Written Assessment Torts Law Spring 

Footnote referencing: must follow the Australian Guide to Legal Citation 4th Edition. Footnotes are not included in the word count limit. It is important that pinpoint references are included in your footnotes; a failure to include pinpoint references will result in a “poor” rating for referencing. A bibliography is not required.

Required reading:

1. Kozarov v Victoria [2022] HCA 12; (2022) 273 CLR 115.
2. Giles v State of Queensland [2021] QCA 206.
(Please see attached documents for these cases)

Optional further reading (for background) – Search the following

1. Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 (joint/plurality judgment of McHugh, Gummow, Hayne & Heydon JJ)
2. K Burns, “Liability for Workplace Psychiatric Injury in Australia: New Coherence and Unresolved Tensions” (2023) 45(2) Sydney Law Review 157
3. R Scott & I Freckelton AO KC, “The Duty of Care to Protect Employees against the Risk of Psychiatric Harm from Vicarious Trauma: Kozarov v Victoria” (2023) 30 Journal of Law & Medicine 358.
4. State of NSW v Fahy [2007] HCA 20 (2007) 232 CLR 486 at [60]-[61] describes the measures that were in place to counter workplace trauma within the NSW Police Service:

“There can be no doubt that performing the duties of a police officer can often be very psychologically stressful. That is the inevitable consequence of the kinds of work police officers are required to perform. That a police officer may suffer psychiatric injury as a result of performing that work is, therefore, readily foreseeable. The risk of such injury is not far-fetched or fanciful; the risk of injury may not even be remote (if “remote” is understood as meaning extremely unlikely to occur).
The evidence led in this case revealed that the Police Service of New South Wales had long since recognised these risks. At least by 1991, the Police Service had established a psychology unit to provide ‘confidential services to members of the Police Service and to their immediate families’. A psychologist was on call twentyfour hours a day to provide trauma crisis counselling for members of the Service ‘involved in a major incident or community crisis’. Debriefings were compulsory following certain kinds of incidents and counselling was provided, as requested, ‘after other work related traumas … eg assaults, attending particularly distressing fatal incidents, etc’. In addition, counselling was available from the psychology unit to ‘staff suffering from a cumulative stress reaction’. In June 1999, a special report was made to the New South Wales Parliament under s 31 of the Ombudsman Act 1974 (NSW) entitled Offıcers Under Stress. That report concerned ‘the need for the NSW Police Service to identify and support police officers whose psychological well-being has been affected by stress’. In the same month a set of guidelines was published in the journal Police News (which it may be assumed was circulated to police officers) that was said to be ‘intended to protect the welfare and legal rights’ of police officers in certain critical incidents. All of these matters demonstrate not only that the risk of a police officer suffering psychiatric injury was foreseeable, but also that the Police Service had foreseen the risk and had taken steps to avoid, or at least ameliorate, the consequences of the stresses of police work.”

Task: This is a critical analysis of the High Court decision in Kozarov v Victoria [2022]

HCA 12; (2022) 273 CLR 115 and the Queensland Court of Appeal decision in Giles v State of Queensland [2021] QCA 206. These cases largely turned on their facts, and inferences drawn from the facts on the balance of probabilities. You can ignore the references to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) in Giles; these provisions reflect the common law that was applied in Kozarov.

ASSIGNMENT QUESTION

Introduction

Summarise the pertinent facts of Kozarov and what the High Court decided. In doing so, refer to the “notice finding”, the “rotation finding” and the “staff memorandum”. In addition, describe, in your own words, how the Court in Kozarov found causation established on the balance of probabilities.

Analysis (10 marks, approximately 500 words)

 In Giles v State of Queensland [2020] QDC 332, the trial Judge, Reid DCJ, commented at [3]:
“It is important the plaintiff understands that I do not doubt he has developed a significant psychiatric injury following his exposure to the fire and that he understands that I do not doubt that he performed his role as pump operator on the night of the fire well. The failure of his action is unrelated to either of those issues. The role of a firefighter can be a demanding one and one that can place a significant emotional burden on those that perform that role to ensure, so far is can be done, that others in the community are safe. Unfortunately that emotional burden can become overwhelming, without fault of the individual firefighter or of his employer. This is such a case.”
The events in question in Giles occurred in 2011, about the same time as the events in Kozarov. Read the plaintiff’s unsuccessful appeal against this decision at Giles v State of Queensland [2021] QCA 206. Assume that you are acting for Mr Giles and still have time to appeal. Identify one or more aspects of Giles that you would appeal against and, with reference to Kozarov, outline why you think that an appeal should succeed.

Conclusion

Stewart & Stuhmcke, Australian Principles of Torts Law (Federation Press, 2022, 5th ed) state at p 529-30:
“The decision in Koehler returns to notions of placing increased emphasis on the personal responsibility of the employee. It decreases the responsibility of the employer by giving primacy to the contract signed between the parties and determining that psychiatric injury in the workplace will only be foreseeable when there are … ‘signs and symptoms of psychiatric illness of the particular employee which are reasonably foreseeable to the employer’.”
Assume that you have been asked by Pam and Anita to draft a revision to this statement for the next edition of their book in light of, and with reference to, the decision in Kozarov. What would you write?

Mentor’s Step-by-Step Guidance

Step 1 – Introduction Guidance

• The mentor guided the student to begin with factual clarity: outline Ms Kozarov’s role in the Specialist Sexual Offences Unit, the traumatic exposure, her psychiatric injury, and her claim against Victoria.

• Emphasis was placed on discussing the notice finding, rotation finding, and staff memorandum, explaining how the High Court linked these to foreseeability and breach.

• For causation, the mentor guided the student to focus on how the High Court concluded that, but for the employer’s negligence, the psychiatric injury would likely have been avoided or reduced.

2 – Analysis of Giles v State of Queensland

• The mentor asked the student to first summarise the trial judge’s reasoning: psychiatric harm was accepted, but liability was denied because injury was deemed an ordinary risk of firefighting.

• The Court of Appeal judgment was then reviewed to identify weaknesses:

  • Inconsistent treatment of foreseeability compared to Kozarov.

  • Limited consideration of preventative measures similar to those discussed in State of NSW v Fahy.

• The mentor suggested framing appeal grounds around foreseeability and preventative measures, noting that both cases arose in a similar timeframe (2011).

3 – Conclusion Revision (Textbook Update)

• The mentor explained that the student must critique Stewart & Stuhmcke’s statement in light of Kozarov.

• The student was guided to draft a revised version stating that while Koehler emphasised employee-specific foreseeability, Kozarov confirms that employers must also account for systemic risks inherent in certain roles.

• This clarified that the duty is not confined to visible signs of psychiatric illness but extends to foreseeable risks from the nature of the work itself.

Outcome and Learning Objectives Achieved

By following the structured guidance, the student:

• Understood the key holdings of Kozarov regarding employer duties in managing systemic psychiatric risks.

• Applied critical comparison with Giles to identify reasoning differences and strengthen appeal arguments.

• Practiced legal reasoning about foreseeability, causation, and breach of duty in psychiatric harm cases.

• Improved academic legal writing with structured case analysis and AGLC4 referencing.

• Produced a strong conclusion by revising established tort principles in light of new High Court authority.

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