When solicitor Zagi Kozarov took up a new job in 2009, the workload was heavy and the subject matter extremely confronting.
At Victoria's Office of Public Prosecutions (OPP), her role involved prosecuting serious sex offences. She had to observe graphic images as evidence and meet with complainants – both children and adults.
Ms Kozarov was passionate about her job and its important social benefit. But about two years in, she became so mentally unwell she could no longer work.
She argued – and her workplace denied – that it was the work that had made her unwell.
What followed was a years-long legal battle culminating in a groundbreaking High Court decision.
That decision has big implications: for workers and their employers about who is responsible when there's a psychiatric, rather than a physical, injury at work.
'Extremely important' for those who do stressful work
In April 2022 – two years after an initial Supreme Court win was overturned at appeal – the High Court finally and unanimously restored a $435,000 damages payout to Ms Kozarov for the post-traumatic stress disorder (PTSD) she suffered as a result of working in the sex crimes unit for the OPP.
Her lawyer, Patsy Toop, described the case as "extremely important and significant for workplace psychiatric injury that's suffered generally throughout Australia".
Ms Toop says, particularly in reference to PTSD, too much onus had been placed on individual workers to have insight into the development of their mental health condition.
The outcome of this case has shifted the onus "back onto the employer" to provide "a safe place to work and to take measures to look after" staff, Ms Toop tells ABC RN's Law Report.
It also has implications for others who do stressful work too: police officers, paramedics, healthcare workers in emergency wards, people who work in prisons or youth detention centres or social workers, for example.
Here's how the case got here.
Becoming paranoid and hypervigilant
Ms Kozarov found it was particularly confronting that many of the child complainants she was dealing with in her role were of similar ages to her own children. It started to affect her parenting.
After prosecuting people in positions of trust, such as teachers, priests and coaches, she found that even taking her daughter to a ballet lesson was loaded with pressure.
"It took me forever to find a ballet school that would allow me to stay and watch my daughter have her lesson so I could take her to the toilet, for example," Ms Kozarov says.
"I became extremely hypervigilant."
She began to develop symptoms of post-traumatic stress disorder and was diagnosed with a psychiatric injury.
She left her job in 2012 and later sued the OPP for negligence.
Unbeknownst to Ms Kozarov – and the OPP's middle management – there was, in fact, a workplace vicarious trauma policy in place. The policy explained the OPP's role in dealing with staff working in confronting or traumatic environments.
"One of the policies was to, for example, recognise that a person would develop mental health issues within two years of being within the unit," Ms Toop says.
"There was an indication that individuals should be rotated and that they should have welfare checks [that] would trigger the employer to actually take action in accordance with its own policy."
But, as the policy – a vicarious trauma policy – wasn't well known, it wasn't implemented.
"Unfortunately, the vicarious trauma policy meant nothing other than the paper that it was written on.
"And that was essentially our case: that the employer was negligent because they failed to implement the safe system of work that their own policies and procedures dictated."
In 2020, the Victorian Court of Appeal overturned an initial win, after finding no "reasonable foreseeability" of injury to Ms Kozarov.
Central to this argument was an email to her employers in which Ms Kozarov wrote that she loved her work.
"The state of Victoria grasped that email and said, how [could] we possibly know that [Ms Kozarov] was suffering an injury because in her own words, she said she loved her job?,"
But that courtroom loss wasn't the end of the matter.
Ms Kozarov and Ms Toop took the case to the High Court of Australia.
There, in April 2022, a panel of seven judges found unanimously in favour of Ms Kozarov, restoring the decision of the original trial judge.
The High Court found that the OPP was responsible for the psychiatric injuries or was negligent. Its vicarious trauma policy established a duty of care and the OPP hadn't acted in accordance with it.
Ms Toop says the decision provides a better understanding of "the way forward in terms of establishing negligence against employers who have not introduced the appropriate policies and procedures or abided by their own policies and procedures to prevent mental harm in the workplace".
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Employers should be warned
With Ms Kozarov's legal battle now over, Ms Toop argues that employers should take note.
They should be aware that "there are significant occupational health and safety issues around mental health" and that when "work is dangerously traumatic … there's a likelihood of these individuals developing psychiatric illness", she says.
"The onus is very much on the employer to develop policies and procedures to deal with the way in which they help people to continue working [and] not expose them to trauma all the time."
That might include rotating jobs or introducing welfare checks, "simple questions with experienced psychologists [that] can indicate red flags".
Ms Toop says signs might include someone drinking more, working back late at night, not getting proper sleep or having nightmares.
"These are areas that people work in which are inherently dangerous to mental health. And therefore, there has to be a very sympathetic and empathetic approach to employees," she says.
When the Law Report approached the OPP for interview, it provided a statement saying it "accepts the reasoning and decision of the High Court".
The statement says that, since the Supreme Court's original decision, the OPP has changed its structure so that "senior former members of the [serious sexual offences] team are now embedded across the wider practice, in doing so enhancing specialist sex offence knowledge throughout the organisation".
The statement also says the OPP is committed to improving practices so that it's a "psychologically safe workplace for all our staff".
Ms Kozarov believes the problem her case highlights extends beyond the OPP, and argues there should be more recognition generally of mental health issues in the workplace.
"It's important to stop a stigma being associated with mental health issues associated with the nature of certain roles that an individual has, whether it be a lawyer, a police officer, a paramedic – it's very real and it needs to be recognised in our society," she says.
"Why is there a difference from a physical injury as opposed to a psychological or psychiatric injury at work?"
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