High Court decision confirms and enlarges the employer duty to prevent psychological injury.

The High Court has strongly confirmed that employers have a duty to prevent psychological injury in the workplace. In the recent ground-breaking High Court decision of Kozarov v State of Victoria the employer was found to have been negligent by failing to properly identify, consider and assess the likelihood of the risk of injury inherent in the stressful and traumatic nature of the work. In this case the High Court found that the particular type of work was inherently and obviously dangerous and thereby created a foreseeable risk to psychiatric health.

In such cases, according to the High Court, an employer is duty bound to be proactive in implementing prevention measures to enable a worker to perform their work safely. This includes having in place appropriate policies, procedures and systems to prevent or mitigate risk.

Are psychosocial hazards reasonably foreseeable?

This case is a major development in how the Court views liability for psychosocial hazards inherent in the nature of the work.

One requirement to prove negligence is that the harm is “reasonably foreseeable”.

Establishing whether a physical injury is “reasonably foreseeable” is a relatively straightforward process – if someone loses their arm from using dangerous machinery at work that didn’t have a safety guard fitted, it follows that the injury was reasonably foreseeable because the safety guard was not in place.  However, when it comes to psychological injuries, the assessment is more complex.

Negligence for psychological injury – change from the previous approach

The High Court previously considered whether an employer was liable for an employee’s psychiatric injury in the 2015 case of Koehler v Cerebos. In that case, the Court found that the employee’s psychiatric injury was not reasonably foreseeable, in part because there was no reason for the employer to suspect a risk of psychiatric injury.

Given there were no prolonged absences from work, and while the employee complained that her workload was excessive, she did not make complaints to her employer that her mental health was suffering due to the inherent requirements of her role. The Court found that the injury was not “reasonably foreseeable” as the employer was not on notice that the work was causing the employee psychological harm.

The Kozarov decision took a different approach and a fresh look at whether the inherent requirements of the role itself make it reasonably foreseeable that psychiatric harm is a likely risk.

If the nature of the work is inherently stressful or traumatic, then as stated by the Court, it is reasonably foreseeable that mental harm may occur. It is sufficient that the risk to the employee’s mental health is foreseeable as being inherent in the work – no further warning signs or complaints are necessary to compel the employer to take reasonable prevention measures to safeguard mental health.

This decision is relevant for all employers managing the health and wellbeing of employees in the workplace. This decision places an increased onus squarely on the employer calling for a higher standard of diligence to ensure a safe place of work when the inherent nature of the work is traumatic or stressful.

An employer will be liable if the risk to mental health is evident from the inherently dangerous nature of the work and fails to address this risk.

5 workplace practices to address the increased onus and prevent psychological harm

Employers should adopt a proactive, risk based and systematic approach to psychosocial health and consider:

  1. Employees will not always speak up when they are suffering. Concerns around job promotion and stigma that they “can’t handle it” can mean that employees don’t raise concerns about their own mental health
  2. Having appropriate policies and procedures in place to minimise harm from inherently traumatic and stressful roles (for example, ensuring rotation through job roles; confidential access to counselling; regular debriefing)
  3. Raising awareness of signs of poor mental health at work such as increased alcohol consumption, not sleeping properly and how to get help
  4. Having in place systems that allow people to speak up and raise concerns without fear of retribution
  5. Having in place a workplace-wide incident management system that enables recording of incidents to enable effective prevent, detection, monitoring and redress of identified psychosocial risks

Workplace issues, like excessive stress, are often hidden beneath the surface, which makes them hard to detect and manage. Talk to us about how the Rely platform can help your organisation listen to employees, earn their trust and build a better, safer workplace.

 

If you found this topic interesting, you might also like to:

  • Watch our video (27 mins) with SafeWork SA’s Executive Director, Martyn Campbell, on psychological safety
  • Read this article on emerging trends in workplace wellbeing
  • Read this article, first published in the Herald Sun, on Mental Health Hazards Lurk in the Workplace