide a safe place of work for the plaintiff, including offering her roles in another section of the Office of Public Prosecutions. Importantly, the trial judge accepted that the plaintiff would, by August 2011, have accepted advice regarding prevention of serious psychiatric injuries including an offer to rotate out of the SSOU and that, on balance, this would have avoided the deterioration in her condition that subsequently lead to her departure from her employment with the defendant.^[2]

Following an appeal from the defendant, the Court of Appeal agreed with the learned trial judge that the defendant was on notice of the plaintiff’s deteriorating mental health by August 2011. But they disagreed with the trial judge that the plaintiff had established that she would have cooperated with alternative arrangements to protect her psychiatric health if they had been offered by the defendant. In failing to establish this element, the Court of Appeal held, the plaintiff had not satisfactorily established that the defendant’s failure to act had caused the deterioration in her condition between August 2011 and February 2012, which led to her departure.^[3] Accordingly, the plaintiff’s claim for damages was dismissed. The plaintiff appealed to the High Court.

DISPUTE REGARDING CAUSATION

The High Court found that the evidence supported a conclusion that, had Ms Kozarov been offered advice about preventing psychiatric injury and adopting alternative arrangements in or around August 2011, she would likely have cooperated with these arrangements. Therefore, on the balance of probabilities, the plaintiff had established that the defendant’s inaction had caused the deterioration of her psychiatric condition.

In accepting that the plaintiff had established causation, reference was made to evidence that the trial judge had accepted regarding the plaintiff’s behaviour in the lead up to August 2011, which supported the notion that the plaintiff was prepared, at that point, to make a change.^[4] But equally important was evidence from Professor McFarlane, a psychiatrist with a particular speciality in PTSD. Professor McFarlane’s evidence was that a ‘significant majority’ of people who are receiving psychiatric treatment are accepting of advice when that advice is appropriately communicated. As Gageler and Gleeson JJ noted, ‘the substance of this evidence was that it is more common than not for persons to heed medical advice given to them about the cause of a diagnosed serious illness and the means by which that cause could be either mitigated or removed’.^[5] The evidence of Professor McFarlane had not been adverted to by the Court of Appeal.^[6]

It was accepted by the Court that a reasonable person who, when advised of the risks of serious psychiatric injury, is likely on the balance of probabilities to accept advice to avoid those risks.^[7] The trial judge had accepted that the plaintiff was a witness of credit and did not accept the defendant’s attacks on her credibility, and it was therefore open to the trial judge to accept that the plaintiff would have accepted advice to rotate out of the SSOU and avoid exposure to further distressing material into the future.^[8] The plaintiff’s appeal was allowed and the Court of Appeal’s decision overturned.

Since the delivery of the High Court’s judgment in Kozarov in April 2022, much of the subsequent jurisprudence has focused on the High Court’s analysis of the employer’s duty of care, and distinguishing when an employer’s duty of care is triggered in cases of overwork as opposed to cases of vicarious trauma. It remains to be seen how the Court’s analysis of the requirement to establish causation will be implemented across the various state jurisdictions.

SATISFYING THE CAUSATION REQUIREMENT OF NEGLIGENCE

When considering whether a plaintiff has satisfied their obligations to establish the causation element of the negligence formula, careful analysis must be given to the facts of the matter. For example, does the plaintiff have a history of treatment for psychiatric illness of a similar nature to the injury claimed in the proceedings? If so, it is likely that evidence will need to be adduced from either a treating psychiatrist or independent professional identifying the change in nature or degree of the plaintiff’s condition and symptoms as a result of their employment with the defendant.

Secondly, the requirement for evidence in respect of causation will be heavily influenced by the nature of the employer’s alleged breach. As can be seen from the reliance on Professor McFarlane’s evidence in Kozarov, it is essential that consideration be given both to the type of response that the employer should have given, as well as the impact that such a response would likely have had. For example, if psychiatric trauma has arisen as a result of an excessive amount of work (and, in accordance with Koehler,^[9] the employer was on notice of the risk to the plaintiff’s psychiatric health as a result), the plaintiff must be able to establish how the employer could have reduced their workload (assigned fewer tasks, employed additional staff, transferred the plaintiff to a different role), and secondly, how that response would have prevented the plaintiff’s psychiatric injury. Just as was the case with Professor McFarlane’s evidence, the evidence may be general in nature, and may rely on the likely responses of the ’reasonable person’. But the failure to obtain this type of evidence can jeopardise the plaintiff’s prospects of being successful overall.

Thirdly and finally, consideration must be given to the particular facts of the case. Is the plaintiff’s injury said to arise over the course of their employment from multiple or a series of events, or is it from one specific event? If the injury is alleged to have arisen over a period of time, as was the case in Kozarov, the plaintiff must be able to articulate at what point the response identified above should have been implemented by the defendant, and the difference that such a response could have had. For example, in the excessive workload example given above, a plaintiff’s claim should be able to describe how the provision of additional resources at a certain time would have alleviated their distress to such an extent that it would have been preventative of their injury. Often, to avoid the potential influence of hindsight bias, the evidence may need to come from a psychiatric expert, but can also be articulated by reference to contemporaneous evidence, such as ‘by March, I was experiencing stress headaches but was still able to sleep, was not taking medication and was not seeing a counsellor. If I had received the support by this time, my assistant would have been trained enough to help me through the very busy period at end of financial year. But without that support and in my already vulnerable state, I wasn’t able to cope with end of financial year processing. By June, I was consulting with a psychiatrist, prescribed medication and was not sleeping regularly. I have not been able to work since this time’.

CONCLUSION

Sadly, psychiatric injuries are now one of the most common forms of injuries suffered by workers across Australia. While it has long been recognised that employers have an obligation to provide their employees with a safe place of work, it is still often unclear what this obligation looks like through the messy, distorting kaleidoscope of human interaction. What is clear, though, is that the obligation to establish the elements of negligence remain with the plaintiff, regardless of the extent of their distress and trauma. This obligation includes being able to demonstrate how their employer’s action (or inaction) has led to the development of their injury. In the context of a psychiatric injury, the causation requirement obliges representatives to consider involving appropriately qualified experts to discuss how alternative responses could have alleviated the plaintiff’s subsequent psychiatric injury, or risk losing a plaintiff’s entitlement to damages as a result of negligence entirely.

Genna Angelowitsch is a Victorian barrister and LIV Accredited Specialist in Personal Injury Law. She appears in cases across the personal injury spectrum, including claims arising from industrial accidents, transport accidents and medical negligence. EMAIL Genna.angelowitsch@vicbar.com.au.

^[1] Kozarov v Victoria [2022] HCA 12; [2022] 273 CLR 115, [74].

^[2] Ibid, [23].

^[3] Ibid, [51].

^[4] Ibid, [94].

^[5] Ibid, [59].

^[6] Ibid.

^[7] Ibid.

^[8] Ibid, [60].

^[9] Koehler v Cerebos (Australia) Ltd [2005] HCA 15; [2005] 222 CLR 44.