Vicarious trauma among legal practitioners and judicial officers

Abstract

The term ‘vicarious trauma’ refers to a range of cumulative and harmful effects from exposure to the trauma of others and is now recognised as a category of causation in the diagnostic criteria of post-traumatic stress disorder. Legal practitioners may be exposed to the risk of harm from vicarious trauma in a number of occupational contexts. This article reviews recent case authority, including a 2023 prosecution of Court Services Victoria for failing to provide a safe workplace in the Coroners Court of Victoria and the High Court decision in Kozarov v Victoria (2022) and the Victoria Court of Appeal decision in Bersee v Victoria (2022). It considers measures that should be taken to provide a workplace for both legal practitioners and judicial officers that is as safe and without risks to health as is reasonably practicable.

Introduction

There is a growing awareness of the phenomenon of vicarious traumatisation and the harm that can be caused to legal practitioners and judicial officers from recurrent exposure to trauma (Cochrane, 2021; Hodge & Williams, 2020–2021). However, legal practice contexts are diverse. Some lawyers work in large firms with management and the potential for protocols, screening and rotation. Others, including sole solicitor practitioners and barristers, are essentially self-employed. Judges work in courts as decision-makers but have substantial autonomy and are subject to only modest directions from chief judges and chief justices. Judicial healthcare programmes are only in their infancy in Australia, as in many other countries (Schrever, 2023).

This article reflects on the need to provide appropriate workplace responses for legal practitioners who are at risk of harm to their health from their work with traumatic material. The article commences with an analysis of stress and trauma-induced harm in the workplace and the evolution of post-traumatic stress disorder (PTSD) and vicarious experience of trauma. The article then reviews the evolution of case law, which has delineated the responsibilities of employers (including of legal professionals) to protect against and respond suitably to the foreseeable risks of vicarious trauma in the workplace. The article focuses upon high-profile criminal and civil cases to consider the guidance provided by occupational health and personal injury law. It argues that, while there is no single or simple answer to protecting legal practitioners from foreseeable risks of stress and trauma, better awareness of risks, creation of a culture of self- and collegiate care, and requiring employers, where practical, to take active measures to protect legal practitioners are constructive steps that are feasible and need to be incorporated in legal training, ongoing education and workplace practices and culture.

Trauma and stress

Trauma can be defined as an experience, either a single episode or recurring event or set of circumstances, that is physically or emotionally harmful or life-threatening to oneself or others and which elicits intense feelings of fear, helplessness, hopelessness or despair that overwhelms an individual’s capacity to cope (Branson, 2019; Krupnik, 2020; Van der Kolk, 2022). More recently, trauma has been conceptualised on a continuum along two axes: severity of stress and strength of adaptive, self-regulatory functions (Krupnik, 2020).

‘Shell shock’ and ‘combat fatigue’

During The Great War (1914–1918), which was fought with machine guns, mortars and heavy artillery, psychiatrists began to describe cases of soldiers with chronic symptoms of profound emotional disturbances from traumatic experiences including seeing dead and maimed comrades on the battlefield (Crocq & Crocq, 2000). After the Second World War (1939–1945), in which ‘total war’ included the systematic targeting of civilians, American psychiatrists Ginker and Spiegel authored Men under Stress (Ginker & Spiegel, 1945), a classic treatise that distinguished acute ‘reactions to combat’ from delayed ‘reactions after combat’, which were at the time often designated by the euphemism ‘operational fatigue’. Other important works from that period included a study of the sequelae from their internment experiences for concentration camp survivors (Eitinger, 1961).

Post-traumatic stress disorder

After the Vietnam War (1954–1975), psychiatrists and psychologists who managed thousands of returned United States servicemen advocated for the recognition of a distinct disorder to capture a constellation of symptoms relating to the servicemen’s traumatic experiences.

The symptoms of what was termed post-traumatic stress disorder (PTSD) included hyperarousal, hypervigilance, re-experiencing of traumatic content, withdrawal and avoidance behaviour, and emotional numbing that persisted for more than 1 month after the trauma experience (Godoy et al., 2018). A longitudinal study found that 40 years after the Vietnam War, the prevalence of PTSD in United States Vietnam veterans was up to 11.2%, depending on the instrument used to make the assessment (Marmar et al., 2015).

PTSD in the Diagnostic and Statistical Manual of Mental Disorders

The first edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM; American Psychiatric Association Committee on Nomenclature and Statistics, 1952) included the diagnosis of ‘gross stress reaction’ in which the core feature was the overwhelming fear response to an extreme stressor in a subject with normal pre-morbid personality. Without any explanation, this diagnostic category did not appear in DSM–II (American Psychiatric Association Committee on Nomenclature and Statistics, 1968), which was published at the height of the Vietnam War and the Tet Offensive. During the preparation of the DSM–III (American Psychiatric Association Committee on Nomenclature and Statistics, 1980), the agitation to reinstate that diagnosis was led by prominent American psychiatrist, Nancy Andreasen (2010) whose study group defined the new PTSD construct based on three main groups of symptoms: re-experiencing the traumatic event; avoidance of reminders of the trauma; and increased arousal expressed as hypervigilance, an exaggerated startle response, irritability, memory and concentration difficulties and sleep disturbances.

Following the inclusion of PTSD as a specific diagnosis in the ‘Anxiety Disorders’ category in the DSM–III, which was published in 1980, there was a growing awareness that some therapists with large caseloads of patients with PTSD also began to demonstrate secondary signs of disturbed cognitive schemas and memory functions. In 1990, the concept of ‘indirect trauma’ was first used to describe a range of cumulative and harmful effects on an individual who had been exposed to and had engaged empathically with another person’s trauma (McCann & Pearlman, 1990). Subsequently, the concept of ‘compassion fatigue’ was proposed as a phenomenon separate to ‘secondary trauma stress’ (Figley, 1995), and further studies considered the experience of sexual assault counsellors (Schauben & Frazier, 1995) and trauma therapists (Pearlman & Mac Ian, 1995).

In 2013, the DSM–5 (American Psychiatric Association Committee on Nomenclature and Statistics, 2013) removed PTSD from the ‘Anxiety Disorders’ category. In recognition of the considerable research that demonstrated that PTSD may entail multiple emotions including guilt, shame and anger, which were outside of the fear/anxiety spectrum, the DSM–5 re-located PTSD into a new diagnostic category named ‘Trauma and Stressor-related Disorders’, which was unique in that, as a precondition, the diagnosis required exposure to a stressful event (Levin et al., 2014). Acute stress disorder, adjustment disorder and reactive attachment disorder were also included in the new diagnostic category.

The diagnostic criteria for the trauma and stressor-related disorders included 20 symptoms divided into four groups: intrusion symptoms, persistent avoidance of stimuli, negative alterations in cognition and mood, and alterations in hypervigilance and reactivity. A dissociative subtype was also recognised.

There is also a continuing lobby, which began prior to DSM–5–Text Revision (DSM–5-TR) (American Psychiatric Association Committee on Nomenclature and Statistics, 2022), but which continued after it, for recognition of ‘complex PTSD’ to distinguish a clinical syndrome, following precipitating traumatic events that are usually prolonged in duration, defined by symptom clusters, resembling an enhanced PTSD, with symptoms such as shame, feeling permanently damaged and ineffective, feelings of threat, social withdrawal, despair, hostility, somatisation and a diversity from the previous personality (Giourou et al., 2018; Maercker et al., 2022). The condition has been recognised in the World Health Organization’s 11th edition of the International Classification of Diseases (ICD–11; Freckelton, 2024; World Health Organization, WHO, 2022)

Vicarious trauma

While ‘vicarious trauma’ was not included as a distinct disorder, the DSM–5 introduced an additional Criterion A – ‘Exposure to Trauma’ category of causation, ‘repeated or extreme exposure to aversive details of a traumatic event, which applies to workers who encounter the consequences of traumatic events as part of their professional responsibilities’. This recognised indirect occupational exposure to trauma as a diagnostic criterion in PTSD (Gasperi et al., 2021; Weathers, 2017).

Although the changes to the diagnostic criteria of PTSD in the DSM–5 generated considerable controversy (McFarlane, 2014; Pai et al., 2017), they have been maintained in the DSM–5-TR (American Psychiatric Association Committee on Nomenclature and Statistics, 2022).

The term ‘vicarious trauma’ describes the process and mechanism by which the inner experience of a person is profoundly and permanently changed through an empathic bonding with another person’s traumatic experiences (Cohen & Collens, 2013). Vicarious trauma has been distinguished by some researchers as the most serious condition from exposure to trauma as it involves a cognitive or schematic shift, sometimes leading to a change in the person’s world view (Devilly et al., 2009; Krasnik, 2019; Way et al., 2007). Other researchers posit that vicarious trauma is part of a spectrum of responses to trauma exposure, which also includes ‘caregiver fatigue’, ‘compassion fatigue’ and ‘burnout’ (Davies et al., 2023), all of which have a strong negative correlation with work satisfaction (Australian Government, 2023).

Risk factors for harm from vicarious trauma

A personal history of trauma (Bürgin et al., 2021), poor coping behaviours (Rauvola et al., 2019), a lack of social support (Brugman et al., 2022) and instability in non-work-related areas of a person’s life may be vulnerabilities that increase the risk of harm from vicarious trauma (Sutton et al., 2022). Problems in the work environment, including bullying and harassment (Bowskill, 2022), inadequate training, excessive workloads (Nickum & Desrumaux, 2023), inadequate resources, disputes with management and poor workplace policies (Brough & Boase, 2019), are context-related risk factors that may exacerbate the harm from vicarious trauma (Pellegrini et al., 2022).

Vicarious trauma in hazardous occupations

It is well recognised that exposure to secondary trauma is a workplace hazard in a range of occupations, including first responders (Greinacher et al., 2019); telephone councillors (Furlonger & Taylor, 2013; Howlett & Collins, 2014); police (Huey et al., 2023; Morabito et al., 2021; Regehr et al., 2022; Rudolfsson & Sinani, 2022); journalists (Hilton, 2023; Seely, 2019); corrective services officers (Campbell, 2019; Newman et al., 2019); health practitioners (Bradford & de Amorim Levin, 2020; Wu et al., 2023) and allied health professionals (Diehm et al., 2019; Padmanabhanunni & Gqomfa, 2022; Velasco et al., 2023), particularly social workers (Choi, 2011; Finklestein et al., 2015; Groggel, 2023) and sexual assault counsellors (Chouliara et al., 2009; Crivatu et al., 2021).

Vicarious trauma and lawyers

There is also a growing body of research into the effects of vicarious trauma on legal practitioners (Léonard et al., 2020, 2023) and judicial officers (Ko & Memon, 2023; Rabil et al., 2021; Schrever, 2023; Schrever et al., 2019; Sprang et al., 2021, 2023) who may be ill-equipped or not sufficiently ‘psychologically minded’ to recognise and manage well the signs and symptoms of incipient mental illness arising from trauma (Chlap & Brown, 2022; Collier, 2016; Nomchong, 2017; Norton et al., 2016; Thornton, 2016).

Whilst first responders and health professionals are likely to have a greater awareness of the risks of work-related vicarious trauma, lawyers with large workloads of confronting cases (Bergin & Jammieson, 2014; Chamberlain & Richardson, 2013; Fleck & Francis, 2021) who often work in relative isolation in a hostile, adversarial atmosphere may experience high levels of stress and compassion fatigue, particularly in their interactions with victims of crime (Burton & Paton, 2021; Chan, 2014; Chan et al., 2014; Leiterdorf-Shkedy & Gal, 2019; Ogińska-Bulik et al., 2022; Seligman et al., 2005), tragic scenarios of death in the coronial context (Salerno, 2021; Tait et al., 2016; Trabsky & Baron, 2016), family law (Morgillo, 2015; Levin et al., 2011; Levin & Greisber, 2003; Ordway et al., 2020), child protection (Molnar et al., 2020; Woodham & Duran, 2024), asylum-seeker litigation (Graffin, 2019; Kenny et al., 2023; Rønning et al., 2020; Westerby, 2010) and pro bono work (Sheldon & Krieger, 2014; Silverman, 2019). These forms of stress and compassion fatigue have been characterised as the ‘cost of caring’ (Bui, 2022). With the growth in awareness of such risks for lawyers comes both an ethical and legal responsibility for employers to take suitable prophylactic, monitoring and remedial action – a failure to do so, as will be seen below, has the potential to create both criminal and civil liability.

An early study comparing criminal defence lawyers with lawyers working with non-traumatised clients found that criminal lawyers experienced high levels of subjective distress, negative cognitive beliefs in relation to safety and intimacy, avoidance, intrusions and hyperarousal (Vrklevski & Franklin, 2008). This was consistent with findings of anxiety and depression in both lawyers and law students (Hall, 2009; Kelk et al., 2009; Medlow et al., 2011). There is increasing recognition of the inherently distressing processes of particularly the criminal justice system in which the expectation is that legal practitioners, including judicial officers, remain professional, emotionally detached and impartial (James, 2020).

The findings of another Australian study that considered the association between symptoms of vicarious trauma and personality traits suggested that the vulnerability observed in lawyers was more attributable to organisational factors such as the lack of support in the legal profession, rather than individual personality characteristics (Maguire & Byrne, 2017). Subsequent qualitative studies of Australian lawyers’ experience of exposure to traumatic material identified a number of themes, including the cumulative effect of exposure being exacerbated by lack of control over high caseloads, fear of stigma associated with disclosing emotional response, and thereby being judged as unprofessional, and the active denial or suppression of emotions, which was professionally normalised (Weir et al., 2021, 2022).

The need to review high-quality video and audio recordings of violent offending (Leclerc et al., 2020) and child exploitation (Polak et al., 2019) has become ubiquitous in the criminal jurisdiction. A recent study of the effects of these confronting items has highlighted the deleterious effects of repeated exposures through multiple and protracted viewings by criminal justice professionals (Birze et al., 2023). A recent qualitative study of New Zealand Crown prosecutors’ experiences of work-related trauma also identified a prominent theme of the enduring effects of exposure to potentially traumatic material (Kim et al., 2023).

A recent systematic review concluded that there was a comparatively high prevalence of secondary trauma in legal professionals, which was significantly greater than in mental health professionals, social workers, psychologists and prison officers (Iversen & Robertson, 2021). Whilst acknowledging the methodological limitations of the limited available research, the review found that criminal lawyers had higher levels of secondary trauma than non-criminal lawyers, and judges had higher levels than barristers. Trauma-induced pathology can also be highly relevant to disciplinary matters involving legal practitioners who may decompensate and act in unethical ways as a result of the effects of their experience of ongoing vicarious traumatisation (Bowskill, 2022).

Vicarious trauma and judicial officers

Judicial officers with heavy caseloads (Hagen & Bogaerts, 2014) are also regularly confronted with distressing details of offences and the accounts of victims (Khan, 2023) in a highly scrutinised and isolated environment (Hampel, 2022; Miller & Bornstein, 2013; Miller et al., 2018; O’Sullivan et al., 2022; Rothmann & Rossouw, 2020) within a professional culture that often abjures emotion (Maroney & Gross, 2014; Snider et al., 2022; Westaby & Jones, 2018) and denies the effects of stress (Kirby, 1997; Kunc, 2018; Resnick et al., 2011; Zimmerman, 2000, 2006). After the suicide of two magistrates in Victoria, a senior New South Wales judge of more than 20 years’ experience warned of the effects of the excessive workloads of confronting cases in the District Court in New South Wales (Thompson, 2018).

Following the suicide of a Federal Circuit Court judge in Queensland in October 2020, the then president of the Bar Association of Queensland highlighted the loneliness and stress from ‘crushing workloads’ facing the judiciary in Australia (Richardson, 2020).

An early Canadian study found that 63% of the 105 judges surveyed reported experiencing one or more symptoms they identified as work-related vicarious trauma experiences (Jaffe et al., 2003). Female judges reported more symptoms, as did judges with seven or more years of experience.

A content analysis of 762 judges’ responses to a survey asking whether they had suffered from secondary traumatic stress found that whilst judges moderately experienced most types of stress, some in the family law jurisdiction, and those judges considering particularly confronting evidence, reported higher levels of distress (Edwards & Miller, 2019).

More recently, a study of 205 New South Wales judicial officers’ survey responses relating to the prevalence and impact of three kinds of traumatic stress (threat to the person, vicarious trauma and vilification) found high levels of psychological distress with 30% receiving test scores indicative of likely post-traumatic stress disorder (Hunter et al., 2021). Three quarters of judicial offices reported suffering negative effects associated with vicarious trauma. Compared to judges in the higher courts, magistrates reported qualitatively and quantitatively different experiences including significantly higher levels of trauma-related symptoms.

Other surveys of judicial officers from Australian courts found that judicial stress, operationalised as non-specific psychological distress, depressive and anxious symptoms, burnout and secondary traumatic stress, was predicted by satisfaction of the basic psychological needs of autonomy, competence and relatedness (Schrever et al., 2019, 2022). Ironically, these findings coincide with a growing movement for both decision-making and legal representation to be ‘trauma-informed’ in their practice (James, 2020, 2023; Krider et al., 2024; Maki et al., 2023; Peña, 2019; Poynton et al., 2018). A difficult consequential question is what the responsibility of those running courts is to mitigate such foreseeable risk of psychiatric harm for judicial officers, as well as other employees who work in court environments.

The 2023 prosecution of Court Services Victoria

In a highly unusual but significant criminal prosecution, Court Services Victoria (CSV), the statutory body that administers Victoria’s court system, was charged with, and in 2023 pleaded guilty to, a charge of failing to provide and maintain a safe workplace in contravention of Section 21 of the Occupational Health and Safety Act 2004 (Vic) (Pearson, 2023a, 2023b). The Magistrates Court of Victoria, which heard the case, was informed by the prosecutor that from at least December 2015 to September 2018, workers at the Coroners Court of Victoria were at risk from exposure to traumatic materials, role conflict, high workloads and work demands, poor workplace relationships and inappropriate workplace behaviours. During this period, employees were identified by the prosecutor as having made numerous complaints, including allegations of bullying, favouritism and cronyism, verbal abuse, derogatory comments, intimidation, invasions of privacy and perceived threats to future career progression. A number of workers took leave after reporting feelings of stress, anxiety, fear, humiliation and PTSD. A senior solicitor took three months personal leave, during which time she was diagnosed with a work-related major depressive disorder, and then took her own life in September 2018 (Pearson, 2023a, 2023b).

The Magistrates Court heard that the Coroners Court had been on notice about the risk of suicide after a 2015 staff survey, and, later, numerous internal emails revealed the workplace was ‘toxic’ (Pearson 2023a). Court Services Victoria admitted that it failed to identify or assess the psychological risks to the health of employees between December 2015 and September 2018 despite repeatedly being alerted to concerns about the workplace.

In the months preceding her suicide, the solicitor had been given the roles of two people and expressed concern about the impact that taking leave would have on her reputation (Pearson, 2023a); thus there was the risk of contribution to her mental state from a variety of factors, which included an excessive burden of work and the nature of work that she was required to undertake. Magistrate Walsh who was brought from New South Wales to hear the criminal case against Court Services Victoria imposed the maximum fine available (A$380,000) but said in his sentencing reasons that the offending was so serious that he would have sentenced Court Services Victoria to a harsher penalty if he could have done so.

In the aftermath of the prosecution, Worksafe Victoria (19 October 2023) formally advised that employers should:

• Promote a positive workplace culture that encourages trust, respectful behaviours and quality communication.

• Consult with employees when identifying and assessing any risks to their psychological health and determining the appropriate control measures.

• Implement policies and procedures for reporting and responding to psychosocial hazards such as workplace trauma, bullying, interpersonal conflict, violence and aggression; and reviewing and updating risk controls following any incidents.

• Regularly ask employees how they are, encourage them to discuss any work-related concerns and, where required, implement suitable support and controls.

• Have systems in place for workforce planning and workload management to ensure that employees have sufficient resources and a realistic workload.

• Develop skills for leaders through coaching, mentoring and training to improve the support of employees.

• Seek and act on feedback from employees during any organisational change process.

• Inform workers about their entitlements if they become unwell or unfit for work.

• Provide appropriate and confidential channels to support workplace mental health and wellbeing, such as Employee Assistance Programs.

In the aftermath of the decision, the new State Coroner, Judge Cain stated that: ‘We will continue to work closely with Coroners and staff to strengthen the health and wellbeing supports, and to make the Court a better place to work’ (Court Services Victoria, 2023, p. 1). Court Services Victoria conceded it had been properly held accountable for its breach of Victoria’s occupational health and safety legislation and stated that:

CSV has new systems in place, including at the Coroners Court, with the aid of technology that helps identify issues of workload and exposure to difficult material. It has developed a Peer Support Program and Mental Health First Aid Training and provides clinical wellbeing services to CSV employees. CSV also has an organisation-wide approach to risk management and has invested in measures to enable a ‘speak up’ culture that helps staff at all levels feel comfortable in raising issues. (Court Services Victoria, 2023, p. 1)

A practical question that arises for Victoria and other jurisdictions throughout Australia and internationally is whether such changes will be sufficient to forestall criminal and civil liability by employers of lawyers.

Liability of employers for vicarious stress claims prior to Kozarov’s case

The focus of this article is not upon a comprehensive analysis of the law in relation to the duty of employers to provide legal practitioners with a safe workplace. Rather, this article highlights the major High Court authority on the subject and the 2022 judgments in Kozarov v Victoria (Kozarov v Victoria, 2022). It refers also to subsequent superior court decisions on the issue. However, the Kozarov decision did not occur in a vacuum. Prior to the decision, Australia had seen extensive civil litigation for employers failing to provide a safe workplace for professionals (see e.g. Wilson & Freckelton, 2023). Such litigation is continuing and, from time to time, will be brought by legal practitioners who have suffered the effects of vicarious traumatisation in their workplace.

Koehler v Cerebos (Australia) Ltd

In Kozarov v Victoria (2022), the High Court made reference to the 2005 decision in Koehler v Cerebos (Australia) Ltd (2005), which dealt with the entitlement to compensation of a merchandising representative who was found to have developed complex fibromyalgia syndrome and, relevantly, a major depressive illness in the context of a work environment in which unreasonable demands were made of her. Her claim was brought in negligence against her employer, and much of the decision focused upon whether the employer provided Ms Koehler with a safe workplace. Ultimately, the High Court found that her claim failed because Ms Koehler agreed to perform the duties that were a cause of her injury, and, more importantly, because the employer had no reason to suspect that she was at risk of psychiatric injury (at [27]).

In the main judgment (by McHugh, Gummow, Hayne & Heydon JJ) although it was accepted that it may ‘be right to say that it is now a matter of general knowledge that some recognisable psychiatric illnesses may be triggered by stress’ (at [34]), the proposition that all employers should recognise that all employees are at risk of psychiatric injury from stress at work was not accepted. Rather, the duty was held to be individual, with the question to be asked whether psychiatric injury to the particular employee was reasonably foreseeable (at [35]) with the employer engaging an employee to perform stated duties being ‘entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury that the employee considers that he or she is able to do the job’ (at [36]). Ms Koehler had no vulnerability that was known to the employer, made no complaints suggesting such a possibility so ‘there was no reason for the employer to suspect risk’ to her psychiatric health (at [42]).

There have been a number of important decisions in relation to employers’ liability in circumstances of employees’ serial exposure to trauma in the workplace. Examples of these have been in the context of ambulance workers (see e.g. Hegarty v Queensland Ambulance Authority, 2007), police (see e.g. New South Wales v Briggs, 2016) and journalists (The Age Co Ltd v YZ, 2019).

The Age Co Ltd v YZ (2019)

Particular reference is made in this context to the decision by the Victorian Court of Appeal in The Age Co Ltd v YZ (2019) (YZ) as its facts bear features in common with those in some situations of employee solicitors (see Wilson & Freckelton, 2023).

In YZ a journalist who principally worked as a crime-reporter sued her employer, The Age, for failing to take appropriate steps to provide her with a safe workplace when she was placed for a second time in the crime-reporting area. The Court of Appeal contrasted YZ’s position with that of an ambulance driver or a police officer, finding that it had been feasible in her interests for her have been rotated away from crime-reporting. It found that the employer failed to be vigilant for signs of dysfunction in YZ, when YZ had already clearly identified her ‘inability to cope’ (at [183]). It concluded that:

First, whether psychiatric injury is reasonably foreseeable involves difficult questions because the risk of injury may be less apparent than in cases of physical injury and may depend on the vagaries and ambiguities of human expression and comprehension.

Secondly, whether a response to a perceived risk to psychological health is reasonably necessary to ameliorate that risk may be uncertain, and the likely efficacy of responses more debatable than a mechanical alteration of the physical environment.

Thirdly, the articulation of the content of the duty of care and the imposition of a positive duty to take active steps to prevent the risk of foreseeable injury must take into account the private and personal nature of psychological illness and the dignity of employees and their entitlement to undertake their chosen work free of harassment and intimidation. Care must be taken to ensure that solicitude for an employee’s privacy does not overwhelm those other considerations that give rise to a meaningful duty of care to avoid injury.

Finally, it may be difficult to establish that, had the proposed steps been taken by the employer, the injury would have been avoided. (at [129]–[132])

The result was that the Court of Appeal concluded that had YZ not been assigned to court reporting, she would not have experienced the deterioration in symptoms that she suffered between 2010 and 2013 (at [185]): ‘had there been a better understanding by management and the plaintiff of the relationship between trauma and injury, she would not have been requested, or persuaded, to undertake work as a court reporter’ (at [186]).

The facts in Kozarov v Victoria (2022)

The facts of the Kozarov case have application to a variety of legal practitioners employed in large law firms, legal aid bodies and offices of public prosecutions (Burns, 2021, 2023; Chieng & Hou, 2022; Scott & Freckelton, 2023; Wilson & Freckelton, 2023).

Zagi Kozarov was an employee solicitor who worked in the Specialist Sexual Offences Unit (SSOU) of the Victorian Office of Public Prosecutions (OPP). Her work was demanding and involved engaging with victims of sexual assault and dealing with distressing material involving young persons and sexual predation and violation. The OPP recognised the potential for persons such as Ms Kozarov to suffer psychiatric injury and developed a vicarious trauma policy (VT Policy) to address the risks inherent in the roles play by its solicitors.

However, none of the protective measures identified in the VT Policy, or any other preventive or protective measures, were implemented by Ms Kozarov’s managers (at [8]). By April 2011 Ms Kozarov began to suffer from post-traumatic stress disorder, and the defendant conceded that if she had been offered occupational screening in August 2011 she would have been likely to have accepted the screening, and her illness would have been identified.

The judgments in Kozarov v Victoria (2022)

While Ms Kozarov complained of work conditions around April 2011, Kiefel CJ and Keane J were of the view that at that time, she did not show evident signs of mental illness. However, they agreed that the employer had been in default of its duties to provide a safe workplace from the commencement of Ms Kozarov’s employment, given the nature of what was required of solicitors such as Ms Kozarov.

Gageler and Gleeson JJ, by contrast, did not focus upon the employer’s failure to discharge its duty of care in relation to the work environment from the outset but found that Ms Kozarov’s communications later in her employment constituted a disproportionate reaction to issues in the office and that her distress in her interaction with her superior, in all the circumstances, was a ‘significant indicator of possible work-related psychiatric injury’ (at [54]). They accepted the expert psychiatric evidence of Professor McFarlane that most employees, if advised of the risks of serious illness, accept advice to avoid the risks. They were of the view that had Ms Kozarov been screened, found to be at risk and advised to rotate out of the SSOU, she would have accepted the advice, and therefore have been at reduced risk of harm.

The view of Gordon and Steward JJ was similar. They concluded that there were ‘numerous signs, some more obvious than others, that Ms Kozarov was at risk of harm’:

She became increasingly outspoken at staff training sessions and monthly team meetings about her hypervigilance and abnormally overprotective parenting practices as a result of her work, she signed a staff memorandum to the SSOU management on staff well-being which identified the stress-related symptoms being experienced by solicitors in the SSOU, she became dizzy at work one day and went on sick leave for two weeks thereafter, and upon her return to work she was involved in a dispute with her manager about whether she was coping with her workload. Ms Kozarov ultimately requested to be rotated out of the SSOU and, after several unsuccessful attempts by the OPP to return her to work in different areas, her employment was terminated. (at [64])

They concluded that her employer was on notice, at least from August 2011, of the risk of psychiatric injury to Ms Kozarov, and a reasonable person in its position would have foreseen a risk that was neither far-fetched nor fanciful to her by then. The interactions with her manager, they found, coupled with ‘the inherently difficult nature of the work carried out by Ms Kozarov and other solicitors in the SSOU’, in combination, should have put the employer on notice that Ms Kozarov was at risk of psychiatric injury in the continued performance of her work by August 2011 (at [80]). Thus, they found that the employer’s breach of its duty of care caused the exacerbation and prolongation of Ms Kozarov’s PTSD and subsequent development of major depressive disorder (at [81]) on the basis that it had a responsibility not just to provide a safe system of work, but also to maintain and enforce such a system. They agreed that if the employer had discharged its duty of care by requiring Ms Kozarov to be screened, it was likely that she would have co-operated with rotation out of the SSOU, and the question of compelling her to do so did not arise, as coercion would not have been necessary (at [97]).

Edelman J noted that Ms Kozarov’s case had been argued on the basis of the employer’s duty to take reasonable steps to avoid allocating work or creating a workplace that causes or exacerbates psychiatric injury to an employee (at [102]), a duty engaged when there is a reasonably foreseeable risk of psychiatric injury to an employee of the kind that occurred:

Whether a risk of psychiatric injury is reasonably foreseeable will depend upon (i) the nature and extent of the work being done by the particular employee and (ii) any signs given by the employee concerned. (at [104])

Edelman J found that a reasonable employer in the position of Ms Kozarov’s employer would have been aware of the risks from the commencement of work in the SSOU, and as ‘evident signs’ of psychiatric injury to Ms Korarov emerged, the reasonable person would have appreciated that there was a considerable increase in the likelihood and the seriousness of a psychiatric injury to her or, if psychiatric injury already existed, a considerable increase in the likelihood of it becoming worse:

Correspondingly, the extent of alleviating precautions against the risk of harm that would reasonably be expected to be taken by the respondent in relation to Ms Kozarov also increased. At the very least, these increased precautions included, as the primary judge found, a welfare enquiry of Ms Kozarov. (at [110])

By August 2011 the employer’s responsibility to take precautions may even have extended to compulsory rotation.

Litigation subsequent to Kozarov

Following the controversy generated by the High Court decision in Kozarov (Mills, 2021) and the subsequent disbanding of the SSOU (Kolovos, 2021), it has been reported that the Victorian Office of Public Prosecutions has experienced low morale and large numbers of resignations (Houston & Mills, 2023; Wilson & Freckelton, 2023).

There have also been decisions subsequent to the High Court judgments in Kozarov that have wrestled with the ramifications of the case for employers generally (see Bersee v State of Victoria, 2022; Elisha v Vision Australia, 2022; Graham v State of Queensland, 2022; Wilson & Freckelton, 2023). Brief reference is made hereunder to the two most significant decisions in terms of their value as legal precedent: Bersee v State of Victoria (2022); Elisha v Vision Australia (2022). Neither dealt with legal practitioners but each engaged with the ramifications of the decisions in Koehler and Kozarov.

Bersee v State of Victoria (2022)

The Victoria Court of Appeal decision in Bersee v State of Victoria (2022) is prominent among the post-Kozarov decisions, and although it did not deal with vicarious trauma experienced by a lawyer, it is significant in terms of precedent. It related to a teacher aged 68 at the time of trial who claimed to have developed psychiatric injuries (major depressive disorder and chronic anxiety, including panic attacks) that were caused or exacerbated by unreasonable and excessive workloads, a phenomenon very relevant to legal practice. Although the scenario was not one that arose from exposure to vicarious trauma, the case prompted the Court (Beach, Niall & Macaulay JJA) to consider the reasoning and relevance of the High Court’s decisions in Koehler and Kozarov.

In a joint judgment the Court observed that in giving content to the duty of an employer, the reasoning in Koehler emphasised that close attention must be given to the particular factual circumstances, this being essential to a proper understanding of the interrelated issues of how the duty of care arises, whether injury of the relevant kind was reasonably foreseeable and what can properly be expected of an employer acting reasonably in responding to that risk (at [75]). It noted that implicit in the reasoning of the High Court is an acceptance that there is no special rule for psychiatric injury (at [76]) and that the inquiry as to whether psychiatric injury was reasonably foreseeable ‘remain quintessentially factual’ (at 77]). They commented that Kozarov reinforces that questions of foreseeability of psychiatric injury, which are relevant to the existence and scope of a duty of care, breach of duty and remoteness of damage, are fact- and context-specific. They stated that:

Properly understood, Koehler and Kozarov are at opposite ends of a single spectrum and do not represent a divergence in principle. In Koehler, the plaintiff was performing work of a relatively routine nature that she had agreed to perform. In order to establish that psychiatric injury was a reasonably foreseeable consequence of performing the work it was necessary to take into account what the parties had agreed under the contract of employment. A generalised understanding that workplace stress can lead to injury was insufficient, in the absence of ‘evident signs’ by the particular employee. In Kozarov, the employer had acknowledged that vicarious trauma and therefore psychiatric injury were an obvious consequence of exposure to trauma, and a search for evident signs in the plaintiff was unnecessary to establish the relevant duty of care. (at [88])

The Court in Bersee concluded that the High Court judgements in Kozarov make plain that evident signs of distress or vulnerability on the part of a plaintiff are not a precondition that must be satisfied before psychiatric injury can be found to be reasonably foreseeable and are not a legal criterion for liability (at [88]): ‘Rather, they provide a means by which reasonable foreseeability may be established on the facts, and in some cases, the absence of them may mean that the employer would have no reason to suspect that psychiatric injury is on the cards for the particular employee or class of employees’ (at [89]).

On the facts in Bersee the Court of Appeal held that psychiatric injury to Dr Bersee was reasonably foreseeable from a particular period in his employment and that the trial judge had been overly focused on the search for ‘evident signs’ of distress and vulnerability (at [105]). However, it concluded that the employer had taken reasonable steps to avoid psychiatric injury to Dr Bersee in relation to the extra workplace requirements that it imposed upon him. The decision is illustrative of the specific nature of the pathology and of the inquiry in any particular case as to whether there has been a breach of the duty of the employer to provide a safe workplace.

Elisha v Vision Australia (2022)

In Elisha v Vision Australia (2022), an unfair dismissal case in which a technician specialising in installing equipment for people with a vision impairment claimed to have suffered catastrophic and foreseeable effects from the termination of his employment. O’Meara J at first instance (the decision was appealed on other grounds) considered both the Kozarov and Bersee decisions and declined to classify the Koehler decision as an overwork case, noting that ‘while it may be accepted that Koehler involved a particular factual situation, the question of reasonable foreseeability of the risk of psychiatric injury presented as a ‘critical inquiry’ in that case, and also in Kozarov and Bersee’ (at [441]). He reasoned that Elisha fell somewhere between Koehler as an ‘overwork’ case and Kozarov as a case in which there was a specific risk that the employer had written a policy to address (at [456]). The decision highlights the complexity of the task of evaluating whether an employer should have been aware of experiencing psychiatric injury, whether from vicarious trauma or any other cause, including a heavy burden of employment responsibilities.

Discussion

It is apparent that, just as may occur in a number of categories of workers – such as police, ambulance workers and crime scene journalists – when lawyers are employed in work contexts where psychiatric harm arising from vicarious trauma is reasonably foreseeable, particular responsibilities arise. These are over and above the general obligation to provide a working environment that, so far as is reasonably practicable, is safe and without risks to health. They arise from the fact that it is understood as a matter of law, and reinforced by the Kozarov decision and the Court Services Victoria prosecution, that vicarious exposure to trauma can be a precipitant to mental illness.

A failure to discharge such obligations can give rise to both criminal and civil liability. The responsibilities include having an active occupational health and safety framework incorporating a system of educating employees to be self-aware about risks, including by developing (and implementing) dedicated vicarious trauma policies informed by ‘best practice’ including the Australian Guidelines for the Prevention and Treatment of Acute Stress Disorder, Posttraumatic Stress Disorder and Complex PTSD (2023). However, there must be more than the existence of a policy. The policy must be implemented generally and in each individual case. As well as a formalised system of regular workplace screening focusing on the early identification of specific symptoms of conditions such as anxiety, depression and substance use, the responsibilities may well also extend to mandatory referral to a qualified mental health professional, such as a psychologist or psychiatrist, at least upon the emergence of any ‘evident sign’ of unwellness. Where possible, in a workplace of some size and diversity – such as an Office of Public Prosecutions or a large solicitor’s firm – rotation may be necessary, whether a practitioner is acquiescent or not. During his expert evidence in Kozarov, Professor McFarlane highlighted that the New South Wales Police Force had adopted a policy of fixed-term rotations in an attempt to minimise the cumulative burden and to give police officers respite from exposure to particularly confronting cases (see Scott & Freckelton, 2023). Compulsory moving of a worker within a workplace was contemplated by Edelman J (but not by the other judges in the High Court), on the basis specific to Ms Kozarov that the evidence suggested that she would have been co-operative with recommendations to ameliorate her emerging symptoms. However, the culture in some workplaces is not conducive to the development of such insight. There may be a variety of reasons, some personal, some professional, why persons may not be as prepared as it was found Ms Kozarov would have been to be rotated out of an area in which they have developed expertise.

Conclusions

The case law that has evolved has shown that there can be ambiguity in the manifestation of ‘evident signs’ of pathology by an employee exposed to trauma. Often enough such signs can be equivocal. They may be suggestive that the employee is angry or disillusioned in the workplace, distressed by issues outside the workplace or frustrated about the imposition of burdens in the workplace. This was a scenario that existed in the Koehler and Kozarov cases and also in the Bersee case. However, it is not reasonable to review such signs retrospectively, after the development of frank pathology, and classify what was ambiguous as ‘evident signs’ of unwellness that should have been discerned by the employer as associated with the effects of vicarious trauma experienced in the workplace (see Elisha, 2022). As the Victorian Court of Appeal put it in Bersee, the evaluation of the situation is ‘quintessentially factual’ (see too Graham v State of Queensland, 2002). However, in workplaces, such as those of a Coroners Court or an Office of Public Prosecutions, it is clear that the responsibility of the employer is to be alert to signs that may relate to vicarious trauma and to follow them up promptly and assertively, even if the employee is not co-operative or insightful at first, as well to take measures that are reasonably open to identify whether what is taking place is the emergence of symptoms related to responses to workplace trauma. The extent to which the employee has a responsibility of self-care in such circumstances is, as yet, unclear.

How long a rotation needs to be in order to be efficacious as a protective factor is difficult to predict – generally and also in particular circumstances. The facts of YZ are illustrative – the return to an environment that was foreseeably traumatic after a break in another area resulted in the re-emergence of worsened symptoms. In addition, rotation of a worker is difficult where they resist or are keen to return to the site that played a role in the appearance of ‘evident signs’ of illness. As well, there is a risk of stigmatising a worker and of pathologising their ongoing work experience by imposing requirements of non-confidential interactions with monitoring/assessing mental health professionals who have responsibility for advising the employer on steps to take in relation to a worker’s form of employment. It is also important to be respectful of a worker’s entitlements to privacy (Koehler; Bersee).

A number of observations can be made. Employers in the legal environment (and other comparable workplace contexts) have obligations to educate their workers about risks, to develop policies about management about risks arising from vicarious traumatisation, and to be alert to and responsive to the potential emergence of ‘evident signs’ of pathology that may be arising from or contributed to by vicarious trauma in the workplace.

There are many issues that need to be explored by ethical employers of lawyers, as well as by employers wanting to reduce their exposure to litigation. Amongst these are identification of when work environments are such as to produce particular risks of pathology arising from vicarious trauma. While child sexual exploitation in a criminal context has particularly distressing resonances, the risk of vicarious traumatisation arises in many areas of legal practice. Dealing with sex offences as a consistent part of a lawyer’s work can be highly noxious, but so too can be working with homicides, including in the industrial manslaughter context, or deaths that are the subject of inquiry in coroners’ courts. Family law and child protection litigation practice and representation in personal injury litigation that results in injuries that fall short of death can be corrosive of mental health and take a long-term toll that can result in depression and anxiety disorders.

Pathology associated with a workplace is rarely precipitated by or contributed to by just the one factor, such as a single exposure to trauma. Usually, it is an ongoing exposure to a sequence of traumata that have a cumulative effect. That can be associated with another potentiating factor – excessive, stress-inducing workplace demands. For instance, that was the background in Kozanov, it was part of what caused the difficulties in Koehler, and it was relevant in Bersee. The impact of unreasonable demands and imposition of time pressures by an employer when an employee is already dealing with the effects of exposure to trauma is specific to any given workplace and employer–employee relationship, but can become an exacerbating factor by contributing to development and/or exacerbation of symptoms.

In addition, it is common for stresses at work to be compounded by stressors in an employee’s personal life, which may or may not be affected by what is taking place in the workplace. In other words, there can be adverse synergies in respect of different parts of a legal practitioner’s life, about only some of which the employer may be on notice. To the extent that the employer is aware of such matters, it is likely to be regarded as part of the range of factors that the employer should take into account in the development of preventive and protective factors in the workplace, without undue intrusion into the privacy and personal life of the employee.

Different considerations arise for lawyers who are self-employed solicitors or barristers, who are appointed as judicial officers, or who work in small firms of lawyers. For such persons, it is an important responsibility of professional bodies such as a Law Society, Law Institute, Bar Association or Institute of Judicial Administration (and perhaps even universities: see Burton & Paton, 2021; Jenkins, 2013), as well as other professional associations, to educate members about the phenomenology of vicarious trauma, the signs that legal practitioners should be conscious of both in themselves and in their colleagues, and how they can be managed (see e.g. Bradey, 2014, 2016; Cochrane, 2021; Soon et al., 2023). Ethically, if not legally, it may be that there is some responsibility to enable access to appropriate mental health professionals who can assist practitioners. For lawyers in this category who do not work in a large employment environment, fewer (if any) options exist for the employer employing legal practitioners in a corporate or quasi-corporate environment in terms of interventions such as rotation but as a matter of law there remains a requirement for the adoption of those measures that are reasonable to provide to the employee lawyer a workplace that is reasonably safe and without risks to health. These measures may include dissemination of information about phenomena such as vicarious traumatisation and its sequelae, creation of a culture in which legal practitioners and judicial officers are encouraged (without stigmatisation) to seek mental health review and treatment from suitably qualified professionals, and payment of expenses for screening, treatment and monitoring if ‘evident signs’ of being unwell emerge.

Ethical standards

Declaration of conflicts of interest

Russ Scott has declared no conflicts of interest

Ian Freckelton has declared no conflicts of interest

Ethical approval

This article does not contain any studies with human participants or animals performed by any of the authors.