LSB July 2022 LR

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WELLBEING & RESILIENCE Vicarious trauma: Everyone’s problem ZOE LEWIS, WELLBEING & RESILIENCE COMMITTEE It 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 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 Koehler 2 , 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 10 THE BULLETIN July 2022
WELLBEING & RESILIENCE and observe” 4 . The greater our exposure to traumatic material, the greater our risk of experiencing VT. What does VT look like? Common signs include: • Avoiding certain files or clients • Engaging in risk-taking behaviour • Insomnia • Withdrawing from others • Nightmares • Fear about safety of self or others • Irritability • Emotional numbness. It can lead to long-term issues including changes to our core beliefs about ourselves, others and the world around us. 5 What are some ways we can we change our work environment to reduce the risk and impact of VT? • Limit the frequency of exposure to traumatised clients where possible • Implement systems and procedures for dealing with trauma in the workplace • Provide formal training in dealing with trauma survivors • Establish a culture which encourages debriefing in an emotionally honest manner • Mark files with a content warnings and restrict access • Set limits on how much time is spent working on a file at a time and take breaks • Avoid taking such files home and where possible create physical boundaries in the hope that this creates some mental space from the content when engaging in other activities 6 Endnotes 1 [2022] HCA 12. 2 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44. 3 Pearlman and Caringi, 2009, 202-203 from https://professionals.blueknot.org.au/ supervision-and-practice/. 4 https://nswbar.asn.au/docs/webdocs/ vicarious.pdf 5 https://nswbar.asn.au/docs/webdocs/ vicarious.pdf 6 https://nswbar.asn.au/docs/webdocs/ vicarious.pdf Custom, tailored clothing for stylish work and play. Custom, Tailored Suits Custom, Tailored Shirts from $699 each from $99 each Design online or at your nearest Showroom now 92-96 Flinders St, Adelaide SA 5000 SYDNEY | BRISBANE | MELBOURNE CANBERRA | ADELAIDE | PERTH July 2022 THE BULLETIN 11 www.InStitchu.com
Page 1 and 2: THE BULLETIN THE LAW SOCIETY OF SA
Page 3 and 4: This issue of The Law Society of So
Page 5 and 6: PRESIDENT’S MESSAGE Community eng
Page 7 and 8: LAW IN THE COMMUNITY seeking assist
Page 9: LAW IN THE COMMUNITY What do you th
Page 13 and 14: LAW IN THE COMMUNITY CLCSA Chair Ca
Page 15 and 16: LAW IN THE COMMUNITY • difficulti
Page 17 and 18: YOUNG LAWYERS facebook.com/YLCSA Ta
Page 19 and 20: FEATURE Spreading the word: SA laws
Page 21 and 22: LAW IN THE COMMUNITY What motivates
Page 23 and 24: EVENTS Chief Justice Kourakis cutti
Page 25 and 26: LEGAL INTERPRETATION may be demonst
Page 27 and 28: FROM THE CONDUCT COMMISSIONER Commu
Page 29 and 30: TAX FILES • The 1991 Deeds were a
Page 31 and 32: LAW IN THE COMMUNITY Urgent investm
Page 33 and 34: RISK WATCH “Are you able to confi
Page 35 and 36: FAMILY LAW CASE NOTES The appeal wa
Page 37 and 38: A roundup of recent Society meeting
Page 39 and 40: CLASSIFIEDS VALUATIONS MATRIMONIAL

LSB July 2022 LR

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