WELLBEING & RESILIENCE
Vicarious trauma: Everyone’s problem ZOE LEWIS, WELLBEING & RESILIENCE COMMITTEE
I
t is easy to say that employees should safeguard their own mental (and physical) health through the adoption of healthy habits, such as adequate sleep and exercise. However, employers cannot escape the fact that they too are responsible for this safeguarding. The High Court has recently made this clear in the case of Kozarov v Victoria.1 Although the four separate judgments follow different lines of reasoning, one theme is common: employers must give genuine consideration to the mental wellbeing of their staff in order to avoid potential liability for psychiatric injury. This case related to Ms Kozarov, an employee of the Specialist Sexual Offences Unit (SSOU) of the Victorian Office of Public Prosecutions (OPP). She was a recently admitted solicitor and her work routinely involved engaging with survivors of trauma and exposure to descriptions and depictions of their traumatic experiences. After working in this role for a while, she was diagnosed with Post-Traumatic Stress Disorder (PTSD) resulting from vicarious trauma related to her employment and was later diagnosed with Major Depressive Disorder (MDD) as well. Ms Kozarov pursued a claim on the basis of the negligent failure of her employer to prevent psychiatric injury to her while she was working in the SSOU. There are some differences of opinion between the various judgments as to when and how the employer’s duty of care arose, and what actions constituted a breach of that duty. On the one hand, it was considered that, given the nature of the work (which included carefully reviewing graphic material such as child pornography), a duty arose as soon as the person commenced employment and was breached as soon as the employer failed to respond to signs of adverse psychiatric impact. There were considered to be many signs that Ms Kozarov was experiencing work-related PTSD. These included the fact that she raised concerns in staff meetings about how her work was impacting on her as a mother, such as
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making her feel paranoid about leaving her children in anyone else’s care due to the risk of abuse. She signed a staff memo which raised concern about caseloads and experiences of stress. She tried to refuse to take on an additional case but was assigned the matter anyway, despite its horrific content. She also left work one day due to dizziness and then commenced a period of two weeks sick leave. Some of the High Court judges thought however that these warning signs weren’t even a necessary factor but that the employer was obligated to take active steps to protect the psychiatric health of Ms Kozarov and her colleagues because of the circumstances of this particular type of employment. On this view, the work to be performed was inherently and obviously dangerous to the psychiatric health of the employee and therefore the employer was duty-bound to be proactive in the provision of measures to enable the work to be safely performed. Some of the Justices were at pains to clarify the interpretation of the earlier case of Koehler2, in particular, to make clear that it was not necessary for the employee to show that there were evident signs of adverse impact on her mental health. Instead, it was enough that the employer had failed to provide a safe system of work,
and that this failure caused the exacerbation and prolongation of her PTSD and subsequent development of MDD. The reality is that working as a lawyer might mean that vicarious trauma is inevitable. This is perhaps most obvious for those working in criminal law matters, as was the case for Ms Kozarov, but is also true of many areas of law, including family and personal injury. Employers and employees alike must be vigilant about the inherent risks of the work being done and the need to have preventative measures in place, as well as strategies for dealing with psychiatric injury which is not successfully prevented. Clearly this is not just something for employees to manage via self-care strategies. Instead, employers need to consider practices such as adequate staffing to prevent overwork or burnout and rotation of work to give people a break from distressing content. What is Vicarious Trauma? Vicarious Trauma (VT) is “the negative transformation in the helper that results (across time) from empathic engagement with trauma survivors and their traumatic material, combined with a commitment or responsibility to help them”.3 Or, put simply, “being traumatised by what we see
