Plaintiff v Defendant

1. This case deals with the extent of an employer's duty to protect their employees from psychiatric harm. That issue has been examined in the past, often in the context of the duty of the State to protect police officers who have been exposed to stress or trauma in the course of their work.[1] Psychiatric injury in the workplace has also arisen in a range of other occupational settings, including that of schoolteachers, ambulance personnel, social workers, news photographers, and journalists.[2]

2. While general principles can be distilled from the authorities, each case must be considered in light of its own particular facts. In the context of those facts, the Court must determine the content and scope of the employer's duty to protect their employee from psychiatric harm, whether that duty has been breached and, if so, whether any such breach caused the employee's psychiatric harm.

3. In undertaking this task, there are a range of factors that the Court must consider, which include:[3]

(c) the assumption that an employee is capable of performing the job that they contracted to do;

(d) the foreseeability of the risk of psychiatric harm in the particular workplace and for the particular employee;

(e) any notice to the employer, express or implied, that a particular employee is at risk of harm (implied notice may arise where there are evident signs that an employee is at risk, even though notification is not expressly communicated);

(f) the measures that an employer has put in place to create a safe system of work;

(g) any other reasonable measures that the employer ought to have put in place to protect employees generally, or a specific employee in particular;

(h) the application of the Shirt[4] calculus; and

(i) the likely effect that proposed measures would have had, if implemented, and whether they could have prevented the injury sustained.

4. In this case, the plaintiff, Zagi Kozarov, is a solicitor and former employee of the Victorian Office of Public Prosecutions ('the OPP'). From June 2009 to April 2012, she worked in the OPP's Specialist Sexual Offences Unit ('the SSOU'). The plaintiff alleges that she sustained psychiatric injury, namely chronic post-traumatic stress disorder ('PTSD') and major depressive disorder ('MDD'), during the course of her employment in the SSOU. She alleges that her injuries were caused through ongoing, repeated exposure to a high volume of sexual offence cases, including many cases that involved child exploitation and pornography.

5. The plaintiff alleges that there was an unsafe system of work at the SSOU and a failure by her employer to take reasonable steps to protect her from harm. The plaintiff makes claims against the State of Victoria[5] in negligence, breach of contract, and breach of statutory duty, in relation to her injuries.

6. The first part of the judgment sets out the evidence presented at trial.[6] It begins with a list and description of the witnesses who gave evidence at trial, followed by overview information about the plaintiff's employment contract, the structure of the SSOU, and the nature and intensity of the work in the unit.

7. The judgment then sets out two relevant SSOU policies: an OH&S policy, and a Vicarious Trauma policy ('the VT policy'). The Vicarious Trauma policy is especially important. It is relevant to the Court's later analysis of the foreseeability of the risk of harm to SSOU employees, including the OPP executive's actual knowledge and awareness regarding the nature and extent of that risk. It is also relevant to the Court's discussion of what measures a reasonable person in the position of the defendant would have taken to protect the plaintiff from psychiatric harm. The policy lists a range of measures and practices intended to protect SSOU staff from vicarious trauma, which were largely not implemented by the defendant.

8. Regarding the foreseeability of the risk of harm to SSOU employees, the judgment sets out:

(a) evidence from OPP staff about the nature and intensity of the work in the SSOU and its impact on staff;

(b) evidence from SSOU management during the claim period;

(c) internal OPP documentation from 2007-2009, which was tendered at trial and is relevant to the defendant's knowledge of the risk of harm prior to the claim period; and

(d) a memo from SSOU staff to management in mid-2011, detailing their urgent concerns about the pressures and workload in the unit, and a range of stress-related health symptoms that they had experienced.

9. The judgment also sets out measures taken by the defendant to protect SSOU staff, namely:

(a) a workshop on working with victims of trauma run by psychologist Ursula Benstead;

(b) the Employee Assistance Program ('EAP');

(c) a 2-hour resilience training session (run by Gus Carfi, EAP psychologist);

(d) monthly team meetings; and

(e) specific measures in response to the 2011 staff memo, including the introduction of one-on-one file reviews.

10. In relation to the plaintiff specifically, the judgment sets outs:

(a) the particular risk factors for the plaintiff;

(b) the signs that the plaintiff was becoming unwell prior to February 2012;

(c) the plaintiff's notification to the defendant, in February 2012, that she was unable to return to work at the SSOU;

(d) the failed plans for the plaintiff to return to work in early 2012 (in a different area of work at the OPP, outside the SSOU); and

(e) expert evidence on the plaintiff's psychiatric injuries, including the cause of those injuries.

11. The judgment also sets out expert opinion evidence regarding the specific measures taken to protect SSOU staff, and the plaintiff, from psychiatric harm and other measures that could have been taken. I then assess the credibility of the witnesses at trial, including the plaintiff.

12. The latter part of the judgment looks at the relevant authorities and legal principles, and seeks to apply those principles to the plaintiff's claims. The content of the duty of care owed by an employer to protect its employees from psychiatric harm is considered, along with the scope and content of the defendant's duty to protect the plaintiff in this case. A determination is made about the alleged breaches of the defendant's duty of care and on the issue of causation. I also examine the plaintiff's claims of breach of contract and statutory duty. I then consider whether there was contributory negligence on the part of the plaintiff. Finally, the judgment assesses quantum of damages.

13. The plaintiff's case is that, in her role as a solicitor preparing and prosecuting sexual offences, she dealt with cases of an abhorrent nature, including child rape and offences of gross depravity. She was required to familiarise herself with detailed allegations of sexual offending, including by reviewing witness statements and video and audio recorded evidence with graphic and disturbing content. At times, she was required to view child pornography materials. She met with complainants, including children, who appeared in recordings that she had viewed. Further, she had an intense workload and worked long hours, often taking work home after hours.

14. The plaintiff alleges that her employer was on notice about the psychological health risks to SSOU solicitors generally, and to her specifically. She says that she was not adequately screened, supported, or protected from the obvious and known risk of psychiatric injury from working in the SSOU. She alleges institutional failings, such as the failure by the defendant to implement its policies or to adequately respond to concerns, including responding to a staff memo raising alarm about SSOU staff health and well-being. The plaintiff also alleges a failure to take adequate steps to protect her once she began to exhibit signs of impaired mental health.

15. The defendant denies liability for negligence, breach of contract, or breach of statutory duty. The defendant acknowledges that the SSOU was a busy unit that experienced staff shortages during 2011, but submits that its managers endeavoured to spread work fairly within the unit. The plaintiff agreed to the terms of her employment, which implicitly included exposure to graphic images and distressing content. The defendant was entitled to assume that SSOU employees were fit to perform their contracted work, unless otherwise notified.

16. The defendant submits that it took all reasonable measures to protect SSOU staff generally. It says that it was not put on notice about the plaintiff's symptoms of PTSD until 9 February 2012, when the plaintiff sent an email saying that she could no longer work in the SSOU. It alleges that prior to her email, the plaintiff had portrayed that she was coping well with the nature, content, and extent of her work. It further alleges that its duty to protect the plaintiff as an individual was only enlivened on 9 February 2012, when the risk to her became reasonably foreseeable.

17. At that stage, from 9 February 2012, the defendant says that it took all reasonable steps to protect the plaintiff, including by attempting to find her a position in the OPP, outside of the SSOU, which would not further expose her to sexual offence cases (although those attempts were ultimately unsuccessful).

18. The defendant submits that the Court must take into account considerations of employee privacy and autonomy in considering what measures the defendant ought reasonably to have taken to protect the plaintiff from harm, as discussed in Hegarty v Queensland Ambulance Service ('Hegarty').[7]

19. In the event that the defendant is found to have been negligent, it submits that the Court should find there was also contributory negligence on the part of the plaintiff, who was obliged to take reasonable steps to protect her own health and well-being. The defendant argues that she should have notified the defendant of her symptoms of illness earlier.

22. He worked at the SSOU from September 2009 until March 2013. He remained with the OPP until March 2016.

Penelope ('Penny') Lucas (former SSOU solicitor)

23. She worked at the SSOU Geelong office from 2001-2006. She re-joined the Geelong SSOU as principal solicitor from 2009-2013.

24. She joined the OPP as a junior solicitor in 2000. She worked in General Prosecutions until May 2007, then transferred to the SSOU. She later transferred to a trial division outside the SSOU. She still works at the OPP.

Rodney ('Rod') Hume (former OPP audio visual officer and manager)

25. He worked for the OPP from August 1996 to December 2017, first as an audio-visual officer, then as a manager of audio-visual officers. He received work from the whole OPP office, including the SSOU (once it was established).

Mr Brown[9] (former SSOU Directorate Manager)

27. Mr Brown worked at the OPP from 1990-1994. He then practised at the Bar between 1994 and 2000. He took a break from the law and taught English in Japan for a period before working in recruitment. He returned to the OPP in 2004. In February 2010, he was appointed Directorate Manager of the SSOU. He held that position until 2013. Mr Brown remained with the OPP until September 2018, when he was appointed as a judicial officer in the State of Victoria.

Ms Robinson[10] (former SSOU Deputy Directorate Manager)

28. She commenced working at the OPP in September 2007 in the General Prosecutions team. She joined the SSOU in 2009. In September 2010, she was appointed acting Deputy Manager of the SSOU. In 2011, she was appointed permanently to that role and remained in the position until July 2015, when she commenced maternity leave. At the time of giving evidence, she was employed part-time in a legal advice role in Queensland.

29. The plaintiff called the following expert witnesses:

(a) Professor Alexander McFarlane (Medico-Legal expert);

(b) George Foenander (Treating Clinical Psychologist);

(d) Sharann Heather Johnson (Occupational Health Consultant).

30. Professor McFarlane holds a Bachelor of Medicine, a Bachelor of Science, and a Bachelor of Surgery, as well as a Diploma of Psychotherapy. He is an international expert on the psychiatric impacts of disasters, and on post-traumatic stress disorder. He has won various awards for his work in the field of traumatic stress and holds an Order of Australia.[11]

31. Professor McFarlane is the current Director of the University of Adelaide Centre for Traumatic Stress Studies, and previously held the position of Head of the Department of Psychiatry at the University of Adelaide. He is past president of the International Society for Traumatic Stress Studies and the Australasian Society for Traumatic Stress Studies. He is also a Fellow of the Royal Australian and New Zealand College of Psychiatrists and practises as a clinical psychiatrist, including at the Helen Mayo North Clinic at the University of Adelaide.

32. Mr Foenander treated the plaintiff between August 2011 and April 2012.

33. Mr Foenander holds a Bachelor of Arts with Honours in Psychology and a Master of Science in Psychology, as well as a Diploma of Clinical Hypnosis. He is a clinical psychologist and a member of the Australian Psychological Association. He was formerly an independent WorkCover examiner.

34. Dr Dharwadkar is a psychiatrist holding the qualification of Doctor of Medicine and fellow of the Royal Australian and New Zealand College of Psychiatrists. He treated the plaintiff between May 2012 and August 2014. At that time, he was a consultant psychiatrist at the Melbourne Clinic and an adjunct senior lecturer at Monash University in the discipline of psychological medicine.

35. Dr Johnson has 40 years' experience as an Occupational Health professional, including 12 years as a Health, Safety and Environment Manager. She has worked for several global multinational companies. Since 2008, she has run her own consultancy business, consulting for a variety of organisations, including in relation to operational sites, such as mining and manufacturing sites, and office environments, such as accounting and business offices.[12]

36. Dr Johnson has a PhD in Chemistry from Monash University and completed an Occupational Hygiene Course at the University of Sydney. She is a Fellow of the Australian Institute of Occupational Hygienists and a certified Occupational Hygienist. In 2009, she was President of the Australian Institute of Occupational Hygienists. In 2012, she was awarded the AIOH Pam de Silva Award for her professional contributions to occupational hygiene. From 2012 to 2014, she was also President of the Australian Safety and Health Professional Associations.

37. The plaintiff is a 45-year-old qualified solicitor born in Carlton, Melbourne.

38. The plaintiff completed her VCE in 1991. From 1993 to 1996, she undertook a Bachelor of Arts at the University of Melbourne, with a double major in criminology and psychology. In 1996-7, she undertook a Postgraduate Diploma in Social Science at Latrobe University, majoring in legal studies. During that same period, she obtained work as a Community Corrections Officer. She began work in that role from 1994 onwards, initially on a part-time basis as a voluntary sessional officer. From 1996 to 1999, she was a full-time paid Community Corrections Officer.

39. Between 1999 and 2004, the plaintiff studied a Bachelor of Laws online at the University of New England. From 1999 to 2009, she worked as a paralegal at the OPP, rotating through several different sections of the OPP. She did a rotation in the sexual offences section from 1999 to 2001, in County Court Appeals from 2001 to 2002, and in Bails and Breaches from 2002 to 2006.

40. In 2008, the plaintiff commenced her Articles at the OPP. In March 2009, she was admitted as a legal practitioner whilst working at the OPP. She then worked in Directorate B 'Principal Prosecutions' from March 2009 to June 2009.

41. In June 2009, the plaintiff began working in the SSOU. She was interested in the role because the SSOU was a specialist unit and she perceived that the best lawyers were selected to go there. She saw it as a good career opportunity.

42. The plaintiff worked in the SSOU until 9 February 2012, when she notified management of 'serious return to work issues', stating in an email that she could not return to work in the SSOU because of how the work was affecting her.

43. The plaintiff married in 2001. She and her husband had a daughter in 2004 and a son in 2006. The plaintiff experienced episodes of family violence, which occurred in the first five months of her marriage and then, from time-to-time, before and after the birth of her daughter. The couple separated for a while when their daughter was about ten months old but reunited prior to the birth of their son.

44. The plaintiff then separated from her husband in 2009 but remained living with him under the one roof. Later that year, the plaintiff moved with her children into her mother's home in Werribee. She then moved to a rental property in 2010. She later commenced a relationship with David [redacted], a criminal lawyer. In 2011, she moved with her children into Mr [redacted]'s unit. The relationship with Mr [redacted] ended in 2015, at which time, she moved to other accommodation.

45. The plaintiff tendered a copy of her initial offer of employment in the SSOU for a fixed-term role at VPS Grade 4 from 22 June 2009 to 21 September 2009. She signed a contract of employment for that role on 12 June 2009.[13] The plaintiff's initial contract was extended and she remained in the SSOU. At times, she worked at VPS Grade 5 in temporary backfilled positions within the unit. On 7 March 2011, she applied for a permanent promotion to a VPS-5 role at the OPP, either in Principal Prosecutions or alternatively in the SSOU.[14] On 3 May 2011, the plaintiff was offered an acting VPS-5 role in the SSOU for a fixed-term from 28 April 2011 to 15 August 2011.[15] She signed that Offer of Employment on 5 May 2011.[16]

46. On 28 August 2011, the plaintiff applied for a permanent VPS-5 role in the SSOU.[17] She was ultimately offered that position on 3 November 2011, commencing that day and accepted the offer by signing a standard form contract of employment on 9 November 2011.[18] The contract stated that the terms and conditions of her employment were set out in the 2006 VPS Agreement (2009 Extended and Varied Version) (a copy of which was tendered by the plaintiff)[19] and the Public Administration Act 2004 (Vic). The terms of the plaintiff's contract with the OPP are considered later in the judgment; suffice to say that, throughout the entire period of her employment in the SSOU, the terms of her employment incorporated reference to the VPS agreement.

47. Section I of the VPS Agreement covers the core terms and conditions of employment.

11.1 The Employer acknowledges the benefits to both the organisation and individual Employee gained through Employees having a balance between both their professional and family life.

11.2 The Employer further recognises that the allocation of work must include consideration of the Employee's hours of work, health, safety and welfare. Work will be allocated so that there is not an allocation that routinely requires work to be undertaken beyond an Employee's ordinary hours of work. However, the Employer may require an Employee to work overtime where:

11.2.1 such work is unavoidable because of work demands and reasonable notice of the requirement to work overtime is given by the Employer; or

11.2.2 where, due to an emergency, it has not been possible to provide reasonable notice.

11.3 When an Employee is required by the Employer to work overtime the Employee must be compensated in accordance with the appropriate overtime clause where the Employee is covered by the provisions of such a clause.

11.4 Where an individual or group of individuals believe that there is an unreasonable allocation of work leading to staff being overloaded with work, the individual or group of individuals concerned can seek to have the allocation reviewed by the Employer to address the staff concerns.

...

49. Under the subject heading, 'Occupational Health and Safety and Rehabilitation':

61.1.1 This agreement acknowledges and supports the rights of employees to work in an environment, which is, so far as is practicable, safe and without risks to health. The Parties are committed to the promotion of a joint and united approach to consultation and resolution of Occupational Health and Safety (OH&S) issues.

61.1.2 The agreement commits the parties to improving health and safety with a view to improving workplace efficiency and productivity. This will be accomplished through the ongoing development, in consultation with Employees and their Health and Safety Representatives, of management systems and procedures designed to, so far as is practicable to:

61.1.2(a) identify, assess and control workplace hazards;

61.1.2(b) reduce the incidence and cost of occupational injury and illness; and

61.1.2(c) provide a rehabilitation system for workers affected by occupational injury or illness.

50. In addition to outlining the terms and conditions of employment, the offers of employment also required the plaintiff to 'act in accordance with OPP policies, and the Victorian Public Sector Code of Conduct'.

51. The SSOU was set up in 2007 as a specialist unit within the OPP with a number of solicitors of various grades and seniority, paralegals, and administrative staff. Prior to 2007, there was a much smaller sexual offences section at the OPP.[20]

52. The plaintiff tendered a 19-page excerpt from a document bearing the title: 'Specialist Sex Offences Unit Practice Manual' ('SSOU Manual').[21] That excerpt included the manual's table of contents, which showed that the full manual was over 103 pages in length. Most of the manual (pages 20-98) provided information relevant to preparing and instructing in sexual offence cases. Pages 12-20 dealt with SSOU office policies. A segment of the manual referring to OH&S procedures will be discussed later.

53. Regarding the SSOU's creation and objectives, the Manual states (at 4):

The Specialist Sex Offences Unit was established in April 2007 to provide a specialised approach to prosecuting serious sex offences. This approach aims to achieve a high success rate in prosecuting these offences, while improving support to victims, developing expertise in prosecuting sex crimes and delivering greater consistency in the conduct of prosecutions. The unit was established in response to the Victorian Law Reform Commission Report Sexual Offences: Law and Procedure Final Report 2004. This report and the 202 recommendations contained therein was intended to make the criminal justice system more responsive to complainants in sexual offence cases whilst at the same time ensuring a fair trial for those accused of these offences.

54. Regarding the SSOU structure, the Manual states:

1.1 Who we are

The Specialist Sex Offences Unit is a specialised unit consisting of 25 solicitors and 5 co-located Crown Prosecutors with one being the Head of the SSOU.

The SSOU solicitors form a distinct directorate (Directorate C) within the OPP. The Melbourne SSOU consists of:

• Directorate Manager
• Legal Prosecution Specialist
• 25 solicitors ranging from senior to junior practitioners
• Four Administrative Support Officers
• Two in-house advocates, who predominantly undertake the Committal Advocacy work for the Unit
• Project Manager

The Unit prosecutes all serious indictable sex offences heard in the Melbourne Magistrates', County and Supreme Courts whether the victim is an adult or child.

55. The excerpt includes diagrams depicting the SSOU organisational structure and OPP office structure at that time. It shows three positions of seniority in the SSOU structure sitting directly above SSOU solicitors, being the Directorate Manager, the Legal Practice Manager and, at the highest level, the Solicitor for Public Prosecutions. The Manual states that SSOU staff are to report any staff-related issue or concerns to the Directorate Manager.[22]

56. According to the Manual,[23] the 'Head of SSOU' is a Crown Prosecutor and 'has a significant role to play from a high level policy perspective and works in conjunction with the Directorate Manager'. The Head of SSOU reports to the Chief Crown Prosecutor.

57. When the plaintiff joined the SSOU in June 2009, Helen Fatouros was the SSOU Directorate Manager. She departed a few months later and was replaced by Mr Brown, who held the position from February 2010 to 2013. In 2010, an Acting Deputy Manager, Ms Robinson, was appointed to assist Mr Brown. Her role was later made permanent.

58. Mr Brown and Ms Robinson reported to Stuart Ward, then OPP Legal Practice Manager, and Craig Hyland, OPP Solicitor for Public Prosecutions. [Redacted] was the OPP Manager of Human Resources (HR).

Nature and intensity of SSOU work and its impact on staff

59. The plaintiff conceded that when she accepted a job as a solicitor in the SSOU, she knew that she would be dealing with unpleasant offences and damaged people, and that the job was important and had to be done well. She understood that sexual offence trials involved legal complexities and needed to be prosecuted in a prompt manner, which was why there was a specialist unit. However, she said that she was 'thrown in the deep end' when she commenced at the SSOU.[24]

60. In her role, the plaintiff would attend court to instruct on a daily basis and met with child and adult victims and their families. She liaised closely with social workers from the OPP's Witness Assistance Service ('WAS') and Child Witness Assistance Service ('CWAS'). After hours, she would take case files home to prepare and research.[25]

61. The plaintiff gave evidence that child complainants did not make written statements; their evidence was taken by visual audio or taped recording (VATE or VARE). In such cases, she had to carefully review the recordings, which often depicted the child being distressed or confused.[26] It would be difficult to watch and sometimes she would have to watch the same recording more than once.

62. In some cases, the plaintiff had to watch explicit child pornography, sometimes repeatedly, to shed light on patterns of behaviour, fetishes, or the age group that offenders were targeting and to draft evidentiary documents such as tendency notices.[27]

63. When she commenced work in the SSOU, the plaintiff's own children were only three and five years old. The content of the work was very confronting for her. The plaintiff experienced intrusive memories of images of child pornography. She retained and described her memory of very disturbing child pornography that she had viewed. She still experiences intrusive memories of images of children having oral sex performed on them.

64. The plaintiff would meet child complainants, usually after having seen their video-recorded evidence, to prepare them for cross-examination.[28] The children would often be fearful. She would prepare them to give evidence with the help of workers from the CWAS, using puppets and toys to explain the court process, and to encourage them to tell the truth. She said child complainants were often 'fearful of the whole process' and 'very distressed by the whole ordeal'.[29] The plaintiff said she would 'try and comfort them and make them feel safe'.[30] She had a lot of empathy and compassion for them. She would be at court while they gave evidence, then go see them and their parents afterwards 'to make sure they were okay'.[31]

65. The plaintiff often encountered cases where alleged offenders held a position of trust, such as a teacher, scout leader, football coach, parent or grandparent. Sometimes mothers would disbelieve their children, particularly where the alleged offending involved a family member. The plaintiff said that, in those cases, the child would be isolated and would rely on her for strength.[32]

66. When the plaintiff started in the SSOU, about 50 percent of her cases involved child complainants. By the second half of her time there, the majority of her cases involved child complainants. Regarding graphic images of rapes or assaults on children, the plaintiff said: 'There was not a day that I wasn't exposed to it.'[33]

67. Even with adult complainants, there was disturbing material she had to view such as CCTV footage, phone footage, and pornography. Often there were 'unusual sex toys and sex exhibits' that she had to examine. The plaintiff sometimes had to view recordings of the sexual offence and see an incident of rape unfolding, watching it more than once, to correlate what was depicted in the complainant's statement. She still has intrusive memories of CCTV footage of a woman who was raped in a lift in the Eureka Tower. Some of the footage depicted the accused studying the woman's routine and stalking her before he struck.

68. The plaintiff's role included informing complainants when a jury returned a 'not guilty' verdict and dealing with the aftermath of that result.[34] This was sometimes extremely distressing, and some complainants attempted to take their own lives in such circumstances. She recalled a case involving a female complainant from an ethnic group where, in her culture, 'you would be considered as tarnished if you were not a virgin'. The complainant was extremely distressed by the jury's verdict and contacted WAS because she wanted to run in front of a bus, and they 'couldn't calm her down'. WAS contacted the plaintiff, who then had to calm the complainant.[35]

69. The plaintiff said that everyone worked hard in the unit, but she strongly disagreed with the suggestion put to her that the workload was spread evenly amongst SSOU solicitors. She said some solicitors had more files than others. Some solicitors were more skilled at tendency and coincidence notices, and cases requiring those notices were allocated to them. In her view, 'complex matters were given to certain solicitors' who worked 'a lot harder'.[36] The plaintiff said that, in her own experience, even though she did not have capacity, she was made to hold on to all her files.[37] The complex files were allocated to the solicitors that could manage them and she was one of them.[38]

70. The plaintiff said that she was 'in court' nearly every day and would take work home most days. She frequently had to prepare tendency and coincidence notices at home, in the evening, as she did not have time during the day when in court. Work was often required on weekends as well.

71. Usually, the VARE had to be watched at the SSOU in the morning before court. She would go to court just before 10.00am and meet the complainant and the WAS or CWAS social worker, and then be in court from 10.00am until 1.00pm. She would have to go back to the office and work over lunch, perhaps doing research or obtaining materials needed in court. At 4.15pm, after court, she would return to the office, check emails, and make calls to police informants. She usually left the office after 5.00 or 6.00pm, having collected work in a large suitcase for completion at home. This was the routine, and she always tried to be home by 6.30pm. She would do work at home until at least midnight, and sometimes until 1.00 or 2.00am. Some of the tendency or coincidence notices that she had to draft were very long, running into hundreds of pages. The latest that she stayed up was until 4.00am.

72. The plaintiff believed many of her colleagues were working under similar constraints.

73. Mr Schrapel said he was instructing in an incest trial within his first couple of weeks at the SSOU and worked on matters involving graphic material from his first week.[39] The nature of the graphic material that he was exposed to became greater, commensurate with his level of experience at the SSOU. He progressed quite quickly from a Grade 2 to Grade 3, then to a Grade 4 solicitor in less than 12 months. As he progressed, he took on files with higher Case Assessment Ratings ('CAR ratings')[40] and more graphic content. He said the subject material within witness statements and his experiences with witnesses was such that 'it will never leave me'.

74. Regarding the kinds of graphic images or written material that still affects him, Mr Schrapel said, 'the child sex abuse ones stay with you'. As an example, he referred to a case that concerned two sisters being systematically abused by their father over several years and their mother being unsupportive of them. Mr Schrapel referred to another case he was managing with a complainant who was 'very mentally unstable' and at various times threatened to commit suicide, including on the morning of pre-trial hearing. He also referred to another file that he handled involving exceptionally repugnant content.

75. Regarding workload pressures, Mr Schrapel said that once he was promoted to a Grade 4 solicitor, his number of files and workload increased rapidly, so that he had above 20, sometimes 25 court files, along with advice files, and everything required a quick turnaround. When he was in court, his day in the office would sometimes 'blow out' until 8.00 or 9.00pm.

76. Mr Schrapel was quite lucky in that he rarely had to look at matters involving video or photographic material. He recalled two matters where he was required to do so, and one stuck in his mind more, because it was a unique matter. Cross-examined about the frequency of exposure to graphic images or content, he conceded that on some occasions it was possible to avoid looking at evidentiary material classed as child pornography.[41] However, he believed that it was incorrect to say the only source of traumatisation in the SSOU was from video footage or photos. He said: 'Traumatisation can come on a piece of paper or even easier, that you dealt with every single day.'[42]

77. Mr Schrapel said that he sometimes applied for higher rated cases in order to advance himself within the unit, but in some cases, he would say: 'I don't care if that case is going to get me ahead. It's too dark.'[43] But not taking such cases on would make him feel bad, because he knew someone else was going to have to face them.

78. Ms Lucas described her workload as: 'Horrendous. Um, very demanding, very challenging, constant, unabating, um, very, very taxing.'[44] As a principal solicitor, she was allocated the most complex, challenging, and depraved cases. When asked to describe the level of depravity, she said: 'I would describe it as fairly extraordinary. Um, I took the view that, after a while, nothing would surprise me anymore.'[45] She went on to give examples of some of the disturbing cases she had dealt with.

I felt the demands on me were both emotionally taxing in terms of the depravity, and taxing in terms of the workload itself. So it was definitely a combination of the two that I think was, I can say in hindsight, um, untenable.[46]

80. Ms Lucas said there was no screening of her psychological well-being whilst she was employed at the SSOU. When asked whether Mr Brown and Ms Robinson did their best to distribute the workload fairly, she considered that their hands were tied, as cases needed to be allocated and there was a limited number of staff.[47] She said that rotations were not in place for SSOU staff and that in order to move to a different section at the OPP, it was necessary to apply internally for jobs that had been advertised.

81. Under cross-examination, Ms Lucas conceded that as she worked at the SSOU Geelong office, she had limited experience with the Melbourne office, although she was linked in by internal emails and for some meetings, and instructed in an 11-month trial in Melbourne for which she commuted to the Melbourne office.

82. She agreed she did her job well, despite it being 'a tough job', but felt she paid 'a very high price'.[48]

83. Ms Aitken described a number of cases involving very confronting content, noting that it was not just the visual material that was confronting, but having to read the facts of the case and then draft tendency and coincidence notices.[49] Ms Aitken became distressed whilst describing the nature of some of her cases and referred to being unable to get certain images out of her head, and having to meet the victims in person after viewing such images.[50] There were many days when she felt that she was treading water and had to put her own feelings aside. She said, 'I couldn't go to court and say I haven't drafted this indictment because every time I open this brief I feel physically sick'. She found the work rewarding but difficult.[51]

84. Asked about the confronting nature of the material, she said she tried to put up mental walls, but every year there would be cases that would affect her emotionally, not just because of the subject matter, but from dealing with vulnerable victims and having to work hard to maintain a professional detachment.

85. She said the workload fluctuated, but that when she was in trial, she often worked through lunch and stayed back to prepare for court the next day, as well as to keep on top of her other files. She regularly worked overtime.[52] She certainly stayed back past six o'clock, sometimes as late as seven or eight.[53] She did not like staying back later as she took public transport to get home. A handful of times she might have stayed back as late as nine. Most days she worked past the core hours, sometimes coming in on the weekend to work. There were other solicitors working back late as well, and it was necessary to do so to keep on top of the workload.[54] Whilst working in the SSOU, her file load averaged around 25 files, and she would also give ad hoc legal advice to more junior staff.

86. Ms Aitken explained that, with the intensity of her workload, she ultimately approached her manager and said she was worried she might have to be hospitalised. Ms Aitken described very significant impacts that her work had on her mental health and her need for medical treatment and work modifications.[55] She worked at the SSOU for 10 years. When probed further about her well-being during that time, she said:

I became progressively unwell, increasingly irritable. I think that was the case for most of my years in the Unit. I would always exhaust my sick leave, end up eating into my annual leave for sick days. I was getting frequent migraines ... a knot of nausea in my stomach, struggled getting out of bed in the morning, I became very negative, irritable.

87. Mr Hume was a technician and manager in the OPP's audio-visual department which edited audio visual materials from across the whole OPP (including the SSOU).

88. Some of the material that he and other staff were forced to deal with was 'confronting to a point that a normal person shouldn't see it'. He found the child pornography to be 'the worst'.[56] He described being haunted by distressing images that he had seen.

89. He put in place a system within the audio-visual department to manage work allocation and content to reduce staff exposure to distressing content.

90. The above mentioned discussion of the nature and intensity of work in the SSOU leads to consideration of the system of work in the SSOU, including OH&S considerations and processes aimed at supporting staff.

91. Pages 16-17 of the SSOU manual, referred to earlier, dealt with occupational health and safety:

2.2 OCCUPATIONAL HEALTH & SAFETY

The Office of Public Prosecutions seeks to provide and maintain a working environment for all staff members and visitors which is safe and without risk to health. The Occupational Health and Safety Act 2004 provides the legislative basis for the two inter-related approaches to the management of occupational health and safety (OH&S). These are:

• A risk management approach to hazard control; and
• Consultation between the employer and their staff.

Details of the names and locations of the Health and Safety Representatives, and copies of OPP OH&S minutes of meetings are available via BruceBase and posted on each floor of the OPP (including Bourke Street).

Functions of a Health And Safety Representative

Each HSR has a range of legislated rights and responsibilities outlined in the Act. Each HSR should be familiar with these and should fulfil their role in accordance with them.

All managers/supervisors should also be familiar with these and facilitate the same.

OH&S Committee

The Occupational Health and Safety Act allows for the formation of a workplace OH&S Committee and provides some direction on how these might operate. The membership of the OH&S Committee must include at least half employee representation. The OH&S Committee generally meets every three months. Its function includes the following:

• To improve cooperation in instigating, developing and carrying out measures designed to ensure the OH&S of staff; and
• To formulate, review and disseminate the standards, rules and procedures relating to OH&S which must be carried out or complied with in the workplace.

Staff Member, Contractor & Visitor Responsibilities

• Observe safe work practices and procedures whilst in OPP facilities.
• Accept personal responsibility for protecting their own health and safety.
• Act in a manner that does not jeopardise the health and safety of other people.
• Wilful acts causing health and safety risks will be regarded as serious misconduct and may lead to disciplinary action.

• Identify, assess and control workplace hazards to minimise injuries and illnesses.
• Comply with all statutory requirements and codes of practice relating to health and safety.
• Implement effective prevention policies and programs through full consultation with staff and the Health and Safety Committee.
• Manage effective rehabilitation and early return to work for injured staff.

92. The OH&S policy appears to have been taken from a general OPP HR Manual. When asked in Court whether there was an OH&S committee in the SSOU, Mr Brown said that there was not.[58] No direct evidence was called by the defendant regarding the operation during the claim period of specific OH&S processes and procedures within the SSOU.

93. The plaintiff tendered an SSOU health and well-being policy called the 'Vicarious Trauma Policy' ('VT policy'), which was contained in the last section of the SSOU Manual. The last page of the policy states that it is 'endorsed by the Solicitor for Public Prosecutions'.

94. The VT policy relevantly stated:[59]

The Office of Public Prosecutions (OPP) recognises the importance of supporting staff in all aspects of their work. Vicarious trauma is a recognised, cumulative effect of working with survivors of trauma where some effects parallel those experienced by the primary victim/survivor ... The OPP has identified vicarious trauma (VT) as an organisational and OH&S issue, especially for specialist sex offences staff.

Research regarding Vicarious Trauma (VT) indicates that it is an unavoidable consequence of undertaking work with survivors of trauma ... in particular, the survivors of sexual assault ... Secondary traumatic stress is a recognised response by staff dealing with these victims and this type of offending which often involves children.

...

VT is a process rather than an event and it can have detrimental, cumulative and prolonged effects on the staff member ... The aim of this policy is to limit the impact of VT on OPP staff and to promote the health and wellbeing of staff.

...

The response to working with trauma survivors is often referred to as 'burnout' which is a state of physical, emotional and mental exhaustion caused by long term involvement in emotionally demanding situations ... Similarly, transference or counter transference is also used to describe the emotional reactions experienced in undertaking work in the area of sexual assault.

This policy refers to VT to reflect the impact of working with trauma survivors. VT refers to the lasting emotional and psychological consequences of continual exposure to the traumatic experience of clients ...

Given the impact on all staff working in the area of sexual assault, this strategy applies to all SSOU staff ...

...

Whilst VT can be used to describe the experiences of staff working with any clients who experience trauma, the area of sexual assault has some further complexities:

These include:

• Exhibits are often extremely graphic and can include visual images of the commission of the crime (for example child pornography that is recorded on video and depicts a child victim that will be giving evidence as part of the prosecution).
• A proportion of sexual assault offending is linked to recent technology growth. As a result staff are exposed to a greater proportion of extremely graphic material such as video, mobile phone and other photographic images of sexual offending (for example violent commercial child pornography downloaded by accused from the internet) ...

• Recent legislative reform now requires more interaction with victims through processes such as Special Hearings and VATEs. This can be particularly challenging if staff are dealing with confronting material that can involve images of the commission of the crime and they are then required to interact with those victims and their families. This also coincides with the principle of supporting victims and making their needs more central.
• Sexual assault cases are generally highly emotive and often involve offences committed within a family environment and involve intra-familial offenders and victims, and the associated management of emotionally complex human relationships and interactions, often heightened by the intensity of court proceedings.
• Sexual assault cases often involve multiple victims with complex needs that require more sensitive and intensive management by staff.
• Recent legislative reforms have introduced very strict legislative timeframes for the preparation of certain sexual offence cases, resulting in an increase in court work and appearances, and a reduction in the natural 'down time' available between cases.

95. The VT policy listed potential impacts on individuals experiencing vicarious trauma as follows:

• Intrusive reactions (dreams/nightmares, flashbacks, obsessive thoughts etc.)
• Shift in frame of reference-changes in the way the staff member views their world, relationships and identity.
• Avoidant reactions (general numbing in responsiveness and avoidance).
• Hyper arousal reactions (hyper-vigilance and difficulty concentrating).
• Changes in a person's belief in themselves and others.
• Impact on a person's relationships.
• Taking work home (unable to switch off).
• Negative comments/perceptions by peers including a level of being unappreciated and/or misunderstood and disconnected from others. (Morrison 2007)

96. The policy also listed potential impacts on the organisation, as follows:

• Widespread cynicism and pessimism
• Increased illness or absenteeism
• Ethical or boundary violations
• Reduction in motivation and productivity
• Higher staff turnover
• Decrease in staff morale.

97. The VT policy included personal and professional strategies for staff to use in dealing with vicarious trauma, including avoiding long hours at work, having 'manageable case loads' and a '[b]alanced workload so that it includes project work, training and research'. The VT policy also mentioned the need to '[s]et clear boundaries and limits with victims/survivors'.[60] Further, it set out organisational strategies, processes, and responses for handling suspected cases of vicarious trauma among staff.

98. Regarding organisational strategies to protect staff, the policy stated:[61]

The OPP will provide the following framework to respond to VT:

• Appropriate information is provided to all staff around access to and debriefing resources.
• Management will conduct regular surveys of the work environment to ensure work practices are well supported
• Management will listen to staff concerns and act promptly where action is required.

• Control access and minimise exposure to the handling of all exhibits for all staff (see attached SSOU Exhibit Management policy).
• Keep abreast of information available relating to the impact of working in this field and as appropriate provide information to staff regularly.
• Ensure staff have access to regular meetings to discuss the effects of working in the area of sexual assault by encouraging discussion and debriefing of cases formally and informally.
• Encourage staff to discuss the impact of the work and to identify when they may need some assistance.
• Take into consideration the impact of working in the sexual assault field when allocating work or managing a staff member's workload.

• Encourage staff to rotate through the Unit to minimise their exposure to some of the traumatic elements of the work and to maximise their generalist skills in other areas.

• Fixed, pre-determined rotations (so staff agree at the outset that they will work in the area of sexual assault for a pre-determined period); and
• Negotiated rotations (where staff request that they rotate on a needs basis).
• Seek to accommodate requests from staff to be rotated to another part of OPP either permanently or for a specific period of time or who wish to undertake a placement or secondment at another agency. It is recognised that staff who have worked in the Specialist Sex Offences Unit may wish to take a break from working on sex offence cases after a period of time for a range of reasons, including the challenging and distressing nature of these cases.

99. Regarding the way in which managers deal with staff suspected to be experiencing vicarious trauma, the policy said:

If a Manager suspects a staff member is experiencing VT they should:

1. Approach the staff member in a confidential and appropriate manner e.g. during supervision or via an informal meeting.
2. Acknowledge affects [sic] of VT and issues of concern with staff member.

3. Discuss possible strategies to assist staff member to deal with concerns

4. Establish appropriate response to the situation.

Some options include:

• Counselling/debriefing either informally or via an Employee Assistance Program. All OPP staff are entitled to access counselling or debriefing from the Employee Assistance Program. Further assistance can be facilitated by the Directorate Manager if required.
• Reallocation of files by the Directorate Manager (note: this option is limited for SSOU staff given all files contain an element of sexual assault). This option can include an increase of advice files being allocated to a staff member whist limiting their court commitments. All reallocation needs to be undertaken by the Directorate Manager and discussed with the relevant staff member specifying the length of reallocation and period of review for this arrangement.
• Specific 'time-out' for the staff member to other duties and/or another section within the OPP where appropriate. All 'time-out' requests need to be discussed with the Directorate Manager. Where possible the Directorate Manager needs to consider such requests and negotiate with both Human Resources and other relevant Directorate Managers to facilitate.
• Provide the staff member with the appropriate information and assistance to access the support required.

100. Under the heading, 'policy implementation and review', the policy stated:[62]

• Management of the OPP is responsible for ensuring this policy meets organisational and legislative requirements and the policy is reviewed regularly.
• Directorate Managers are responsible for the implementation and compliance with the requirements of this policy and procedures within their Directorate.
• Staff are responsible for compliance with the requirements of the policy and should take appropriate steps towards self-care in the work environment.

• Training for Managers at all levels on VT which addresses the organisational and manager's responsibility towards workers in relation to this issue.
• Staff training on VT including responsibility towards the self, organisation and peers.
• Ensuring staff and managers are aware of internal and external debriefing options available.

• 70% of Managers will attend training in the first year
• 70% of staff will attend training in the first year
• Incorporation of VT and related processes, reading material and self-care information into the organisational orientation manual.

101. The OPP offered an EAP to all staff, including SSOU staff. The EAP entitled staff to four free counselling sessions each year with CARFI Psychological & Rehabilitation Services ('CARFI').[63] There were three counsellors available at CARFI, including Gus Carfi. CARFI was based in Carlton, but CARFI staff would attend the OPP and walk around making themselves known and available to staff.

102. At trial, the plaintiff and other witnesses who worked at the OPP gave evidence about the EAP. The defendant tendered a pamphlet and A4 poster about the EAP. The pamphlet states the EAP was available 24 hours, 7 days a week, although some staff, including the plaintiff, were unaware of that, and the plaintiff said that she had never seen the pamphlet.[64] The poster indicates that the EAP 'is aimed at providing short term, confidential and personal counselling services to all staff' to address 'any work and personal issues'. The plaintiff accepted that the service was available, confidential,[65] and free. The poster was recognised as being the same or similar to posters on display in the SSOU office,[66] with the plaintiff stating that she had seen a flyer in the unit with the pictures and mobile numbers of CARFI staff.[67]

103. She tried to make appointments twice, but had to cancel them because she did not have the time to attend counselling at the CARFI office.[68] Instead, she engaged her own psychologist after hours.[69] Later (referring to the period after 9 February 2012), when she hit 'rock bottom', she approached CARFI again.[70]

104. The plaintiff agreed that a psychologist from CARFI would 'walk the floor' of the OPP. However, she said she was often in court when that happened.[71] The plaintiff did not feel comfortable speaking with a CARFI psychologist at the SSOU offices as it was not private there. She said the OPP offices were glass-walled, with cubicles right outside, and she did not want her colleagues to see her in a bad state.[72] The plaintiff was asked if she wanted to avoid management knowing she was seeing a psychologist or if she was concerned it might affect her promotional opportunities. She said that was 'not the only reason' and that privacy was important.[73]

105. Mr Schrapel gave evidence he was aware of the availability of counselling with CARFI and aware of their psychologists attending the OPP offices. He said he used the EAP service once when his own private psychologist was unavailable.[74]

106. Ms Lucas gave evidence that she used CARFI services two or three times. However, she noted the limit on sessions, having used EAPs in the past in other organisations and expressed the belief, 'it's pretty useless'.[75]

107. Mr Hume was aware of the EAP and that CARFI psychologists would walk the floors of the OPP. He said that, in one case, he arranged for a CARFI psychologist to be on site for him and the audio-visual unit team to assist them in a case 'that was particularly distressing' and involved multiple acts of child sex exploitation. He said he went through 'a lot of red tape' and a 'long battle' to organise that.[76] He said his main purpose in arranging that was to help him deal with his staff and their 'trauma' or the 'impact of what they were watching'.[77] He did not use the EAP for himself, as he was having psychotherapy elsewhere.

108. Ms Aitken agreed that the EAP was promoted at the OPP and remembered having a one-on-one phone conversation with Mr Carfi about a personal difficulty. She said there were occasions she found the CARFI visits at the SSOU helpful.[78] However, she also identified issues with the 'walk-arounds', saying:

[E]verybody could see the psychologist sitting in your office through the glass wall, so there was an element of embarrassment about it ... there was [sic] issues when they did the walk-arounds: it was always right in the middle of something ... if you could see the counsellor in your office, people would speculate as to why they were there. There wasn't much privacy.[79]

109. Ms Aitken acknowledged staff could go offsite to see a psychologist at the CARFI office but noted, 'that was dependent on finding the time - yeah - recognising that one needed it, and actually being able to get there and manage your court commitments'.[80]

110. Mr Brown believed staff were aware of the availability of the EAP. Ms Robinson said the EAP was promoted at the SSOU by the flyer and regular 'walkarounds' of CARFI staff.[81] The EAP was supported and facilitated by management.[82] When asked about staff not having time to attend the EAP, she said, 'we could always make that time'. She said that on several occasions it was planned that a solicitor would attend a session off-site on a Friday afternoon and go home from there.[83] However, she conceded that on those occasions it was not confidential that the solicitor was seeing Mr Carfi.

111. The OPP's contract with CARFI was tendered in evidence. The agreement covering the provision of services by Mr Carfi to the OPP required him to provide a monthly report with data on the provision of employee assistance and welfare liaison outlining the number of new clients, their gender and occupational category, and the issues with which they were presenting (work-related or personal etc).[84] It is presumed that the staff members' names were not identified. The contract allowed for payment of a fixed number of sessions for employee assistance based on an assumed uptake rate of 10 per cent.[85]

112. In 2009-2010, psychologist Ursula Benstead conducted three one-day training workshops[86] at the OPP on the topic of 'Understanding and working with victims of trauma' ('the Benstead workshops').

113. The defendant tendered an outline used for the Benstead workshops,[87] which stated:

• 10.00 - 10.30 Introduction (30 mins)

• 10.30 - 12.00 What is trauma and its impact? (1hr 30 m)

o Child Sexual Assault

o PTSD

o Tips for working with traumatised victims

• 12.00 - 12.45 LUNCH BREAK (45)

• 12.45 - 1.45 Complex Post Traumatic Stress Disorder (1hr)

Understanding Revictimization

"The Shark Cage"

• 1.45 - 2.30 How does working with traumatised clients impact on

workers? (45)

- What is compassion fatigue and vicarious traumatisation (VT)?

- Some symptoms of VT

• 2.30 - 2.45 COFFEE BREAK (15)

• 2.45 - 3.30 How to manage vicarious traumatisation (45)

- What helps reduce VT? - self-care and meaning

- What helps sustain you in this work and what are some of the obstacles?

- What can you do personally and what could the workplace do to help reduce VT and make your job easier? (1.5hrs)

• 3.30 - 3.35 Key things to Remember (5)

• 3.35 - 4.00 reflections/ questions/ evaluation (25).

114. The plaintiff attended at least one of the Benstead workshops.[88] She said she may have had to leave the workshop early, but she was not sure. Derek Schrapel and Ms Aitken each attended one of the workshops. Regarding attendance by SSOU management, Mr Brown gave evidence that he did not attend the Benstead workshops. Ms Robinson said she attended two of the workshops.

115. At the workshop she attended, the plaintiff recalled heated discussion and said, 'what was actually discussed ... was everyone letting off steam'. She said the workshop became a forum for intense discussions about how their work was affecting staff emotionally, and how overwhelmed they felt.[89] She recalled saying that there was not enough being done to assist SSOU staff, and that she gave examples of how her work was affecting her as a mother. She said she spoke of being uncomfortable even leaving her children with their grandparents, because of thoughts of inappropriate behaviour.

116. The plaintiff gave evidence that what she said in the workshop opened up a broader discussion with other staff who were present. Staff were told of strategies to use such as yoga or joining a pottery class. However, she did not have time to do such things and did not feel she was given adequate strategies to deal with the pressures of the work. She said the workshop made no practical difference to her and that the pressures of work increased after the workshop, as she was allocated considerably more files. She said the workload seemed to increase for all staff.

117. In his evidence, Derek Schrapel recalled that the general theme of the workshop he attended was around self-care. He did not recall much else about it and did not recall being informed about vicarious trauma or PTSD, although he accepted that the matters listed in the workshop outline may have been discussed.[90]

118. Ms Aitken attended the first workshop in March 2009. She thought the workshop was excellent but had to leave the room at one point, because she became too emotional.

119. It was apparent from the evidence that, after its inception, the SSOU faced a number of challenges as the quantity of work being funnelled through the unit increased. As time went on, SSOU staff were placed under increasing pressure, leading to issues and concerns being ventilated internally at the OPP.

120. From 2007-2009, the following internal documents and communications were created or received at the OPP[91] ('the 2007-2009 internal documents'):

(a) email from project manager Ms Drysdale to staff and the HR Manager, referencing vicarious trauma, dated 11 October 2007;[92]

(b) VT policy dated 28 January 2008 (referred to above);[93]

(c) email from Ms Aitken to Helen Fatouros on 17 March 2009 suggesting further Benstead training;

(d) Benstead workshop evaluation and recommendations document prepared by Ursula Benstead following her first workshop in March 2009;

(e) SSOU internal briefing paper on staffing and workload issues, prepared by Helen Fatouros (then SSOU Directorate Manager) and emailed to Stuart Ward (then OPP Legal Practice Manager) on 12 May 2009;[94]

(f) brief memo from Helen Fatouros to Stuart Ward on staff well-being, dated 24 May 2009;[95] and

(g) May 2009 memo from Suzanne Penhall (then SSOU principal solicitor) to Helen Fatouros on SSOU staff health and well-being concerns.[96]

121. On 11 October 2007, Penny Drysdale, who at the time held the title 'Project Manager, Sexual Offence Reforms', emailed the group 'OPP Sexual Offences', copying in the then OPP Manager of Human Resources.

122. The email had the subject heading: 'Vicarious trauma associated with working on sexual assault issues - Article for your information/interest'. In it, Ms Drysdale shared a link to an article on vicarious trauma, saying: 'This article is mostly for sexual assault counsellors, but some of it applies to lawyers. See what you think anyway???'

If there is interest I can arrange a session on this for staff, incorporating health and well-being issues and self-care etc. Let me know.

One of the most often asked questions when I go out to talk about the work of the unit is - How do staff look after themselves and cope with such difficult work and how does OPP support staff to do so?

OPP has psychologists Gus Mccaffrey [sic][97] and Peter Andrew-Arthur looking at staff health and well-being issues across the whole office. Once it is decided what will be provided OPP-wide we will arrange any additional things that we might specifically need in this unit.

124. On 17 March 2009, Ms Aitken emailed Ms Fatouros saying:

As discussed: Ursula's seminar was very beneficial (it certainly forced me to look at whether I was really travelling as well as I thought I was). I think a regular catch up with her in small groups - for those interested, say every few months - would be really helpful.

...

... I think the office should consider getting her to conduct a seminar targeted at Exec. Management, DMs, LPSs which focuses on ways to recognise and support staff who are suffering from vicarious trauma, other workload-related stress and associated issues.

125. Following her first workshop at the OPP, Ms Benstead prepared a document dated March 2009, and entitled, 'Evaluation of Understanding and Working with Victims of Trauma Training'.[98] The document provided information based on evaluation forms completed by 35 participants at the first workshop and made recommendations to management.

126. Ms Benstead's data suggested that the majority of participants felt that the workshop increased their understanding of how working with trauma victims may impact upon them and felt it made them more aware of the importance of self-care in their work. The majority of participants also thought it would be useful to regularly revisit the issues covered in her workshop.

127. Ms Benstead used the evaluation forms to identify what participants found most and least useful about the workshop. She noted: 'A clear theme ... is that participants related to the experience of vicarious traumatisation.' She also noted a theme in the comments made by participants 'that the training should be given to more groups, particularly more senior staff'.

128. In the 'Conclusion and Recommendations' section of her evaluation, Ms Benstead stated:

Given that some resistance to this type of training was anticipated, overall the evaluations were very positive. An overwhelming majority of the participants related to the signs and symptoms of VT and the importance of self-care in their work. This supports management identification of VT as an important OH&S and risk management issue to be addressed by the specialist sex offences unit. It is also worth noting that there was lots of animated discussion and contributions within the training groups. ...[99]

129. Ms Benstead then made recommendations under the following five headings:

(a) An executive 'brainstorm' session on possible ways that the workplace can manage workloads better within resource constraints.

(b) Consideration of implementing bi-monthly psychologist facilitated, debriefing sessions for staff in small groups.

(c) Training in trauma as a standard part of induction.

(d) Risk management of particularly high graphic sexual assault saturated positions.

(e) Forums to build team rapport and staff appreciation.

130. Regarding the management of workloads, Ms Benstead said as follows:

The ability for staff to have some input into caseload mix may be useful. Research indicates that having some control over case load content can decrease vicarious traumatisation. This process would also have opportunities for decreasing VT if staff could elect to take new cases that did not add to caseload 'themes' that were contributing to VT e.g. all perpetrators being fathers that may lead to despair about the capacity/safety of paternal parenting in general. Also an ability to not take on a case were [sic] the victim was the same gender and age as the worker's own children may contribute to a reduction in VT for some workers. It seems there is a general belief that currently these practices are not possible, and if staff were to make such a request to management, then there would be career repercussions i.e.: staff member may be seen as 'weak' not able to cope, not ready for promotion.[100]

131. In discussing the importance of team rapport and staff appreciation, Ms Benstead said: 'I was also curious as to why so many staff wanted higher management and Crown prosecutors to complete the training. ... if I was to speculate I suspect that one reason may be that staff feel management don't fully appreciate how difficult their work is.'[101]

I am sure that management do appreciate how difficult the work is but if attention could be given to how to communicate this to staff more regularly and consistently it could benefit staff morale, motivation and levels of VT. The initial outlay in resources to implement more practices to support staff feeling understood and valued would be minimal when compared to the cost of high staff turnover and increased absenteeism which result from excessive levels of workplace vicarious traumatisation. Training is an important component of addressing VT, but this intervention needs to be ongoing, and embedded in a whole raft of organisational attitudes and practices that reflect an understanding and acceptance of the unique difficulties staff encounter as a result of engaging with victims of trauma.[102]

SSOU 2009 briefing paper on workload and staffing issues

133. On 12 May 2009, Helen Fatouros (then Directorate Manager of SSOU) emailed a revised internal briefing paper to Stuart Ward (then OPP Legal Practice Manager) regarding staffing and workload issues raised earlier at a meeting held on 6 May 2009 with Stuart Ward and the HR manager.

134. Ms Fatouros made four recommendations in the briefing paper, including that: 'An SSOU recruitment strategy be developed by the SSOU, in consultation with HR, incorporating specific staff issues related to working in a highly specialised unit.'

135. By way of background to the memo, she outlined recent staff movements in the SSOU. Then, she said, as follows (at [10]):

To date, there has been an inability to strategically manage SSOU staffing. The Directorate Manager has by default been forced to manage in a reactionary way, as there is currently no long term recruitment and retention strategy, in either SSOU or across the whole of OPP. The ability to have such a strategy is complicated by the constant and perhaps unavoidable reality that many of the vacancies are filled by internal applicants creating a constant backfilling of positions without necessarily increasing capacity.

136. Ms Fatouros explained that five staff had been lost in quick succession between March and April that year resulting in the reallocation of 150 files, which had in large part been absorbed. However, she said that 'staff cannot be replaced as expediently as required to address the current workload demands of the SSOU'.

137. She identified some specific factors impacting on workload in the SSOU, saying:[103]

a) Experience to date in SSOU has indicated a consistent increase in work since establishment in April 2007. This is coinciding with the two year anniversary of the unit, a known timeframe for staff turnover and 'burn out' in a specialist unit. The legislative timeframes governing 50% of SSOU's work are the most onerous in Australia and the effects of this pressure added to the specific demands of working with sexual assault victims, will mean higher than average staff turnover must be managed.

b) From establishment in 2007 there has been an overall increase in the number of sex offence cases prosecuted by SSOU of 27% from 363 cases to the current figure of 462 cases. Whilst 50 of these additional cases are being prepared by the Geelong team, there are essentially 49 more Melbourne matters.

c) 50% of SSOU work operates on very strict legislative timeframes (presentment and opening required within 14 days of committal and trial to be heard within 3 months of committal). This causes significant concurrent listings demonstrated by the number of sex cases listed in the County Court every Monday;

d) The additional work of victim conferencing and management that is inherent in sex offence cases adds a more intensive dimension to the work[.]

2009 Fatouros memo on staff well-being

138. On 24 May 2009, Helen Fatouros sent a one-page memo to Stuart Ward, copying in OPP Solicitor for Public Prosecutions, Craig Hyland, and then OPP Corporate Services Manager, Michael Hoyle, regarding staff well-being training and evaluation.[104]

139. Ms Fatouros attached a copy of Ms Benstead's evaluation report from March 2009 to the memo. She then said:

I am interested in meeting with psychologist Ursula Benstead to discuss her report and recommendations and would be pleased if the Executive or members thereof attended that meeting with me. I have also briefed learning and development manager, Ronald Crack, about above and he has expressed an interest in attending any meeting with a view to considering office-wide training of that sort.

Given the positive feedback and reactions of staff, I am of the view that the OPP should consider making quarterly debriefing for all SSOU staff compulsory, and that Ursula Benstead should provide such services given her expertise and demonstrated ability in connecting with the staff.

140. The memo also referred to the VT policy, stating:

The Executive has been provided with copies of the SSOU practice manual, which include a draft of the SSOU vicarious trauma policy to be further developed following consideration of the recommendations made by Ursula, and other options I have been considering in terms of a more structured management approach to dealing with recruitment and staff turnover within SSOU as it relates to the heightened risks of vicarious trauma given the nature of the work.

2009 Penhall memo on staff health and well-being concerns

141. In May 2009, Suzanne Penhall, then SSOU principal solicitor, prepared a memo on the topic of staff well-being, which she sent to Helen Fatouros. It stated as follows:

I have been asked to enquire generally into the wellbeing of the solicitors in my LPC group, to obtain feedback and comments on the initiatives recently put in place to assist with workload pressures, and to pass on any suggestions as to what might assist them in working more efficiently.

I have now had the opportunity to speak with most members of my LPC group and have received a considerable amount of feedback on their general wellbeing. I note that while there are many members of my group who are new to the Unit and indeed the OPP itself, there are a few members, including myself, who have worked within the Unit since its inception in 2007.

As you know, in the last month we have experienced an unprecedented spike in the court commitments of solicitors working within the SSOU. We anticipate another such spike later next month. As a consequence, solicitors have been working longer hours not only in the office but by taking work home on weeknights and at weekends.

I have personally observed a number of solicitors in my group who routinely work back until 8pm at night simply to prepare their matters for the next day. On occasions where I have come into the office on the weekend I am, regrettably, not the only solicitor at my desk.

While the very nature of the work of prosecuting sex offence [sic] can of itself elevate stress levels, solicitors have reportedly experienced a marked increase of late in the symptoms associated with stress. I too have experienced an increase in stress related symptoms during the last few weeks but would hasten to add that this is not the first time in the life of our Unit that I have experienced a heightening of such symptoms. I recall similar periods of extreme workload pressure in June 2007 (when the first Special Hearings were being conducted) and again in June/July 2008. While it would appear that such peak periods may be cyclical and once yearly, the introduction of the 3 month turnaround for child and cog-impaired matters may mean that the Unit will likely encounter such peak periods more regularly than before.

Symptoms

In terms of the stress-related symptoms experienced by solicitors in the Unit, the following is a list of such symptoms reported to me.

• Fatigue;
• Insomnia and other sleep disturbances;
• Anxiety/ nervousness (at times requiring medication);
• Feelings of hyper-arousal (particularly during the night);
• Weight loss/gain;
• Inappropriate thoughts/flashes relating to the subject matter of our work;
• Irritability;
• Mood changes;
• Sense of being overwhelmed;
• Relationship problems/arguments with partners or other family;
• Lack of concentration;
• Upset digestive systems;
• Bad dreams (involving feelings of panic or anxiety);
• Persistent muscle twitching/spasms (eg. eyelids, facial twitching).

Some solicitors who experienced these symptoms reported that this in turn led to various unhealthy behaviours/lifestyle choices, such as:

• Increase in use of alcohol to 'switch off' after a day at work;
• Increase in smoking to 'calm nerves';
• Eating poorly at lunch time and dinner due to lack of time and/or energy for meal preparation;
• Skipping after work activity due [sic] citing the need to work back late as the cause (e.g. exercise, family commitments, socialising, hobbies, short-courses);
• Lack of time to debrief with other solicitors due to their unavailability;
• Lack of time to see a counsellor offered through the Employee Assistance Program.

Obviously the ability of staff to maintain a healthy work/life balance is considerably impaired when their work load requires them to work 'out of hours' simply to ensure they meet impending court deadlines.

142. The memo also outlined issues in relation to the physical location of the unit, difficulty accessing Crown Prosecutors, and lack of support staff.

143. It went on to give feedback on initiatives at the time 'aimed to recognise the particular difficulties associated with the work undertaken by the Unit', including the well-being session run by Ursula Benstead, Wednesday Pilates classes, and 'free form' team meetings, which Ms Penhall described as 'open forums' that 'allowed staff to discuss problems more freely and openly with the Manager of the Unit'.

144. Finally, the memo listed the following suggestions by staff 'to combat the effects of stress and feelings of being overwhelmed by their work':

• Further staff wellbeing session - more targeted at how to deal with vicarious trauma.
• In recognition of the labour (and emotional) intensity of our work, some sort of 'Flex time' arrangement structured 'Time out'.
• A training workshop on how to relieve and/or manage workplace stress.
• An ability to request a small number of non-sex files as a break mechanism should a solicitor become overwhelmed by their sex files.
• Training ... on how to conduct effective witness conferences and generally deal with witnesses.
• More administrative support to alleviate workload pressures and allow solicitors to focus on 'real' legal work including legal research.

On the whole, solicitors indicated that they enjoy the challenges of sex offence files but complained about the amount of work they must complete, particularly given the short time frames. Many felt they cannot do justice to their files. ... Others found that being in court every day is wearing them down and they feel like they will soon 'slip-up' or miss something.

146. It was not clear what action, if any, was taken in response to the 2007-2009 internal documents.

147. No evidence was given that anyone met with Ms Benstead to discuss her evaluation report or recommendations or that any of her recommendations were implemented or discussed. Further, Ms Aitken's request for quarterly debriefing sessions in small groups with Ms Benstead was not met.[105]

148. Moreover, no evidence was led that the VT policy was further developed or discussed, as suggested by Ms Fatouros. On the status of the VT policy, the following points are noted:

(a) as stated above, in Ms Fatouros' memo to Stuart Ward dated 24 May 2009, she referred to the SSOU Practice Manual and said it included 'a draft of the SSOU vicarious trauma policy';[106]

(b) in Ms Penhall's memo dated on or about 26 May 2009, she referred to 'the release of the Sex Offences Manual' in the section headed, 'Feedback on recent initiatives';[107]

(c) in the 2011 Staff Memo to management (discussed later), which covered similar concerns to those expressed in the Penhall memo, there is reference to 'release of the updated Sex Offences Manual',[108] which suggests the Manual was subject to updates and did not remain a static document; and

(d) at the end of the VT policy, the following paragraph is included:

11. Endorsement & operation

This document will be subject to review and change periodically and takes force from the date of its endorsement.

This policy is endorsed by the Solicitor for Public Prosecutions and forms part of the wider OPP approach to staff wellbeing.

Date: 28 January 2008

Solicitor for Public Prosecutions

149. It seems that Mr Brown and Ms Robinson were unaware of the 2007-2009 internal documents and knowledge of the VT policy by staff and management was desultory.[109] When asked about the VT policy in cross-examination, Mr Brown said he was not aware of it at the time. He did not know who prepared it or if it was an 'actual' or 'official' policy of the unit.[110] Mr Brown was also not aware of the matters explained in the VT policy. When asked if he knew the OPP had identified vicarious trauma as an organisational and OH&S issue, especially for SSOU staff (as stated in the VT policy), he said: 'I don't know whether there was a formal declaration of that position'.[111] He seemed unaware of at least some of the research findings on vicarious trauma outlined in the policy.[112]

150. When asked about strategies to manage vicarious trauma, Mr Brown said: 'I have to concede, I didn't turn my mind to that. Can I say this, though: There were processes in place. Um, there was a locked cabinet for child exploitation material. So that was - that was monitored closely ...'[113] He conceded, however, that the locked cabinet was to comply with legislative requirements for handling that material.

151. When asked about debriefing (a strategy suggested in the VT policy), Mr Brown said that debriefing occurred in an informal way 'around the lunch table' where people would be 'venting' or 'just talking about' their work and 'the often peculiar nature or - or even graphic nature of the work'.[114] Asked about the options for rotations in the policy, he conceded there was no system of rotations for SSOU staff, although he thought Crown prosecutors had rotations through the unit.[115]

152. Mr Brown was questioned about the recommendations in the VT policy regarding how management should approach a staff member suspected to be experiencing vicarious trauma. He said he was not aware of the suggested steps and was not sure it was 'the appropriate way to deal with the situation'.[116] He said that if a staff member raised concerns about vicarious trauma with him, his first advice to them would probably be to consider the EAP.

153. On 30 March 2011, SSOU staff held a meeting after hours in the absence of management. Subsequently, they prepared a joint memorandum on staff well-being, dated 18 April 2011 ('the 2011 Staff Memo').[117] The memo was addressed to the management team at the time and placed in Mr Brown's office.[118] He said, 'I just came in and found it from memory'.[119] It appears it was signed by the majority of staff who went to the meeting.[120]

154. The plaintiff, Mr Schrapel, and Ms Aitken gave evidence that they attended the March 2011 meeting and signed the memo.[121] Mr Schrapel said things came to a head and the decision was made collectively to hold the meeting without management present. He said the majority of the unit turned up and 'significant concerns' were raised. He said, 'for the first time in a whole group setting, it became abundantly clear how everyone was struggling, with some people really really struggling'.[122] He described some of those struggles (people having sleeping difficulties, people's diets being 'out of whack', etc) and concluded, 'we were all collectively at our wit's end and something had to be done'. Ms Aitken said the memo was prepared because staff 'didn't feel that the present situation was working' and 'didn't have the support [they] needed'.[123]

155. The memo stated: 'It was the consensus at the meeting that there is an overall lack of resources in this unit.' It noted that SSOU solicitors were working long hours, in the office and at home, including at night and on weekends. The memo further said (appearing to adopt language similar to that of Suzanne Penhall in her 2009 memo) that SSOU solicitors had 'experienced a marked increase in the symptoms associated with stress' and that it was not the first time they had experienced 'a heightening of such symptoms'.

156. The memo listed the same stress-related symptoms as those listed in Ms Penhall's 2009 memo but added one further symptom: 'Extreme Anger and lack of job satisfaction'. It also listed the same 'unhealthy behaviour/lifestyle choices' of solicitors experiencing stress-related symptoms (leaving out a reference to smoking).

Staff expressed disappointment that the Executive and management allowed the situation to get to this point and hope that some of the concerns and suggestions outlined in this memorandum will be considered and addressed within the next 3 months in order to restore the SSOU to an enjoyable and healthy working environment.

What can we do?

As there has been a gross underestimation of the number of staff required to run a specialist unit the staff have tried to identify positive ways of improving working conditions and discourage 'burn out' amongst solicitors ...

159. Suggestions included SSOU solicitors not taking on advice files or County Court appeals, assistance from staff in other OPP units, the expansion of the administrative duties of support staff, and the development of a policy about when it is appropriate for a matter to be uninstructed.

[S]taff expressed a fear that it will not be until something 'goes wrong' that there will be a genuine acknowledgement that work load is inhibiting specialisation and general file conduct. In other words, we cannot be in two places at once and we cannot continue to run between a number of matters. It cannot be the case, that where the recruitment process is as slow as to not replace maternity leave positions (even with 6 months' notice), that the policy insists on instructors in each and every matter.

161. On the topic of specialisation, the memo suggested that management should regularly update SSOU solicitors on Court of Appeal judgments and how they impact upon the day to day running or preparation of matters, explaining:[124]

[S]taff reported an inability to keep abreast of emails, recent judgements and files because it felt as though they were constantly 'putting out spot fires' leaving little time to specialise ... It was also reported that significant unpaid overtime was occurring simply to stay on top of the work load ... some staff members are left feeling like they are not coping and failing in this area of law. ...

162. The memo requested that files 'be allocated as early as possible', noting that 'recently and more frequently both new and existing matters have been reallocated as late as 1-5 days prior to a listed hearing'. Further, it identified difficulty in accessing Crown Prosecutors as an issue that 'compounded' the problem of keeping on top of the other files when running a trial.

163. Regarding the approachability of management, the memo stated:[125]

Staff have indicated that while they feel comfortable with present management they feared that they would be overlooked for promotions and be seen in a negative light for voicing concerns ... almost all indicated that they would play down the [sic] stress levels and concerns. Some staff members indicated that they have previously approached management regarding issues however felt that although acknowledged at the time, management have not done anything to address their concerns. The consensus was that no one staff member wanted to be seen as whining and they wanted to be sure that their concerns would be met with genuine appreciation and validation before opening up. The majority of staff however will be comfortable in discussing the contents of this memorandum in a group meeting ...

Further, the lack of physical presence of managers across the Unit was noted by staff and a desire was expressed for management to visit offices, see how staff are progressing and to be willing to take the time to discuss any issues.

164. The memo acknowledged 'initiatives taken ... to recognise the particular difficulties associated with [their] work', but unlike Ms Penhall's memo, it did not describe those initiatives as 'recent'. It listed four initiatives, with three being the same as those in Ms Penhall's memo. The fourth initiative was resilience training by Gus Carfi, which was due to take place later that month.

165. There were several internal communications in response to the 2011 Staff Memo:

(a) Mr Brown's 18 April 2011 email to the OPP executive;[126]

(b) Mr Brown's 13 May 2011 email to SSOU staff;[127]

(c) Mr Brown's 'Business Case' regarding SSOU resourcing to the OPP executive;[128]

(d) Mr Brown's 27 June 2011 email to SSOU staff;[129] and

(e) the Executive's 29 July 2011 response to the Business Case.

Mr Brown's 18 April 2011 email to the OPP executive

166. On 18 April 2011, Mr Brown emailed a copy of the 2011 Staff Memo to Craig Hyland and Stuart Ward, saying: 'I would like to use the memo as a starting point for a discussion between us about the staff/work situation in the SSOU'.

Mr Brown's 13 May 2011 email to staff

167. On 13 May 2011, Mr Brown emailed all SSOU staff, outlining the steps he and Ms Robinson intended to take in response to the issues identified in the 2011 Staff Memo. The email referred to recent resilience training by Gus Carfi (on 20 April 2011) and addressed the following topics (some details omitted):

• Keeping up to date with the law. Mr Brown stated that, at team meetings, the Legal Prosecution Specialist would 'briefly mention any relevant CoA judgments and other issues'.
• Advice files. Mr Brown explained that, over the last few weeks, advice files had been retained by the OPP's Policy and Advice Directorate. He said that the SSOU would not be taking back advice files until it had the resources to do so.[130]
• County Court appeals. Mr Brown stated that he would ask the OPP Appeals Directorate to retain appeal matters until the SSOU was fully staffed.
• WAS conferences. Mr Brown stated the Executive had requested that 'as a general rule we should continue to aim to attend all WAS conferences'.
• Early assistance from other directorates and early allocations. Mr Brown said that management would do their best in these areas.
• Instructing. Mr Brown said: 'The Executive have requested that we aim to continue to instruct in all cases ... contact [Ms Robinson] or me if you need assistance or have any questions about this.'
• Expansion of admin duties. Mr Brown said there would be a committee co-ordinated by Ms Robinson to identify how the SSOU could expand the work of the admin staff to facilitate that. He also said that the Executive had promised up to two extra admin staff on a fixed-term basis 'if we can use them'.
• Training. Mr Brown invited staff to contact management if they were interested in being involved in intra-team training.
• Contact with management. Mr Brown announced that he and Ms Robinson would commence monthly half-hour, one-on-one meetings with staff 'to discuss files and/or other issues'.
• Gus Carfi. Mr Brown said they would organise 'follow-up sessions with Gus, perhaps in smaller groups and on defined topics', which would replace the EAP walk-arounds.
• Dealing with offensive material. Mr Brown invited staff to contact management 'to arrange some strategies for how to go about tackling this challenging task'. He said: 'We can facilitate tag-teaming, debriefing, having Gus involved, etc.'
• Data collection.
• Crown Prosecutors.
• Social activities.

Lastly, thanks all for your input. I trust you all know that [Ms Robinson] and I are absolutely committed to making SSOU a happy and rewarding place to work. I have no doubt that once we ease the pressure with more staff and have the time to devote to increasing the quality of our work, we will enjoy a fantastic working environment here.

169. In June 2011, Mr Brown prepared a 13-page document for the OPP executive:[131] 'Business Case Melbourne SSOU Resourcing' ('Business Case'). It emphasised the pressure on SSOU solicitors and requested that further positions be created in the unit.

170. The Executive Summary of the Business Case stated:[132]

The current staff levels in SSOU are not sufficient to cope with the workload of the Unit. The priority listing of sex offence matters in the Courts results in cases being turned over more quickly than non-sex matters.

SSOU solicitors account for less than 20% of the OPP solicitors conducting trials in the Melbourne County Court (Directorates A, B & C) yet are preparing and instructing in over 50% of the cases. The number of new matters (and re-trials) coming into the Unit has increased steadily over the past three years and is expected to continue to rise. The number of sex matters going to trial is greater than any other type of case. Sex cases are now more complex and time-consuming to prepare than ever before and witness conferencing is at an all-time high.

Staff levels in Melbourne SSOU have only been increased by two Grade 4 positions in the past three years. In addition, there has been high staff turnover over this period particularly at the Grade 5 and 6 levels. This has resulted not just in reduced staff numbers but in a loss of experience and capacity at the upper levels.

Recruitment activity has been unable to keep pace with staff departures. As a consequence, the Unit has been constantly short-staffed. The solicitors have had had to bear the brunt of the increased demands and this is having a negative impact on health and well-being, morale and the quality of work. The Directorate Manager and Acting Deputy Directorate Manager have had to spend more time on operational needs rather than strategic planning on areas such as staff development and training, improvement to processes and external stakeholder interaction.

171. The memo went on to analyse the 'workload drivers' in the unit, including 'a high turnover' of cases due to priority listing and short time frames for sex offence matters, steady growth in new matters, and 'an all time high' in retrials. It also stated that there had been 'a number of extremely complicated and voluminous matters' in the unit over the previous six months.

172. Regarding the intensive nature of the work in the unit, it stated:[133]

File numbers alone do not reflect the intensive nature of the work ... Apart from the often challenging subject matter witness conferencing ... takes up a significant amount of time and energy. Usually such conferences are arranged around Court hours so solicitors often find themselves conferencing before and after Court hours which means when instructing in a trial they are out of the office for virtually the entire day. In order to keep up with their other work they are forced to work beyond normal office hours, often staying back to 9pm and coming in on weekends. The work itself is intensive, relentless and emotionally draining. The last thing staff need on top of that is the extra stress and pressure of having an over-burdensome file load and having to pick up files from other solicitors.

173. The Business Case emphasised that witness conferences were 'more time-consuming and emotionally draining than ever before', explaining:

The number of WAS and CWS conferences has increased exponentially over the past few years. The majority of WAS conferences relate to sex matters. SSOU solicitors are expected to attend all such conferences. In addition, the SARS reforms[134] have raised expectations and demands of complainants and witnesses.

174. Outlining staff levels at the time, Mr Brown stated:[135]

When SSOU was established in 2007 there was the same number of solicitors at the same grade as there is now save for two additional Grade 4 positions which were added in 2010 ... while the workload has climbed by 14% in terms of new matters received; and the number of matters proceeding to trial has increased by over 13%; and the work required on each file has increased ... the Melbourne SSOU solicitor numbers have only increased by an FTE of 7%.

Moreover, this increase was at the medium/low level (Grade 4). Any other additional staff have been temporary and at junior solicitor level. Over the past 24 months the Unit has lost a number of senior and experienced solicitors for various reasons. This has meant that less-experienced staff have had to take over complex files without having the requisite levels of knowledge and experience. Additionally having fewer experienced solicitors in the Unit to provide support, advice, mentoring and training has had a deleterious effect on confidence and morale in the team.

175. Mr Brown also analysed file load numbers, saying:[136]

Given the intensive nature of the work, these file levels are too high. It is recommended that full-time solicitors should carry an average file load maximum of 20 files and part-timers four per day ... the solicitors in Melbourne SSOU are carrying a total of around 100 files too many. On that basis, it is recommended that at least four full-time solicitors should be added to the Unit. It is further recommended that the additional solicitors be at Grades 6 and 5 to address the current imbalance of Grade levels across the Unit.

176. In relation to the risk of maintaining the number of solicitors in the unit at that time, Mr Brown said:[137]

Maintaining the current staff levels will have serious OH&S implications for SSOU and the OPP. There will be an increase in sick leave and departures and further loss of morale within the Unit. There is a danger that the standard of work will suffer and mistakes will be made. There is the possibility of negative media reports given the high profile of the Unit.

The staff in SSOU are reporting burn-out and staff turnover is increasing. This is putting further pressure on the unit due to time spent covering sick leave and recruiting and the inevitable delays with filling vacant positions. New staff require training (which they are not receiving at an adequate level) and cannot immediately assume full file loads. The Unit has been operating at staff levels well below the minimum for the past six months due to departures. This has resulted in pressure building up to breaking point. Staff recently conducted a meeting from which a memorandum was produced outlining the effect this is having on their work and health. The current situation is untenable and there are serious OH&S risks looming. These issues have previously been brought to the attention of the Executive on a number of occasions.

177. Mr Brown went on to present the options available to the executive in managing staff levels and commented: 'There are no benefits to keeping the status quo. Any resource savings will be subsumed by costs incurred by staff absences and departures and re-trials brought about by work standards dropping.'

178. In oral evidence, Mr Brown said that the Business Case was 'a reaction' to the 2011 Staff Memo.[138] He later elaborated that since staff had 'gone to the trouble of creating' the memo, he had to bring it to the executive's attention 'in a strong way'.[139] He also said that Stuart Ward had told him he would need to create a business case to get more SSOU solicitor positions.[140]

179. Mr Brown said he did not expect to get what he asked for in the Business Case, saying: 'It was an ambit claim ... a wish list ... I aimed high.'[141] When asked to explain some of the concerns he presented in the Business Case, Mr Brown seemed to downplay what he wrote in it, saying: 'I was making the case as strongly as I can, for more staff.'[142] When asked what OH&S risks he foresaw at that time, he said:[143]

I didn't foresee anything in particular but I, um, was responding to the document where, ah, the staff had gone to the, ah, extreme situation of - of providing a written document, saying that they were overworked and I was passing that on ... echoing the concerns that the staff had written in that document.

... I suppose, again, I was trying to make as strong a case I - as I could to get more staff.

180. On 27 June 2011, Mr Brown sent staff an email with the subject heading: 'This week ... and beyond.' In that email, he referred to upcoming voluntary training sessions, which included a follow-up, one-hour resilience training session with Gus Carfi. The email also informed staff that there would be interviews and offers for Grade 4 SSOU solicitor positions, which would result in additional staff in the ensuing few weeks.

In the meantime, as you know we have to re-allocate Luke and Stephanie's files as well as continue to allocate new files. I know of [sic] you are feeling like you are getting overloaded. When we have more staff on deck we will be able to re-adjust everybody's loads to more manageable levels. I really appreciate your patience and understanding in this difficult period ... it will get better

182. When asked in evidence about the reallocation of more files when staff were already overloaded, Mr Brown said:[145]

[I]t's always been the case that they always felt like they were probably overloaded. Um, it's acknowledging that, um - I was just doing the best I could to, um, deal with the situation that we had to deal with.

183. Mr Brown acknowledged in evidence that 'a lot of [SSOU staff] were under pressure all the time' and that he was going to readjust workloads to more manageable levels. However, when asked if that suggested workloads were not manageable, he said, 'no, maybe managed with a bit more difficulty', and spoke of solicitors 'being able to manage, but yet being under pressure'.

184. In the Business Case, Mr Brown had recommended that positions be created in the SSOU for one Deputy Directorate Manager, one Legal Prosecution Specialist, one Early Resolution Advocate, two Grade 6 solicitors, and two Grade 5 solicitors.

185. On 29 July 2011, Stuart Ward emailed Mr Brown in response to the Business Case, stating:

This is to confirm that, having considered the issues raised by staff of SSOU in April and the Business Case you prepared for the Executive in June, and the extensive discussions you and I have had about the options available to provide meaningful and targeted support for SSOU, the Executive has decided to:

• Make the Deputy Directorate Manager position ongoing;
• trial a second Legal Prosecution Specialist for a 12 month period;
• employ two additional Grade 4 solicitors in SSOU for a fixed term of 12 months.

This approach has been preferred as it balances the need for senior level support with the need for additional case-handling solicitors.

...

As you know, these additional positions are being put in place without any additional funding. In doing so, the Executive recognises the priority of supplementing the resources of SSOU, building on other improvements that have been put in place previously. The executive appreciates the demands of work within SSOU and acknowledges the hard work and commitment of its staff.

We will continue to work on other areas to improve support - including legal support and training.

186. Mr Brown forwarded that email to SSOU staff half an hour later.

Effectiveness of the response to the 2011 Staff Memo

187. Witnesses who worked at the OPP gave evidence about staff well-being after the 2011 Staff Memo and their experience of the working environment in the SSOU following Mr Brown's 13 May 2011 email to staff and the initiatives presented in that email. The witnesses also gave evidence about their workload after the 2011 Staff Memo.

188. The plaintiff said that after the 2011 Staff Memo, there was no change to the volume of work she was required to do,[146] the amount of time she spent with the WAS or CWAS and complainants, or the amount of time spent viewing graphic material.[147] She said that no one from management or the executive approached her after the memo to see how she was going,[148] and management did not arrange any specific opportunities to discuss the health and well-being concerns raised in the memo. She considered that the stress and pressures of the work continued.

189. When reminded that Mr Brown said, in his 13 May 2011 email, that he would seek to increase staff in the unit, she agreed it was necessary, as 'the unit was drowning'. Everyone was working very hard and it was taking its toll psychologically.[149] However, when asked if he took 'any step at all to relieve the work pressure', she responded, 'he was increasing my workload'.[150]

190. Regarding the step of 'backfilling', the plaintiff said it meant that when a solicitor was running several trials at once 'there would be an instructor present' in each trial, but the solicitor responsible for the trial still had to do all the preparation work.[151] She also said that when she told Mr Brown that she could not take on any more work, he gave her the Lim trial.[152] Further, the plaintiff said that measures such as relieving the unit of advice files or County Court appeals did not affect her workload, as she did not have any advice files at that time, rather she 'had a lot of trials'.[153]

191. The plaintiff was asked about the suggested measures of 'tag-teaming' or having colleagues assist in difficult conferences for support. She said that did not happen in her matters, explaining that in her cases complainants, especially child complainants, were 'very close' to her and would 'feel very uncomfortable sometimes when there's another person they don't know'.[154]

192. The plaintiff also gave evidence that there was not time for certain measures suggested in the email such as arranging intra-team training, contacting management for help or strategies in dealing with offensive material, or seeking similar assistance from Gus Carfi. She said, 'we barely had time to - we didn't even have time to eat lunch'.

193. Mr Schrapel said one of the more successful steps raised in the email was reducing advice files in the unit. He had advice files before that, but 'like most people, they were behind, because we were too busy dealing with trial matters'.[155]

194. Mr Schrapel gave evidence that staffing issues remained an ongoing problem.[156] He said he personally felt that after the 2011 Staff Memo, his workload was more difficult because he was allocated more files.[157] He also felt the distribution of workload in the unit was not fair or even.[158] Further, he referred to the 'clash list', a spreadsheet used in the unit to find solicitors to instruct in trials for others who were running several trials at the same time, and criticised the way Ms Robinson managed the list, saying it was a 'source of major angst'.[159]

195. Regarding the invitation to contact management in the email, he said he did so regularly. He did not see Mr Carfi, as he had his own psychologist outside of work, partly to assist in coping with the subject material and workload at the SSOU.[160]

196. Ms Aitken said that she was aware there was more recruitment after Mr Brown's email, but said, 'that was ongoing because there were always people leaving and positions needing to be filled'.[161] Ms Aitken said that she was in a long running series of trials and, after the 2011 Staff Memo, her workload 'at the very, very least, stayed the same, and, at times, was heavier'.[162] She also did not recall any appreciable difference in her workload or work content after Mr Brown's email.

197. When asked if management did their best to allocate files fairly and evenly, she said that, while she could not speak to their motivations or efforts, she did not feel the distribution of workload was fair.[163]

198. Ms Aitken agreed that Mr Brown's email invited staff to contact management about tackling challenging material. However, when asked about the approachability of Mr Brown and Ms Robinson, she said that while she 'generally had a good relationship with them', she did not feel they were approachable if she was 'really having difficulty'.[164] She later said:[165]

I felt that [Mr Brown] could be a bit dismissive. I don't know that he meant to be but that's how it came across ... I think that there were a couple of times where I did raise a concern with him - not about the subject matter or any of it, but a particularly [sic] issue I was dealing with ... and he backed me up ... I had a matter where the complainant took her own life within hours of a conference we had ... he and [Ms Robinson] were very supportive about that ... and very compassionate. But it was - generally it was kind of that the expectation was that you just needed to, um, harden up and get on with it. The work wasn't - the indictment wasn't going to draft itself.

199. In relation to the mention of debriefing in the email, Ms Aitken said:[166]

That didn't happen. The onus was on us to contact the EAP, um, rather than having someone regularly, I suppose, doing welfare checks. Um, even though - though they had the walk-arounds, it wasn't, like, in a structured sense, like the way that, I think, Ms Benstead had been recommending.

200. There were monthly team meetings held in the SSOU, which continued after the 2011 Staff Memo and were run by Mr Brown or Ms Robinson.[167] Staff were required to attend, unless held back in court. (Ms Aitken, for example, gave evidence that she missed a lot of the meetings as she was in trials and could not always get back in time).

201. Evidence was given by the plaintiff, Mr Schrapel and Ms Aitken that the meetings updated staff on matters impacting upon the preparation of their sex offence trials, in particular on new case law. They also addressed staffing updates. Afterwards, there would be an opportunity for staff to raise any other matters.

202. The plaintiff gave evidence of discussions that occurred at team meetings about staff concerns, particularly about workload and the impact their work was having on them. She said staff strongly expressed feeling overwhelmed, overworked, and affected by the nature of their cases.[168]

203. The plaintiff gave evidence that she became increasingly vocal at staff meetings from late 2010 onwards.[169] She recalled instigating discussions about how work was affecting the daily lives of staff. She said she began speaking at meetings about how matters with child complainants were affecting her as a mother. She spoke of her extreme caution in relation to her children[170] and being paranoid about leaving her children with other people, including at activities and with schoolteachers. She said at one meeting that she had refused to allow her son to be an altar boy. She mentioned dreaming of her children being the complainants in her matters[171] and raised the fact that a lot of the complainants she dealt with were the same age as her kids.[172]

204. In cross-examination, it was put to the plaintiff that team meetings focused on legal training and were not a forum for staff complaints or complaints about exposure to graphic material. It was suggested to her that staff complaints dealt solely with workload. The plaintiff's response was that staff were able to raise any matters at the end of team meetings and 'did raise many issues'.[173] She said the unit drafted the 2011 Staff Memo 'as a last resort' because they were not being heard at team meetings.[174]

205. Mr Schrapel said that workload was 'a common thread' raised in meetings along with difficulties in dealing with the subject matter and content of files, and concerns about 'dropping the ball unintentionally'.[175] He said he noticed others being quite vocal about workload, stress, and the way work was affecting them.

206. Mr Schrapel recalled discussions about staff having trust issues outside of work.[176] For example, in a period where there was a spate of allegations of sexual assault in taxis, staff discussed being afraid to take taxis. He also recalled the plaintiff being vocal, in particular about the impact that her work was having on her home life with her kids.[177] He said other staff empathised with her concern. He also recalled the plaintiff expressing concern prior to her departure about struggling to keep up with work.[178]

207. Mr Brown said that, at team meetings, various people would contribute to agenda items about new areas of law, social events, and so on, and that minutes of meetings were 'fairly informal'. He did not recall any complaints about work conditions but said there was always a general feeling in the unit that there was a lot of work and everyone was very busy.

208. Ms Robinson said monthly meetings were not a forum for raising concerns about the nature of the work, but rather focused on training on legal topics and updates on recruitment processes. Under cross-examination, she conceded that at the end of the meetings staff could raise matters not on the agenda. However, she was unable to recall the plaintiff speaking at meetings about her caution regarding her children or her nightmares.[179]

209. Following the 2011 Staff Memo, the SSOU management instituted (as announced in Mr Brown's 13 May 2011 email to staff) monthly one-on-one file review sessions between SSOU staff and management (either Mr Brown or Ms Robinson). The witnesses who worked in the SSOU gave evidence about those sessions.

210. The plaintiff initially had her file reviews with Mr Brown. She was asked if the sessions provided a private opportunity for her to raise matters with Mr Brown, such as having trouble coping with material or the content of her work. She said that the file reviews were conducted very quickly and were mainly about key performance indicators ('KPI's) and deadlines for allocated tasks. She was questioned on whether Mr Brown would ask her how she was going at the end of her file reviews and whether she spoke to him about her marital separation. The plaintiff said that sort of matter was not discussed during the file reviews, but that she had discussed her separation with Mr Brown in her private time, because he had been a mentor and a friend.[180]

211. Mr Schrapel described his one-on-one file reviews as follows:

When I was meeting with [Mr Brown], it would be for roughly 10 minutes on most occasions. It would be solely, 'Where are you up to with this file? When is the next hearing date? What have you got to do in between?'[181]

212. He did not recall Mr Brown ever asking how he was coping generally with his work.[182] He said Mr Brown did not ask him if he was okay or offer support, despite him indicating to Mr Brown that he 'seemed to have an inordinate number of files' as a Grade 4 solicitor. He never told Mr Brown he was not coping, saying: 'There was no encouragement to do so is the best way that I'd put it.'[183] He also said it would have been difficult to say the words, 'I'm not coping', as it would have consequences. He also felt Mr Brown 'seemed quite disengaged'.[184]

213. Ms Aitken said that the one-on-one file reviews were 'mainly about the status of the files'. She could not recall if management asked or encouraged her to express any concerns or issues that she had relating to her work.[185]

214. Ms Lucas, who managed the Geelong SSOU office, gave evidence that Mr Brown was approachable. She said that she had regular telephone contact with him to discuss file allocations and workload.[186] However, she did not feel she could complain to him that the content of the work was distressing, explaining:

I take the view that was a real cultural context ... we were dealing with horrendous offending, they were tough cases, the complainants were incredibly distressed ... it was just a tough job and you had to get on with it. You had to do it. You couldn't show weakness. Um, if you didn't do the job, then someone else could come along and do it in your place and it would affect your prospects of promotion ... you just had to be seen to be tough and coping.[187]

215. Mr Brown said that the one-on-one file reviews were a chance to sit down, go through where files were at, how solicitors were coping with their workload, and any general issues. He said he had the impression from his file reviews with the plaintiff that she was coping pretty well and was on top of things, because she did not raise anything of concern.

216. When asked if he would inquire about solicitors' health symptoms at their reviews, he said he 'wouldn't put someone on the spot'. He would ask how everything was going or how they were feeling generally but not, for example, if they were suffering from bad dreams, explaining:

[I]t's fairly intrusive to go into particular details. They might think that I have a bias against them ... It would be quite an odd question to ask ... they're all adult, full-time employees who, um, are aware of, ah, processes that are in place to - to deal with any issues they've got ... I'm not going to go around, um, probing, ah, as to different areas of possible, um, trauma.

217. Ms Robinson described the file reviews as a chance to 'do a bit of a stocktake' with solicitors on their file load and discuss their cases, including any legal issues. She said they were also a chance for 'a general well-being check' and for staff 'to have direct access' with management 'to discuss anything'. Further, it was a chance to identify clashes in trials and future workload.[188] Ms Robinson said some file reviews would go for 20 minutes and others for an hour, depending on the solicitor.[189]

218. Ms Robinson said she would close each file review by asking the solicitor: 'Do you have any questions of me? Do you have any qualms about anything or any quandaries that you'd like to go through?'

219. Towards the end of 2011, she began to conduct the plaintiff's file reviews, which had been conducted by Mr Brown for the first six months. She said she encouraged the plaintiff to discuss all matters regarding her files and work, but that the plaintiff never raised any concerns about the content of her work at her file reviews. She said the plaintiff was always 'businesslike and professional'. She conceded that no staff member ever raised any health symptoms at the file reviews she conducted.

Oral evidence from SSOU management about their awareness of the risk to staff

220. Mr Brown said that when he began his role as Directorate Manager of the SSOU, he had a 'fairly informal handover from Ms Fatouros'.[190] He said he was not told about or given a copy of Ms Penhall's 2009 memo regarding staff health concerns. Further, he was never made aware of the VT policy.[191] He did not complete any training on vicarious trauma[192] or attend Ms Benstead's workshops. However, he said he had worked on sexual offence cases earlier in his career and was aware of the concept of vicarious trauma.[193] He was also aware of the sort of challenging material to which SSOU staff would be exposed[194].

221. Mr Brown gave evidence that there was a lot of positivity, camaraderie, and good feeling in the unit. He said staff accepted the busy nature of their work as 'what they signed on for' and no one raised with him that the nature of their work was causing them emotional distress. He said that, while there was always a perception that there were not enough solicitors in the unit, there was a happy work environment. He said: 'I didn't detect a decrease in staff morale or, um, a high staff turnover. People liked to be there.'[195]

222. Regarding his approachability as the SSOU manager, Mr Brown said:[196]

[F]rom the very moment I started working in that unit I developed a good working relationship with every member of that team and encouraged them to speak to me about any concerns they would ever have, and I believe I was approachable and friendly as a manager.

223. He said he was 'hurt' that staff 'went behind [his] back' to hold the meeting (in his absence) that led to the 2011 Staff Memo. He said: 'I think everybody thought ... we were short-staffed ... it didn't occur to me that it was at, um, a critical level perhaps until I'd received that memo'.[197] He said the memo was the first time he was made aware of the specific issues that SSOU staff were facing[198] and, prior to then, he was unaware staff were working until 9pm during the week and on weekends.[199]

224. Mr Brown gave evidence that he took the memo seriously and brought it to the attention of two members of the OPP executive, Stuart Ward and Craig Henderson, seeking an increase in staff in the SSOU. He explained:[200]

I'd before that frequently, um, expressed my view to the executive - not in a formal written document, but, um, expressed my view that we needed more staff. But the reality of, um, the Public Service is ... there's limited funding and a limited number of positions ... I suspect maybe the staff were aware of that and this document was produced to - to get a reaction ... in a way I suppose it did ... we did manage to get, um, some extra staff.

225. Mr Brown was asked why he did not take immediate steps to reduce staff workload after receiving the 2011 Staff Memo, rather than wait to prepare the Business Case. He said he had told staff to speak to him about any concerns in his 13 May 2011 email.[201] When asked if staff continued to have symptoms after the 2011 Staff Memo, he said:[202]

I wrote that email ... inviting them to come and speak to us, and no-one did ...

I didn't observe any of these symptoms. As I said before, there was generally a very positive working environment and whilst people would say they were busy they very much enjoyed working in the unit ...

I didn't observe any people looking distressed, feeling distressed. I didn't get told about anything ... we needed more staff and I made the case as strongly as I could to get more staff. I didn't consider it an emergency situation where people were suffering physically ... I didn't observe that and I wasn't told that and no-one approached me.

226. Regarding the list of symptoms that staff said they were experiencing in the 2011 Staff Memo, Mr Brown said: 'They've just listed typical sort of examples of the effects of vicarious trauma, but no one said such and such is suffering from this, or I'm having these difficulties.'

227. Mr Brown said that while the 2011 Staff Memo raised a 'red flag', he knew that staff had the EAP,[203] and assumed they were aware of and would utilise the EAP 'if they needed to'.[204] However, Mr Brown conceded that the EAP had been in place before the memo. When challenged that it had not prevented staff from developing the symptoms referred to in the memo, he said: 'I don't know whether people utilised it or not because it's confidential.'[205]

228. Ms Robinson was a SSOU solicitor before she was promoted to Deputy Directorate Manager. She described the culture in the unit, as 'very collegiate, very hardworking, very passionate, very driven, very bright individuals'.[206]

229. She believed the file load in the unit was distributed fairly among solicitors based on capacity and interest, and taking into account the case assessment ratings ('CAR ratings') on the files. The CAR ratings reflected, among other things, the complexity of files and the number of complainants involved.

230. Ms Robinson said she was friendly with and had a 'peer-to-peer relationship' with the SSOU solicitors.[207] She said she was accessible and had 'an open-door policy'. She also said that solicitors shared a lot with her about their personal and professional lives.[208] However, she admitted that prior to receiving the 2011 Staff Memo, she did not know that the solicitors who signed it were experiencing the symptoms listed in it.[209]

231. When asked about the 2011 Staff Memo, Ms Robinson said:[210]

[M]y understanding was at the time, numerous members of our team felt very undervalued ... they compared themselves with the other directorates and they felt that we were working under much more pressure without as much support from the executive in terms of staffing levels and resources ... they were collectively voicing ... what impact that was having on them.

232. When asked if she realised that solicitors were collectively experiencing symptoms of vicarious trauma, she responded:[211]

I didn't feel that was the focus of the memo. I felt the focus of the memo was around staffing and work pressures, not vicarious trauma ... my take away from that - my sentiment was more around bolstering staff levels to help with some of the work pressures that they felt that they were experiencing.

233. Ms Robinson conceded that she had not known that the symptoms listed in the memo were consistent with or echoed signs of vicarious trauma.[212]

234. Ms Robinson also did not know which SSOU solicitors were experiencing the symptoms listed in the memo. She said no one came to her to discuss their symptoms and it would have been 'inappropriate' to inquire.[213] She said it was difficult 'to probe' as individuals wished 'to remain anonymous about their experiences'.[214]

235. Regarding management's response to the 2011 Staff Memo, Ms Robinson said 'every step was actioned' from Mr Brown's 13 May 2011 email to staff. She also said that, in addition to the introduction of one-on-one file reviews, she made efforts generally to be more approachable and did a morning 'walk around' to check in with staff.[215]

236. Ms Robinson was asked how management monitored who was working late. She said she only knew if people were working after hours if she saw them or they notified her. She said that if she saw someone working late, she would tell them to come in later the next day. However, there was no formal monitoring of work hours.[216] In responding to the content of Mr Brown's email of 27 June 2011, which informed staff about the reallocation of SSOU files from two departing solicitors to existing staff, she explained that when SSOU solicitors left, their files were immediately re-allocated within the team. File loads would increase until the staff members were replaced.[217] She acknowledged that was 'potentially an issue at that time'.[218] Staff workload and hours was a cause for concern. She did check in on staff and seek to support them, but external court listings were outside of management control.[219] Everyone in the team was 'supportive and understanding' when a solicitor was 'getting slammed', and would try to cover for each other when they had multiple matters running at court at once.[220]

237. Regarding the plaintiff's workload, it was not disputed by Ms Robinson that she was instructing in court frequently and often worked through lunch. Whilst initially indicating that she had no specific recollection of the plaintiff working after hours, she later conceded knowing that the plaintiff often took home airport-style suitcases full of work.

Risk factors and signs or symptoms of illness affecting the plaintiff

238. As previously stated, the plaintiff signed the 2011 Staff Memo. She gave evidence of impacts listed in the memo that she believed applied to her at that time:[221]

• Fatigue. She was lacking sleep, exhausted, and found it very hard to concentrate.

• Extreme anger. She was becoming sharp with her children and others around her.

• Lack of job satisfaction. She said: 'I felt that I wasn't giving my complainants the best of me because I didn't have the time, so I wasn't satisfied as to the capabilities of what I could do.'

• Insomnia and sleep disturbances. She couldn't sleep and had sleep disturbances as a result of nightmares. If she heard a noise at night, she would wake up and it would be difficult to get back to sleep as she would be concerned.

• Anxiety, nervousness and a feeling of hyper arousal especially at night. The plaintiff confirmed she had those symptoms.

• Fluctuation in weight. There were periods where she became 'very, very thin' and other times she 'would be normal'.

• Inappropriate thoughts or flashes relating to the subject matter of her work. Flashbacks could be triggered at any time, for example, when reading a newspaper. As an example of inappropriate thoughts, she said that when her nephew was born, she would feel guilty about changing his nappy or watching her sister bath him, saying, 'I felt like I was doing the wrong thing'.

• Irritability and mood changes. She said, 'I began to notice that I wasn't the happy woman I once was'. She said she was 'becoming more withdrawn', not wanting to socialise, and was becoming depressed.

• Sense of being overwhelmed. She said she was overwhelmed by the workload, the deadlines, and the content of her files. She said that despite voicing her concerns, her workload was increasing, and she was being put under more pressure.

• Relationship problems and arguments with family. She would argue with her ex-husband about him feeling that she put her work before her family.

• Lack of concentration. She said: 'At times I find that I drift, depending on what I'm thinking about.'

• Upset digestive system. She did and still does suffer from digestive issues and constipation. She could go up to three or four days without going to the toilet when extremely stressed.

• Bad dreams. She had bad dreams that 'felt real', mostly in relation to her children, with them 'taking the place of complainants in the cases that I was working on at the time'.

• Muscle twitching and spasms. She experienced these symptoms as a result of migraines.

239. The plaintiff also said that, at the time of the 2011 Staff Memo, she had the following unhealthy behaviours:[222]

• Eating poorly. She said that she did not have time for lunch and also said, 'when I'm down, I don't eat'.

• Skipping after-work activities due to the need to work back late. She said: 'That did affect me because I had no time. I was a mum but, um, the spare time that I would have would be allocated to working on my files to ensure that I got the best results possible.'

• Lack of time to debrief with other solicitors. She said, 'there wasn't time to sit down and debrief properly'.

• Lack of time to see an EAP counsellor. She said there was no time because she was 'always in court' and counselling services were closed by the time court finished.[223]

240. The plaintiff gave evidence that she noticed changes in her parenting after about seven months in the SSOU. It got worse and her children's father noticed, causing arguments between them.[224] The plaintiff would instruct him to always check on the children whilst at the park, and she began doing laps around the school after dropping her children off in the mornings to make sure they went into school. She would read her son's crèche reports intensely and question the children about what had happened during the day.[225] She would look at her children's pictures, 'because pictures show a lot'.[226]

241. As time passed, the plaintiff's parenting became even more abnormally protective. She would not let her children play with others. She would want to stay with them at their extracurricular activities, go to toilets with them, and stand in the middle of the playground to ensure no-one approached them. She would constantly check they were in their beds at night. She would make sure they were always in front of her when walking in the street and not leave them in anyone's care except their grandparents. When walking down the street, if an elderly man made a comment about how her children were beautiful, she would see him as a paedophile.

242. She also became fearful for her own safety, especially when walking through carparks. She became scared going to the supermarket at night, whereas she never used to be. She would check windows and doors. Any noise would startle her. She would sleep with the lights on, and her dreams disturbed her.[227] She would dream about her cases with child complainants and see her own children in the dreams. It felt very real when she woke up, as if something had actually happened to her own children.

Plaintiff's remarks at the April 2011 resilience training

243. As stated earlier, Gus Carfi ran a resilience training session at the SSOU on 20 April 2011. OPP records show that the plaintiff attended but she could not recall it.[228]

244. Mr Brown had a memory of the plaintiff speaking about being alert to paedophiles at swimming pools at that session. She spoke of being at the swimming pool and of her sense of being uncomfortable with people looking at her children. However, he saw her remarks as an example of the effect that working in the unit could have, and of 'sharing a feeling that probably everybody had experienced at some point', and a hypervigilance about paedophiles 'we probably all think about anyway'.[229] He continued by saying, 'it didn't to me set off an alarm bell that she had a particular problem. She was merely providing this as an example, ah, of the, um - the effect that this sort of work we do, um, might make you a bit more, um, sensitive to that type of concern'.[230]

245. Ms Robinson said the session with Mr Carfi was a 'free flowing discussion forum' where staff could share their experiences on how their work impacted upon their personal lives and have their experiences validated. Staff made 'sweeping, broad statements' at the session, such as saying that each time they got into a taxi they thought the driver was a paedophile.[231] She said the plaintiff spoke of being with her children, looking around, and regarding everyone as a paedophile.[232] She believed the plaintiff was sharing what 'appeared to be a collective sentiment' and was 'very engaged' in the training. She did not believe the plaintiff's comments related to mental ill-health and they did not make her concerned. After the session, she said that 'we debriefed with Gus Carfi' and nothing urgent was flagged as requiring attention.[233]

246. Ms Aitken also recalled the plaintiff referring to her hypervigilance about her children at the training session.

247. None of the witnesses who attended the session referred to any discussion during the training specifically about the concept of vicarious trauma, PTSD symptoms, or psychological health conditions that might relate to the work, despite the evidence as to discussion by staff at the workshop about how the work at the SSOU affected them. No evidence was given that the 2011 Staff Memo provided to management two days earlier was discussed.

248. Mr Carfi was not called by the defendant to give evidence about the content of the session or the response of participants.

Plaintiff's reaction to being allocated the Lim[234] case

249. On 9 June 2011, the plaintiff emailed Mr Brown and Ms Robinson in relation to a case she had been allocated, stating:[235]

Subject: [Lim]

Hi [Mr Brown] and [Ms Robinson]. I have noticed that I have been allocated the above matter and I must say to you both that realistically I am unable to handle this file with my current load. I have trials for the next three weeks and am struggling to prepare things in between. I have to come in on the weekend just to get back on top of my other work. ...

... I am sorry, but I must have realistic expectations of myself and my work load at the moment. Let me know your views if you wish to discuss further.

250. Around 10 minutes later, the plaintiff sent a one-line follow up email stating: 'I am happy to hold onto it for the trial in July however I do not have time to do the prep before.'

251. The plaintiff gave evidence that the Lim file had been allocated to a junior solicitor who had not properly undertaken what was required 'and it needed to be fixed immediately'.[236] Ultimately, she was required to retain the file. She said it was a complex file and she only had two weeks to get it 'back on track', which involved drafting lengthy tendency and coincidence notices. At the time, she was running multiple other trials.

252. The file involved two girls who were abused by their grandfather from the age of seven. The plaintiff said she became heavily involved in the case and was eventually able to get the matter back on track.

253. Regarding the symptoms she had been experiencing at the time of the memo, the plaintiff said that by this time: 'They were getting worse ... I only prepared everything on time because I worked all hours of the morning to get (the matter) ready. At that time my symptoms were deteriorating rapidly.'[237]

254. She said that one of the complainants in the case 'was more afraid and more vulnerable and fearful of giving evidence', and that she 'worked very closely' with WAS 'to give her the courage ... [and] confidence' to give evidence.[238]

255. When Mr Brown was asked about the plaintiff being allocated the Lim file, he could not recall if he or Ms Robinson spoke to her about taking on the case, but he insisted he would not have 'forced' her to do it if she could not take it on.[239] Ms Robinson said that, at the time, the plaintiff's workload calendar was showing that she had capacity, but because her calendar was not up to date, 'there was a clash or pressures on her'.[240]

256. Ms Robinson said that, in response to the plaintiff's email about not having capacity to take it on, they planned to arrange assistance for her with the preparation of the file. However, when questioned further, she agreed she was aware that the plaintiff was taking airport-size suitcases home and working until midnight or 1.00am on weeknights and working on weekends.[241]

257. On 11 August 2011, the plaintiff became unwell at work. The Lim trial was ongoing at that time. She gave evidence that she recalled becoming extremely dizzy. She remembered being in the office of another SSOU solicitor, Antoinette Ellul, and holding onto a filing cabinet because she thought she was going to faint.[242]

258. At 2.16pm that day, she emailed Ms Ellul, copying in Mr Brown, asking if another solicitor could attend a WAS conference for her at 4.00pm that day. She explained: 'I do not think I will last the rest of the day. I truly am not feeling well.' However, she said that she would do her best 'to stick it out' if required. A follow up email thanked Ms Ellul and asked her to come by her office 'sooner rather than later', saying: 'I am not sure how long I will be here as I am feeling terrible.'

259. After going home early that day, the plaintiff was away on sick leave until 29 August 2011. The plaintiff said in evidence, that she was not sure exactly why she was unwell during that time, but believed the cause was stress-related.[243]

260. Whilst on sick leave, the plaintiff was admitted to hospital and underwent an iron infusion. Also, during this time, she was informed that the more vulnerable complainant in the Lim case had attempted suicide on a day when the plaintiff was not there. She said: 'I held myself responsible ... because she called me her guardian angel that gave her strength.'[244]

261. When Ms Robinson was asked in cross-examination if she recalled that a complainant in that matter attempted suicide when the plaintiff was absent from work, she said she recalled something to that effect.[245]

262. The plaintiff made an appointment with Mr Carfi during her sick leave, on 18 August 2011, but gave evidence that she could not get to the appointment.[246] She had previously made an appointment with Mr Carfi in March 2011, which she was also unable to attend. On 22 August 2011, she attended Dr Omkar and was referred to psychologist, George Foenander.[247]

263. Mr Foenander's records show that the plaintiff had her first session with him the next day, on 23 August 2011. His handwritten notes from the session, which were tendered at trial, record information on the plaintiff's family, marital background (including previous physical abuse within her marriage), professional background, and medical issues (including an iron deficiency and migraines). The notes mention being separated for 2 years and a 'Difficult 5 years'. The notes also refer to the plaintiff mentioning that she worked with paedophiles and referring to the attempted suicide of a child complainant[248] (being a reference to the Lim case). The notes for this visit also include reference to finally leaving her partner, lots of legal issues, and refer to the plaintiff having a new partner who is a lawyer. Regarding medication, the notes state, '[t]ried St Johns wort 2 years- when my jaw got broken, GP, Valium, migraines', followed by the words Lexapro and Cymbalta and a question mark. Mr Foenander said this referred to previous physical abuse by her husband and to his opinion that she should be on an antidepressant medication like Lexapro rather than Valium.[249] He agreed that when he suggested a diagnosis of depression to her, this was because, up until that stage, that was what he had been focusing on.[250]

264. Mr Foenander was extensively cross-examined about his notes for this and other visits and at times, had difficulty finding his way around his notes and offering precise recollections about matters put to him.[251] This detracted from some of the detail of his evidence. It was put to him in cross-examination that his notes showed that the stressors raised by the plaintiff in her first session with him were almost exclusively to do with her private life, other than the reference to the child complainant's attempted suicide. Mr Foenander replied that he thought there were 'corresponding work stressors'. However, he agreed that if the plaintiff had told him she was distressed due to exposure to graphic images, he would have included that in his notes.[252]

Disagreement with Mr Brown on return from sick leave

265. The plaintiff returned to work on 29 August 2011. She said she went in early that morning to get a head start and check emails; however, she ended up having a distressing conversation with Mr Brown.[253]

266. The plaintiff gave evidence that Mr Brown told her he could not allocate any more files to her. She said Mr Brown told her she was not coping and that others had noticed she was not coping. He mentioned that she was the only single mother he knew working full-time, and suggested she consider moving to another unit and reducing her workload. The plaintiff felt he spoke in a 'forceful' manner, like he was angry, upset or disappointed. She said it was not a sympathetic conversation. She felt hurt and insulted.[254]

267. When asked if any steps had been taken prior to then to lighten her load, in terms of the volume or content of her work, the plaintiff said that had not occurred and that she had been managing several trials at once.[255]

268. The conflict between the plaintiff and Mr Brown that morning led to an exchange of terse and emotional emails commencing at 12pm, with an email from the plaintiff to Mr Brown with the subject title, 'Incident this morning'.[256] The plaintiff gave evidence that she walked out of the office after her conversation with Mr Brown, then sent him that email which she said was 'almost a file note' of their earlier conversation.[257] A copy of the plaintiff's 12pm email was tendered in Court. It was long, detailed, and charged with emotion.

269. It began by describing a tense exchange about the plaintiff seeking permission to leave work early for a doctor's appointment at 4.30pm. It says the plaintiff returned 10 minutes later to see Mr Brown as she felt 'confused and surprised'. The email went on to describe another exchange about a doctor's appointment two weeks' earlier (when the plaintiff felt dizzy), saying Mr Brown told her at that time that she 'had other issues in [her] life' like her children being sick, although he knew her mother was caring for her sick children, and that she had in fact been working back late throughout that week.

Today was my first day back at work after two weeks off on sick leave as I have genuinely been unwell ... I apologized to you on the phone for being unwell as it was beyond my control ... and even continued working on my matters from home despite being on sick leave ... I have come back today ready to do my normal duties despite my doctor recommending I take further time to recover ... I asked you if I had done anything wrong or failed you and the unit in any way as I was most concerned and surprised by the way you have spoken to me of late and your general attitude towards me. You responded saying Zag 'you are just not coping with your work, I can't allocate any files to you' I responded saying that I wanted you to point out where you feel I was not coping? ... You could not point to anything in my work but responded that I was the only mother of two you knew that worked full time and now was a single mother and that I should not be working full time in a busy unit like ssou. I responded saying that my work load report showed I have been in back to back complex trials since July to October the majority of them being child complainants with strict deadlines - and notices to prepare ... I always work hard, I have never let my personal issues interfere with my professional life. I am grateful for all your understanding and assistance during my family law matters and during times my children were sick and I would come into work and continue working as I had no care for them with them sleeping in my office. I thought I was doing the right thing by the unit, I thought I was being dedicated and conscientious of my work ... In a recent file review you praised me for 'not dropping the ball despite all going on in my life' and now you are saying I am not coping? I fail to see how? ... Recently when you and [Ms Robinson] allocated matter of [Lim] to me ... I expressed major concern that I had only 2 weeks to prepare a full trial ... I expressed concern twice yet I was told to keep the file. I kept it and worked till 1am most nights from home preparing the notices and trial ... I worked every night from home and came in on weekends even public holidays to produce the best work possible and keep on top of all my matters to have you today say to me 'you can't allocate anything to me and I am not coping' 'you have too much on in your life and should not work full time' it's not just me, others think you not coping' yet you can't tell me where I have failed you despite saying it's always my matters that need covering. Of course they need covering I can not physically be in more than one matter in court to instruct ... You have stripped my pride from me today I feel discriminated against as a single mother working full time and you have labelled me as you clearly stated that you are not the only person with this view. You have made me feel I have no hope for permanent that I submitted application for yesterday. I feel surprised ... You have only given me positive feed back about my work.

I then asked if you felt I should no longer be in the unit and you stated it may need to be addressed with Stuart Ward. I am surprised and lost for words with what I have heard today. I am a passionate member of staff. You have shamed me today and made me feel that I have no incentive to work in ssou. If you had an issue with me why was it not addressed earlier?, I can not see where my work is lacking?

When I asked you repeatedly you could not answer ...

My personal matters I have confided in you as my manager you are aware are not fresh. My marital issues have been ongoing for years yet no one at work till recently knew. That shows my personal life has never interfered with the pride I take in my work. Me working full time as a mother of two has always been the case even when I was married ... I am dedicated enough to not even ask to work a day from home. I see that I am coping at work and have managed to complete my work and meet all deadlines. I have never failed the unit and team. I believe I am a strong team player and a dedicated member of staff of the OPP.

I am sorry despite you telling me you have no time to deal with this confrontation today and me saying I can't stay now at work as I am upset and you suggesting I go out for a coffee 'you can't just leave' I don't think I can come back today as I am surprised about your views and those that others you say have too.

[Mr Brown], with the greatest if respect I am sorry but I can not come in for the rest of the day ... I will be asking to make an appointment with Stuart Ward in the next day or so as I feel clearly discriminated against that now I will never stand any chance if [sic] promotion in the unit and that I have been topic of conversation within the team ...

I still fail to see how I have failed you, my work is up to date ...

271. Regarding her dispute with Mr Brown, the plaintiff said in evidence:

At that time, I was a single mother and had no assistance from my ex-husband and I had to work full-time but I was very good at what I did. If I had been okay, I could have done better. However, I met all my deadlines and did all my work. That didn't mean the emotional side wasn't happening in the background. What [Mr Brown] said made me feel insulted regarding my pride in my work. I felt put down, and I felt my work was not recognised, despite working long hours and taking on extra matters.

272. Around 45 minutes later, Mr Brown responded by email to the plaintiff. In his email, he said there were inaccuracies in the plaintiff's email, then went on:

Most importantly, I did not say to you that others in the team have been talking about you. Also, it is unfair to say that you now feel discriminated against in any future job applications and I am disappointed that you would imply that that would be the case. I'm also disappointed that you have chosen to just leave for the day following our conversation rather than getting on and dealing with your matters. Other members of the team have agreed to Instruct for you this morning In two of your matters so that you could get on top of your emails and sort through things after your absence.

I believe I have been exceptionally understanding and flexible as your manager. I'm really surprised that would say that you will take things up with Stuart.

I hope we can talk sensibly about this.

273. Around two hours later, the plaintiff sent Mr Brown another email, stating that she was too emotional to return to work following their conversation. Further, that her reference to Stuart Ward was prompted by Mr Brown's suggestion that she no longer belonged in the unit, and that the matter might need to be addressed with Stuart Ward. She reiterated her commitment and dedication to working in the SSOU and objected to being made to feel 'like I am not coping'. The plaintiff suggested a chat with an independent person present and enquired as to how others felt that she was not coping. She concluded by expressing her hurt and emotion at his comments.

274. In cross-examination, the plaintiff was asked whether she told Mr Brown about her physical health issues. She said he knew she had been dizzy and unwell and sought to go to the doctor. She said he refused her request for time to go to the doctor, which she could not understand.[258] The plaintiff said she loved her job and would have said that to Mr Brown, but insisted she also told him that she was not coping emotionally, although she could not recall the exact words she used.[259] She explained, 'expunging things from my memory is very different to being a competent, capable solicitor'.[260]

275. Mr Brown gave oral evidence about what occurred on 29 August 2011. He said that he had an argument with the plaintiff because he was frustrated with her.[261] He perceived that she had come in late that day, which she denied, and they had a disagreement about that. He said she then left the office and sent him the message above.[262]

276. Mr Brown said he was concerned about what was going on in the plaintiff's life and the impact on the rest of the team. He said he queried if she was able to work full-time with 'very difficult personal circumstances'. Mr Brown said her response to that was to assure him she 'had no trouble'. He believed she was 'offended at [his] suggestion she had too much on her plate'.[263]

277. When it was put to him that he could not reasonably be frustrated at her for being sick for two weeks, he said he believed she had come in late on 29 August 2011 and that she was not telling him the truth.[264]

278. On 29 August 2011, the same day as her argument with Mr Brown, the plaintiff had her second consultation with Mr Foenander. Notes from that consultation include the words: 'Check Care Plan Give IPT Question re relationships and Depression'. Mr Foenander said he intended to give the plaintiff a questionnaire. The notes include reference to problems that the plaintiff was having with her new partner and problems at work. Regarding her work, the notes state:

Boss again had a go at her,

He's aware of her health issues

Applied for promotion

'I'll take it to the executive' re boss

Self-worth, security - alone , relationship, politics at work, works long hours, no gratitude

What is ct suffering from Anxiety & PTSD

Depression? Losses[265]

279. In cross-examination, Mr Foenander explained that he had asked the plaintiff what she thought she was suffering from and she mentioned anxiety and PTSD,[266] and he responded to her: 'What about depression?'[267] Mr Foenander agreed that it was the plaintiff who first mentioned PTSD, but said that he had it in the back of his mind.[268]

280. When asked if the plaintiff's stressors 'overwhelmingly related to her personal life', Mr Foenander said they related to her 'work and personal life'.[269] He was again asked if he would have made a note, had the plaintiff said she was troubled by exposure to graphic images, and agreed that he would have done so.

281. On 10 September 2011, the plaintiff had a third consultation with Mr Foenander. His notes from that consultation refer to the plaintiff's 'Relationship and Depression'. Regarding her work, the notes state, 'Ongoing issues with Boss, Pay [reduced] but no higher duties, She saw the Executive'. He testified that she had told him she was not being paid for higher duties and that she had seen the executives to try and work something out.[270] Further inscriptions in the notes expand on the relationship problems with her new partner.

282. It was put to Mr Foenander that, again, his notes did not refer to exposure to graphic materials, and the following exchange ensued:[271]

Counsel: ... You haven't written down anywhere in these notes, as far as we've got now, to her having distress because of exposure to graphic materials ... you haven't in the materials so far, when you're identifying the stresses in her life, concluded [sic] reference to problems because of ongoing exposure to victims of sex offences and photographs and video re-enactments?

Mr Foenander: Yes. I haven't written it down. I - I was - I was aware of it, but I haven't written it down.

Counsel: ... If she told you about that and described that as a significant stressor in her life, why didn't you write it down?

Mr Foenander: Well, she was - I know she was having a lot of stress at work.

283. The witness conceded that there was no exploration of the plaintiff's particular work-related stressors in his notes.

284. The plaintiff's next appointment with Mr Foenander was after 9 February 2012. She had an appointment scheduled on 22 October 2011 but did not attend.

285. In September 2011, the plaintiff met with Mr Ward. She took Ms Aitken along as a support person. The meeting was arranged because the plaintiff was being underpaid. Ms Aitken recalled attending the meeting, but could not recall what was discussed at the meeting or whether it related to a pay dispute.[272] However, she said the plaintiff seemed extremely stressed, agitated and upset, which was why she went as a support person. She said that, in conveying her position to Mr Ward, the plaintiff was 'certainly extremely stressed'.[273]

286. An email dated 25 May 2012 was tendered by the defendant explaining the pay 'glitch'. However, at the time of the underpayment, the plaintiff thought Mr Brown had deliberately intervened to reduce her pay.[274]

287. There were annual performance review cycles in the SSOU. An earlier performance review cycle was co-signed by the plaintiff and Ms Fatouros at the start of the cycle and then co-signed by the plaintiff and Mr Brown at the end of the cycle.[275]

288. On 13 September 2011, the plaintiff and Mr Brown co-signed a document for the 2010-2011 performance review cycle.[276] The document showed that the plaintiff had met all her performance outputs.[277] One of the performance criteria was maintaining an 'appropriate professional distance' from victims. The plaintiff said under cross-examination that she dealt with complainants 'with absolute professionalism', although she 'wasn't coping with re-living what they were re-living'.[278] She insisted that she was an 'excellent' solicitor but that what was going on in the background was 'very different'.[279]

289. On 27 October 2011, the plaintiff attended another meeting with Stuart Ward. She took another SSOU solicitor (Ms Ellul) as a support person. The plaintiff said junior lawyers were approaching her regarding the confronting nature of pornographic material. She wanted to raise this with Mr Ward, saying: 'I was trying to protect them and prepare them for the things that I hadn't been prepared for.'[280] The plaintiff felt that management were 'pushing things under the carpet'. The plaintiff said her aim was to discuss issues of concern to her and to highlight to the OPP executive that there was no training for staff entering the unit, which she felt was imperative. She believed it was important that the issue be addressed and wanted changes in the Unit, as she was aware of the impact that the work was having on her 'psychologically and emotionally'.[281] She recalled speaking to Mr Ward about these matters and telling him there should be more training implemented.

290. Mr Ward was not available to give evidence due to ill health at the time of the hearing. The plaintiff tendered Mr Ward's very brief handwritten notes from the meeting.[282] The notes are headed: Zagi, Antoinette, 27/10 SSOU. The body of the notes contain the words: 'Specialisation', 'only small no of [illegible] specialists', 'junior staff' 'pornographic material', 'false hope of promotion', 'Junior staff promoted', 'complaints from bar', 'brought to Mgt attention' 'Empty promises' 'promised promotions' 'Mentoring' 'conferencing witnesses 'External psychologists'.[283]

291. The plaintiff gave evidence that, by the end of 2011, she was feeling burnt out.[284] She felt that she was deteriorating and had some annual leave and long service leave owing to her.[285] On 10 October 2011, she applied to cumulate the two forms of leave and take that leave at the end of the year.[286]

Oral evidence about the plaintiff's demeanour and behaviour in 2011

292. Mr Schrapel was asked about how the plaintiff appeared during 2011. He said:

She, at first, started to get quite angry and quite distressed and quite upset at the way that she was being overloaded with work and not being listened to. And that was a collective experience ... The upsetting part was when, to use a colloquialism, the fire started to go out and she just started to fade away ... to withdraw ... And I was quite concerned for her.[287]

293. He said he could see that she was struggling and believed the signs were obvious and unmissable.[288] He said he could tell at the staff meeting leading to the 2011 Staff Memo, and from discussions at the time with the plaintiff, that she was 'really really having a tough time of things' and that the situation of SSOU solicitors 'was weighing on her very heavily'.[289] He said she was 'very strident' in stating that as a group they had to do something about the situation.[290]

294. He had previously understood that the plaintiff had a friendly working relationship with Mr Brown, but testified that in the lead up to her departure from the unit, she was expressing disappointment and bewilderment at his lack of motivation to fix what was a broken unit and help a struggling employee.[291]

295. He was cross-examined about his conversations with the plaintiff at the time. He said they talked about stressors at work and how they affected her home life. He said he was also aware of occasional issues with her ex-partner and home stressors.

296. It was put to Mr Schrapel that the plaintiff would have appeared throughout 2010 and 2011 as someone who was 'enthusiastically working hard and doing a good competent job in a difficult area'. He replied, 'That dissipated over time ... as I said in my evidence in chief the Zagi that I knew at the start had virtually disappeared by the time she left the unit'.[292]

297. Ms Aitken gave evidence that she saw the plaintiff most days in 2011. She said that during that time the plaintiff appeared increasingly stressed, agitated, drawn, tired, and overwhelmed.[293] She said the changes were incremental and subtle, but that looking back, she could see that things were getting progressively worse.[294] She also appeared distressed at the meeting they attended with Mr Ward in September 2011.

298. Ms Aitken could not recollect the plaintiff complaining about the content of her files, apart from her comments at the resilience training session in April 2011. Separately, she was aware of some issues in Ms Kozarov's personal life in 2010 to 2011.

299. Ms Aitken gave evidence that, prior to becoming unwell, the plaintiff was terrific at her job and she could not fault her level of file preparation. She said the plaintiff was a 'very knowledgeable' and a 'very committed, very hard worker'.[295] In cross-examination, she agreed that the plaintiff maintained her work ethic, mentoring, and professionalism throughout the entirety of her employment.[296]

300. Mr Brown said the plaintiff loved talking about her files and the complainants she dealt with, even giving a nickname to her favourite complainant.[297] He was questioned about the plaintiff's change in behaviour in 2011. He said it was not his role to inquire into her mental state.[298] It was put to him in cross-examination that there were 'red flags',[299] such as the plaintiff discussing her hypervigilance and the effects of the workload at team meetings, the fact that she signed the 2011 Staff Memo, and her email regarding being allocated the Lim case. Mr Brown responded by saying that the plaintiff had assured him she was on top of her work and was 'putting her hand up for other files'. He also said she was aware of the EAP and he did not accept that she did not have time to see Mr Carfi.[300] He said that while he was aware the plaintiff had personal issues with her family, she never specifically said anything to him about vicarious trauma. At her September 2011 performance review, she did not say that she wanted to leave the SSOU or that she was not coping mentally. Her review showed that she was performing well and that there were no concerns.

301. Mr Brown said he did not question anyone specifically about the symptoms listed in the 2011 Staff Memo. However, he invited staff to see him in his 13 May 2011 email. He was asked whether the fact that no one came to him to voice concerns about their mental health indicated the ineffectiveness of his response. In reply, Mr Brown stated that they may have gone to see Mr Carfi but that was not known to him.[301]

302. Regarding his remark to the plaintiff on 29 August 2011 that she was not coping, Mr Brown said he thought she had too much on her plate at the time with her personal situation.[302] She would always assure him not to worry about her files and say that everything was under control.[303] The plaintiff did not tell him that she had started to see a psychologist, Mr Foenander.

303. After their August disagreement, Mr Brown believed he and the plaintiff had put the problem behind them and resumed a co-operative relationship. They still had regular file reviews and she did not tell him she was not coping mentally. She did not ask to be moved from the SSOU.[304] He had no concerns about her.[305] He expected that she would return to work in the SSOU after her end-of-year leave period.

304. Mr Brown did not think the plaintiff was reluctant to raise concerns with him, as she had previously made him aware of personal matters causing difficulties with her getting to work, regarding her health, the breakdown of her marriage, her children, and moving house.

305. Ms Robinson was overseas for seven weeks during August and September 2011.[306]

306. She was asked about her knowledge of the plaintiff's physical health issues in 2010 or 2011. She was aware that the plaintiff had started taking leaves of absence for medical reasons. She said: 'I wasn't across what they were at the time of her taking leave and that throughout the course of those years it - we - it did become known to us that she was unwell and reasons for that, but not at the time she was taking leave, no'.[307]

307. On one occasion, she received a call from the plaintiff's friend informing her that the plaintiff was in hospital and was going to require extended leave, and that she had had some complications around ill-health.[308] She was upset to hear that and 'worried for Zagi'. She sent out an email to the team to let them know that Zagi was going to be on extended leave, that she had had some complications, and also arranged for contributions to send her some flowers.[309]

308. She said she knew of issues in the plaintiff's personal life. She said, when the plaintiff separated from her husband and was going through Family Court proceedings, she told her 'very confronting and upsetting' things about the relationship and being a victim of domestic violence, although Ms Robinson did not know when the violence had occurred. She said the plaintiff was suffering an 'extreme amount of stress and trauma'.[310]

309. Around that time, the plaintiff had difficulties with childcare and with punctuality at work.[311] There were times that she would go straight to court from home for the 9am list. Ms Robinson said: 'It was no issue, but we sometimes had to run things up to court or drop files to her.' The plaintiff also brought her children into the office at some point. Ms Robinson said, 'there was [sic] clearly issues for - going on with her, so I didn't feel it appropriate to make further inquiries as she was obviously already experiencing some level of difficulty'.[312] However, the plaintiff always kept her abreast of what was going on with her files.

310. It was put to Ms Robinson that other evidence had been received by the Court that, over the course of 2011, the plaintiff's demeanour had changed and at times she had been tearful and distressed. She replied: 'I definitely saw tears.' She said she was 'sensitive to her tears' because she was aware of her family situation.[313] Ms Robinson was cross-examined about why she believed the plaintiff's tears related to family issues and why she did not think that the plaintiff was impacted by the attempted suicide in the Lim case:

Counsel: Yes, but there was no reason to confine it to her family situation. If she's having a complainant she knows and has relied on her as her guardian angel, has attempted suicide, there's no reason to think that's not going to have an impact, is there?

[Ms Robinson]: ---No, but that hadn't been communicated to me directly. I could only display concern about the matters that she raised with me directly.[314]

311. Regarding the health symptoms referred to in the 2011 Staff Memo, Ms Robinson felt she could not probe into whether staff were experiencing symptoms of vicarious trauma and no one directly told her, 'I'm experiencing these symptoms'.[315] When the plaintiff went on long service leave in December 2011, although Ms Robinson 'had concerns at a human level' about '[the plaintiff's] family, sort of, plight and the care of her children', she did not hold any other concerns for her. She expected she would return to the unit after her leave.[316]

312. The plaintiff was cross-examined about her applications for promotion in 2011. In March 2011, she applied for an Acting Grade 5 position, either in the SSOU or in General Prosecutions.[317] Ms Robinson was on the interview panel for the plaintiff's application for an Acting Grade 5 role in March 2011. She said the plaintiff's attitude to her work was very enthusiastic, passionate, and driven, and she wanted more complex cases 'to advance her legal practice and her skill set'.[318] According to Ms Robinson, the plaintiff had said she loved working at the SSOU and wanted to advance in the unit.

313. On 28 August 2011, when her fixed term as an Acting Grade 5 Solicitor was soon to conclude, she applied for a permanent Grade 5 position in the SSOU.[319] At that time, she was still away on sick leave. The application was lodged the day before her falling out with Mr Brown.

314. A subsequent performance assessment signed by Mr Brown and the plaintiff on 13 September 2011 showed that she had been meeting all her key performance indicia.[320] By that date, the plaintiff had reverted back to her permanent VPS-4 role.

315. The plaintiff agreed to knowing that the promotion (to a permanent position) would increase her workload. She said she was coping with the workload, but not coping with the emotional side of things.[321] When asked if she conveyed any concern in her interviews that a promotion might affect her mental health, she said her emotional state was not raised.[322] The plaintiff regarded her emotional problems as totally separate to the way that she dealt with her cases.[323] She said: 'I would have been discussing in my interview ... my capabilities as a solicitor ... not expunging horrific memories from my mind.'[324]

316. Cross-examined about statements made in her written application for promotion that she was well-equipped to deal with victims and witnesses, was a team player, and had the ability to mentor and influence junior staff, the plaintiff was asked what tools and support she offered to junior staff. She said she was fully aware of the emotional and psychological effects of the work and that juniors would often approach her about how to cope when first confronted with child pornography. She would tell them it was 'just part and parcel of the job'.[325] However, she later began to approach Stuart Ward about her serious concerns that younger staff needed some sort of system in place to cope. [326]

317. The plaintiff was offered and accepted a permanent role as a full-time Grade 5 solicitor, commencing 3 November 2011.[327] Her workload remained intense.[328] She was running complex files, which further exposed her to graphic images and child pornography.[329]

318. When asked if she sought out the more complicated matters, she said:

No, I wouldn't seek them out. I knew that in order to get a promotion that you would need to do complex matters ... My work at the sex offence unit as a solicitor is very different as to how I was feeling emotionally and how I was suffering inside. My obligations as a lawyer ... I took very seriously ... I took great pride in my work. So how I felt emotionally sir in the background, I felt that was part of my job.[330]

319. Regarding the plaintiff seeking out more complex matters, evidence was put forward of an email sent out by Ms Robinson on 26 October 2011 to staff relating to the departure of a senior SSOU solicitor. Staff were offered, as 'a development opportunity', the chance to take on some of her files. Ms Robinson said 'the plaintiff put her hand up to assist'. The email in question reveals that the plaintiff offered to assist from April 2012 onwards[331] (six months hence).

Notification of serious return to work issues in February 2012

320. The plaintiff was due to return to work on Tuesday, 7 February 2012. One week before that, on Tuesday, 31 January 2012, she emailed Ms Robinson (as Mr Brown was on leave) requesting to extend her leave by four days and notifying her of two other days she needed to take off work.[332] She required the extra leave to care for her son when he was not in school. Her new return date was to be Monday, 13 February 2012.

321. On Thursday, 9 February 2012, at around 8am, the plaintiff emailed Stuart Ward and Craig Hyland with the subject heading: 'URGENT - Serious Return to Work Issues'.[333] The email said:

Good Morning Stuart,

...

The purpose of this email is to inform you that I am anxious and distressed about returning to the SSOU now that I have had time off work and have been able to assess the effects of working in this unit and the subject matters I am exposed to as mother of two very young children. As such, I am demanding that my issues with working in this unit be taken seriously and that I be immediately transferred from this unit ... and be placed in another section.

Stuart, I have previously raised serious issues of concern with this unit along with major issues I have had with management within the unit and specifically comments made to me by [Mr Brown] that effect me [sic] and makes me feel discriminated against still to this day hence the reason I have not included him or [Ms Robinson] into this email ...

It's obvious that my previous endeavors to address these issues have been 'swept under the carpet' and despite applying for positions at level in the other building I am not even considered for an interview. This in itself is concerning as I cannot comprehend how I am not suitable for a mere interview for positions that I am already at that level. I was not applying u for a promotion but a transfer.

My time off work with my children has highlighted the effects that all the child sexual offending cases has had on me and it is clear to me now being removed from the work environment that it is effecting me [sic] as a parent and psychologically ... something as simple as taking my children to the local swimming pools becomes a panic attack for me as I find myself constantly on edge and scanning the surroundings for potential pedophiles that may be taking photos ... or using their goggles to swim under water to look at them or better still accidentally touch them. I can give you several more examples ...

I am returning to work to major lengthy back to back child complainant trials and believe that as a single mother that needs to be in the best possible mind set to raise her young children I can no longer work in this unit as it will have serious repercussion on me, my mental health and most importantly on my children.

Please take this email seriously and address my issues immediately. In the event that this is not immediately addressed upon my return to work I will have no choice but to take matters further.

Kind regards,

Zagi

322. Mr Ward responded via email that day. He said that to consider an immediate transfer or other options, the OPP would require medical material, supporting the basis for her request, and identifying the nature of the work that causes her distress and anxiety. He also said: 'I am concerned that you suggest that the matters raised by you have been swept under the carpet (to use your phrase).' The email commented that, at their meeting in October 2011, they had agreed that she and Ms Ellul would assemble their thoughts about her concerns in a more structured manner and let him know when they wished to continue the discussion. He said he was waiting to hear back from her.

323. At around 11.30pm the plaintiff responded to Mr Ward's email. Her response was lengthy and emotionally charged. It went into detail about matters she said were discussed at her previous meetings with Mr Ward. In it, the plaintiff also said she did not wish to share her medical files with management, saying 'their previous behaviour has shown no confidentiality or respect ... once matters are disclosed'. She said she could provide a medical report if required, but appeared exasperated with the request, saying (among other things): 'I am merely asking for a transfer before things could become more serious.' She also said:

I find it disturbing that an employer such as the OPP who prides itself on offering external services such as Carfi and psychologist Ursula, who specialises in workshops ... to assist with trauma suffered by staff as a result of images, content, and one on one dealings with complainants and families of some of the most horrific crimes of our society, yet you now question me as to why I request a transfer when these experts have lectured us as staff to seek a transfer when signs are present and it is getting to be all too much on our mental health. I find this rather contradictory of what is portrayed as being a caring work environment in relation to staff being exposed to material or subject matter that could scar someone for life.

324. In her email, the plaintiff informed Mr Ward that she did not wish to return to work until the matter had been resolved.

325. The next day, the plaintiff sent a follow up email to Stuart Ward around 7am[334] to clarify that, when she referred in her emails the day before to issues being 'swept under the carpet', she meant that Mr Brown (not Mr Ward) had 'swept issues and comments made to me under the carpet'. She went on:

Not once has he approached me to speak to me further about the incidents but rather it was me that constantly attempted to iron out matters. I was also referring to the fact that prior to seeing you about concerns about the lack of experience in the unit and the immense pressures the unit was under at the time that I had spoken to [Mr Brown] first. The reason I came to you was because I felt yet once again issues had been swept under the carpet by [Mr Brown] ...

326. The email concluded: 'I look forward to hearing from you as to what should occur as I am now not comfortable returning to work until these issues are sorted.'[335] At 10.30am, she followed up with a further email, reminding Mr Ward about the 2011 Staff Memo.[336]

327. At trial, the plaintiff was questioned about her emails of 9 and 10 February 2012. The plaintiff gave evidence that by that time, she had 'hit rock bottom'.[337] She used the word 'demand' when pleading that her issues with the unit be taken seriously, as she had already tried to raise those issues before.[338]

328. At the time, the plaintiff still hoped she could return to work at the OPP in a different unit. In relation to the request for a medical certificate, she said, 'I couldn't believe it ... with respect, after everything I had said and we have said as a collective, I can't believe they asked me for a certificate as to why I was requesting a transfer.'[339] She said SSOU staff 'were always told' by CARFI to seek a transfer 'if things aren't right', although she could not recall exactly when that was said or if that advice was given by Ms Benstead.[340]

329. Regarding her reference in her emails to matters being 'swept under the carpet', the plaintiff explained she felt ignored and not heard after 'time and time and time again' trying to raise issues.[341] She later elaborated that she was referring to:

All of the issues that were raised in the past, issues that were raised in meetings, issues that were raised in the memorandum, issues that I tried to setup appointments to speak to him about, the issues that we were all experiencing and myself ...[342]

330. The next week, on 15 February 2012, when she had been due to return to work, the plaintiff had another consultation with Mr Foenander. His notes show that the plaintiff discussed her work and its effect on her:

She took L.S. Leave.

Re work issues/ Executive not supportive.

Files Child Complaints a problem

She wanted to move in the DPP not to deal with children.

Spotted a pedophile at the Pool

Re children to school - 'I do laps'

So over protective of kids, eg. Mother's place.

I relive the cases... sleep dist

Sees the kids in dreams, kids use internet (f) at Ex. - no supervision

...

Children are the complainants in the dreams

Worry & ruminations about kids' welfare/; Fearful / phobic behaviour

331. When cross-examined that the sort of problems which the plaintiff discussed with him on 15 February 2012 were not communicated to him earlier, Mr Foenander agreed.[343]

332. Five days later, on 20 February 2012, the plaintiff had her next appointment with Mr Foenander. His notes from that consultation state:

...

Dealing with child abuse cases

Clenching? Atypical migraine

Tearfulness

Sorry for the victim and relates this to her children

Case where an 8 years old girl slashed her wrists and throat

I blamed myself , I was away in hospital with anaemia

Iron infusion , takes 9 hours, stress related

Social workers ring her for emotional support with the complainants

(Special Sex Offence Unit)

Apprehensive that someone (accused) stalking her because of her children

Advised to work in an area in Public Prosecutions that does not involve child abuse or sexual offenders

Court appearances - dealing with the child and the family

Effects [sic] her in many different ways.

333. Mr Foenander was cross-examined about when he first advised the plaintiff to restrict her work duties. He said, 'I knew the problems she was having at work. Ah, I knew about the paedophiles and so on ...', but he conceded that he had not judged it necessary to restrict her work duties until her consultation on 20 February 2012.[344]

334. On 22 February 2012, the plaintiff received a call from Mr Brown. That night, she emailed Mr Ward.[345] She complained that Mr Brown said, 'I don't really care what is wrong with you, I just need to know what to do with your files'. In her email, she said Mr Ward had assured her that Mr Brown was told to reallocate her urgent matters and she questioned the need for the call. Amongst other things, the plaintiff said she felt that she had been placed in an awkward position, because she was unsure when and if she would be back at the SSOU, as she was not yet aware of the 'precise conclusion of my medical report'. She had assumed Mr Brown was informed of her situation, as she had been working on files from home. The plaintiff indicated that Mr Brown's call and Ms Robinson's text message had caused her some stress. In evidence, the plaintiff said the call took her by surprise and hurt her feelings.[346] Mr Brown gave evidence that he vaguely remembered the call. He said, 'I really just wanted to know when she was coming back and whether I needed to reallocate her files'. He would not have wanted to know about her health issues as 'that's confidential and personal.'[347]

335. From February to April 2012, there were attempts by the plaintiff to return to work, but she was exposed to further experiences triggering her psychological symptoms. In that period, Mr Foenander prepared six reports and letters for the OPP,[348] which were tendered as exhibits.[349]

336. Mr Foenander's first report, dated 27 February 2012, outlined the plaintiff's presenting problem, symptoms, and background. The report said: 'The nature and demands of her work over the years have now appeared to have taken a serious toll on her psychological and physical well-being and on her children.' It referred to the effect on the plaintiff of the attempted suicide in the Lim case. It outlined symptoms of anxiety and sleep disturbances. It also gave examples of the plaintiff being 'vigilant and phobic' with intrusive thoughts and 'constant worry and ruminations' about paedophiles.[350]

337. The report diagnosed the plaintiff's illness as follows:

[The plaintiff] is suffering from moderate symptoms of a Post Traumatic Stress Disorder (PTSD). Her illness is deemed to have met the DSM-IV Criteria for PTSD and is work-related, in that it arose during the course of her occupation and work-related Stressors [sic] as stated in the body of this report. There is no previous psychological history to account for the illness.

338. The report said the plaintiff planned to return to work within the next week, but in a unit not involving child abuse or sexual offences: 'She currently seems capable to resume work after the next week but not in her previous position. She will need to be reviewed subsequently. She remains vulnerable to Decompensate [sic] during periods of increased stress.'[351]

339. In evidence, the plaintiff said she initially conveyed to the HR manager that she felt confused about having to leave the SSOU on the advice of her doctor. She said:

I saw myself as a failure of not being able to put those issues behind me and just continue like I had been ... I loved my job ... I did tell him [the HR manager] that. It was very difficult ... I felt like I - I was a failure, having to move.[352]

340. On 6 March 2012, Mr Foenander added a handwritten addendum to his first report, after the plaintiff was told she would be placed in the higher court appeals directorate, where there would be some exposure to sexual offence cases. He wrote:[353]

As stated in my previous report (27/2/12) above, [the plaintiff] remains vulnerable to Decompensate during periods of increased stress especially with respect to matters involving cases related to sexual offending as it would aggravate her current illness (PTSD).

The duration of her current illness is uncertain at this stage as it will depend on her further response to treatment and further exposure to sexual cases that could aggravate her PTSD. She needs to be away from exposure to such cases or material relating to those cases for the foreseeable future.

The nature of PTSD is such that any triggers or cues reminiscent of the onset of the illness will aggravate and maintain the PTSD. Therefore it is necessary that she should not be exposed to any such cues or triggers.

While she has explained to me that the intended role in the DPP is different in many ways, it is obvious that it will still encompass dealing with sexual offending and with issues that have contributed to her PTSD.

In view of the history so far the prognosis for response to treatment and to return to any legal roles involving sexual offending is guarded.

341. Despite Mr Foenander's opinion above, on 13 March 2012, the plaintiff began work in the higher court appeals directorate. The defendant had arranged that she not be given sexual offence files there. Unfortunately, a colleague approached her on her first day seeking help on a sexual offence matter, triggering significant distress.

342. On 14 March 2012, the plaintiff emailed the HR manager, Mr Ward, and Mr Hyland,[354] stating that she had been in a very upset, anxious state that morning and left the office to compose herself. The plaintiff outlined her heightened distress at being placed in the appeals section but being unable to explain to colleagues why she did not want to deal with sex offences there. She referred to rumours at the office about her having a nervous breakdown and concerns about confidentiality. She went on to say:

I feel labelled, ostracized and most of all most anxsious [sic] now as my return to work has been far from a pleasant experience not to mention the feeling of my confidential medical issues now privy to all to gossip about.

343. The plaintiff concluded her email by saying that she was too distressed and emotional to return to work that day. The next day she emailed them again about an expression of interest advertised for a 6-month Grade 4 position in the drug unit. She referred to the 'obvious benefits' of the role having no link to sexual offending, 'thus not putting my health at any further risk nor highlighting the fact that I am no longer able under medical advice to work with cases involving sexual offending'.[355]

344. Mr Foenander prepared a further report on 17 March 2012.[356] It said that the plaintiff had seen him that day 'because of an aggravation of her symptoms which seemed to have emanated from ... a breach of confidentiality and her being transferred to the Appeals Unit'. It noted that she had telephoned him in crisis on 14 March 2012, and on 16 March 2012 was in hospital due to 'a severe A-typical(sic) Migraine'. The report said that she continued to suffer from the migraine and increased symptoms of her illness, which he said had been 'aggravated as expected, from the reasons stated in my previous reports'.

345. Mr Foenander said the plaintiff was unfit to resume normal duties but was 'adamant to return to work' on 19 March 2012 for financial reasons. He concluded that the plaintiff needed to be placed in a unit that involved no sexual offence work and said: 'She is at risk of developing a major depression, in addition to a worsening of her PTSD if her work related stressors continue.'

346. On 19 March 2012 the plaintiff had a meeting at the OPP to discuss her return to work. The next day, she had a consultation with Mr Foenander and he wrote a letter to the OPP. He said her anxieties about her return to work had been allayed following the meeting. He believed she could return to work within a week provided she was put in a suitable unit.

347. The OPP created another draft return to work plan dated 27 March 2012,[357] offering the plaintiff a position from 29 March 2012 to 29 June 2012 in the Proceeds of Crime Directorate, managing confiscation applications related to non-sex offence victim compensation and drug prosecutions. Under the plan, the plaintiff would start by working two days a week and progress to five days a week if she was coping well.

348. The plan noted that the Proceeds of Crime Directorate was in the same building as the SSOU. The plaintiff would be on a different floor to the SSOU but some of the staff in the directorate were located on the same floor. Also, the directorate dealt with sexual offence related matters.

349. In a letter dated 10 April 2012, Mr Foenander said that the new return to work plan was 'not recommended'. He believed the plan would further aggravate the plaintiff's PTSD and foresaw 'a more drastic consequence' than what occurred when the plaintiff was placed in the higher court appeal directorate. He said that, under the plan, there would be 'distressing figures, cues and reminders' of the plaintiff's work in the SSOU.

350. Mr Foenander believed, based on his questioning of the plaintiff about the structure of the OPP, that Directorates A and B were most suitable for her. He also said that, if she was placed in an appropriate directorate, it was not necessary to have a staged return to work plan with precautionary approval.

I wish to draw the reader's attention to the repetitive themes and recommendations ... that seem to have been stated almost at [sic] nauseam in my previous reports. What is in her case a medical matter seems to becoming [sic] a medico-legal matter. This is preventing appropriate treatment as most of the time taken up in her appointments with me seems to be related to medico-legal issues rather than directed at treatment of her PTSD. If this continues I am inclined to suggest that she should consider submitting a claim for a Work Related Injury in order to assist with her treatment.[358]

352. The role in Proceeds of Crime was ultimately not attempted. A third draft return to work plan dated 12 April 2012[359] was put forward, offering the plaintiff a legal project role undertaking a discrete piece of work in relation to non-sex offence sentencing data, initially for a month. It stated, 'to maximise the chances of a successful reintegration back into the workplace a conservative approach has been taken'. It suggested placement in a 'non-operational environment' would minimise the plaintiff's exposure to aggravating cues or triggers and be reviewed after a month 'to ascertain if a return to an operational environment is appropriate'.

353. A string of correspondence ensued in which the plaintiff expressed concern about the plan, and distress about being told that the OPP wished to cancel her special leave. On 16 April 2012, the plaintiff emailed the HR manager,[360] explaining that she was not comfortable discussing the new draft return to work plan until she had discussed it with Mr Carfi and Mr Foenander. She also asked that her special leave continue until her return to work had been 'appropriately resolved'.

354. On 19 April 2012, the plaintiff met with Mr Carfi. She emailed him later that day saying their meeting had made her feel 'even more anxious' about her return to work. She expressed distress at not being offered an active role managing court matters in another unit and said:

I feel pressure to return to work without speaking to George and again it was reiterated that Craig is not willing to pay special leave past tomorrow ... I feel ostracised as I am being placed in such a non-legal role and yet I am told today that I cannot even set up an office as it is a temporary one that belongs to someone else and arrangements will need to be made for my things to be put elsewhere in the meantime. Not only has my role as a senior solicitor actively in court been taken from me due to PTSD and no role offered in a different unit ... but now I am made to feel that I don't belong anywhere in particular to the OPP and my normal work environment/surroundings will be removed from my vision making me feel even more segregated from my norm.

Please Gus, give the executives the psychological knowledge as to the effects this could have on someone. I don't want to fall into a depression!

Gus, I am feeling very down and saddened by this meeting today.[361]

355. That night, the plaintiff communicated with Mr Carfi again, saying that she did not believe the return to work plan was suitable.[362] The plaintiff complained that she felt 'pressured and backed in the corner'. She followed up with a short email to Mr Carfi on 24 April 2012, in which she asked: 'Am I correct in thinking that OPP is not interested in any other return to work plan?'[363]

356. The plaintiff gave evidence that, under the new plan, she was required to sit on a floor away from her peers and near the office of the Director, without having a place to keep her belongings, and she perceived she was being isolated and put into a data entry role.

357. Mr Foenander's final report, dated 30 April 2012, stated:

It is felt that the recent return to work plan is not suitable, for the following reasons:

The proposed Plan assumes that she is not medically fit for operational work. This is not the case, as stated in my previous report ...

Furthermore, being placed in the proposed new position prevents her from doing Court work or having a Case/File load. This would professionally undermined [sic] her status as a senior solicitor. Consequently, she feels that she has been demoted and ostracised especially since she will now not have her own office and the fact that her belongings have been packed away.

From her own account, as her ongoing work-related stresses do not seem to have been satisfactorily resolved and also as a result of the recent developments with respect to not finding her Suitable Employment [sic], she is now showing signs of a Major Depressive Illness in addition to her PTSD. In my previous report of 17 March 2012, I predicted that, 'She remains at risk of developing a major depression in addition to the worsening of her PTSD if her work-related stress continue'. This has now been borne out. I have therefore today referred her back to her GP, Dr Omkar, for prescription of anti-depressant medication in order to facilitate her psychological treatment. She is currently unfit for work.[364]

358. The evidence of Mr Foenander regarding the plaintiff's symptoms and treatment from around August 2011 until early 2012, as well as the reports he prepared on behalf of the plaintiff during her attempts to return to work, have been outlined earlier in this judgment.

359. In May 2012, the plaintiff began seeing a psychiatrist at the Melbourne Clinic, Dr Nitin Dharwadkar, who treated her until late 2014. During that time, he prepared the following documents:[365]

(a) letter to Allianz Australia ('Allianz')[366] dated 11 July 2012;

(b) Certificate of Capacity for WorkSafe dated 6 May 2013;[367]

(c) confidential psychiatric report for Allianz dated 27 May 2013;

(d) confidential psychiatric report for Allianz dated 9 April 2014;

(e) confidential psychiatric report for Allianz dated 5 June 2014; and

(f) referral letter to Dr Sam Assad dated 2 September 2014.

360. The 11 July 2012 letter and 6 May 2013 certificate deal with psychiatric treatment of the plaintiff and fitness for work, whereas the 27 May 2013 report recounts the development of the plaintiff's psychiatric illness, describes her ongoing symptoms,[368] and outlines her treatment. In the 27 May 2013 report Dr Dharwadkar refers to his mental state examination of the plaintiff in her first consultation, which led to a diagnosis of chronic PTSD. Regarding her progress since then, he notes that she had improved; however, she had persisting chronic PTSD and continuing adverse consequences on her lifestyle and vocational functioning.

361. In his earlier letter to Allianz Australia dated 11 July 2012, Dr Dharwadkar expressed the view that the plaintiff did not have the capacity to return to the OPP but could work as a lawyer in the private sector three days a week. He said the plaintiff needed to be 're integrated back into her profession' and voluntary work was a 'preliminary vehicle' for that. He advised that the plaintiff's treatment plan at the time involved Cognitive Behaviour Therapy ('CBT') and antidepressant medication.

362. Similarly, in the 6 May 2013 certificate of capacity, Dr Dharwadkar recommended the plaintiff engage in voluntary work prior to attaining paid employment. He also recommended that when she returned to work she ought not work more than 20 hours a week or on sex offence cases or 'under the umbrella of the Department of Justice (OPP)'. CBT and anti-depressant medication were still being administered.[369] Dr Dharwadkar said he prescribed medication because the plaintiff had started showing symptoms of major depressive disorder. He said she was on the highest range of dose of the prescribed medication.[370] When asked in evidence why it was necessary for the plaintiff to avoid any sex offence work, he responded: 'Because I think she had developed full-blown PTSD and any work of that nature would provide triggers and just exacerbate her continue [sic] and produce the full fury of all her symptoms.'[371] He sought to exclude work at the OPP because, 'early on when she was developing PTSD she was unsupported by management, so it would also - her relationship was quite irretrievable and that would prove to be a secondary stressor for her anxiety and depression as well'.[372]

363. Dr Dharwadkar's subsequent report of 9 April 2014 repeats and updates his May 2013 report.[373] It refers to the adverse impact of the plaintiff's illness on her social life, and lists ongoing symptoms.[374] Although the plaintiff had capacity for 15-20 hours of part-time volunteer work, this had been punctuated by reduced hours or days off when her symptoms were exacerbated.[375] It was also explained that major depressive disorder is a common 'side effect' of PTSD.[376]

364. In his final report of 5 June 2014, Dr Dharwadkar sought approval for TMS treatment which ultimately did not proceed. On 2 September 2014, he sent a letter to the plaintiff's GP (Dr Sam Assad) requesting that he refer her to another psychiatrist, as Dr Dharwadkar was ceasing his clinical practice. He repeated the plaintiff's diagnosis and symptoms in the letter, noting that the plaintiff had 'partially improved' and included a management plan, stating that the plaintiff had recently started working 'due to severe financial problems, despite [his] recommendations to the contrary, as she still suffers from persistent and distressing psychiatric symptoms'.

365. At trial, when questioned as to why he had not recommended that the plaintiff return to work in his letter to her GP, Dr Dharwadkar said that whilst she had been able to work in a volunteer capacity, her capacity to work was periodically disrupted by her illness and therefore her condition had not stabilised to a level where, in his opinion, 'she could perform the rigours and the pressures of a consistent job'. Although the plaintiff had returned to paid work due to financial pressures, Dr Dharwadkar said that 'she must have found it extremely difficult and extremely challenging to deal with the rigours of a proper paid job', particularly as she was also caring for children and still had 'several disabling symptoms'.[377]

366. Dr Dharwadkar gave additional evidence regarding the causal connection between the plaintiff's illness and the nature and content of her work, as well as how her symptoms impacted upon her capacity to enjoy life and work as a lawyer - which is outlined later in this judgment.

367. In a letter dated 2 April 2019,[378] Dr Stephanie Williams states that she has been the plaintiff's GP since 8 February 2018 and has been treating her for PTSD since 6 April 2018. The letter states that the plaintiff's condition is treated with Zyban (600mg daily) and intermittent use of diazepam as required. The plaintiff last saw a psychiatrist two years earlier. Dr Williams explained that she has been attempting to help the plaintiff find a new psychiatrist since their first consultation, noting the difficulties encountered in that process. The plaintiff had recently been accepted by the PTSD unit at the Austin Hospital and they were awaiting her first appointment there.

[The plaintiff] has had recurrent flares and more PTSD-related GP attendances since I took over her care in 2018. These have been so severe she has found it difficult to work or sleep. [The plaintiff] presents to the clinic well dressed and driven to continue her work in her field of law but her PTSD symptoms make this challenging. Her symptoms can be triggered by a vast array of precipitants, including - receiving phone calls with someone breathing on the other end of the line at odd hours; driving by certain areas related to previous cases; songs; odours. This has been a recurrent problem over the time. She is currently having a significant flare in symptoms as her court case draws closer.

369. Dr Alan Jager's reports were tendered by the plaintiff although he was originally retained by the WorkCover insurer.[379] He was not called in the proceeding. He produced his first report on 30 May 2012. He based his assessment on his interview with the plaintiff on 28 May 2012. A second report for the insurer was dated 17 July 2012 and a further report dated 12 April 2019 was addressed to the defendant's solicitors. Dr Jager saw and assessed the plaintiff twice (prior to each of his first and third reports).

370. In his first report, Dr Jager recorded the plaintiff's description of the evolution of symptoms such as dreaming about her sexual abuse cases and her own children featuring in the dreams, disturbed sleep and fluctuating appetite, and being anxious about the safety of her children and herself. At one point she thought a defendant was following her. She was checking doors and windows, scared in lifts and car parks and was hyper vigilant about her children's safety. She had enrolled herself in karate for safety. She saw her GP in August 2011 and was referred to a psychologist. She was then referred to a psychiatrist. She had declined medication, other than Diazepam. She was having cognitive behavioural therapy. During the assessment, the plaintiff was distressed, anguished, crying and picking at her nails, and spoke through sobs. Dr Jager, in reporting on the plaintiff's work-related injury, described her diagnosis as PTSD and Major Depressive Disorder. He stated (in answer to a question from the insurer) that non-work related factors that may possibly have impacted her condition included genetic predisposition, with a family history of depression in her father. Separation from her husband may have also been a contributing factor in the development of the condition. He said: 'She requires comprehensive treatment from her psychiatrist, including fortnightly consultations for individual therapy, high dose anti-depressants, use of a short acting sedative, such as Alprazolam and she may also require group psycho-therapy for up to 12 months.'

371. Dr Jager's report of 17 July 2012 confirmed his earlier diagnosis and said that, based on his assessment of six weeks previously, she did not have a capacity for full-time or part-time work and did not have capacity to return to work at the Department of Justice or the OPP.

372. Seven years later, in his third report, Dr Jager recorded that the plaintiff had returned to work as a solicitor initially in a commercial law firm in the CBD, and was now self-employed in her own family and criminal law practice. She avoided taking on sexual offence cases. She had attended Dr Dharwadkar for a long time and started taking anti-depressant medication in 2012. She had been referred to the Austin Hospital PTSD Clinic in late 2018 and was now taking anti-depressant and anti-anxiety medication, and a sedative as required. He listed the plaintiff's current symptoms and opined that the plaintiff still fulfilled the diagnostic criteria for PTSD, but the Major Depressive Disorder was now in partial remission. She required indefinite treatment with high dose anti-depressant medication. It was also appropriate that she saw a consultant psychiatrist, although three-monthly was sufficient. She was likely to continue to experience PTSD for the foreseeable future. Dr Jager mentioned that, when she attended on 25 March 2019, the plaintiff presented in a dramatic manner, and he identified an inconsistency in her report of the frequency of flashbacks, raising the possibility of embellishment and exaggeration.

373. Professor McFarlane is an international expert in the field of traumatic stress. His full credentials, including awards won for his work in that field, are set out earlier in the judgment.

374. The plaintiff's solicitors sent Professor McFarlane a letter of instruction dated 15 April 2019, with a series of questions, and provided background documents, including OPP policies and past medical reports. On 17 April 2019, he met with the plaintiff for three hours. He prepared an expert report dated 29 April 2019 and a supplementary report dated 7 May 2019.[380]

375. In his first report, Professor McFarlane outlined what the plaintiff told him about her background, her service in the OPP and onset of symptoms, as well as her past and ongoing treatment.[381] He detailed and provided examples of the plaintiff's various symptoms.[382] He then explained his diagnosis.

376. Professor McFarlane stated that the plaintiff found life 'extremely challenging' and struggled to function. He explained that she had daily triggers which reminded her of the cases that she had dealt with in the SSOU. She relived past interactions with child complainants as though they were occurring in the present. She had issues with trust and feeling safe, and constantly feared for her children, worrying that they might be abducted. She had physical symptoms, like constipation and abdominal pain, and suffered from panic attacks and insomnia. In describing her mental state during her interview with him, he said (among other things):[383]

Her affect had a significantly depressed quality. There was little reactivity. She also described an enduring sense of emotional numbing and detachment. She also had pervasive anxiety about the risks to her children in their community and the possibility of their abduction. She also has an enduring sense of horror and disgust about the behaviour of sexual perpetrators ...

... She has an enduring pattern of intrusive and distressing recollections of Court cases ... This has led her to have an enduring set of beliefs about the malevolence of people in her environment and her inability to protect herself ...

377. In his report, Professor McFarlane also referred to 'a pervasive disturbance of mood' in the plaintiff. She experienced periods of 'marked diminished interest in most activity' and fatigue, feelings of worthlessness, significant weight loss, and difficulty concentrating.[384]

378. Based on her symptoms, he used DSM-5 diagnostic criteria to assess her as suffering from chronic PTSD and MDD.[385] He explained that, of the symptoms required for a diagnosis of PTSD, the plaintiff had experienced:

(a) all five intrusion symptoms (when one is required);

(c) six out of seven D-criteria symptoms, showing negative alteration in mood or cognition after trauma (two are required); and

(d) several symptoms of alteration in arousal and reactivity (two are required).

379. The plaintiff also experienced periods of depersonalisation and derealisation, with a dissociative sub-type.

380. The diagnostic criteria for MDD required Professor McFarlane to find that the plaintiff had experienced five or more symptoms in the same two-week period in the presence of a depressed mood or loss of pleasure of interest. At trial, Professor McFarlane clarified that the plaintiff was not severely depressed at the time of her interview with him but had sufficient depressive symptoms to warrant the diagnosis of MDD.[386]

381. According to Professor McFarlane, the 'pattern of comorbidity' of PTSD and MDD is extensively documented, and the co-existence of MDD with PTSD 'is indicative of a greater degree of severity and general psychological distress'.[387]

382. Professor McFarlane's expert opinion was that the plaintiff's PTSD and MDD was caused by her work at the SSOU; specifically, the direct and cumulative exposure to graphic and distressing material involving the sexual assault of children and adults. Professor McFarlane's opinion on the causal connection between the work and the plaintiff's injury and the plaintiff's prognosis is elaborated on later in this judgment.

383. Professor McFarlane opined in his report that the requirement to view and categorise extremely explicit pornographic material 'carried a substantial and foreseeable risk of leading to PTSD'. He explained: 'The impact on people having to deal with abused children, particularly on females in law enforcement roles, has been documented.'[388]

384. Regarding the nature of the work in the unit, Professor McFarlane explained: 'In this line of work people are confronted with aspects of sexuality they may have never contemplated ... it can be profoundly disturbing ... these acts of perversity go beyond where the normal imagination does not venture'.[389]

385. In his supplementary report of 7 May 2019, he went into further detail regarding the inherent risk of harm in working with victims of sexual assault and child abuse, stating that:[390][391]

[T]he role of a legal professional requires them to become immersed in the reality and facts of these sexual crimes. ...

The risk of post-traumatic stress disorder in part arises from an individual being exposed to a circumstance or event that cannot be integrated and processed into the normal schema that organise an individual's perceptions and understanding of the world. As a consequence, these events will sit in an individual's consciousness in an intrusive and preoccupying manner that lead to distress. ...

...

... Particularly, because of the interpersonal nature of sexual crimes, exposure to the content of these acts leads to increasing suspicion and apprehension about the intention of others and their trustworthiness. Dealing with matters involving incest and the abuse of minors by adults is particularly confronting to parents who can then struggle to trust caregivers other than themselves.

... The individual's own sexual arousal in intimate relationships can be intruded upon by these images and fantasies. This in turn is disruptive and shameful for the individual and has the capacity to substantially disturb their own sexual and intimate relationships. ...

...

A further psychological risk to legal practitioners arises out of the personal contact with the victims. ... Humanity and empathy lead to an engagement and desire to assist ... In so doing, the legal practitioner can identify with the distress of the victim. This empathy and engagement with the victim can lead to [vicarious] traumatisation and compassion fatigue. This phenomenon is extensively documented in the literature. ...

386. Regarding the high workload in the SSOU, and subsequent increases to it, Professor McFarlane said that it would 'increase[] the intensity of the trauma exposure' on staff,[392] and create a situation where they had 'less down time' and 'less opportunity to withdraw' from the subject matter of their work;[393] thus reducing their ability to process the impact of the work, and thereby 'increas[ing] the risk of developing psychological injury'.[394]

387. Professor McFarlane stressed the impact of cumulative exposure to traumatic events, explaining:[395]

[T]here's a substantial body of evidence as to how repeated and ongoing exposures make the underlying neurobiological changes in PTSD more entrenched, which in turn increases the probability of [the] disorder becoming more severe and more chronic and less responsive to treatment.

388. He said there is 'very well substantiated evidence' in a variety of occupations that cumulative exposure carries a significant risk to mental health.[396]

389. Prior to writing his report, Professor McFarlane was provided with a redacted copy of the 2011 Staff Memo. In his report, he commented that it was an 'important document', communicating staff concerns about their workload and the negative impact it was having on their welfare, and 'required active consideration and intervention'. In oral evidence he said that, particularly in the context of staff reporting distress and a range of symptoms, as a manager it would make him 'very concerned ... about, um, a failure to intervene, because I think this was a workforce that was at risk'.[397] He said that appropriate advice should have been sought, and the necessary resources obtained to try and alleviate the pressures and address the consequences to which staff were alerting management.[398] Apparent understaffing in the unit increased staff exposure to trauma.

390. In considering the symptoms listed in the 2011 Staff Memo, Professor McFarlane concluded that 'whilst not structured in a way that directly reflects the diagnostic criteria' of PTSD or MDD, the symptoms set out in the memo 'should have alerted' management that staff may have been suffering from those conditions.[399]

391. Professor McFarlane was also asked to comment about matters pertaining specifically to the foreseeability of the risk of harm to the plaintiff. He was asked about the intensity of the plaintiff's work, given her reluctance to take on the Lim matter. He said that if she was struggling at that point, taking on another task of considerable intensity would pose a significant risk to the plaintiff.[400]

392. Prior to writing his supplementary report, Professor McFarlane was given copies of the email exchanges between the plaintiff and Mr Brown on 29 August 2011 (the day on which she returned from two weeks' of sick leave).[401] In the plaintiff's first email, she refers to the incident where she was dizzy at work before going on sick leave. Professor McFarlane remarked that dizziness is frequently reported by people who have intense anxiety, including PTSD.[402]

393. Professor McFarlane opined that the email exchange between the plaintiff and Mr Brown on her return from sick leave provided significant insight into the plaintiff's state of mind at this time, and also into the manner of Mr Brown's response. The exchange showed that the plaintiff herself did not conceptualise her difficulties as being a consequence of the nature of the cases that she was managing, which indicated that she did not really understand what was wrong with her at the time, and therefore did not express her situation as one where she was struggling with psychological symptoms such as those indicative of PTSD.[403] The exchange showed that her manager saw her as not coping with her workload, whereas he could have inquired about her current state of health and whether there were any aspects of the type of caseload that she was having to deal with that had contributed to her absence.[404] He said:

I would hope that a manager who was in a position in an environment where it was known that solicitors were at risk of suffering as a consequence of what they were exposed to in their work would take a more, um, sophisticated view, because it would seem that the way he's conceptualised her absence from work is that she wasn't coping, um, due to her personal issues. He hasn't raised the alternative hypothesis that this may have been as a consequence of the nature of the exposures ... I think the other really important issue is given the nature of the work, what had immediately preceded her going off duty? You know, was there a particular case that had upset her or distressed her, and had that contributed to her being off work? ...[405]

394. In his report, Professor McFarlane explained that Mr Brown 'did not consider how the nature of her work had impacted on her mental state, behaviour and perceptions of others'.[406] The plaintiff had taken sick leave after an episode of dizziness, and after returning from sick leave, she was responding to her conversation with Mr Brown with 'considerable distress'.

395. Professor McFarlane gave evidence about the adequacy of the measures in place at the SSOU to protect staff from harm, such as the VT policy, the Benstead workshops, and the EAP. He also gave evidence about measures that should have been put in place to better protect employees, including the plaintiff from harm.

396. Having reviewed the VT policy he commented that it appeared to have been prepared by someone not fully cognisant of the relevant literature on PTSD at the time.[407] He identified various deficiencies in the policy[408] including that 'it did not specifically address the risk of developing PTSD' in such a way as to permit individuals to self-assess whether they might be at risk;[409] and that those of the listed symptoms which are consistent with PTSD were described as 'normal responses to repeated exposure and empathetic engagement' - a position that Professor McFarlane said conflicted with the literature which 'highlight[ed] that these symptoms are indicative of disorder and require treatment intervention'.[410]

397. During cross-examination, Professor McFarlane was given a copy of the Benstead workshop outline, having not previously been told about the workshop. He gave evidence that the 'broad aim' of what was set out in the outline was 'a very appropriate intervention' in the SSOU. However, he stressed that 'the devil is in the detail'.[411] In particular, he pointed out that vicarious traumatisation and compassion fatigue are not psychiatric disorders or psychological injuries. He suggested the workshop should have been specific about the actual conditions staff may have developed and provided a detailed account of the symptoms of those conditions.[412]

398. Counsel for the plaintiff asked Professor McFarlane about the effectiveness of the CARFI walk arounds at the OPP. In response, Professor McFarlane suggested staff would be uncomfortable communicating their difficulties in the workplace, given the 'obviously potentially highly shameful and distressing symptoms' that people have, and the 'significant amount of self-stigma and also stigma in the workplace' regarding mental illness.[413]

399. In cross-examination, he was questioned further on the value of the EAP. He gave evidence that, in general, they are a good idea, but that the way in which they are implemented is critical. In particular, the competence, qualifications, and training of those offering counselling in an EAP is important. Second, the number of sessions offered under an EAP is important.[414]

400. When asked whether the walk arounds were a positive step as a 'visible reminder' of the EAP, Professor McFarlane said that 'familiarity with a health provider is an important step' and could be beneficial in breaking down barriers to care.[415] However, he also said it should not be assumed to make any significant difference in uptake of care.[416]

401. Professor McFarlane expounded his opinion of general measures that were required to protect SSOU staff (and the plaintiff) from the risk of psychiatric injury. In particular, Professor McFarlane gave evidence regarding:

• screening of staff to assess for symptoms of psychological injury;
• education and training for management and staff about the risk of PTSD as a result of exposures to trauma and the details of sexual offences;
• rotations and/or being careful regarding case allocation in response to symptoms.

402. Professor McFarlane observed that, in order to avoid exposing the plaintiff and her SSOU colleagues to injury through PTSD, it was necessary to have a system assessing people on their way into the unit, and a program of education for people coming into these roles and being really explicit about the nature of the traumas to which they were going to be exposed; 'how horrific some sex crimes are, and the kinds of material to which they might be exposed. In this way, people could choose to go elsewhere if they did not want to face those difficulties'.[417]

403. In high risk units (such as emergency services), psychological screening occurs through the administration of targeted measures, but focuses on assessing for specific symptoms of conditions like depression, PTSD, and substance abuse. Screening by a clinically trained psychologist involves a private interview in which the individual fills out a questionnaire to be scored, starting with open-ended questions asking about any particular jobs in their recent work environment that have been difficult or traumatic. That progresses to a more focussed interview asking the person more directly about whether they were having any difficulties. This forms the basis for uncovering an emerging disorder or full-blown condition such as PTSD or depression. Symptoms can then be inquired into further to ascertain the severity or significance of the symptoms.[418] Professor McFarlane suggested that, ideally, three-monthly screening interviews should be conducted by a senior well-trained clinician and stated that, in high risk workplaces, it was critical to have a set of policies and procedures that prevent adverse health outcomes from known hazards. He said:

The SSOU carries with it such a predictable risk and hazard to individuals health. That - that hazard has to be managed in an active way. It cannot be left to the employee. And one of the reasons it can't be left to the employee is because committed professional people will often function in ways that deny the costs to them of what they are doing and they needed to be provided known active interventions that can assist them to behave in more self-protective manners.[419]

404. Regarding the difference between defence forces or policing and the SSOU, he conceded under cross-examination[420] that there was a legal framework in those occupations allowing for compulsory medical assessment, but that he was not sure what provisions could be put in place in the SSOU.[421] Professor McFarlane conceded that for many people, work can be very important to them emotionally and financially, and for self-esteem. For some, work might help cope with mental illness. He conceded that many such people would have a strong desire to keep their mental health issues private. Asked whether such people might find a requirement to give details of their illness to their employer confronting, he said it depended on the circumstances. If it were to lead to them being discriminated against or to lose their job, they would obviously be apprehensive, but when mental health care was offered to a workforce, there is a significant uptake. Challenged further about the risk that employees would be discomforted by being asked to reveal their medical history or their private life,[422] Professor McFarlane drew a distinction regarding screening and what happens when you offer treatment for a psychiatric disorder:

The way you define a psychiatric disorder is not by the cause. It's by the symptoms. So when you screen a population ... you don't go ... and say, 'Look, are you a heroin addict? Have you recently had an abortion?' ... They're life events ... and actually have a much weaker association with the onset of psychiatric illness. ... The critical issue is, ... is your mood down? Has it been down for two weeks? Are you not sleeping? Is your concentration disrupted? Are you more irritable than usual? Are you suffering from fatigue? Are you suffering from abdominal pain? Now, people are not reluctant - as reluctant as you might assume if those questions are asked in a professional and an appropriate manner ... and to treat those disorders, you don't necessarily even have to tell somebody what's actually happening in your life.[423]

405. When asked whether completing a screening document or being screened every three months should be compulsory for employees, Professor McFarlane clarified that he would not be suggesting that this should happen in the employment community generally, but that working in the SSOU carried an identified health risk of which the employer was aware, therefore the employer needed to ensure that this particular exposure was well-managed and that safety was managed in that environment. According to the 'Australian guidelines for the treatment of adults with acute stress disorder and post-traumatic stress disorder',[424] there were sufficient hazards to the individual's mental health to justify screening processes being put in place because of the predictable risk of direct consequences from the employment.[425] Approaches such as these are compulsory in certain workplaces including, for example, the Australian Defence Force and specialist units within the New South Wales police force. Some organisations have introduced measures such as 'well checks'.[426] The screening assessments should be conducted by a mental health specialist and, if the employee declines to participate, you would have to remind the employee of the circumstances and policies, and the consequences of not taking the advice.[427]

As a psychiatrist who has dealt with many people in these environments, a very significant majority of people, if you know, I'm able to assess them and spend time to explain to them the nature of what's happening and to really give them the context and the consequences and the circumstances of their continued employment in that role, they will take that advice.[428]

407. In these circumstances, he observed, the person is able to give informed consent (to screening) and can make a decision of their own accord.

408. Professor McFarlane obtained a history from the plaintiff that, although there were regular file reviews, the plaintiff was not offered any regular assessment or screening. There was also no psychological assessment of the plaintiff prior to taking on the SSOU role. The impact of the work on the plaintiff's personal life and her psychological state was something that had not been directly inquired upon by her supervisors. Despite evidence in support of the value of screening an 'at risk' workforce, SSOU staff were not screened before joining the unit or while employed there.[429]

409. When it was put to Professor McFarlane that the plaintiff only attended Ms Benstead's seminar once, and that there was no screening of her psychological health in the SSOU, he considered that this was not in keeping with the evidence-based guidelines that were in place at the time.[430] The plaintiff's emerging symptoms were not identified and effective interventions were not given. As a result of the intensity of her exposure, the plaintiff developed chronic PTSD and MDD which significantly impaired her functioning and capacity as a solicitor.[431]

410. When the plaintiff was voicing concerns about hyper vigilance and watchfulness over her children, and her difficulty sleeping, Professor McFarlane suggested that:

[A] responsible manager would acknowledge what she described and say, 'Well, look, I'm not the person who is competent to really assess the significance of that but clearly that is related to your employment and I think what we should do is refer you to a mental health professional whom you can speak to and we need to get advice about whether you can safely continue to work in this environment or whether we need to find alternative duties for you.'[432]

411. Training of supervisors was important. This was not training to be mental health professionals,[433] but training to make them aware of the issues if personnel were behaving in an unusual or problematic manner. It would alert them to the risks and help them to recognise behaviour indicative of conditions such as depression or PTSD, and how that would be managed in the work environment.

412. Regarding resilience training for staff, Professor McFarlane drew a distinction between resilience training and psychoeducation about risk.[434] There was evidence to show that psychoeducation does have an effect in organisations. On resilience training sessions as an approach to decrease the risk of PTSD, Professor McFarlane said that: 'There's no evidence that any intervention at the present time improves resilience'.[435] 'Programs that might supposedly bolster people's capacity to cope with adversity, there was no evidence that any of them worked'.[436]

413. Asked about the utility of regular debriefing, Professor McFarlane said:

The term 'debriefing' is often poorly used in a trauma context and a series of trials were done in the 1990s showed that it actually made no difference at all. There is a difference between debriefing and a more clinically precise approach and the Australian Standard for Post-Traumatic Mental Health[437] had recommendations about debriefing not being used whereas screening is recommended.[438]

414. Professor McFarlane opined that there needed to be awareness of workloads, monitoring of sick leave, and the capacity to transfer people out of the unit;[439] having exit interviews was an important part of the process to determine what had not been managed well.

415. Counsel for the plaintiff put to Professor McFarlane that, despite reference to an option for rotations in the VT policy, there was in fact no policy of rotations implemented within the SSOU. Professor McFarlane replied that in a variety of occupations there is now well-substantiated evidence that cumulative exposure to traumatic events carries a significant risk to people's mental health.[440] Where people are being exposed to graphic or traumatising material, population studies showed that the number of trauma exposures is a significant risk for PTSD and other adverse health outcomes. 'In particular it is not simply exposure to a single traumatic event but repeated exposure that results in the sensitisation and neuro biological dysregulation which ultimately leads to the onset of the clinical disorder.'

416. The area of sexual assault is recognised as a very onerous and difficult area in which to work.[441] Professor McFarlane was familiar with police officers working in such roles in institutions such as the New South Wales police force, where fixed-term rotations are in place for investigators in order to minimise the cumulative burden. This gives people an opportunity for respite in other domains where they are not going to be exposed to the same degree of explicit material. An important action to lessen the risk of chronic and severe PTSD is removal of the person from further exposure to trauma. It is advisable to rotate people out of the role after approximately three years, because it is important that people know they have a term of responsibilities, and that there will be relief when the time comes.[442]

417. The plaintiff was not rotated out of her position and faced risks of further exposure to the traumatising materials. Asked whether the plaintiff should have been rotated from her role when she was expressing concerns, he responded that decisions should be made based on the employee consulting with appropriately trained mental health professionals.[443] It was put to Professor McFarlane that the plaintiff did not suggest to anyone in the SSOU that she wanted to leave the SSOU in 2011, thus undercutting the criticism about the need for rotation. Professor McFarlane conceded he had accepted that she sought to be rotated and, if that was not true, he accepted that was so.[444]

418. In cross-examination, it was put to Professor McFarlane that the plaintiff consistently communicated throughout 2011 that she loved her job, was doing well, and wanted to be promoted within the unit. He responded:

[O]n many occasion, seen people [sic] who, ah, experiencing significant symptoms of post-traumatic stress disorder still feeling deeply devoted to their area of work and they have little insight into the personal costs ... you shouldn't assume that because somebody says, 'I enjoy this work', that they are not suffering as a consequence of it . In fact that raises one of the very important reasons why having programmes that assess people who take on these sorts of roles are put in place, because often the people who take on these sorts of roles are devoted, loyal, committed, competent. But - and if you also sort of put yourself in the role of a legal practitioner prosecuting these sorts of matters, you have to basically suppress the part of your natural revulsion to allow yourself to focus on the detail. I mean, she had dissociative-type symptoms. So, you know, what, I think, you were seeing is that dissociation within her, where she's ignoring one whole part of her reactivity, because of her sense of commitment and loyalty to the victims, the process and her competence, and people are often extremely reluctant to give up that professional role despite the cost to them.[445]

419. Dr Sharann Johnson prepared an expert witness report dated 4 April 2019, which was tendered as an exhibit in the proceeding.[446] She is not an expert in vicarious trauma but made extensive reference to the Occupational Health and Safety Act 2004 (Vic) ('the OH&S Act') governing the employer's statutory obligations in 2010-2012. She also referred to the OPP Health and Well-being Policy[447] (the last section of the SSOU Practice Manual, which is solely comprised of the VT policy), and familiarised herself with the resources mentioned in that policy. She observed that the implementation of health protection usually involves an OH&S manager and, in many office-based organisations, the Human Resources ('HR') Manager becomes the responsible person. Her particular expertise concerned the processes she would expect to see in place when it comes to health and safety, and the application of health and safety systems to a workplace irrespective of the nature of the health hazards.[448]

420. In light of the potential health impacts associated with vicarious trauma, she opined that OH&S requirements meant that a reasonable employer (including the HR Manager) would implement a systematic OH&S approach.

421. Dr Johnson observed that the 2010/2011 OPP Annual Report stated that the SSOU was established in 2007 as a 'specialist best practice approach to the prosecution of sex offences'.[449] In Dr Johnson's opinion, new structures and activities for an organisation should involve an assessment of hazards with appropriate controls put in place. The SSOU was not operating as a best practice approach with regard to the principles of OH&S legislation relevant to SSOU staff. The VT policy included a well-documented risk attaching to the work, so that management and solicitors should have been aware of the preventative strategies.[450] The publications on VT had been sourced in 2007, so there was information readily available to manage the risk of VT for the new SSOU. However, it appeared that people in the SSOU were not aware of the VT policy, what vicarious trauma was, and what processes were in place to prevent it happening to them.

422. The OH&S Act defined 'health' to include psychological health. Management and HR were required to implement applicable policies and procedures to protect the psychological health of staff. A guide was published in 2008 by Worksafe: 'Stresswise - Preventing Work-Related Stress: A Guide for Employers in the Public Sector'.[451] This guide has relevance for Department of Justice employees and refers to the need for consultation by management with the workers to look for preventative strategies and how to support them when there were problems.[452] It includes questionnaires that engage workers, with the opportunity to raise concerns about their own health. Self-assessment documents allow feedback on the effectiveness of policy implementation, where staff can communicate in writing and may feel able to be more candid about their concerns.[453]

423. Induction training and ongoing training on SSOU policies and procedures was required so that staff could perform their job safely.[454] It would be an expectation that there would be training on a policy such as the VT policy and that employees would receive a copy during their induction.[455] In her oral evidence, Dr Johnson stated that, 'as a normal system of work with people who are working in a high hazard risk area, you do your induction and training - initial training so they're well aware of the hazards'.[456] Further, that regular and routine reinforcement of training was important so it was appropriate to go back each year or every second year to reiterate the training, and perhaps test people on the training.[457]

424. The HR representative should support staff and managers to implement the intent of the VT policy, including targets for training and performance-based outcomes of training.[458] Training appeared to be deficient because 100 per cent of managers and staff should be trained in unity on a high risk health hazard, including what vicarious trauma is, the symptoms, steps to protect and help people if they suffer symptoms, and processes to minimise the impacts.[459] HR should monitor compliance and implementation of policies and procedures. Feedback from employees was important.[460]

425. A regular OH&S segment at staff meetings would help staff realise they were not alone if they were suffering symptoms.[461] It was normal for work groups to have a monthly team meeting with a segment on OH&S where staff could raise issues.

426. After the staff memo of 18 April 2011, it was not apparent that there was adequate consultation with employees. The health concerns raised in the Staff Memo were serious and it was desirable to convene a staff meeting and allow the staff to verbalise their grievances. A consultative process needed to be in place between SSOU employees and the managers about what needed to be done to protect their health to do their job safely.[462] This would include documentation of organisational roles and responsibilities to enforce compliance with health and safety measures and ensure that policies such as the VT policy were implemented.[463] At regular staff meetings, a list of action points on a spreadsheet should be circulated, agreed actions assigned to responsible persons or managers for completion in an agreed timeframe, and tracking of actions until all actions were closed out. In response to mention in the memo that staff would play down their symptoms, Dr Johnson opined that good leadership should result in making employees aware that their jobs are not on the line by raising OH&S issues, and that this principle was an important part of the OH&S legislation.

427. Under cross-examination, Dr Johnson agreed that she had not seen material supplied by Ms Benstead, nor conferred with the plaintiff or OPP staff, and had not developed or applied a VT policy. Her knowledge of vicarious trauma in a setting such as the SSOU came about from her preparation for this case.[464] Challenged regarding her expertise to comment on whether the matters in the VT policy were practicable in an organisation such as the SSOU, she responded that the VT policy was written from nine specific references and a key one was that of Morrison.[465] The VT policy itself showed awareness of the publications and of the systems that you would put in place.

428. Questioned whether the EAP was a useful measure for supporting SSOU staff, Dr Johnson said she understood that Mr Carfi was a psychologist, but queried whether the first point of call should be a doctor, not necessarily the EAP.[466] It was difficult to be satisfied about the adequacy of the EAP without any understanding of what the EAP had been employed to do, other than offer a program where people could ring after hours or during work time. She queried how many staff did in fact seek the services of the EAP. Whilst EAPs were a common feature of workplaces, '[w]e have some severe problems here. I'm not sure that the EAP program would have delivered to resolve these health and safety issues'. She accepted that having 'approachable management' was important, but in response to the suggestion that Mr Brown had been a friend and mentor of the plaintiff until August 2011, she opined that what was required were systems to be in place, not a one-on-one relationship.

429. Dr Johnson was taken to the email written to staff on 13 May 2011 by Mr Brown, in response to the 2011 Staff Memo, and asked if it was an appropriate response. She noted that Mr Brown had responded to the itemised concerns raised by the workers, but had not opened up a continuing dialogue about health and safety through a committee or staff meetings, as opposed to waiting for issues to be raised by staff. Although staff had commented on 13 different items, there may well have been more. The SSOU staff were presenting with health symptoms. Ideally, an independent person would do a review of the systems at work and include the staff members, and would tease out issues systematically. There would be a series of actions that would each be resolved in turn.[467] There was no mention (in Mr Brown's email) that the solicitors who signed the memo could have gone to an occupational health physician or a psychiatrist to be properly diagnosed. There was a failure to address proper training in Mr Brown's response and there was no reference in the email to vicarious trauma. A 'best practice' approach would involve training, along with health and safety meetings, formalising actions to be taken and closing them out.

430. It was not disputed by the defendant that the plaintiff was an ambitious, hard-working solicitor in the SSOU and that she was passionate about her role. It was plain that the plaintiff was determined to be successful at the OPP and was hopeful of promotion, including over the time she was in the SSOU. She was not fixated on the idea of working only in the SSOU at the OPP, and had applied for promotion to a higher Grade position in either the SSOU or General Prosecutions in March 2011. She also said that she was not granted an interview for a job at the same level elsewhere in the OPP (although other than the March 2011 application, there was no evidence of other internal applications for a role at the same level outside the SSOU, between entering the unit and February 2012, nor any evidence that such a role was advertised).

431. I accept the evidence that over the course of her time in the SSOU, the plaintiff was profoundly affected by the subject matter and content of the work, and by her emotional responses to the interactions that she had with complainants and witnesses. I consider for the reasons explained by Professor McFarlane that, at the time she began to experience symptoms of PTSD, she lacked insight into the way in which the extensive hours of work, and the nature and intensity of the work was affecting her both at work and away from work.

432. The defendant argued that the plaintiff was not a reliable witness, submitting that although she suffers from PTSD, her evidence should nevertheless be found to be unsatisfactory and in need of corroboration by contemporary records regarding disputed issues. I reject that submission. The defendant listed the following matters as impacting on the plaintiff's credit.

433. First, that the plaintiff set out to minimise the extent of her retained work capacity for the purposes of maximising her potential return in this case. This argument comprised five allegations:

(a) That she understated the work that she was doing for [redacted] Lawyers;

(b) That in her serious injury affidavit, she referred to Mr [redacted] as an acquaintance;

(c) That her change of role to a paid position at Zouki Lawyers coincided with the end of her weekly payments of compensation. (The plaintiff received notice of termination of weekly payments of compensation on 7 March 2014.[468] She commenced at Zouki Lawyers between May and August of that year);[469]

(d) That she said, when working at Zouki Lawyers, her hours of work were from 9.30am to 3.00pm, whereas she conceded under cross-examination that she worked an additional two hours at home each night;

(e) That she said her current earnings in her newly established firm were $1,000 per week, when in fact, she had earned $30,000 in February and March.

434. To place these criticisms in context, the plaintiff said that after being unable to continue working at the OPP, she wanted to maintain her practising certificate but was concerned about where she could go. She had been advised by Dr Dharwadkar to go back to work in a voluntary role. She had approached other legal firms without success. She obtained permission from the Law Institute of Victoria to work in an unpaid role: it was her last resort to work in a voluntary role at her partners' practice, [redacted] Lawyers.[470] She advised WorkCover that she was doing volunteer work to keep her legal skills. She sometimes struggled to attend work, or work at capacity, because of her symptoms. Her work included corresponding on behalf of the firm as a senior lawyer, and on occasions attending the Magistrates' courts in connection with Mr [redacted]'s files. She performed a variety of tasks in criminal matters related to Mr [redacted]'s practice, including preparing briefs for counsel.

435. Whilst the plaintiff's 2015 affidavit referred to Mr [redacted] as an acquaintance (he had ceased to be her partner by then), the plaintiff had told her treating psychiatrist Dr Dharwadkar, in the preceding period,[471] that she was working at her partner's law firm. She was not hiding that fact. Dr Dharwadkar had included in his report that she was living with her partner who was a solicitor, and who was supportive, and that this was also in his notes.[472]

436. I do not think that the plaintiff significantly understated the work she was able to do at the time, although I accept she performed a range of skilled legal work in the voluntary position. She indicated in her evidence that she was still learning from Mr [redacted], because she had not worked in a defence role before.[473] She continued at Mr [redacted]'s firm in a voluntary role, even after breaking up with Mr [redacted].[474] She stopped working there after 'she bumped into Mr Zouki in the street' and 'an opportunity arose by chance'.

437. Regarding her work hours at Zouki Lawyers, the plaintiff accepted that she did some work at home, including reading briefs, amounting to two hours per night, seven days a week. Nevertheless, she was not working conventional nine to five hours, instead leaving work in time to collect her children from school, and working in a somewhat sheltered role at Mr Zouki's law firm, for the reasons explained in her evidence. Whilst the home office hours added to the extent of her weekly work, not much turns on this point regarding the plaintiff's overall credit.

438. Similarly, regarding her current earnings, the plaintiff produced the profit and loss statements from her newly founded sole practice from which the defendant cross-examined her. She admitted that she is not strong in maths and expressed uncertainty in her responses. The answer relied on by the defendant as inaccurate was given in response to a leading question from Mr Richards about income calculations.

439. A second category of attack on the plaintiff's credit by the defendant was that she claimed she had never heard of PTSD until she was told by her psychologist (Mr Foenander) that she had this condition, whereas Mr Foenander said the plaintiff mentioned PTSD to him.[475] The plaintiff's evidence that she had not heard of PTSD until her sessions with Mr Foenander was not plausible having regard to her previous employment with Corrections and the OPP. Nevertheless, I accept that she did not appreciate that the work in the SSOU was causing her to have PTSD until she began seeing Mr Foenander. The evidence suggests that this only became fully apparent in February 2012, after the plaintiff found herself unable to resume work in the SSOU.

440. A third category of attack on the plaintiff's credit related to the Benstead workshops. The defendant referred to OPP records[476] which listed the plaintiff's attendance at two Benstead workshops involving the same content. The plaintiff said that she only attended one workshop and may not have attended for the full day.[477] The workshop included topics such as PTSD and vicarious trauma. The plaintiff said that she did not have a full memory of the seminar, of who was present at the session, or of the date on which it occurred. I accept that it is likely that the plaintiff attended the seminar once, as she said, given the workshop was repeated. Ms Benstead was not called, and apart from the OPP registration documents, there was no other evidence called on the issue.

441. The fourth category of attack on the plaintiff's credit was her evidence that she believed she had focussed on work-related stressors, rather than personal stressors, when she saw Mr Foenander in 2011, which the defendant submits is not borne out by Mr Foenander's clinical notes. The plaintiff's belief, based on impressions garnered several years later, does not cause me to have significant concerns about her credibility. Information was recorded by Mr Foenander about her family and personal relationships in the 2011 consultations, but the plaintiff also referred to work-related stressors, including the attempted suicide by the complainant in the Lim case, which was mentioned during her very first visit. Her second visit referred to issues with her boss consistent with the disagreement she had with Mr Brown that day.

442. The notes taken by Mr Foenander in the 2011 sessions (three sessions in all) may reflect the topics that he questioned the plaintiff about in circumstances where he was still gathering information and forming an opinion, perhaps without a full understanding of the nature of the plaintiff's role at the OPP. I accept Professor McFarlane's evidence that the plaintiff herself lacked awareness of the fact that the work in the SSOU was causing her to suffer symptoms of PTSD. Mr Foenander was not retained to screen the plaintiff for work-related mental health symptoms.

443. The fifth category of attack on the plaintiff's credit by the defendant was that Dr Omkar's note of the presenting complaint in 2011 recorded 'depression due to separation', but that in her evidence the plaintiff had disputed raising depression related to her private life with Dr Omkar.[478]

444. The background context to the plaintiff attending Dr Omkar is of significance. She missed an appointment with Gus Carfi on 18 August 2011, but four days later on 22 August 2011, attended Dr Omkar and a mental health care plan was created with a referral to a private psychologist (Mr Foenander). The appointment with Dr Omkar occurred during a period when the plaintiff was feeling stressed, had suffered dizziness at work, and had taken sick leave. It was during her sick leave that she was notified that the child complainant in Lim had attempted suicide. The plaintiff believed that stress at work was a factor in her going to Dr Omkar. The Court cannot rule out that work stress may also have been mentioned to Dr Omkar. A GP making a referral to a psychologist may not include everything that has been said relevant to the referral and Dr Omkar is unlikely to have appreciated the distinctive nature of workplace stress in an occupation such as the plaintiff's.

445. Mr Foenander said that he believed stress at work was mentioned in his phone contact with Dr Omkar, following the referral, but he had no note to this effect and his memory for matters related to the plaintiff outside of his notes did not appear strong. What does appear especially significant is the reference to the attempted suicide of the child in the Lim matter in the plaintiff's very first consultation with Mr Foenander. Also, the further references in her second visit to her boss 'having a go at her again' and his awareness of her health issues, that she would take it to the executive, and to '[s]elf-worth, security-alone, relationship, politics at work, works long hours, no gratitude'.

446. The sixth category of attack on the plaintiff's credit was that the plaintiff's demeanour under cross-examination was said to have been unsatisfactory. It was suggested that she would appear to 'try and get back on script' rather than giving honest answers. For example, when taken to her email to Stuart Ward sent on 9 February 2012, which referred to raising issues that were 'very different' to issues she had previously been raising, the plaintiff said she had meant issues that were very different to the dispute about her pay.[479] There had been a previous meeting with Stuart Ward regarding the unexplained decrease in the plaintiff's pay. This probably occurred in September 2011. There was a further meeting with Mr Ward in October 2011 which included mention of the plaintiff's concerns regarding lack of proper training for junior staff dealing with the confronting nature of the SSOU work. The plaintiff announcing in the February email that she felt unable to return to work in the SSOU, because of the nature of SSOU work, was in fact very different to those issues because it was specific to her.

447. The defendant also took issue with the plaintiff mentioning a recent media article about the Jill Meagher murder case as triggering an emotional response in her, when in fact Jill Meagher was killed after she had left the SSOU. Given that the plaintiff's memory is affected by PTSD, it is not surprising that violent sexual attacks on young women might trigger symptoms regardless of whether she learned of the case during her time in the SSOU, or in the media after leaving the unit.

448. The defendant relied on the comments in Dr Jager's report regarding possible embellishment and exaggeration as impacting adversely on her credit, wherein he raised doubts about her capacity to function as a lawyer in light of her presentation. However, he allowed that assuming the 'anxiety-provoking nature of an independent medical examination' contributed to her 'sad and anguished appearance', it was feasible she could do so at other times. I am not prepared to find that the plaintiff was not genuinely upset during her meeting with Dr Jager.

449. Regarding the plaintiff's demeanour overall, I do not accept that she was an unsatisfactory witness. At times, she appeared to minimise matters or avoided confronting matters that she perceived as unhelpful to her case. She was occasionally tendentious and combative. As might be expected in light of her psychiatric diagnosis, on other occasions she was emotionally labile, showing distress in relation to the subject matter of one of the SSOU cases. Her mood during lengthy cross-examination over several days was variable. Nevertheless, she made a number of frank concessions and, on the whole, engaged sensibly with the cross-examiner. Her evidence was generally coherent and credible. Flaws in her memory of events are partly explained as a result of her chronic PTSD and her remitting MDD (both of which led to the prescription of medication over a number of years), as well as the extent to which she remains affected by her experiences in the SSOU.

450. Regarding the other OPP staff who gave evidence for the plaintiff, I am mindful of the limitations on the use of their evidence about how they were affected by the nature and intensity of the work. The key relevance of this evidence is the overall potential for SSOU work to have involved highly distressing content in the period in question. Some of the evidence was also relevant to the culture of the workplace within the claim period, and the circumstances surrounding the 2011 Staff memo and matters that preceded it.

451. Mr Schrapel described himself as an ambitious, hard-working solicitor who was keen for promotion within the OPP. He remained working in the SSOU until 2013. He had some time off work because of medical issues and surgery in 2012, and eventually sought a transfer to a different Directorate (Appeals) in 2013, which was subsequently granted.

452. Mr Schrapel was cross-examined about his transfer to the Appeals Directorate. He said the transfer occurred after he was diagnosed with shingles, and had made it clear to the OPP that he would not be returning to work in the SSOU until an alternative had been arranged. This was on doctor's orders.[480] He worked in the Appeals Directorate from May 2013 until March 2016 on the condition that he was not to be further exposed to sex offences. He said that 'worked okay to a varied degree, but there were high points and low points'.

453. He described changes in the presentation of the plaintiff, over the course of 2011, through the prism of the pressures that he was also experiencing as a solicitor in the unit at the time. He provided an explanation of the CAR rating system for SSOU files that was not challenged by the witnesses called by the defendant.

454. Mr Schrapel conveyed a sense of disillusionment at the lack of response by management to the intensive demands on SSOU staff during the relevant period. Whilst Mr Schrapel's manner of answering questions was quite forceful, I found no reason to doubt his sincerity. He conceded under cross-examination that he had recently applied for a temporary role in Human Resources at the OPP in learning and development.[481] Questioned about whether he had maintained any ongoing connection with the plaintiff, he testified that he had not spoken to the plaintiff for more than 18 months prior to giving evidence.

455. Ms Lucas had a responsible role as principal solicitor in the Geelong SSOU and made appropriate concessions about the limits of her knowledge of the day-to-day operation of the Melbourne SSOU. She also conceded that there were constraints on Mr Brown's ability to offer relief when she complained about workload and how challenging the cases were.[482] She said that he was sympathetic, but indicated that recruiting more staff would require a submission to management and there were budgetary constraints.[483] She accepted that Mr Brown was approachable. She had little to do with Ms Robinson. She agreed that she did not know the plaintiff well and had little to do with her over her time in the SSOU. Overall, I found Ms Lucas to be a straightforward witness who gave convincing evidence about the emotional impact of working in sexual offence prosecutions.[484]

456. Mr Hume conveyed an impression of strong disenchantment towards his former employer. No doubt this was partly linked to his opinion that he was damaged by the cases that he was exposed to in the audio-visual section of the OPP, but he may also have held a grievance related to a conduct issue that was raised with him and which led to his resignation, although no detail was adduced about this matter by the defendant. At any event, I am inclined to give only limited weight to Mr Hume's evidence since he was not a solicitor in the SSOU, and his department received work from the whole of the OPP and not just the SSOU.

457. Ms Aitken was an impressive witness who provided a valuable account of the way in which the SSOU operated before, during, and after the claim period. She did not appear to have an axe to grind and, at the time of giving evidence, was still employed in a senior prosecuting role at the OPP. It was apparent to the Court that she found the process of giving evidence very challenging, because of the emotions that these issues stirred up for her. She appeared to be profoundly affected by having to recount details about her experience of working in the unit, and of the nature of the work in the SSOU.

458. Mr Brown took over as Director of the SSOU in February 2010, supervising about 50 staff. The plaintiff was already there when he arrived. He had previously had a friendly mentoring role in her life. Prior to becoming Director, Mr Brown had been a solicitor, and had performed the role of manager of Continuing Legal Education and of the articled clerk program for 18 months. He was acting manager in the Appeals directorate for 12 months. Regarding management training, at some stage Mr Brown undertook a course called Seven Pillars of Management through an external provider.[485] Asked by the Court about the duration of this course, he was unable to recall.[486]

459. He gave conscientious evidence about the management of the SSOU and his perceptions of the plaintiff more than eight years ago, notwithstanding that he was defensive at times, expressing that he felt hurt when staff decided to have a meeting in the absence of management and by the delivery of the April memo. Regarding the memo, Mr Brown's evidence that he was not aware of the extensive unpaid overtime hours being performed by SSOU staff was surprising in light of the evidence of the plaintiff, Mr Schrapel, Ms Lucas, and Ms Aitken.

460. The general tenor of Mr Brown's evidence was that he was under pressure juggling the competing demands placed on the SSOU by different stakeholders and the executive. No doubt a key concern was the need to ensure that each matter was allocated to a competent solicitor and adequately prepared for trial or plea, including all legislative timeframes being met. Unfortunately, the Court was left with the impression that ensuring that core workload requirements were met took precedence over supervision of staff welfare and well-being during the claim period. Resourcing shortfalls diminished the ability to reduce the burden carried by SSOU staff. It also appears that attempts by Mr Brown to raise OH&S concerns about staff welfare within the SSOU received an insufficient response from the executive.[487] That was the background context that prompted the staff memo.

461. Whilst the 13 May 2011 email to staff and the Business Case to the executive represented bona fide attempts by Mr Brown to obtain more staff for the unit and to follow through on many of the suggestions made by staff in the memo, for reasons discussed later in this judgment, I consider that Mr Brown did not engage in proper supervision of the health and well-being of the plaintiff. The need to attend to her was evident in the period that ensued after the staff memo, culminating in the falling out between them and the surrounding circumstances.

462. Ms Robinson became a junior solicitor in the OPP in 2007 and joined the SSOU in the first half of 2009. She became acting deputy manager in 2010 and, after the Business case to the executive, was appointed a permanent deputy manager. She gave evidence that this was more of a coordinating role regarding clash lists and the like. I formed the view that Ms Robinson was inclined to engage in a degree of unconscious reconstruction of events from the vantage point of many years later. For example, she indicated that she and Mr Brown devised a response to the staff memo and discussed things they could do immediately, such as more training on resilience and monthly file reviews. However, the resilience training with Carfi had been planned prior to the memo and, although the one-on-one file reviews were a response to the memo, it was staff who suggested that management visit their offices to see how staff were progressing and be willing to take time to discuss any issues.[488] Further, Ms Robinson said every item was actioned from the staff memo, but an important matter that was not actioned was the suggestion that managers meet SSOU staff as a group to discuss the memo.

463. Whilst Ms Robinson implied that she had previously shared a relationship of friendship and confidence with the plaintiff, as they had previously socialised together along with other OPP staff, the details of any past association or sharing of confidences were not put to the plaintiff. It was hard to know what to make of the evidence in circumstances where, in other parts of her evidence, Ms Robinson explained her failure to ask the plaintiff about her health and well-being by expressing that it would not have been appropriate to inquire into the private life of staff members, as that was confidential.

464. Ultimately, I was left with the impression that there was inadequate focus by the SSOU manager and deputy manager on OH&S concerns and staff well-being. Ms Robinson said that no solicitor raised any concern about the nature of the work and, if they had, she would have referred them to Mr Brown and HR, or the EAP. On the other hand, the plaintiff and Mr Schrapel mentioned that issues concerning the health and well-being of staff had been raised at staff team meetings prior to the March 2011 meeting and the April 2011 memo. Mr Schrapel said, 'the memo didn't come out of nowhere'.[489] The staff memo was itself an indication of SSOU solicitors raising concerns about the nature of the work, but Ms Robinson did not refer any individual from the SSOU, including the plaintiff, to Mr Brown, HR, or the EAP for investigation of such concerns.

465. Although Ms Robinson, like Mr Brown, regarded herself as approachable, saying that she was 'responsive and validating', she did not inquire of any person who signed the memo nor of any SSOU staff member whether they were suffering the health effects mentioned in the memo and wanted something done about it. Cross-examined about the staff memo and congruity with symptoms of vicarious trauma, she said that 'it was the first time the concept had been relayed to me'. This was in spite of her evidence that she attended Ms Benstead's sessions on two occasions.

466. I have addressed my assessment of the expert witnesses in those parts of the judgment where their evidence is summarised.

467. In reviewing authorities touching on the scope and content of an employer's duty to protect employees from psychiatric injury, the starting principle is that an employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing an employee to unnecessary risks of injury.[490] However, foreseeability of psychiatric injury has been held to raise different questions to those raised in cases involving the risk of physical injury in the context of an employer's obligations to an employee.

468. Seedsman[491] is a case that has some factual similarities with the present case. It was decided before Koehler[492] (considered below) but not disapproved in Koehler. The State appealed against a damages award in favour of the respondent, Beth Seedsman, a former New South Wales police officer. Ms Seedsman's claim in negligence for psychiatric injury (PTSD) related to her work during 1983 to 1988 when she investigated and was exposed to a large number of crimes against children, in addition to a number of other horrific violent crimes.

469. The State had argued that, at the time of the judgment in her favour, there was no binding legal precedent that would justify a court finding negligence against her employer in respect of facts such as those involved in Ms Seedsman's case.[493]

470. At trial, Judge Goldring, found that the New South Wales police service did not have a safe system of work in place to protect Ms Seedsman from a reasonably foreseeable psychiatric injury from the work. Ms Seedsman was only 22 years of age when she entered the police force and soon after was placed in the Child Mistreatment Unit. She worked there until that unit was amalgamated with the Juvenile Services Bureau in 1985 and then, in 1987, began work in the Major Crime Squad. In 1989, she was transferred to general criminal investigations which included allegations of sexual assault.

471. There were a number of traumatic exposures that occurred whilst Ms Seedsman worked at the Child Mistreatment Unit and the Juvenile Services Bureau, involving the physical, sexual, and emotional abuse of children. She was required to interview children and their families including very young children to prepare them to give evidence. It was not contested before the trial judge that the police force had not taken any steps by way of formal training, supervision, or monitoring for police officers exposed to the kind of work to which Ms Seedsman was exposed.

472. There were other personal stressors affecting Ms Seedsman during her employment in the police force including being sexually harassed at work, an Ombudsman investigation, and a belief that she had been set up by others regarding an allegation of inappropriate storage of firearms and family stressors. In 1995, she took six months of sick leave and then returned to work in the Human Resources Department of the police force, until the birth of her son in 1996. She did not return to work after the birth of her son and, in 1997, applied for discharge on medical grounds. By then, she had been diagnosed with PTSD. The trial judge found that, after the birth of her son, Ms Seedsman developed hypervigilance and was constantly apprehensive that her son would be subjected to some form of abuse. Ms Seedsman's PTSD was accepted to be related to the work.

473. It was also accepted by the trial judge that Ms Seedsman had identified a series of preventative measures available to the employer, and that the State had not adduced any evidence showing the impracticability of those measures. The employer was found to have had actual or implied knowledge of the risk that stress in the working environment of the kind to which Ms Seedsman was exposed could lead to psychiatric disorders. Other government departments dealing with similar exposures had programs in place to minimise the risk of psychiatric disorders occurring.

474. It was accepted that police, by their occupation, were likely to be exposed to personal danger and 'gruesome and disturbing experiences', but that what was special in the case of Ms Seedsman was that she had entered the police force at a relatively young age, with little training of the type traditionally given to detectives. Ms Seedsman was engaged in a support and counselling role with abused children, and the State was aware that other State employees engaged in similar roles required training. Therefore, the State was, or ought to have been, aware of the risk of psychiatric injury in the event of a failure to train police officers who were exposed to extreme stress. In considering causation, the trial judge was influenced by the cumulative nature of Ms Seedsman's exposures, referring to the 'continued and sustained exposure to intrusions of the integrity of children'.

475. The Court of Appeal (Spigelman CJ, Mason P and Meagher JA) upheld the findings of the trial judge and dismissed the appeal.

476. The State had argued that there was a limited state of knowledge available to the employer at the relevant time, and that it was not known that stress of the character relied upon by Ms Seedsman could lead to psychiatric injury. Spigelman CJ noted:[494]

It is not correct to say that evidence is required in all such cases. In making a decision on foreseeability, evidence of surveys or expert evidence is not always required. Common-sense has a role to play in this, as in other areas of judicial decision making.

...

In the present case the 'possibility of mental disturbance' was foreseeable, in circumstances of extensive and intensive exposure by a young, new recruit, without special preparation or training, to the litany of child abuse, including instances of direct observations of injuries and of bodies, as appears on the facts of the present case.

477. In response to an argument by the State that foreseeability had to be based on comparison with police work and not on other workers involved with abused children,[495] Spigelman CJ said:[496]

In my opinion, this submission should be rejected. The law of negligence is concerned with human beings. It is not concerned with specific occupations. Where employees in two occupations have exposures to similar risks, employers in one occupation can reasonably be expected to have regard to the experiences of employers in the other occupation.

...

... The analogies, suggested in the evidence of both Dr Adams and Ms Lam, between counselling roles and the functions of a specialist unit such as the Child Mistreatment Unit are sufficiently close for the contemporary experience of persons and organisations involved in other forms of contact with abused children to have been regarded as relevant by those responsible for these matters in the police. They should have understood that the way these matters were conducted in those areas was a relevant source of information for the police force.

Accordingly, when Dr Adams identified in his evidence a number of steps which an employer in the 1980s ought to have implemented, this was of direct relevance to an employer of police. This included, as his Honour accepted, the need for a period of training, including training on counselling techniques; regular case management and debriefing sessions and other forms of support; a system of early identification of symptoms of stress or 'burnout' or 'incipient burnout' and appropriate support systems and relief mechanisms. ...

478. The Court of Appeal held that the trial judge's findings on the issue of foreseeability were justified by reference to a considerable body of evidence, including oral testimony.[497]

479. The Court also upheld the trial judge's findings on causation which established the necessary link between the fault of the State and the damage suffered. Although there were a significant number of other stressors that could have caused Ms Seedsman's psychiatric disorder, the trial judge had found that the firearms incident, sexual harassment, the Ombudsman's investigation, and family strains were not causative. It was the consequences of exposure to child abuse that led to Ms Seedsman's PTSD.[498] The Court of Appeal accepted that the medical evidence showed a correlation between the 'content' of Ms Seedsman's symptoms and the work-related cause.[499] The Court of Appeal considered that the conclusion of the trial judge was justified, and that 'the experience of [Ms Seedsman] which was the result of negligence on the part of the [State] materially contributed to the injury she suffered'.[500]

480. Meagher JA added, in answer to an argument from the State that there was no expert evidence establishing liability to Ms Seedsman, referred to in Barwick CJ's statement in Mount Isa Mines Ltd v Pusey[501] that:

No special medical or psychiatric knowledge is required in my opinion to foresee the possibility of injury by way of mental disturbance in such circumstances.

481. In Koehler,[502] the High Court considered general principles relevant to the content of the duty of care in an employment context to prevent or reduce the risk of psychiatric harm.

482. The appellant had worked as a sales representative with the respondent, and then was retrenched. The respondent offered her a new position requiring her to cover much larger distances in far less time. She had raised continual complaints about the demands created by her new role, describing the expectations of her employer as 'impossible'. She eventually ceased work suffering a psychiatric illness comprising complex fibromyalgia and major depression. Her symptoms were found to be entirely attributable to the conditions of employment created by the new role.

483. The appellant had sued her employer (the respondent) in negligence and breach of an implied term of the employment contract to provide a safe system of work. The appellant succeeded in establishing her claim in the District Court of Western Australia with Commissioner Greaves holding that the employer had failed in its duty to provide the employee with a safe system of work. Commissioner Greaves found that the appellant's workload was excessive based on industry standards, and that 'it required no particular expertise to foresee a risk of injury to the appellant'. Steps open to the employer to avoid risk to the employee's mental health included increasing her hours of work to make the workload more manageable, or employing an assistant, with the expense, difficulty, and inconvenience of doing so being negligible.

484. The employer appealed and the judgment of the District Court was reversed by the Full Court of the Supreme Court of Western Australia leading to an appeal by Nuha Koehler to the High Court. At issue was the nature of her employment contract and the content of the employer's duty of care. Ultimately, the High Court dismissed the appeal.

485. McHugh, Gummow, Hayne and Heydon JJ referred to the distinction between cases of physical injury in the workplace and cases of psychiatric injury, and pronounced that the proper starting point was to consider the content of the employer's duty to take reasonable care to avoid psychiatric injury in light of the obligations which the parties owed one another under the contract of employment, at equity, and in light of any applicable statutory provisions.[503] It was considered that many questions might arise where it was suggested that an employer was obliged to modify the work having regard to the risk of psychiatric injury.

Issues about the content of the duty of care were not examined in any detail in the courts below. It was assumed that the relevant duty of care was sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kinds of steps required of an employer. Rather, attention was directed only to questions of breach of duty framed without any limitations that might flow from an examination of the content of the duty of care. As earlier indicated, the question of reasonable foreseeability is determinative.[504]

487. Concerning foreseeability, it was held that the Full Court was right to conclude that a reasonable person in the position of the employer would not have foreseen the risk of psychiatric injury to the appellant; first, because the appellant agreed to perform the duties which were the cause of her injury, and secondly, because the employer had no reason to suspect the appellant was at risk of psychiatric injury. The protests by the appellant about the demands of the work did not convey at that time a basis for reasonable foresight of the risk of psychiatric harm. Regarding complaints about excessive work, the High Court noted that parties are free to contract that an employee will do more work than the industry standard amount. Since Tame v New South Wales,[505] the central inquiry was whether the risk of a plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable in the sense that it was not far-fetched or fanciful. Recognising that stress could cause psychiatric injury, the High Court nonetheless held that it was a further and larger step to say that all employers must now recognise that all employees are at risk of psychiatric injury from stress at work:

The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.[506]

488. Regarding the contractual obligations between the parties, the employer was 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. Further, it was 'contrary to basic principle' to qualify the operation of the employment contract as a result of information later acquired about the employee.[507]

489. Whilst the appellant had complained about her conditions of work and her perception of the impossibility of meeting the requirements of her role, she had not given her employer any reason (explicitly or implicitly) to suspect any particular psychiatric vulnerability. Nor did her complaints reveal that the work was putting her at risk of such injury.[508]

490. In Fahy,[509] a police officer suffered a post-traumatic stress disorder as a result of an incident where she was required to provide lifesaving assistance to the victim of a stabbing whilst awaiting the arrival of an ambulance, in circumstances where her fellow police officer failed to offer her back up or support in the carrying out of this task. She sought damages from the State of New South Wales alleging breach of duty by the State to take reasonable care for her safety, causing her to suffer psychiatric injury (post-traumatic stress disorder). The respondent succeeded in the District Court of New South Wales and before the Court of Appeal in New South Wales, but the State of New South Wales appealed to the High Court. The High Court upheld the appeal.

491. The respondent's case was that there was a buddy system in place in the New South Wales police force under which her fellow officer was obliged to assist and provide back up in critical incidents when it was practical to do so.

492. The majority of the High Court (Gummow, Hayne, Callinan and Heydon JJ)[510] held that the Police Service's duty to take reasonable care did not require a general instruction to officers assigned to work in pairs to remain together whenever possible.

The State attacked the reasoning of the Court of Appeal in a number of ways. The attacks, though variously expressed, took two principal forms. First, it was said that the Court of Appeal erred in not identifying, other than negatively, what was the safe system of work that should have been prescribed. This, so the State submitted, constituted a failure to identify properly the scope and content of the relevant duty of care or served to mask the error in determining the significance to be attributed to the 'partner' or 'the buddy system'. This latter characterisation of the error was related by the State to the separate question whether the Court of Appeal erred in concluding that there was a reasonably foreseeable risk of injury for the purposes of determining breach of duty. The second principal strand of the State's arguments was that this Court should reconsider Wyong Shire Council v Shirt and, in particular, should abandon the equation of a 'foreseeable risk' with '[a] risk which is not far-fetched or fanciful'.[511]

494. The High Court found no warrant for reconsidering Shirt.[512]

495. In referring to the respondent's case, their Honours said:

The inquiry that was then to be undertaken was 'what a reasonable man would do by way of response to the risk'. The focus must fall upon how police officers should have been instructed to perform their work, not upon what steps the Police Service should have taken to provide support for officers who had been exposed to traumatic incidents. It is necessary, therefore, to identify the system of work that should have been prescribed in response to the risk of psychiatric injury.[513]

496. Gummow and Hayne JJ considered that the kind of instruction suggested by the respondent conflicted with many other operational requirements of policing, and that the safe system of work that should have been put in place was not identified, notwithstanding an acknowledgment that many aspects of policing may involve a foreseeable risk of psychiatric injury.

Hegarty v Queensland Ambulance Service ('Hegarty')

497. Soon after Koehler was decided, the Queensland Court of Appeal considered an appeal by the Queensland Ambulance Service in Hegarty,[514] against a judgment in favour of the respondent ambulance driver for psychiatric injury. The respondent had claimed for psychiatric injury (PTSD and obsessive compulsive disorder) caused by his employment as an ambulance officer, arising from his many years of service during which he had been exposed to trauma. The trial judge had found that the plaintiff's psychological injuries were the result of cumulative exposure to traumatic incidents and that he could have been more successfully treated had the signs of psychiatric illness been identified sooner.[515] His employer had introduced a system known as 'Priority One' for responding to worker stress by providing critical incident stress debriefing,[516] peer support, a telephone counselling service, and face-to-face counselling with a psychologist. The plaintiff's claim disputed the efficacy of Priority One and the manner in which it was implemented at the relevant time, alleging a failure by the employer to implement a satisfactory system for identifying signs and symptoms of mental instability in ambulance personnel affected by trauma.

498. Central to the reasons of the Queensland Court of Appeal in upholding the appeal was a consideration of the difficulty faced by employers in becoming aware of, and prospectively responding to, the risks of employees suffering a workplace psychiatric injury. This was in contrast to workplace physical injury which could be more readily anticipated and addressed. Keane JA said:[517]

[W]hile an employer owes the same duty to exercise reasonable care for the mental health of an employee as it owes for the employee's physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension. Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works.

...

The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer's duty in this respect, must be acknowledged as important considerations. ...

...

Issues did necessarily arise, however, as to the identification of a sufficient basis for the making of a suggestion by the defendant that the plaintiff seek psychological assessment and treatment. The resolution of this issue is fraught with difficulties peculiar to cases of psychiatric injury. In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer's intervention and the making of a decision to intervene. An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee's performance of his or her duties at work.

499. Jerrard JA concurred with Keane JA and expressed disagreement with the conclusion of the trial judge that, if the respondent's supervisors had received appropriate training, they would have been able to recognise signs of possible dysfunction, noting that the evidence called by the respondent did not describe any unequivocal signs of dysfunction.

500. In Taylor,[518] Beach J considered a workplace injury claim by a teacher at Haileybury College who had suffered a psychiatric injury in the context of an allegation of overwork and stressful work conditions.

501. His Honour succinctly summarised the principles to be applied,[519] drawing upon the judgment of Keane J in Hegarty.

502. His Honour considered the case before him in light of those principles, and ultimately dismissed the plaintiff's claim, noting that the case had the hallmarks of litigious hindsight described by Keane JA in Hegarty. His Honour found it probable that the plaintiff presented to his colleagues and superiors as a dedicated and keen professional, and was unpersuaded that circumstances existed such that the defendant knew or ought to have known that the plaintiff was at risk of psychological injury during the course of his employment.

503. A different conclusion on the facts was reached by Ginnane J in Doulis.[520] This was a claim brought by a state secondary school teacher for psychiatric injury arising from repeated exposure over the years between 1999 and July 2007 to a highly stressful work environment. The plaintiff alleged that he had been assigned an unduly heavy workload with a high number of more challenging classes and students ('low and foundation classes'). The plaintiff was diagnosed in 2003 with a Major Depressive Disorder due, in part, to the nature of classes that he had been allotted.[521]

504. Ginnane J referred to Koehler and Larner v Great Western Foods Ltd ('Larner')[522] regarding the importance of paying attention to the signs of distress available to the employer that might indicate a risk of psychiatric illness. His Honour also paid regard to the principles discussed in Hegarty acknowledging the need to avoid a hindsight approach in determining the content of the duty of care. After undertaking a comprehensive review of the nature of the plaintiff's obligations under his contract of employment, and of the evidence regarding signs of his progressive inability to cope with his teaching allotment, his Honour found that the plaintiff had been provided with little by way of preparation, training, or mentoring for his challenging teaching load.[523] The plaintiff was presenting as 'distraught' by September 2003, and told two other teachers that he could not cope with all his classes and had not been sleeping properly. He was sent home on sick leave by the College Principal, Mr Butyn. Upon return to work, he delivered a letter to Mr Butyn, in which he referred to the stress that he was experiencing due to the nature of the classes allocated to him. Despite these signs of stress, the plaintiff's workload and teaching allotment were not changed, and no formal monitoring of his condition was put in place, nor were any further inquiries made about his condition by the College.[524]

505. The plaintiff's appearance and presentation at work, together with his complaints of stress, led his Honour to find that the plaintiff's psychiatric injury was foreseeable:

I consider that a reasonable person with their knowledge would have recognised that his condition was also work-related.

The combined notice and knowledge gained by Mr Butyn, as Principal of the College, and Mr Hatzis, as Assistant Principal in charge of the timetable, were sufficient to give the College notice of the risk that Mr Doulis might develop a psychiatric condition because of his teaching allotment.[525]

506. Regarding the content of the College's duty of care and the measures that should have been taken, his Honour said:[526]

In my opinion, a reasonable person, with the knowledge available to Mr Butyn and Mr Hatzis in September 2003, would have modified Mr Doulis' duties, by removing or lessening his low classes and foundation classes, providing him with support and directing that he take any sick leave that he required. A reasonable person would also have monitored his condition when he returned to work and enquired from time to time about his well-being. Such enquiries would probably have revealed that he continued to have great difficulty controlling and teaching the low classes and foundation classes.

...

Mr Doulis had raised his work difficulties with the College and I therefore do not see any barrier to reaching these conclusions, because of the private and personal nature of psychological illnesses.

Nor is there a need for some external standard against which to determine if Mr Doulis' work was unduly onerous, in circumstances where a reasonable person would have perceived that there was a risk that Mr Doulis would develop a recognised psychiatric illness.

507. In a somewhat different context, in Swan,[527] Dixon J had to determine whether liability for negligent infliction of psychiatric injury existed in a case in which a retail employee of a law bookshop co-operative ('Legibook') had alleged an unsafe system of work. The plaintiff worked at close quarters in the bookshop with Mr Cowell, the retail manager, but the division of roles was unclear. She had complained to the board of Legibook about the overbearing and demeaning conduct of Mr Cowell. The board had acknowledged the plaintiff's complaint, but were slow to respond, and meanwhile the behaviour continued.

508. His Honour distinguished Koehler on the basis that, in that case, the employee had made complaints about the work duties, but did not say anything to lead the employer to regard her as being at risk of psychiatric injury from the work. The complaints implied an industrial relations issue rather than a mental health issue. Referring to Taylor, his Honour noted that the dismissal of the claim in that case turned on a careful examination by the trial judge of the terms and conditions of employment. Although the workload was heavy, without the benefit of hindsight, there was no reason for the employer to suspect that it would place the plaintiff at risk of psychiatric injury.

509. In Swan, the defendant had submitted that the plaintiff's complaints did not indicate, either explicitly or implicitly, any vulnerability to stress, and that 'the plaintiff coped with Mr Cowell's behaviours and never complained of distress or of any symptoms that might, even implicitly, forewarn of possible psychiatric injury'.[528] His Honour disagreed, noting that the plaintiff had 'plainly stated she did not wish to feel threatened or uncomfortable in her workplace and the board members, between themselves, referred to her complaint as one of being bullied'.[529] His Honour considered that '[t]his was not everyday workplace stress that had been consented to by the employee in taking the position', and that 'the risk of psychiatric injury from bullying behaviour is well understood. That consequence is not farfetched or fanciful. In fact, it was appreciated by the board'.[530]

510. In considering the content of the employer's duty of care, in light of Koehler and Hegarty, his Honour observed that the scope and content of the duty of care in a psychiatric case must depend on the circumstances of the particular case.[531]

511. His Honour also observed that 'the employer is under an affirmative obligation to actively consider amelioration of a risk of injury and cannot abrogate that responsibility to its employee'.[532] Whilst acknowledging the importance of looking forward to identify what a reasonable employer would have done, and accepting the need for circumspection based on the considerations discussed in Hegarty, his Honour was nevertheless satisfied that the defendant did not exercise the standard of care expected of an employer in the circumstances.[533]

[N]o question of foreseeability, objectively assessed, of a risk of a psychiatric injury to the plaintiff from conduct of the type complained of arises in this case. Mr Somers was told in writing that the plaintiff considered she was working under very strained conditions because she was being continually subjected to sarcasm, hostility, rudeness and violent behaviour, threat of termination or lack of consultation within the workplace. Mr Somers immediately appreciated that such an environment within Legibook could cause a psychological or psychiatric injury to the plaintiff and the board's awareness of that risk is plainly evident in minutes of its meetings and in written communications between directors from 25 March 2003. The duty of care to take reasonable care for the plaintiff's mental health in the context of a risk that she might be injured by workplace bullying was engaged by this time.[534]

513. His Honour made reference to the four appeals that were heard together in the Court of Appeal in the United Kingdom; Hatton v Sutherland; Barber v Somerset County Council; Jones v Sandwell Metropolitan Borough Council; Bishop v Baker Refractories Ltd[535] - each of the appeals was brought by employers against awards made to employees for psychiatric illness caused by stress at work. Dixon J observed that it was notable that, in Jones v Sandwell Metropolitan Borough Council, as in the case of Wendy Swan, there was a failure by the employer to follow through their own decision that something should be done:

In the Jones appeal, although there was no specific medical event that might have alerted her employers to the risk of the breakdown that occurred, the employers did know that excessive demands were being placed upon Mrs Jones. They also knew that she was complaining of unreasonable behaviour by her immediate manager ... The question was not whether the conduct had in fact caused harm to her health before her breakdown. Rather, was it foreseeable that the (conduct complained of) carried that risk for it to be a breach of duty for the employers to continue placing unreasonable demands upon Mrs Jones and not to follow through their own decision that something should be done about it.[536]

514. In the case of Wendy Swan, the evidence of a clinical psychologist specialising in workplace and health psychology, and another psychologist specialising in occupational health and safety and workplace bullying, assisted in determining what measures were required in response to the risk to the plaintiff from Mr Cowell's conduct.

515. Ultimately, his Honour found that the behaviour of the defendant fell short of the expected standard of an employer because, inter alia, the defendant failed to put in place proper job descriptions, contracts, and workplace behaviour policies, or introduce defined procedures for complaints. The board improperly relied upon the plaintiff to make choices regarding the board's response to her complaints about Mr Cowell, and failed to directly investigate what was occurring when the complaint was originally made.[537] No formal system was in place to enable employees to seek assistance when bullying conduct occurred. The board did not arrange for or conduct any risk assessment, either generally or in response to the complaint. The board failed to assess the risks that it identified in the early period after the plaintiff complained, and did not properly monitor, on an ongoing basis, the behaviour of its employees.[538] An appropriate measure included intervention by engaging a workplace mediator or conciliator after the original complaint was made. The board failed to properly address with Mr Cowell that bullying behaviour would not be tolerated.[539]

516. Regarding causation, his Honour found that '[t]he opinion evidence from the psychologists emphasised the importance of early intervention to avoid or limit the damage and injury that flowed from sustained workplace stress and its resultant impact on the plaintiff'.[540] His Honour accepted that the plaintiff herself did not recognise at the time that she was sustaining injury, and concluded that 'a plaintiff can suffer a breakdown through the cumulative effect of the bullying and harassing conduct'.[541] His Honour held that the defendant failed to take reasonable care for the safety of the plaintiff, specifically in terms of her mental health and that, had the defendant acted prudently and appropriately, it was likely that the plaintiff would not have suffered any, or any significant, psychological injury.[542] Therefore, the defendant's negligence was a cause of her injury, loss, and damage.

517. Briggs[543] was a case which reiterated the importance of considering the obligation on the employer from a prospective vantage point. Mr Briggs was a police officer who suffered a psychological injury caused by exposure to traumatic events in the course of his duties. He sued the State of New South Wales alleging breach of the duty owed to him to take reasonable care to avoid exposing him to the foreseeable risk of psychological injury. The primary judge upheld the claim but the State of New South Wales appealed, alleging errors of law in how the primary judge had formulated the content of the duty, breach, causation and damages, as well as failures in the primary judge's findings of fact.

518. The respondent had been exposed to many traumatic incidents in the course of his employment over fourteen years and, at one stage, had told his superiors that he was 'struggling' and needed a break. He was also experiencing difficulties in his personal life at that time. At issue was the failure of his supervisors to intervene and refer him for mental health assessment and treatment at a time that may have avoided the extent of his psychological injury. The New South Wales Court of Appeal held that breach of a duty of care must be assessed in light of a postulated system which should have been devised, or a general instruction which should have been given, that would probably have prevented the psychological injury.

The fact that Mr Briggs' case was wholly founded in negligence meant that the strictures from the High Court concerning the need to formulate scope of duty with requisite precision, and to do so prospectively, applied. Most employees will only rarely face the traumatic situations which are part and parcel of the duties of a police officer, and most employees do not commit an offence if they neglect to obey lawful orders or fail to carry out any lawful duty. Senior counsel appearing for the State ... emphasised the passages from Fahy ... which insisted on breach being assessed in light of the postulated system that should, on the plaintiff's case, have been devised or the general instruction which should have been given.[544]

520. His Honour noted that the obligation to determine breach prospectively meant that the postulated system needed to extend not only to Mr Briggs, but to all comparable general duties officers; that there was no formulation of any general instruction which should have been given within the police force as a whole, in order to address the foreseeable risk of mental illness.

The primary judge did not identify incidents which would differentiate the tasks undertaken by Mr Briggs in this period from the general tasks which are the ordinary lot of police officers on general duties ... Nor was there identified what were the signs of which Mr Briggs' superiors were to be taken to be aware that required that very significant and intrusive step [ie, the direction to attend counselling] ...

...

... In order for liability to be made out, what was required was the identification of some different, specified system of work which, if it had been implemented and maintained, across the NSW Police Force as a whole, would have been a reasonable response to the foreseeable risk of psychological injury.

522. Ultimately, it was concluded that the primary judge had engaged in impermissible hindsight reasoning. McColl JA concurred that there had been no breach of duty by the defendant:

As Leeming JA observes and as was the case in Fahy, no evidence was led at trial that suggested with any focus on the particular circumstances of general duties officers such as Mr Briggs, what steps his managers and supervisors should have taken in response to any of the many events to which he was exposed other than the SIDS incident, in which respect the State was found not to have breached its duty of care. As Leeming JA concludes, the primary judge did not identify the system of work which should have been prescribed in response to the risk of psychiatric injury.[546]

523. However, her Honour made some qualifying remarks regarding the content of the employer's duty of care in high-risk occupations:[547]

One would infer that the systems developed by the Queensland Ambulance Service and the Royal Ulster Constabulary and that recommended by the Ombudsman to assist personnel exposed to traumatic events to deal with the risk of psychiatric damage were informed by expert evidence.

In both Fahy and Hegarty, reference has been made to what I accept is a delicate question of when a colleague or a supervisor might step in if an employee is manifesting signs of psychiatric problems. However in the context of services such as the Police (and, it might be thought, those in emergency areas such as the Ambulance Service), it is hard to believe it is beyond the wit of an 'employer' in the position of the State, informed by the sort of expert assistance I infer was available in Queensland and Northern Ireland, to devise a system of work which can take such matters into account.

The matters to which Leeming JA refers concerning intrusions into an employee's private affairs are undoubtedly valid in some contexts. But, with respect, they cannot assist in the resolution of this case.

In an area where 'employees' are constantly exposed to traumatising incidents and the foreseeable risk of suffering recognisable psychological injury, the courts cannot, in my view, be timid about the need to ameliorate that risk. In particular, while issues such as '[t]he dignity of employees, and their entitlement to be free of harassment and intimidation' are important, so too is the proper discharge of the 'employer's' duty of care in the context of employing people in a traumatising workplace. In such areas, the solicitude the 'employer' must exhibit concerns an actual, or potential, workplace injury. The fact that it entails a worker's mental health does not immunise it from the employer's responsibility to discharge the relevant duty of care. Nor, with respect, should it be characterised as an intrusion into an employee's private life.

Courts should, in my respectful view, be cautious about making personal observations concerning the manner employers should formulate systems of work to deal with risks of psychiatric injury. In this vexed area, it is not for an individual judge to determine the policy of the law according to his or her own view of what social interests dictate, nor should the law in this area be developed by reference to 'idiosyncratic judicial perception'. Rather, it is best, to reprise Windeyer J, that the law march with medicine (and I would add those expert in fields of occupational work and safety) 'but in the rear and limping a little'. In that way, the law may best give effect to, and recognise, community concerns that employees' mental integrity should be protected from unreasonable infliction of serious harm to which their workplaces expose them.

524. In Wearne,[548] Dixon J considered a claim brought by the plaintiff who had been employed by the Department of Human Services as a case manager in youth supervision. She sued in negligence alleging psychiatric injury sustained in the course of her employment between February 2007 and November 2008. The plaintiff alleged that bullying and harassment by her supervisor exacerbated her pre-existing psychiatric illness and/or that there was negligent supervision of her by her managers, who were aware of her susceptibility to suffer psychiatric harm. The plaintiff had previously reported work-related stress from toxic circumstances that had developed between her and other employees at the Department's Sunshine office. The defendant conceded that, since the plaintiff's transfer from the Sunshine office to the Preston office, they were on notice that the plaintiff was at risk of psychiatric injury, but the defendant nevertheless disputed negligence. His Honour was not persuaded that the plaintiff had been bullied, but found in her favour regarding negligent supervision.

525. His Honour referred to Koehler and Taylor, his own judgment in Swan, and the judgment of J Forrest J in Johnson v Box Hill Institute of TAFE.[549] In considering the content of the employer's duty of care, his Honour said:[550]

I am satisfied that, in accordance with the principles I have identified, the Department's duty to take care to ameliorate the risk of psychiatric injury in the course of her employment, particularly in the manner of supervision of her duties and her exposure to stress and anxiety through work tasks and interactions was enlivened in the claim period. There was nothing in the terms of her employment that precluded that duty of care from arising. The content of the duty was to prevent the plaintiff from suffering a psychological injury by taking such steps as were able to be taken in the circumstances. Those steps included but were not limited to:

(a) Moving the plaintiff to the supervision of a different team leader;

(b) Developing and implementing an appropriate policy for receiving and appropriately handling complaints of bullying and serious interpersonal conflict;

(c) Finding a suitable alternative position for the plaintiff that avoided the stressors affecting her;

(d) Changing the plaintiff's working conditions;

(e) Adopting more pro-active solutions in respect of educating supervisors with the necessary skills to appropriately manage persons such as the plaintiff; and

(f) Adopting more pro-active solutions including counselling, training and professional development to assist the plaintiff with work place change, report writing, acceptance of feedback and managing work stress.

It follows from what I have said about the existence and scope of the duty that there was a reasonably foreseeable risk of injury to the plaintiff which was not farfetched or fanciful.

526. In considering breach of the defendant's duty of care and assessing the reasonableness of the Department's response to the foreseeable risk of injury to the plaintiff, his Honour observed that determining what was reasonable in the context of an employer/employee conflict was not an easy task, and that there was a need for circumspection in the evaluation of a reasonable employer's response, as discussed in Hegarty and other cases that have dealt with such issues.

527. However, his Honour was satisfied that the defendant did not exercise the standard of care expected of an employer in the circumstances. In analysing breach of duty, his Honour placed significance on the fact that the plaintiff had requested to move team leaders in early 2008 on the basis of a perception of unfair treatment, but management wrongly considered that moving her to a different team leader was not an appropriate response. If a move had been made at an earlier time, it was probable that the stressors on the plaintiff would have been significantly reduced.[551] His Honour also considered that there were deficiencies in the process for dealing with complaints, and in the process for dealing with performance management issues. Appropriate measures that should have been taken by a reasonable employer included: formal investigation of the friction between the plaintiff and her team leader; formal counselling to address their behaviour towards one another; provision of directions or training to the plaintiff's team leader about how to deal with the plaintiff's mental health concerns; a formal early intervention plan to respond to occupational stress; formal mediation for the plaintiff and her team leader; and moving the plaintiff to a different team leader. If these measures had been in place, the exacerbation of the plaintiff's pre-existing injury could have been avoided.

528. In the recent case of Sills,[552] the appellant, Melanie Sills, appealed to the Court of Appeal in New South Wales from the dismissal of her claim brought in the District Court of New South Wales against her employer for negligence. She had alleged that the employer breached its duty of care to avoid exposing her to the foreseeable risk of psychiatric injury. She had been a general duties police officer who was exposed to multiple traumatic incidents during her many years of service. She took time off for mental health reasons and, on her return to work, the Police Medical Officer ('PMO') and police psychologist recommended that she be provided with counselling and that she be subject to ongoing monitoring. These recommendations were not properly implemented and ultimately the appellant had to be discharged from the police force suffering PTSD and depression.

529. From her first day of work in 2003, the appellant had a range of exposures to traumatic incidents. On 17 August 2006, she experienced a panic attack whilst on duty and was sent home and told to see her doctor. Her doctor diagnosed PTSD, certified her unfit for work, and recommended referral to a psychologist. A psychiatric assessment was given to the employer by the appellant stating that the appellant had chronic PTSD (partially resolved), but remained at risk of her symptoms worsening if she were again exposed to the full range of duties. The appellant continued working in general duties and continued to be exposed to trauma. She commenced maternity leave in December 2007 and was promoted to the rank of Senior Constable in May 2008 whilst on maternity leave. She remained on various kinds of leave until January 2009 when she sought to return to general duties in a part-time role. She requested a role doing pro-active work but excluding responding to calls over police radio. This, and other similar requests, were not met, and she was exposed to further traumatic incidents whilst at work. Her PTSD symptoms recurred and became as severe as they had been earlier on. The plaintiff was also experiencing marital and financial difficulties at that time. She began to accrue absences from work and her psychological condition deteriorated to the point where she attempted self-harm on two occasions towards the end of 2010, and was certified as unfit for all work by her doctor.

530. The Court of Appeal upheld the appeal and found that the State had breached its duty of care by returning the appellant to general duties without implementing the recommendations made earlier by the PMO and the Police Psychologist. At that time, the State was aware that she was suffering from PTSD and that placing her on general duties was likely to expose her to further traumatic incidents.[553]

531. Sackville AJA (Payne JA and Simpson AJA agreeing) observed that it was not disputed that the State had an adequate system in place to identify and assist officers at risk of psychological injury as a result of trauma:

The question for determination is not whether the State should have devised a system, or a better system, to identify police officers at risk of suffering psychological injuries as a result of exposure to trauma and to provide those offers with appropriate assistance. ... The question is whether the primary Judge should have found that the State breached its duty of care by failing to implement the system in place for detecting and addressing psychological injury.[554]

The State accepted that pursuant to its duty of care it was required to identify officers who, as a result of their duties, were at risk of suffering and were suffering psychiatric or psychological harm. It was also required to take steps to ensure that any officer so identified received appropriate treatment and support to alleviate or lessen the effect of his or her injury. The State further admitted that upon an injured worker's return to duties and thereafter, the State's duty required it to consult with appropriate persons in the workplace to identify hazards associated with the work environment and with systems of work. The duty extended to assessing the risks of injury or further injury associated with the hazards.[555]

533. Referring to the considerations of privacy and autonomy expounded by Keane JA in Hegarty, it was observed that the authorities have accepted that care must be taken before concluding that an employer is duty bound to take positive measures to ascertain whether an individual officer exposed to stress or trauma has suffered psychological injury. Also, that claims by police officers must also be assessed having regard to the police officer's statutory duty to obey and carry out lawful duties.[556] Nevertheless, the issues raised by the appellant's case differed from those considered in Briggs, because the appellant had already been identified to the defendant as suffering psychological illness through the provision of a psychiatric report that referred to her PTSD.

534. The words of the majority in the High Court decision of McLean v Tedman,[557] were applicable:

The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer ... And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands. [558]

535. The State had called evidence about the system of work which incorporated a range of procedures to respond to and monitor the risks arising from exposure of police officers to trauma. This included a traumatic incidents register, a post-incident debriefing process, shift handover reports, the Employee Assistance Program (EAP), and written and oral communications about welfare. In 2005, a spreadsheet[559] was commenced that was maintained over a rolling two-year period, with five or more traumatic incidents in the space of two years raising a 'red flag' to members' superiors. Notification in the register would invoke a tiered range of responses, including an email to the member offering counselling via the EAP, an invitation to speak to a senior officer, and a spectrum of internal debriefing responses. Once an officer experienced two or three traumatic incidents, there was to be proactive follow up. There were also debriefing processes after traumatic incidents.[560] Shift handovers were an opportunity for welfare issues to be addressed or debriefing to be instigated. However, the evidence called before the primary judge showed deficiencies in the implementation of the procedures referred to above, with respect to the appellant.

The State was aware that the PMO and Police Psychologist had certified the appellant as fit for general duties on the basis that she received the counselling and support recommended by them. The failure to implement the recommendations exposed the appellant to precisely the risk of which the State had been made aware.

The State also breached its duty of care to the appellant by its entirely inadequate response to the report in the Critical Incidents Register in May 2009. The State knew or should have known that the appellant was continuing to suffer from PTSD. The accumulation of five Critical Incidents within a relatively short period should have raised a 'red flag' that intervention well beyond an exchange of emails was required. At the very least the exercise of reasonable care required a meeting in person with the appellant to determine what measures were needed to protect her from yet further trauma. That course of action would have been consistent with the practice senior officers considered appropriate and said that they implemented as a matter of course.[561]

537. In the recent case of YZ,[562] Judge O'Neill in the County Court of Victoria upheld a claim in negligence brought by a former journalist (YZ) who had worked as a news reporter for The Age Company Ltd ('The Age'). The first phase of her employment involved exposure to a significant number of traumatic incidents in her work in general news reporting. After covering the murder of Darcey Freeman, a four-year-old girl thrown off the West Gate Bridge by her father, the plaintiff demonstrated acute distress and complained that she had 'had enough of death and destruction'. In response, YZ's employer transferred her to sports reporting. Subsequently, in 2010, her employer approached her to discuss transferring her back to a crime reporting role as Supreme Court reporter, when another journalist was departing that role. YZ expressed reluctance to take on the role, but after subsequent approaches was offered a pay rise, and was eventually prevailed upon.

538. Judge O'Neill's decision about foreseeability of risk was based on the cumulative effect of the trauma exposures that the plaintiff experienced both in the earlier period of work as a crime reporter on the news desk, and in her later work as a Supreme Court reporter. His Honour referred to industry knowledge about the risk of psychological injury for journalists, such as academic and other publications available to The Age. It was found that the plaintiff had complained about and manifested signs and symptoms of distress, sufficiently often, for The Age to have notice of the development by her of a psychological disorder.[563] Whilst her managers and editors were not endowed with expert psychiatric knowledge, no great expertise was needed to understand that the exposure of the plaintiff to trauma at work could result in something far more substantial than simply tears and stress after a particularly difficult story.[564] The trial judge remarked:

True it was an emerging pattern of behaviour, probably not patently obvious until the later years of her time as a crime reporter, but with the cumulative exposure to trauma, I am satisfied that by around 2007, the signs and symptoms were relatively obvious.[565]

539. His Honour had regard to the constraints implicit in Koehler and Hegarty, but found that psychiatric injury was foreseeable in light of the nature of the plaintiff's work, the notice that the employer had about the risk of PTSD for journalists, and the signs of impaired mental health shown by the plaintiff. In considering the scope and content of the duty of care, his Honour found that the employer breached its duty of care to the plaintiff by failing to have in place a suite of measures to protect the plaintiff from foreseeable psychiatric injury. The duty owed to YZ by The Age required 'proactive as well as reactive steps'. Whilst The Age had an EAP in place and informal peer support was available for YZ, along with some optional training courses about trauma exposure for journalists,[566] the full suite of required measures was larger.

540. The measures that ought to have been implemented to protect YZ against injury included: training of managers and staff on the relationship between trauma and psychiatric injury; support in the form of properly trained peer support; immediate (rather than delayed) access to the EAP when needed; addressing a culture that repressed speaking up about psychological symptoms; consideration of rotation for an employee who showed symptoms; and not transferring the plaintiff to court reporting in 2010, when she expressed reluctance. His Honour found that, had this suite of measures been implemented, YZ would not have experienced the psychiatric injury that she later suffered.

541. The Age appealed against his Honour's judgment and the matter was recently determined by the Court of Appeal in The Age v YZ.[567] In light of the significance of the Court of Appeal's decision, I invited and received further submissions from the parties.

542. The Court of Appeal (Niall, T Forrest and Emerton JJA) observed that:

[I]t is important to emphasise that, in assessing the content of the duty, the steps that would reasonably be required of an employer to address risk and causation are heavily fact dependent. There remains the inevitable risk that general concepts will be applied as if they are governing principles of law to be applied in every case.[568]

543. In light of this caveat, the Court identified general propositions that were applicable in an action for negligence by an employee against an employer including:[569]

(a) first, the forward looking nature of the content of the duty of care framed in such a way as to avoid 'litigious hindsight';

(b) secondly, that the content of the duty and whether it has been breached must be identified and addressed in each particular case depending as it must on the facts, and the legislative and legal context of the relationship between the parties;[570]

(c) thirdly, the principles from Shirt must be applied in considering whether the employer breached its duty by failing to take those steps which the judge held were reasonable; and

(d) fourthly, in the context of psychiatric injury, and prior to consideration of foreseeability and breach, Koehler established that it is first necessary to have regard to the specific nature and content of the duty owed by the employer, as it was not sufficient to employ the level of generality associated with determination of duty in cases of physical injury.

544. The Court observed that Hegarty 'reinforces the need for care in formulating the scope and content of the duty of care. One must take into account the difficulties in identifying the signs of psychiatric injury and the personal autonomy of the employee'.[571] However, Hegarty '[did] not stand for the proposition that an employer owes no duty of care to take steps to identify and respond to signs of psychological distress caused by occupational exposure to stress'.[572]

545. The Court went on to consider the reasons for judgment of Leeming and McColl JJA in Briggs, where the allegation was that the employer failed to effectively monitor the plaintiff's psychological health during his service. Drawing the threads of Hegarty and Briggs together, the Court said:[573]

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.

546. The Age had argued that the steps identified by the trial judge went well beyond what ought to be required of a reasonable employer and required an unreasonable working environment. Steps that required inquiry into an employee's private life and imposed a duty to monitor the mental health of employees were in conflict with the employee's rights to privacy and autonomy. The step that required an employer 'to prophylactically remove an employee from exposure to traumatic events' (by rotating or transferring her to a different area) was submitted to be unreasonable in the absence of the employee asking to be removed. Employee access to the EAP and acting on medical advice about an employee's fitness to perform their duties was submitted to be a sufficient response to the reasonably foreseeable risk to the mental health of the plaintiff. This was in contrast to the suite of measures identified by the trial judge.

547. At the appeal, YZ[574] conceded that her injury would only have been avoided by a reduction in her exposure to trauma; ie, by rotation away from crime news reporting prior to 2009, and by not being moved to court reporting in 2010.[575] The other suggested steps, if in place prior to 2009, would not have been sufficient to establish causation if they had not resulted in the plaintiff being transferred away from working on traumatic events.[576]

548. The Court of Appeal observed that:[577]

The critical findings of the judge were that the employer breached its duty to the plaintiff by not training staff, not providing formal peer support, not moving the plaintiff away from crime reporting before 2009 and, once she had been moved to sport, moving her back to a traumatic environment. Each of these matters were found to be reasonable steps that the employer could have taken, or in the case of the last item not taken, to avoid injury of the kind sustained by the plaintiff. The judge found that, had they been taken, the plaintiff would not have been injured.

...

In concrete terms, the issues are as follows. Were training, formal peer support, immediate access to the EAP and a sympathetic rotation policy reasonable steps for the employer to take? Was there a breach of duty if it failed to take them, and, if they been had [sic] taken, would they have prevented or avoided the plaintiff's injury?

549. Regarding the suggested step of rotation, the Court of Appeal accepted that rotation of duties, where required, was a reasonable step for the employer to take to avoid injury.[578] Unlike other fields of work, rotation of journalists through different fields of work was proven to be a relatively common occurrence, and was not inhibited by the plaintiff's employment contract; '[t]he opportunity for transfer certainly existed'.[579] However, it was also noted that:

[I]t was not the plaintiff's case that rotation was required as of course and regardless of whether the employee concerned had manifested any distress and regardless of the wishes of the employee. The plaintiff's case was that rotation away from crime reporting was required for her before 2009 and would have occurred had there been training and formal peer support.[580]

550. However, the Court of Appeal found that, prior to 2009, there was no obligation arising from the duty of care 'to delve into the plaintiff's capacity for work and, having done so, rotate the plaintiff away from her duties as a crime reporter'. Such inquiries were 'inherently private and highly personal'.[581] The Court was not persuaded that editors and managers faced with the circumstances of the plaintiff before January 2009 were obliged to actively investigate her mental health as a precursor to the allocation of duties. Nor was there a duty to train staff to undertake such active investigation.[582] This conclusion was based on the absence of signs indicative of ill health or PTSD prior to 2009, and the absence of any request to be transferred or rotated prior to that time.[583] Further, the Court observed that, prior to 2007, YZ was already in receipt of treatment from the EAP and private medical and psychological care, but was not advised by those treating her to stop work as a crime reporter on the news desk.[584] On her evidence, this was something her employer would have been aware of, as she had not keep this fact to herself.[585] The circumstances in the earlier phase of employment, according to the Court, did not 'entail[] any higher degree of intervention than suggesting the plaintiff seek professional assistance and responding to requests' for rotation of duties.[586]

551. The Court was also not persuaded that the introduction of a formal peer support programme would have prevented the plaintiff's injury prior to 2009. Although the plaintiff might have been directed to the EAP by such a programme, she did in fact attend the EAP in 2007 and 2009. The absence of more immediate access to the EAP was not causal.

552. The Court also found that training staff and management to detect signs of illness would not have prevented the plaintiff's injury and, to the extent that there was a duty, it entailed no more than ensuring that they were trained to 'identify and refer at risk employees to appropriate professional care'.

553. The Court found few signs in the evidence that the plaintiff was keen to move to a different area of journalism before 2009. Having considered the distinction between the period before 2009, and after her move to court reporting, it was found that:[587]

Training staff about the relationship between trauma and injury, trained peer support and a sympathetic informed rotation policy were all reasonable steps and did not unduly intrude into the private domain of employees. We have identified some limits on what an employer can reasonably be expected to do in relation to the monitoring and investigation of mental health, but we do not consider that the judge transgressed those limits.

However, we are not satisfied that, before 2009, The Age breached its duty of care in a way that caused the injury to the plaintiff by failing to train staff, including the plaintiff, providing a formal peer support program, providing more ready access to the EAP or a more informed rotation policy. That is because we are not persuaded that, had those matters been provided by the employer, the plaintiff would have been rotated away from crime reporting before 2009. We are not persuaded that she would have requested such a rotation, nor would those matters have resulted in the employer, at its own initiative, rotating the plaintiff.

554. The failure to train managers and editors did not cause the plaintiff's pre-2009 injury.[588]

555. Regarding the later transfer of the plaintiff away from sports reporting, in contrast to the circumstances that existed before 2009, the Court said:

It is clear that the move to court reporting was associated with a significant decline in the plaintiff's health. The evidence showed that her symptoms had abated during her time in sport reporting, but became worse when she was a court reporter. ...[589]

556. Had there been a better understanding by management and the plaintiff of the relationship between trauma and injury, at that stage, she would not have been persuaded or requested to work as a court reporter. Training at that stage would have been effective. The Court agreed with the trial judge that 'the causative issue in respect of that period of employment is simple'.[590]

557. As noted earlier, following publication of The Age v YZ, the parties were invited to make further submissions regarding the import of the Court of Appeal's decision on the current proceeding. Supplementary submissions were received in late December 2019, which I have considered and incorporated into my legal analysis where appropriate.

Was there a reasonably foreseeable risk of psychiatric injury to the plaintiff?

558. The defendant was on notice that health and well-being concerns had been prominent for SSOU staff for some years prior to the claim period.

559. Regarding the executive, notice of the risks to SSOU staff from burnout, work stress, and/or exposure to vicarious trauma came from:

(a) the 2007-2009 internal documents, including the VT policy and attached list of references.[591] Note that Ms Fatouros had suggested to the executive further development of the SSOU manual and the VT policy, and 'a more structured management approach to dealing with recruitment and staff turnover within SSOU as it relates to the heightened risks of vicarious trauma given the nature of the work';

(c) the Business Case created by Mr Brown. Aspects of the Business Case echoed matters raised by the previous SSOU manager regarding the high turnover of senior staff and the need for improved recruitment strategies, as well as the risk of staff burnout and associated OH&S risks;

(d) the October 2011 meeting between Mr Ward, the plaintiff, and Ms Ellul.

560. The defendant failed to call anyone from the executive to elaborate on its state of awareness of the risks to SSOU staff and the plaintiff. Therefore, it can be inferred that such evidence would not have assisted the defendant's case.[592] An explanation was proffered (which I accept) as to why the defendant did not call Mr Ward (that he was unwell), but no adequate explanation was given as to why no other member of the executive was called in his place.

561. Regarding SSOU management, notice of the risks to SSOU staff from burnout, work stress, and/or exposure to vicarious trauma can be inferred from the following factors:

(a) direct knowledge of the work practices and pressures on staff in the unit, including court listing pressures and tight legislated time limits, together with knowledge of the nature and intensity of the work and of the work allocation to individual staff members;

(b) monthly staff meetings where staff verbalised their concerns about workload and the personal impact of their work;

(c) direct encounters by management with SSOU staff; for example, when approached by management, the plaintiff expressed reluctance regarding preparing the Lim case for trial due to workload pressures;

(d) the 2011 Staff Memo, which made them aware that:

• staff were reporting symptoms of work stress, including mental and physical health symptoms and unhealthy coping behaviours;

• SSOU staff were working long hours in the office and taking work home on weeknights and on weekends; and

• staff feared that bringing individual complaints would be seen in a negative light and impact adversely on promotional prospects;[593]

(e) knowledge of the information that Mr Brown included in the Business Case, such as the fact that some staff were staying in the office until 9.00pm to finish their daily work. The Business Case drew attention to the risk of staff burnout and 'looming OHS issues'. Awareness of the intense pressure on staff was also shown elsewhere in the evidence. It was also implicit in Mr Brown's email to staff on 27 June 2011, apologising for reallocating further files when staff were already feeling overloaded. Ms Robinson also referred in her evidence to staff being 'slammed by the courts';

(f) Mr Brown's acknowledged awareness of the concept of vicarious trauma in the sexual offence field;

(g) Ms Robinson attended the Benstead workshop on two occasions;

(h) Mr Brown and Ms Robinson attended the Carfi resilience training session on 20 April 2011, where staff spoke about feelings of hypervigilance related to their work.

562. After receiving the 2011 Staff Memo, both the executive and SSOU management should have been cognisant of the OH&S framework in which the memo arose, including the following factors:

(a) the unusual step taken by SSOU staff to initiate a collective approach without management involvement leading to a memo addressing staff health and well-being;

(b) there was no specific process directed to surveying or screening employee health and well-being for work-related impacts. For example, there were no staff surveys (anonymous or otherwise). Whilst employees had access to the EAP, the evidence presented to the court indicated that the EAP was not contracted to perform occupational or work-related screening of staff;

(c) the memo stated that staff did not feel comfortable individually raising complaints due to concerns that this would impact negatively upon their career prospects. (This view appears to have been held despite management claims regarding their 'approachability').

563. I am satisfied that by the end of April 2011, the daily exposure of staff, including the plaintiff, to confronting material and the accompanying workload pressure on staff was known or ought to have been known by management to be creating health and well-being effects of the kind mentioned in the 2011 Staff Memo. Provision of the memo to management showed that the system previously in place had been ineffective at informing Mr Brown and Ms Robinson about staff well-being and confirmed that there was a general risk of harm to staff.[594]

564. The defendant referred to Koehler and Fahy, and the proposition drawn from Hatton,[595] that the circumstances in which an individual might suffer a stress-related injury are so variable that no single occupation should be treated as intrinsically dangerous. However in my view, the nature and intensity of the SSOU work, along with the relentless and burdensome workload of some staff, carried an obvious risk of psychiatric injury from exposure to the effects of vicarious trauma. That risk was or ought to have been appreciated by the executive and management. The long hours of work and resourcing constraints imposed on SSOU staff during the claim period meant that exposure to confronting material was prolonged and cumulative.

565. Despite the pressures on staff, the defendant argued that there was an absence of notification of the plaintiff's mental health symptoms apart from her participation in the memo. She did not provide any reports from her health practitioners prior to 9 February 2012 warning the defendant of risks to her mental health.

566. For her part, the plaintiff testified that she signed the memo because she was personally experiencing the symptoms to which it referred. The oral evidence of the plaintiff and her witnesses was that no specific opportunity was provided to discuss the health and well-being impacts described in the memo. The plaintiff said that after the memo was given to management, no one approached her in an individual or group setting to inquire about the matters mentioned in the memo, or to conduct a welfare-check. Management did not take up the suggestion made by staff in the memo of discussing employee concerns as a group.

567. I have interpreted the fact that the plaintiff signed the 2011 Staff Memo as a sign or 'red flag' constituting either express or implied notification that her mental health and well-being required active monitoring and possibly intervention. Further, I consider that there were a number of other significant circumstances, discussed below, that put the defendant on specific notice about the risk to the plaintiff's mental health from the work.

568. Also, I consider that management's failure to seek direct feedback from staff after the memo led the plaintiff to believe that staff concerns were not properly validated and that they were being 'pushed under the carpet'. The absence of a system for seeking feedback from staff specifically about work-related health and well-being, both before and after delivery of the memo, undercuts the defendant's arguments about lack of express notice from the plaintiff once management had received the memo.

569. Notably, regarding 'the particular plaintiff', there was a mix of features that were known by the SSOU managers, about the plaintiff's background, attitude to her work, caseload, and overall circumstances. These features included that:

• the plaintiff was dedicated, hardworking, and ambitious. She had been a loyal OPP employee for many years;

• she had upwards of 25 files, when the desirable file load was no more than 20;

• she had been experiencing physical health ailments in 2011, including the need for time off to attend medical appointments from time to time;

• she was a mother of young children and a sole parent in 2011.

Evident signs of risk specific to the plaintiff

570. The plaintiff's background profile provides the context for examination of the plaintiff's presentation and behaviour over the latter part of 2011. Several events involving the plaintiff and changes to her presentation and demeanour were relied on to establish her case regarding foreseeability of risk. These matters are considered in more detail below. Ultimately, the plaintiff's case was that after signing the memo in April 2011, and when she was seen to be failing to cope in the SSOU towards the end of August 2011, a duty of care regarding her as an individual was enlivened. After the end of August 2011, the plaintiff continued to demonstrate 'evident signs' in the workplace.

571. The defendant submitted that the plaintiff accepted a role in the SSOU knowing what it involved, having worked in the OPP for a number of years, and having previously supervised offenders (including sexual offenders) in community corrections. When she accepted the job in the SSOU, she was a professional person who had the capacity to make mature decisions about her own well-being.

572. However, in my view, a distinct feature of this case is the high proportion of child sexual offence complainants managed by the plaintiff as part of her case load, whilst she was at the same time herself bringing up two young children. She testified that the proportion of child sexual assault matters that she was managing increased towards the latter part of her time in the SSOU.[596]

573. The danger to the plaintiff as an individual from exposure to vicarious trauma was magnified by both the large number of child complainant cases in her caseload and by her burdensome workload generally, including excessive after-hours work. The plaintiff's daily work involved closely examining evidence of disturbing episodes of sexual offending against both adults and children. She was required to attend all WAS and CWAS conferences and was expected to offer empathy to complainants and their families.

574. The plaintiff described the emotionally draining nature of her cases. She said of the work, 'nothing can prepare you for it'.[597] Mr Brown conceded that the nature of SSOU work could be challenging. When the cases involved young children, the stressors were elevated. Families could be torn apart.[598] In some cases, children might not be believed by their parents, which might lead SSOU staff to take on a greater support role, as occurred with the plaintiff at times.[599] Child complainants had to be dealt with differently and with particular care.[600] Moreover, in child complaint cases, the staff involved had to review audio or video evidence rather than written statements, adding to the emotional burden of the task.

575. When the plaintiff had to take work home with her, the work was, in effect, following her around. She was exposed to this disturbing material each day at work, and then sometimes into the early hours of the morning whilst at home with her own children. The plaintiff's specific work burden and case mix, and her attitude to her cases, was or ought to have been known to management.

576. Professor McFarlane explained that PTSD has been well documented as a possible response to working in the field of sexual abuse or abuse of children.[601] Sexual offence work has also been linked to vicarious trauma and PTSD. He explained the mechanisms through which the risk of PTSD increases with cumulative exposure to vicarious trauma.

577. The obvious risk of psychological harm to SSOU staff meant that, when the plaintiff began to show signs of not coping and publicly reflected upon changes to her behaviour which showed her hypervigilance in connection with her work,[602] her managers ought to have been alerted as to the increased risk that her mental health was becoming impaired by the work.

578. I accept that the following 'evident signs' provided notice to the defendant of the heightened risks regarding the plaintiff's mental health in connection with her work, prior to 9 February 2012:

(a) First, the plaintiff was a signatory to the memo. Management therefore had notice that she was joining in a complaint about a range of health impacts, including psychologically-based impacts caused by the work.

(b) Second, the plaintiff had been outspoken at staff meetings, at the Benstead workshop she attended, and at the 20 April 2011 Carfi session, regarding her hypervigilance and abnormally overprotective parenting practices as a result of her work. This was a sign that the plaintiff's work was intruding into her home life.

(c) Third, as explained above, the plaintiff was known to be carrying an excessive file load with a case mix involving a high proportion of child complainant cases. She frequently took work home in an airport luggage bag to work on after her own children had gone to bed. At times, she also worked on weekends and on public holidays.

(d) Fourth, the plaintiff showed observable signs of emotional involvement in some of her cases; signs which ought to have been noticed by her managers (such as using a nickname for her 'favourite' child complainant).[603]

(e) Fifth, the plaintiff sought to avoid taking on the child incest case of Lim because she was struggling with her existing case load. Ultimately, she took on the case which dealt with complex issues and had tight deadlines, despite already being overloaded with work.

(f) Sixth, Mr Brown was aware of the plaintiff leaving work rather suddenly during the Lim trial after an episode of dizziness on 12 August 2011. He was aware that she did not return to work until 29 August 2011.

(g) Seventh, the attempted suicide of the child complainant in the Lim case occurred when the plaintiff was away from work and was in hospital. The incident was communicated to the plaintiff at that time, causing her distress. Ms Robinson became aware of the incident, but did not raise it or discuss it with the plaintiff.

(h) Eighth, there were indications that the plaintiff was not coping with the demands of the work by the end of August 2011. When she attempted to resume work after two weeks' sick leave, Mr Brown told her that he and others believed she was not coping in the SSOU. In their oral evidence, the SSOU managers referred to the plaintiff having become less reliable around this time.

(i) Ninth, the plaintiff had a highly emotive and agitated reaction to her disagreement with Mr Brown on 29 August 2011, which was telling as to her state of mind at that time.

(j) Tenth, the rupture in the plaintiff's professional relationship with Mr Brown at the end of August 2011 was significant. Mr Schrapel said the plaintiff expressed disappointment in her former mentor. According to her emails to Mr Ward in February 2012, the plaintiff felt that Mr Brown continued to 'sweep things under the carpet'. The plaintiff held a belief that Mr Brown had deliberately reduced her pay rate, leading to underpayment, for the period when she was working as an acting Grade 5 employee.[604] She raised this grievance at a meeting with Mr Ward accompanied by Ms Aitken in September 2011. She was observed to be distressed at the meeting.

(k) Eleventh, the plaintiff's personality and demeanour were observed to have changed towards the end of her time in the SSOU. Mr Schrapel and Ms Aitken spoke of these changes. Mr Schrapel said that the spark went out in the plaintiff and that he was aware of the plaintiff's disillusionment with Mr Brown's management of the unit, despite her previously friendly relationship with him. Ms Robinson described seeing the plaintiff in tears at times (which she attributed to family issues).

(l) Twelfth, the plaintiff, together with Ms Ellul, convened a meeting with Mr Ward in October 2011 to discuss grievances about the operation of the SSOU. The meeting sought improvements on several topics including junior staff being exposed to challenging material, and staff mentoring.

(m) Thirteenth, in October 2011, the plaintiff applied to combine a period of annual leave with long service leave at the end of that year. Along with the ongoing and known staff retention problems in the SSOU, this was a sign that the plaintiff may have been suffering from 'burnout'. She later applied to extend her long service leave, before notifying of serious return to work issues on 9 February 2012.

579. Regarding the knowledge of her direct managers, an evaluation of the items listed above leads me to conclude that, by around the time of her falling out with Mr Brown at the end of August 2011, there were already sufficient 'evident signs' of declining mental health.

580. The defendant disputed notice prior to 9 February 2012, referring to countervailing signs in the plaintiff's presentation, such as the plaintiff:

(a) saying to her managers that she loved her job;

(b) meeting her KPI's and applying for and being promoted over the claim period,[605] despite being aware of the emotional demands of the work;[606]

(c) conveying in her application for promotion (for a permanent Grade 5 position in the SSOU) that she was working successfully;[607]

(d) having at times sought more complicated files to gain advancement.[608]

581. The plaintiff testified that she tried to focus on her professional competence as a solicitor, and was motivated by greater job security when she applied at the end of August 2011 to have her Acting Grade 5 position made permanent. The application for the permanent Grade 5 position was lodged whilst the plaintiff was on sick leave, the day before her falling out with Mr Brown. The fact that upon her return from sick leave, Mr Brown told her that she was not coping in the unit did not hinder the plaintiff's subsequent promotion to the permanent Grade 5 role. However, the promotion of the plaintiff occurred at a time when the unit was acutely short-staffed, particularly in relation to more experienced solicitors who could mentor junior staff.

582. I accept that the plaintiff agreed under cross-examination that she had told her employers that she loved her job. She identified herself as a person who carried a more challenging workload as time went by and tried to mentor less experienced staff who were struggling to cope with the graphic content. It seems that she was mostly able to complete her allocated work, but that this required significant effort after hours, at home or in the office on weekends, and came at a personal cost.

583. Whilst the defendant emphasised the plaintiff's work ethic and promotions, these factors are at odds with Mr Brown telling the plaintiff, at the end of August 2011, that he and others had noticed that she was not coping with being a full-time employee in a busy unit like the SSOU. He mentioned an impending discussion about her future in the unit with Stuart Ward. The plaintiff interpreted the tone of the discussion as angry, upset, or disappointed, and said it was not a sympathetic conversation.

584. In the lead up to her falling out with Mr Brown, the plaintiff was in fact struggling to cope and had expressly complained to her managers in June 2011 about being allocated the Lim trial at short notice. Mr Brown conceded that the plaintiff's email mentioned that she was already having to work after hours and on weekends to manage.[609] The plaintiff testified that she was only able to prepare the Lim trial on time because she worked until all hours of the morning to get it ready.

585. When asked what she was conveying to Mr Brown about her work between signing the April Memo and 29 August 2011, the plaintiff said, 'I was telling Mr Brown that I just couldn't cope taking any more work and I wasn't coping. It wasn't during our meetings, like KPIs or our file reviews. It was in his office, sir.'[610]

586. In evidence in chief, Mr Brown gave evidence regarding his approach to informing himself about the plaintiff's well-being in August 2011, when she left work after becoming dizzy and took extended sick leave during the Lim trial:[611]

Counsel: Now, throughout the rest of - sorry. We know that the plaintiff had some sick leave on 12 August 2011 and came back and you had a discussion with her - I'll ask about in a moment - on her return, but when she went on sick leave did you know what it was that was causing her to go on sick leave?

Mr Brown: No, and I would never enquire as to the reasons. It's, ah, confidential and I - she didn't tell me and I - I don't know.

Counsel: And when she came back she had a meeting with you on [addresses the Court momentarily]. As at the time she went away or she took that sick leave - - -?

Mr Brown: Yeah.

Counsel: - - -what had she conveyed to you as to - or what had you observed in relation to her work about her ability to keep doing it and doing it effectively and the like?

Mr Brown: Yeah. Well, I think around that time she was having difficulties with her personal life, with the - the breakup of her marriage, some health issues herself. I think more physical sort of health issues, stuff with her children.

587. Mr Brown explained that he knew these personal things because 'she would tell me various things like that' and they had a 'positive working and friendship-type relationship'. But he said that the plaintiff never told him she was struggling to cope with work because of her mental state.[612] However, whilst she always assured him that she was on top of her work, 'there were times when she was asking to leave early or come in late and we were having to cover for her, get other people to do things for her, so I was becoming a bit frustrated with that ... I thought I gave her an extraordinary amount of leeway'.[613] He agreed with the proposition put by Counsel for the defendant that he regarded work as a positive in her life:[614]

Counsel: Did you see it your role to make a series of inquiries into her mental state or her private life - - -?

Mr Brown: No.

Counsel: - - - at this stage?

Mr Brown: No, not my role. Anything to do with her mental state, I - I wouldn't have inquired into that. That's something I - I think that would be intrusive. That's confidential. It's between her and any treating person, whether it be a doctor or a counsellor or a psychologist.[615]

588. Mr Brown was then questioned about his approach when the plaintiff attempted to resume work after her sick leave:[616]

Counsel: And we know that you had a discussion with her on 29 August 2011 when she came back from her leave?

Mr Brown: Yeah.

Counsel: What do you recall about that discussion?

Mr Brown: Well, we had a bit of an argument. I - I - I remember feeling frustrated with her. I thought that she had come in late and we had a bit - bit of an argument, I suppose, and I was frustrated and I did - I also had concerns about her - what was going on in her life with her - with her - the breakup of her marriage and I queried as to whether she was just taking on too much because it seemed to me she - she had a lot on her plate and I - I queried whether, you know, she was really able to - to work full-time, carry - have a full-time file load at the same time as having, you know, very difficult personal circumstances going on, and - - -

589. When cross-examined that it was unreasonable for him to be frustrated with her given that she had returned from two weeks' sick leave, Mr Brown went on to say (despite his previously amicable and confiding relationship with the plaintiff): 'I think I got the impression that - she'd come in late and she was trying to tell me that she hadn't. And I felt like she wasn't telling me the complete truth about that.'[617]

Counsel: Well, why wouldn't you believe her?... didn't she give you explanation there that her - she was having trouble turning her computer on because she had been off for two weeks? Why wouldn't you believe her?

Mr Brown: Well..., I - I just, um - I can't recall why, but I just had the feeling that she, um, just wasn't being completely honest with me, and, um, we had a - a - a disagreement.

590. Despite the plaintiff having been away on sick leave for two weeks, there was no evidence that Mr Brown or Ms Robinson made any effort to ensure that the plaintiff felt mentally capable of facing the rigours of her demanding job in the SSOU when she returned from sick leave. Mr Brown did not acknowledge to the plaintiff at that time that she had been carrying a heavy and stressful workload when she became unwell. He did not raise with the plaintiff whether the number of files that she was handling or the stressful nature of her trial load might have contributed to her becoming unwell.

591. It was during her August sick leave that the plaintiff booked in, and then failed to attend an appointment with Mr Carfi. She then attended her general practitioner, Dr Omkar, and a mental health care plan was prepared, involving referral to Mr Foenander. Although these appointments and attendances were not known to the defendant, no inquiry was made by her managers about the work stressors that may have precipitated the plaintiff becoming dizzy and leaving work suddenly during the Lim trial, or whether work stressors had contributed to her being unwell for the period from 12 to 29 August 2011.

592. No inquiry was made of her to discern whether she was accessing any healthcare support or whether she felt she needed to, or whether there was anything that the employer could do to assist upon her return to work after a lengthy period of sick leave.

593. I am mindful of Keane JA's comment in Hegarty that the risk of psychiatric injury may be less apparent than in cases of physical injury, and may depend upon 'the vagaries and ambiguities of human expression and comprehension'. However, the duty to avoid foreseeable harm to an employee's mental health does not render the employer immune from making proper inquiries[618] about staff welfare and risk in the workplace, when warranted.[619] Examples of where such risk has been discerned in previous cases include where it has been evident in changes to an employee's behaviour and demeanour, sometimes in combination with an increase in sick leave taken by the employee. It is an assessment that is acutely dependent on the circumstances of the particular case.

594. In reviewing the circumstances that had developed by the end of August 2011, I note that the following matters were known to her managers. The plaintiff had previously tried to resist the Lim case because of her excessive workload. She ended up working long hours to prepare the matter. She then suffered an episode of dizziness at work in the midst of the trial, and had to go home. She was away for two weeks. Ms Robinson was informed by a friend of the plaintiff that she was in hospital and required extended leave.[620] She passed that information on to the team. The pressures arising from the Lim trial itself included the attempted suicide of one of the Lim complainants whilst the plaintiff was on sick leave.[621] When the plaintiff did attempt to resume work on 29 August 2011, she had a significant falling out with her manager, Mr Brown, despite their previous friendly relationship. The plaintiff perceived that Mr Brown, far from being supportive after her two weeks' sick leave or offering to lighten her load, instead unfairly criticised her work ethic and her professional competence.

595. After the verbal confrontation with Mr Brown on 29 August 2011, the plaintiff walked out of the workplace and sent an emotional email about her perception of what had occurred. She was too distressed to return to work that day.

596. In considering the above matters, I note that Professor McFarlane described the plaintiff's emails at that time as hyper-reactive, and said that they provided an indication of her mental state. In his 7 May 2019 report, he said:

I have not seen the medical certificate provided by Ms Kozarov in relation to her sick leave. However, this document should have alerted an employer to considering the possibility that she was suffering from a psychological disorder, given that she has gone off duty with dizziness, which can be indicative of intense anxiety.

Ms Kozorov's response to the conversation with [Mr Brown] was one of considerable distress, as demonstrated by the email exchange of 29th August 2011. Given that this occurred following her return from being on sick leave, this should have alerted [Mr Brown] as to enquire about her psychological state of mind and seek medical advice about her situation.[622]

597. I have kept in mind that Professor McFarlane was commenting from the vantage point of an expert, but I consider that a reasonable manager would have been worried about the plaintiff's well-being at this juncture and taken steps to inquire as to whether she was in need of support, assessment, or other intervention. The conflict that occurred on the 29 August 2011 would have led a reasonable manager to consult HR about how to manage the issue. It was not satisfactory to take no remedial action in response to the plaintiff's presentation at that point in time, with such inaction representing a distinct failure to properly monitor and supervise the plaintiff when she was clearly at risk at work.

598. Whilst I accept that the presentation of the plaintiff was not one-dimensional, and that the Court must be wary of 'litigious hindsight', the plaintiff's behaviour and presentation leading up to and around the time of the August disagreement was abnormal and out of character. The conflict between the plaintiff and Mr Brown constituted a sentinel event showing that all was not well with the plaintiff. When considered against the backdrop of her earlier expressions of hypervigilance about herself and her children, her earlier participation in the 2011 Staff Memo, and the changes in the plaintiff's demeanour at work, the evident signs concerning the plaintiff were there to be seen.

599. The defendant relied on the way in which the plaintiff took offence at Mr Brown's comments, when she attempted to resume work on 29 August 2011, as showing why employers should not make intrusive inquiries of employees about the effects of their work. It was argued that the plaintiff's response was that she was up to date with her work and that she later claimed that her manager's remarks were discriminatory. She did not inform her manager that she was suffering from work-related psychiatric symptoms.

600. The defendant's submission that the plaintiff failed to notify the defendant that her mental health was being damaged by the work contains the implication that she actively refrained from raising her PTSD symptoms with her employer. However, I am satisfied that the evidence revealed that the plaintiff lacked insight into the way in which the work was affecting her mental health and did not know that it was causing her PTSD at the relevant time.[623] Rather than highlighting a failure by the plaintiff to notify her employer of her condition, I consider that there was a failure to properly supervise or monitor an employee showing signs of being at risk.

601. In the absence of adequate training of management and staff about the manifestations of mental health conditions linked to vicarious trauma, the defendant was not entitled to assume that the plaintiff would herself appreciate the link between her emotional and psychological state and her work. Dr Dharwadkar explained that with a slow course progression of PTSD, the symptoms are more lethargy, disturbed sleep, heightened anxiety and fear, and the person may attribute other stressors to these symptoms.[624] The fact that a person may not have insight into what is causing mental health symptoms increases the importance of implementing a system that trains staff and management to be aware of work-related risk factors and signs of increased risk.

602. The defendant's argument about countervailing signs relied partly on the interpretation by the SSOU managers that domestic issues accounted for the plaintiff's failure to cope or signs of distress at work. The plaintiff's position was that these issues (which she said she discussed with Mr Brown outside their professional relationship) had been occurring in her life for many years, whilst employed at the OPP, and were not new. I accept that the plaintiff appears to have steadily progressed in her career despite the challenges of her marital relationship, and despite living separately under the same roof with her husband for some time prior to her final separation from him.[625]

603. Having received the 2011 Staff Memo signed by the plaintiff, and knowing of her particular workload and case allocations (including the high proportion of child complainants), in light of the obvious occupational risks for SSOU staff from burnout and exposure to vicarious trauma, it was not reasonable for management to have assumed that signs of stress or distress emanating from the plaintiff were wholly related to her domestic life. Management ought not to have disregarded the potential impacts from the plaintiff's work, particularly given her participation in the 2011 Staff Memo. The issues in the plaintiff's private life pre-dated the memo, and did not appear to have adversely impacted her work or her career. The issues raised in the memo indicated that work-related impacts on the plaintiff's health should have been a more immediate reference point for her managers in considering why she might not be coping. The 2011 Staff Memo had brought into sharp relief the risks to the health and well-being of the SSOU staff and the plaintiff from the nature and intensity of the work, and from the excessive hours of work.

604. Although I have found that, by the end of August 2011, the defendant was on notice as to risks to the plaintiff's mental health, her continuing presentation after that time showed that the need to inquire about her welfare and well-being remained. The plaintiff was increasingly vociferous about entitlements or complaints. Her belief that she was being deliberately underpaid and her distress in the September meeting with Mr Ward is at odds with the notion that her relationship with Mr Brown bounced back from the 'August blow up'.

605. The meeting with Mr Ward over the underpayment issue, without including her manager (whom she believed was responsible for the underpayment), along with the fact that the plaintiff took a support person with her, and then became visibly distressed at the meeting, is indicative of a continuing state of hyper-reactivity in the workplace. The plaintiff's further meeting with Mr Ward in October 2011 to raise issues of concern, such as lack of support and preparation for junior staff in dealing with confronting material, suggested that she remained preoccupied with the distressing nature of the work in the SSOU.

606. Rather than having a system of active supervision and monitoring of staff well-being, it is starkly apparent that notwithstanding signs that the plaintiff was not coping at work and was behaving abnormally, no inquiry was made regarding her individual well-being. No inquiry was made of her after she was vocal at staff meetings and training sessions about the impact of the work, nor after she participated in the staff memo, nor when she sought to resist preparing the Lim matter because of her workload, nor when she became unwell during the Lim trial and was away for two weeks, nor after the attempted suicide of the Lim complainant during her sick leave, nor after her falling out with Mr Brown on her first day back at work, nor after she convened meetings with Mr Ward in September and October 2011, nor when she applied in October 2011 to take a long period of combined leave at the end of the year.

607. The plaintiff's managers never directly inquired about her mental health and well-being, nor did they ever openly acknowledge to her the particular risks attached to the work or the measures available to afford relief. The plaintiff was not known by her employer to be accessing the EAP or to be receiving any mental health assessment, care or treatment. There was therefore no basis for complacency regarding her mental health when she was showing signs of significant stress or distress at work.

608. I am mindful that notice to the employer in a Koehler sense was found wanting in Hegarty, Taylor, and Briggs. Absence of notice was also a feature of Hardy v Mikropul Australia Pty Ltd,[626] Larner,[627] and the earlier claim period (pre-2009) in The Age v YZ. In Briggs, there was a failure to identify the sentinel event that should have triggered a systemised response applicable to all general duties police officers.

609. I have concluded that the facts of the present case are distinguishable from the above mentioned cases because of the plaintiff's individual circumstances, in combination with her particular case allocation and work burden,[628] along with her behaviour and presentation leading up to and around the time of her falling out with Mr Brown at the end of August 2011. As explained, the falling out with Mr Brown constituted a sentinel event and was one of a number of evident signs relating to the plaintiff.

610. In Wearne, the plaintiff was a psychiatrically vulnerable employee and it was known by her employer that this condition was related to her previous work at the Sunshine office. After her relocation to the Preston office, she had been observed to be distressed, tearful, and frustrated at work in the context of the supervision that she was receiving from her line manager, leading to some internal correspondence suggesting a need for careful management of the plaintiff. Despite the absence of a formal complaint or updated medical certificates in the lead up to the plaintiff's ultimate breakdown, it was found that there were sufficient signs available to the employer of a reasonably foreseeable risk of injury to the plaintiff that was not farfetched or fanciful.[629]

611. In Swan, although the plaintiff had complained to the Board in writing about her co-worker early in the period of her employment and the employer had agreed to take certain steps, the plaintiff did not continue to raise complaints. Dixon J said in respect of this:[630]

Once the board had the plaintiff's initial report of Mr Cowell's conduct in 2003, the likely continuance of the bullying hazard, if unchecked, was foreseeable. The plaintiff was working in an unsafe environment and the board failed to prevent her exposure to multiple workplace hazards.

The plaintiff's failure to more regularly report her ongoing concerns to the board throughout her employment were explicable. She did not consider that it was in her best interests to do so because she enjoyed every aspect of her job except working with Mr Cowell when he behaved unreasonably. She did not want to lose her job. Secondly, it appeared that the plaintiff stayed for so long in the job because she had never had problems in a workplace before and thought that she could cope. Dr Wyatt considered that the plaintiff, for some time, truly believed that she could work around the unacceptable behaviours that were perpetrated on her because every other aspect of her job gave her great satisfaction. Dr Wyatt's experience was that fear of job loss, job satisfaction and status often compel people to stay in appalling work situations.

612. In Doulis, Ginnane J found that earlier in the claim period, the College did not have notice of the plaintiff suffering mental illness or disorder as a result of teaching his low classes and foundation classes. However, as time passed, he had made complaints at work, including to the two Assistant Principals, about his sleeping problems, particularly after the birth of his children, and also mentioned financial issues. He often appeared tired and dishevelled at work, and no longer presented as the enthusiastic teacher he had initially been. Then, in a meeting in September 2003, Mr Doulis presented in a distraught state, complaining of lack of sleep, and was sent home to rest. He told his superiors that he could not cope with all his classes.[631] Soon after that, Mr Doulis told the College Principal in a letter that he was suffering a high level of stress due to the nature of classes that had been allotted to him, and found it necessary to give up his non-teaching duties at the College. Although he was diagnosed with a major depressive condition around this period, he did not tell the College of the diagnosis or that he had been advised to take sick leave. When he returned to work, the College did not put in place any formal monitoring of him, nor enquire about his condition. He did not make further complaints, but attempted to continue with his teaching load until his ultimate breakdown.[632] Nevertheless, Ginnane J found that the earlier letter was an important step taken by Mr Doulis to bring his condition to the attention of the Principal and, together with other signs of impaired mental health such as observations by peers of changes in his demeanour, the plaintiff's psychiatric injury was foreseeable.

613. In Sills, the appellant avoided discussing or acknowledging her earlier diagnosis of PTSD or the recurrence of PTSD symptoms at work. She was embarrassed about her condition, but her failure to be responsive to inquiries by her employer about her mental state did not prevent a finding that the employer was on notice of the risk to her mental health from the work, as a result of earlier psychiatric reports provided to her employer.

614. In The Age v YZ, the Court of Appeal distinguished YZ's earlier period of employment before 2009 (where no duty was found to arise) from the decision to transfer her to court reporting at a time, when she was known to have been affected by trauma from the earlier period of work. Regarding the pre-2009 period, a key consideration was that YZ was known by her employer to be in receipt of mental health support and treatment, which by implication relieved the employer of the need to intervene and direct or guide YZ to take such steps. Also, there were open and flexible arrangements at The Age regarding staff seeking to be transferred to different areas of work, making the failure of YZ to seek a transfer before 2009 more significant from the vantage point of the editors and managers. After taking up her role in court reporting in 2009, it was found that there were sufficient signs that she was suffering psychologically as a result of the work, especially in light of her previous request to transfer from the news desk. The risk of psychiatric injury at that later time was foreseeable to her employer.

615. In the present case, although there was an EAP available to the plaintiff, and staff were encouraged in a general sense to make use of it, the OPP had information that suggested a fairly low uptake of the EAP, which was consistent with the evidence from the plaintiff, and other witnesses who worked at the OPP, explaining their reservations about using it. In contrast to the facts in The Age v YZ, the defendant had no information to suggest that the plaintiff was accessing the EAP or any other mental health service.

616. Also, in contrast to the facts in The Age v YZ, there was little or no flexibility regarding case allocation in the SSOU or work rotation. There was no system of offering rotations to SSOU staff. In fact, the plaintiff perceived that it was difficult to transfer from the SSOU once staff were seen as having specialist expertise in sexual offence prosecutions, saying 'once you're in sex, you stay in sex'.[633]

617. Whilst there are some common features between The Age v YZ and the present case, with both involving PTSD arising from occupational exposure to vicarious trauma, the contractual framework within which the parties were operating in this case must be borne in mind. The defendant, as a public service employer, was contractually obliged to prioritise the health and well-being of its staff, which included an OH&S system that was responsive to, and promoted, employee health and safety.[634] The 2011 Staff Memo clearly indicated that the OH&S system in place at the SSOU was not working, with staff reporting symptoms of increased stress, adverse impacts on their wellbeing, and unacceptably high workload pressures. This was not the first time that staff had communicated such symptoms, with the Penhall memo providing an earlier example of employer notification in this respect. The 2011 Staff Memo referred to staff disappointment that management and the executive had allowed things to get to this point, presumably in the face of earlier attempts to rectify such issues.

618. Similarly, another feature that differentiates The Age v YZ from the present case is the VT policy. It represented the identification of a serious occupational health risk in the specialist unit, which derived specifically from the nature and content of the work, and which had prompted the development of a policy directed to implementing a range of measures to mitigate that risk. However, as the evidence shows, the measures outlined in the policy were not implemented in any meaningful fashion. In The Age v YZ, the Court of Appeal stated that, in the pre-2009 period, the employer was only obliged to suggest use of the EAP to YZ and to respond to any requests for rotation. In the present case, the defendant's starting point for managing risk in the SSOU should have been the VT policy.[635] The VT policy should have been brought to the attention of management, and it should have informed the approach of management to individual staff members (such as the plaintiff) who were showing signs of increased risk.

619. The level of flexibility in seeking work rotations further distinguishes The Age v YZ from this case. In circumstances where there was no system of remedial intervention regarding allocation of work, time out, or rotations in response to risks of vicarious trauma or burnout, little weight can be given in this case to the argument that because the plaintiff did not apply for rotation on psychological grounds before February 2012, management were entitled to assume that she was mentally fit for work.

620. Turning now to the plaintiff's notification of risk in this case, the starting point is that the plaintiff attended the staff meeting (held in the absence of management) and signed the 2011 Staff Memo, which expressly notified the defendant of ongoing health and well-being impacts experienced by SSOU staff. Whilst the memo did prompt the May email to staff from management, offering some steps to reduce workload within the unit and referring to preparation of the Business Case, the plaintiff gave evidence that nothing was done to ease her workload. She was still required to take on the Lim trial despite her attempts to resist it. The memo is an unusual feature of the foreseeability analysis, and provides a distinct point of contrast with earlier authorities. It is evidence that the system previously in place at the SSOU was defective in notifying management that staff were experiencing adverse health effects. Whilst it represents a collective request for management to respond to employee concerns, the evidence that the plaintiff and other staff members put their signature to it means that it cannot be discounted as relevant notification regarding those individuals.

621. In the event that the memo is not accepted as express notification of risk to particular employees, which would constitute a rather narrow application of the Koehler principles, the memo remains relevant as part of the evidence showing a heightened level of risk associated with the plaintiff. It provides the context in which subsequent signs of risk attaching to the plaintiff, many of which were implied, must be viewed and assessed. The plaintiff's demeanour, presentation, and conduct both before and after the memo combined to show an accretion of signs that she was being adversely affected by her work. The effect of those signs culminated in the presentation of a staff member who, by around the end of August 2011, needed active intervention and proper supervision to ensure that she was not damaged by her work.

622. I am satisfied on the balance of probabilities that the combination of circumstances particular to the plaintiff, viewed prospectively, meant that the defendant knew or ought to have known, by around the end of August 2011, that the plaintiff was at risk of workplace-related psychiatric harm. Her specific caseload and work allocation,[636] which required her to accept extended exposure to traumatic and confronting material, along with her ongoing conduct and presentation following on from the staff memo, was such that harm to her mental health from the nature and intensity of the work was foreseeable by the defendant.

623. Viewed prospectively, by the end of August 2011 and thereafter, a reasonable person in the position of the defendant would have adverted to the evident signs regarding the plaintiff and observed that she was failing to cope with her allocated work and that her mental health was at risk. The risk that she was suffering symptoms of psychiatric injury from the cumulative effects of vicarious trauma was not farfetched or fanciful. The duty of care to the plaintiff was enlivened by that time. The defendant does not dispute foreseeability after 9 February 2012, but disputes that measures taken to respond to its duty of care through the return to work process were not adequate.

What was the content of the defendant's duty of care and was it breached?

624. Foreseeability of workplace-related risk to the plaintiff's mental health leads to consideration of what a reasonable employer would have done in response to the risk posed to the plaintiff. The plaintiff is obliged to persuade the court that a reasonable employer ought to have implemented specific measures or a specific system of work in response to the risk. As explained by Dixon J in Swan, a finding about the scope and content of an employer's duty of care to avoid psychiatric injury to an employee depends on the circumstances of the individual case. Consideration of measures must also take into account the likely cost, practicality, and convenience of such measures (the Shirt calculus).

625. The measures suggested by the plaintiff were largely drawn from the evidence of Professor McFarlane and Dr Johnson and echoed measures recommended in the VT policy, suggestions made by SSOU staff, and Ms Benstead's 2009 recommendations. The plaintiff also relied on the contract of employment, including the terms and conditions found in the VPS Agreement.[637]

626. The defendant's position was that, in the absence of any specific complaint by the plaintiff differentiating her from the SSOU staff generally, nothing more was required than the system already in place. This comprised the option to attend the Benstead seminar(s) and the Carfi resilience session, the availability of the EAP, and an approachable management team who attempted to share work evenly. Additionally, the defendant relied on the measures referred to in Mr Brown's 13 May 2011 email, which were to be implemented in response to the 2011 Staff Memo, including one-on-one file reviews, the option to approach management about offensive materials, temporary diversion of advice files and County Court appeals from the SSOU, and steps to obtain more staff. The defendant also pointed to the preparation of the Business Case seeking more staff for the SSOU.

627. The defendant argued against the measures put forward by the plaintiff, submitting that there was no need for a system of screening SSOU staff, and that there was no need for intrusive inquiries to be made of staff members or the plaintiff. The defendant referred to the 'important values of human dignity, autonomy and privacy' discussed in Hegarty, and submitted that prior to 9 February 2011, there was no warrant for specific intervention regarding the plaintiff such as rotating her out of her role or changing her work allocation. There was no need to have any system of rotations in place for SSOU staff generally.

628. On the plaintiff's case, based on the evidence of Professor McFarlane and Dr Johnson, management and HR should have openly acknowledged the potential mental health risks to staff from work stress, burnout, and vicarious trauma in the SSOU, and there should have been a system of work in place that was responsive to these risks. The VT policy, despite the drawbacks mentioned by Professor McFarlane, proposed a system of measures, including the training of staff and management on signs of vicarious trauma and rotation options for SSOU staff. However, the proposals in the VT policy were never properly implemented. The plaintiff submitted that the defendant failed to account for its failure to implement the VT policy or to implement rigorous OH&S practices and procedures within the SSOU.

629. The plaintiff's case was that a safe system of work would have applied the VT policy and been appropriately responsive to the staff memo. The expert evidence showed that such a system of work ought to have included:

(a) SSOU management, HR, and staff collaborating in an open forum on an OH&S response to the risk posed by work in the SSOU. This would involve staff and management meeting regularly, with staff having the opportunity to verbalise grievances, track actions, and close them out (such as on a spreadsheet).[638] OH&S items needed to be on the agenda at staff meetings.[639]

(b) HR working with management and staff to implement the training systems and management leadership required to implement the VT policy. HR would monitor the effectiveness of those efforts, including of the training provided.[640]

(c) The monitoring of staff workload so that managers were aware if staff members were performing large amounts of work outside their contracted hours of work, and be able to encourage a healthy work/life balance for employees.[641]

(d) The HR representative would monitor staff numbers and support management to ensure all jobs are filled in a timely manner.[642]

(e) Management would be responsible for reallocation of files as required to appropriately manage staff workload.[643] Staff should also be encouraged to rotate out of the unit if necessary to reduce exposure.[644]

(f) Appropriate return to work processes needed to be in place for injured workers, with the employer consulting the employee's treating health practitioner for comment or sign off of the return to work plan.[645] Incident reports were needed regarding injury from vicarious trauma.[646]

630. The defendant submitted that the evidence of Dr Johnson that focused on general OH&S processes was pitched at too high a level of abstraction. It was argued that Dr Johnson could not give expert evidence about vicarious trauma, as her area of expertise was occupational hygiene and OH&S compliance, rather than psychiatric injury. She had never developed or applied a vicarious trauma policy or worked in an industry that required such a policy. Her evidence set out a number of high level considerations that she said should have been implemented,[647] but did not refer to what was being done by other similar legal organisations at the relevant time and was not sufficiently tied to concrete steps that should have been taken by the defendant. The defendant further submitted that the system in the SSOU of approachable managers, one-on-one file reviews, and other measures provided opportunities for occupational health concerns to be raised by staff and for such matters to be addressed.

631. In arguing that the defendant breached its duty to implement an active OH&S framework in the SSOU, the plaintiff placed reliance on Dr Johnson's expertise regarding management systems and OH&S oversight in high-risk workplaces, backed up by the specific measures recommended by Professor McFarlane, the defendant's own VT policy, and the plaintiff's contractual entitlements to a safe system of work including reasonable working hours and conditions.

632. The plaintiff pointed to the absence of evidence from the defendant regarding the implementation of OH&S practices within the SSOU, including lack of evidence to show that staff were reassured that raising personal impacts from their work would not impact on career progression. According to Dr Johnson, this concern should have been addressed as part of the employer's OH&S obligations.

633. The plaintiff submitted: 'At two points in time (the 2009 Fatouros memo and the 2011 Staff Memo), it can be seen, that whatever system was adopted by the employer, it was not working.'[648]

634. I am satisfied that Dr Johnson was well qualified to comment on OH&S measures within an environment such as the SSOU, and that she based her evidence on information before the Court. She observed that the VT policy attached a number of academic references about the risk of vicarious trauma for professionals working in the field of sexual assault. She did not need to be an expert on every aspect of vicarious trauma in order to provide relevant evidence about safe systems of work from an OH&S standpoint. Whilst some of her evidence was of a general nature, she contributed pertinent observations about how to implement a protective system of measures in a professional workplace and emphasised the importance of collaboration between management, HR, and staff in OH&S planning. She supported her approach by reference to the Victorian Worksafe 'Stresswise Policy' for public sector employees.

635. Mr Brown conceded that there was no OH&S committee in the SSOU and that the handover to him as manager was 'fairly informal'. Neither HR, nor the executive, appear to have ensured that the incoming Directorate Manager and Deputy Manager were briefed on the issues of employee health and well-being and vicarious trauma which had been aired internally for some years.

636. The failure to implement an active OH&S framework in the SSOU included a failure to develop the measures promoted in the VT policy,[649] which stated: 'Directorate Managers are responsible for the implementation and compliance with the requirements of this policy and procedures within their Directorate.' The SSOU Manual contained reference to the responsibility of management and HR for OH&S compliance, including with relevant policies and procedures. The SSOU managers were not aware of key policies and procedures so as to be able to ensure compliance. No direct evidence was called from HR regarding their knowledge.

637. There was no system of open collaboration between SSOU staff and management on targets for reducing the risks of vicarious trauma and staff burnout. Open discussion would probably have been welcomed by SSOU staff, given their previous willingness to recommend suggestions to management about workplace improvements and the request in the staff meeting for staff and management to meet as a group and discuss the matters raised in the memo.[650] In this respect, it would also have been logical - and reasonable - to include the perspective of those most at risk from the nature of the work in any discussions regarding an appropriate response to that risk.

638. The defendant, through the executive and HR, had identified vicarious trauma and burnout as a risk to the mental health of employees, yet Mr Brown and Ms Robinson were not aware of OH&S policies, such as the VT policy, relating to the risks for SSOU staff from the work. They were unaware of the strategies set out in those policies to support and protect staff. Mr Brown never attended any of the Benstead workshops. There was no evidence that Mr Carfi or the SSOU managers made use of the session on 20 April 2011 to discuss the staff memo or to suggest that staff seek referral for occupational or work-related screening because of the known risks attached to the work.

639. Both management and the executive were aware, after receipt of the 2011 Staff Memo, of looming OH&S risks and possible burnout for SSOU staff. In the Business Case, Mr Brown said, 'these issues have previously been brought to the attention of the Executive on a number of occasions'.

640. In its opening, the defendant foreshadowed that it would be calling the HR Manager to give evidence, but this did not eventuate. HR was in a good position to inform the court about OH&S risk management for SSOU staff and any measures put in place in response to the risk. In the absence of an HR representative, or any member of the executive being called, I infer that the defendant's case would not have been assisted by evidence from those sources.[651] There was a paucity of evidence from the defendant on the subject of how the OPP's OH&S system was being applied in the SSOU to protect the mental health and well-being of staff.[652]

641. In the acute circumstances that followed the March staff meeting and the April staff memo, the onus was on management and HR to collaborate with SSOU staff about an active OH&S response as part of a safe system of work. This ought to have included meeting the staff as a group, as requested in the staff memo, to discuss the concerns raised in the memo. As stated previously, there was no evidence that the memo was addressed at the Carfi resilience training, which took place shortly after the staff memo was received, and which was a missed opportunity on the part of management to raise the issue in a group setting, with the assistance of Mr Carfi.

642. A reasonable system of OH&S management needed to ensure that all aspects of risk management for SSOU staff were followed up, including training about risks attached to the work and training on organisational measures available to respond to the risks.

643. The defendant was aware of OH&S risks within the SSOU, both actual and potential, yet failed to satisfactorily implement a system that upheld the terms or spirit of the VPS Agreement and relevant internal policies such as the VT policy.

644. The plaintiff argues that mental health risks from work stress, burnout, and vicarious trauma were recognised in the VT policy, and discussed in other 2007-2009 internal documents. The evidence of Professor McFarlane and Dr Johnson supported the importance of training staff and management regarding:

(a) strategies for staff and management to avoid staff burnout or vicarious trauma, including setting clear boundaries with complainants in SSOU cases, avoiding long hours at work, and having manageable and balanced caseloads;[653]

(b) strategies explaining what to do if signs of vicarious trauma are present and how to identify 'red flags' that showed an increased risk to a staff member's mental health;[654]

(c) training on PTSD, including the signs and symptoms of PTSD.[655]

645. The defendant submitted that adequate training of staff, and of the plaintiff, was offered through the option to attend Ms Benstead's sessions, which included items on vicarious trauma and PTSD, along with the option to attend the resilience session with Mr Carfi on 20 April 2011. It argued nothing more was required to be done. The defendant also pointed out that the plaintiff's email to Mr Ward on the evening of 9 February 2012 referred to external service providers, such as Gus Carfi and Ursula Benstead, advising staff to seek a transfer if concerning signs were present.