Recent Case Studies of Psychosocial Hazard Foreseeability

The notion that an organisation’s health is directly related to the wellbeing of its employees, is one of several dominant themes underpinning state based Work Health and Safety (WH&S) legislation targeting psychosocial hazards in the workplace. This legislation was rolled out in 2022 and 2023, and is now being interpreted by State and Federal Courts with far reaching consequences.

In October 2023, in the Melbourne Magistrates Court, WorkSafe Victoria, successfully prosecuted Court Services Victoria (CSV) over its failure to provide a safe workplace, which resulted in the death of a senior lawyer of the Coroner's Court.1 The defendant employer (CSV) was on notice about the health and safety risks, including the risk of suicide, after a staff survey and internal emails revealed that its workplace was toxic.

CSV subsequently admitted that it had failed to identify or assess the psychological risks to the health and safety of its workers, between December 2015 and September 2018, despite repeated warnings. The Court heard that the workplace was a toxic environment due to exposure to traumatic material, inappropriate workplace behaviours and excessive workloads. No support was provided to staff.

Tragically, in September 2018, a senior legal counsel employed by CSV died by suicide. In the months leading up to her death, she told friends and family that she had been given the workload of two people and had expressed concern about the impact that taking leave would have on her reputation. CSV was fined $379,000. Magistrate Glenn Walsh indicated that, but for the defendant’s guilty plea, a fine of $700,000 would have been imposed. CSV’s case dramatically highlights the principle that risks to health and safety posed by psychosocial hazards are equally as important as the risks of physical injury. 

This principle was a pillar of an earlier Judgment by Justices Kiefel and Keane in the landmark High Court case, Kozarov v State of Victoria (2022). 

Kozarov vs State of Victoria (2022)

Kozarov was awarded damages in respect of psychiatric injuries sustained during the course of her employment as a solicitor in the Specialised Sexual Offences Unit of the Victorian Office of Public Prosecutions, working on child sexual abuse claims. She suffered a chronic post-traumatic stress disorder and a major depressive disorder, as a result of her cumulative exposure to vicarious trauma in her casework.²

In their Judgement, the Justices added that if the circumstances of a particular type of employment are such that the work to be performed is “inherently and obviously dangerous to the psychiatric health of employee”, then the employer is duty bound to be proactive in the provision of measures to enable the work to be performed safely, regardless of whether there are any “evident signs”.

Foreseeability

That managers can no longer place reliance on warning signs raises the issue of foreseeability and poses the question raised in Kozarov: at what point does a job become "inherently and obviously dangerous to the psychiatric health of the employee"?  The roles of police, emergency workers, military personnel and frontline healthcare workers all make compelling cases. It is also noteworthy that both High Court and Victorian Magistrates Court precedents involved injured lawyers. 

Managers will need to develop mental health literacy skills in order to effectively identify, assess and monitor the risks posed by vicarious trauma, PTSD and many other psychosocial hazards identified in state legislation. The High Court Justices refer to  an “active Occupational Health and Safety framework” and called for “more intensive training for managers about the risk posed by vicarious trauma and post-traumatic stress disorder (PTSD)”.

Wilson v Gold Coast Hospital and Health Service (2023)

Foreseeability, the identification of potentially dangerous situations before problems arise, was a pivotal issue in Wilson v Gold Coast Hospital and Health Service (2023) Queensland Supreme Court. This case examines the hospital's duty of care to its employees, specifically, to take reasonable care for their safety and not expose them to a foreseeable risk of injury. 

The plaintiff, a registered nurse, was employed by the defendant hospital. She was injured at work while taking part in the restraint of a patient with dementia.

In the opinion of Judge Ryan, the risk was foreseeable as the patient was known, had cognitive vulnerabilities and a history of aggression towards the nursing staff. The risk was not insignificant as the plaintiff was “petite” and it was obvious that the patient had “the physical capacity to lunge at or assault others”.

The plaintiff’s physical injuries required surgery to her spine, resulting in her inability to return to work or take part in activities she previously enjoyed. In determining damages, Judge Ryan factored in medical and economic considerations until age 67 (the plaintiff was 40 years of age at the time of the incident).

Wilson’s case is an example of how a psychosocial hazard (violence and aggression) can result in a secondary psychological injury. In NSW the cost of physical injury claims that include psychological services are six times higher than those that don’t.4 It is not surprising therefore that Safe Work NSW has recently announced that it will be conducting 'psychosocial WHS checks' when visiting a workplaces with 200 or more employees.⁵ 

Debus v Condor Energy Services Limited (2022)

Debus v Condor Energy Services Limited (2022) in the Federal Circuit and Family Court of Australia, involved an autistic employee who didn’t disclose his psychiatric disorder and behaved in an abusive manner towards his work colleagues.⁶ Although this case was about unfair dismissal, there are several important takeaways through the lens of foreseeability.

Debus’s employer had a proactive obligation to protect his other team members from the harmful psychosocial hazard of aggressive and abusive behaviour and therefore needed to know whether the plaintiff posed such a risk before he was hired. Had Debus made the appropriate disclosures, his employer needed only to implement measures to manage the employee's autism during work hours in a manner that mitigated the risk to his co-workers (Kozarov defines the “contract of employment” as the context). The managers would still need adequate mental health literacy to manage the situation. 

Synergy Scaffolding Services Pty Ltd v Alelaimat (2023)

Synergy Scaffolding Services Pty Ltd v Alelaimat (2023) New South Wales Court of Appeal highlights another scenario emphasising the importance of foreseeability. An employee was sent to the work offsite where he accidently sustained horrific physical injuries.⁷ As in Debus, there are useful insights to be gleaned. Given the High Court in Kozarov judged psychiatric injuries and physical injuries equally important, it raises the question of how managers can protect their team members against the risk of psychosocial hazards when visiting other locations, beyond management’s immediate control. 

Bersee v State of Victoria, Department of Education And Training (2022)

The issue of foreseeability was also central in Bersee v State of Victoria, Department of Education And Training (2022) Victorian Court of Appeal. Bersee was employed as a teacher when he became psychologically unwell and unable to work. The dispute centred around his claim that his employer had been negligent in subjecting him to unreasonable and excessive workloads.⁸ 

Although the school was ultimately found not to be negligent, Bersee’s case provides valuable guidance on when managers need to have heightened awareness regarding the potential for psychological injury. Echoing Kozarov, the Court of Appeal held that an employer needs to consider the potential risks to psychiatric wellbeing before an employee displays any signs of psychological distress. In Bersee’s case, this was at the point in time when his class sizes were materially increased. Bersee’s case is an example of how management needs to be proactive to avoid foreseeable risks of harm to employees and not simply "meet its responsibility by acquiescing in a decision to perform the work that gives rise to the risk." 
1 https://www.worksafe.vic.gov.au/prosecution-result-summaries-enforceable-undertakings
2 Kozarov v Victoria (2022) 399 ALR 573; [2022] HCA 12; BC202202839 ("Kozarov").
3 Wilson v Gold Coast Hospital and Health Service [2023] QSC 135
4 Review of the Workers Compensation Scheme. Submission to the Standing Committee on Law and Justice (2022). State Insurance Regulatory Authority (NSW).
5 https://www.healthandsafetyhandbook.com.au/bulletin/safework-nsw-announces-psychosocial-hazard-blitz-on-large-employers/
6 Lessons arising from Debus v Condor Energy Services Limited (No 2) [2023] FedCFamC2G 465 (1 June 2023)
7 Synergy Scaffolding Services Pty Ltd v Alelaimat (2023) New South Wales Court of Appeal
8 Bersee v State of Victoria (Department of Education And Training) [2022] VSCA 231
9 Productivity Commission Inquiry into Mental Health 2020