Vicarious trauma in the judicial workplace: state liability for judicial psychiatric injury in Australia

Abstract

There is developing, yet strong, evidence that judicial officers are seriously affected by exposure to traumatic material. The risk and prevalence of psychiatric injury to judges is now increasingly recognised. In the light of growing recognition by the High Court of Australia of the likelihood of psychiatric harm arising in people whose work exposes them to traumatic material in Kozarov v Victoria (‘Kozarov’), we investigate through legal analysis the possibility that judicial officers may be entitled to compensation for such harm. This might seem straightforward after the High Court decided in Kozarov that the State was liable in negligence for trauma-related psychiatric injury to an employee lawyer caused in the court-related work environment. We argue in this article that, while there are strong arguments which support liability in negligence for judicial officers as non-employees, nevertheless such claims will be complex and will face a range of hurdles and barriers including those arising from judicial independence and judicial immunity.

Keywords:

• judges
• judicial officers
• magistrates
• negligence
• psychiatric injury
• PTSD
• vicarious trauma
• workplace stress

Introduction

Lawyers and judicial officers¹ are often exposed to graphic material, the depths of human depravity and intense human suffering and distress. Exposure to these experiences occurs in the context of excessive workloads; in stressful adversarial environments; through interaction with clients, witnesses and lawyers; and in an atmosphere where emotions of litigants and participants in the legal process are exacerbated. This exposure can occur in a wide array of areas of law² including criminal law (eg sexual assaults, child sexual abuse and murder cases), family law, immigration, coronial inquiries, domestic violence, child protection, personal injury and compensation law and disability law.

Exposure to traumatic material concerning the suffering of others can result in vicarious trauma (‘VT’). This can be defined as ‘engaging with traumatic material and integrating that material into one’s cognitive schemas, disrupting beliefs about trust, safety, control, esteem and intimacy’.³ VT can result in psychiatric injury, such as post-traumatic stress disorder (‘PTSD’).⁴ Vulnerability or resilience to VT can be affected by both individual characteristics and characteristics ‘of the work environment’.⁵ Work environment factors that raise the risk of VT include heavy caseload, lack of workplace and peer support and lack of trauma training.⁶ Cumulative exposure to trauma material may raise the risk of VT.⁷ Experience of traumatic material may be ‘heavily influenced by professional and organisational norms, including the perceived stigmatisation of mental health problems’.⁸ Until relatively recently, VT was thought to affect mainly people in the ‘helping’ professions such as social workers, counsellors and psychologists;⁹ mental and other health professionals;¹⁰ and first responders such as police, ambulance and firefighters.¹¹ However, recent research has shown that VT from workplace trauma exposure affects a much broader range of professions.¹²

It is unsurprising that, given the exposure of many lawyers to trauma in their normal work environment, studies have confirmed that lawyers may be subject to VT, which contributes to higher rates of psychological ill health in the legal profession.¹³ In 2022, the High Court of Australia in Kozarov v Victoria (‘Kozarov’)¹⁴ held that the Victorian Office of Public Prosecutions was liable in negligence for the psychiatric injury suffered by a lawyer employed in their Specialist Sexual Offences Unit as a result of VT.¹⁵ This decision confirmed that an employer may be held liable for failing to prevent injuries suffered by their employee, in circumstances when the risk of VT arose from the very nature of the work or was known or should have been known to the employer. The decision is consistent with recent workplace health and safety (‘WHS’) legislative reforms across Australia which require employers to explicitly assess, manage and ameliorate psycho-social hazards in the workplace including the risk of VT.¹⁶

There is emerging strong evidence that judicial officers, like lawyers, are subject to VT because of workplace trauma exposure. Judicial officers may also be directly traumatised in the course of their work, for example through threats of personal violence or death to themselves or their families. The risk of judicial psychiatric injury from trauma exposure has been increasingly recognised by courts, chief judicial officers (‘CJOs’),¹⁷ judicial commissions and judicial educators throughout Australia. This article considers whether judicial officers who suffer psychiatric injury, such as PTSD, because of VT or direct trauma associated with their judicial work have a cause of action for compensation in negligence against the State in Australia. We use the term ‘State’ to encompass all manifestations of the State who have responsibility for the judicial work environment including CJOs, relevant government departments and court services providers, ministers of the Crown such as attorneys-general, and the Crown more broadly. This is a novel question which has particular importance in Australia given the very recent Kozarov decision in the Australian High Court which allowed recovery for VT suffered in a legal workplace. The question of whether judicial trauma can give rise to a negligence claim by a judicial officer in Australian law post Kozarov has not been previously comprehensively explored by an Australian court or by the academy. While this article focuses on Australian law, there are obvious ramifications for other common-law jurisdictions which allow negligence actions arising from workplace psychiatric injury.

Part 1 examines existing research on judicial stress and trauma. It considers two recent Australian studies which suggest judicial officers are at risk of psychiatric injury resulting from VT and trauma exposure. This risk is related primarily to systemic organisational factors in the judicial workplace which are in the control of the State, rather than personal factors individual to judicial officers. The risk of psychiatric injury is particularly enhanced in higher-volume lower courts such as Magistrates’ or Local Courts. Part 2 analyses the recent High Court decision in Kozarov and discusses when an action in negligence against an employer for psychiatric injury because of VT or trauma exposure may arise.

Part 3 considers whether the State would have liability in negligence to a judicial officer for psychiatric injury resulting from VT or trauma exposure. We argue there are a number of factors in favour of liability in negligence. First, injury to judicial officers is reasonably foreseeable given exposure to trauma is an inherent part of the judicial role and the judicial work environment, particularly in lower courts. Second, although judicial officers are not employees of the State, they should be treated analogously to employees in the context of liability for workplace injury. Third, a general duty of care owed to judicial officers would be consistent with the general principles of negligence concerning liability for reasonably foreseeable psychiatric injury more broadly. A duty of care would also be coherent with modern WHS legislative responsibilities which, while not providing compensation upon breach to individual workers, require employer response to workplace psycho-social hazards. However, there are a range of factors which would likely detract from, or limit, State liability. First, it may be difficult to identify the appropriate State defendant, given responsibility for the judicial work environment may be diffused between CJOs; relevant government departments and bodies who provide court services and support services (such as departments of justice); relevant ministers such as attorneys-general; and governments more generally. Second, liability is likely to be limited and constrained by considerations such as the special independent status and nature of a judicial role, judicial independence and judicial immunity. Third, civil liability legislation provisions concerning psychiatric injury cases and cases concerning government or public authority may further limit liability.

We suggest that while there are some strong arguments which favour the liability of the State to judicial officers in negligence for psychiatric injury suffered because of VT and trauma exposure in the judicial work environment, such cases would be complex and complicated. At best, a potential action in negligence owed to a judicial officer by the State would likely offer protection significantly more limited in scope than that owed to employees such as Kozarov working in very similar court and legal environments. As a matter of policy, this is an undesirable situation which detracts from rather than supports judicial independence. It suggests much greater institutional response is urgently required to improve the judicial work environment to minimise the impacts to judicial psychological health through trauma exposure.

1. Judges and traumatic stress

More than 50 years of empirical research, starting in America and expanding exponentially around the world,¹⁸ has consistently demonstrated high rates of psychological distress and mental ill-health, including VT, among lawyers and law students globally.¹⁹ Traditionally, and for a range of cultural and practical reasons,²⁰ the mental health of those at the pinnacle of the legal profession – the judiciary – has received less research attention.²¹ However, the likelihood that members of the judiciary may be at risk of psychological distress and especially VT in the course of their duties ought not be surprising. Judicial work entails many of the same challenges and demands as legal work, (excessive workloads, intellectual complexity, adversarial culture, exposure to disturbing subject matter and distressed individuals) as well as a number of unique occupational stressors.

The daily work of judicial officers involves case management, dealing with interlocutory work, making directions, resolving disputes, evaluating arguments, assessing evidence, interpreting laws, making decisions and presenting reasons. This cycle may, depending on the jurisdiction, span only a few minutes and be repeated over 80 times within a single day, or stretch over many months, culminating in a written judgement of several hundred pages. In addition to these procedural aspects, court cases often include great emotional density. Courts are clearinghouses for human misery. The evidence that judicial officers must process frequently involves tales of calamity, depravity and exploitation, and is often delivered in the form of emotional witness testimony and disturbing graphic material. The judge’s task is to work with this material, assess it for reliability and relevance and move it through a process of complex legal analysis to come to a decision that may well dramatically alter the lives of the people before them.²²

In many jurisdictions, there is limited scope for judicial officers to effect a diverse case mix, meaning that the working lives of many involve an unbroken stream of severely disturbing subject matter – such as family violence, child sexual offences or immigration cases. Not infrequently, judicial officers also need to manage the real-time tension, hostility and high-conflict behaviour that can unfold between parties in their courtrooms. In addition, they can experience public shaming in the form of media vilification and direct threats to their and their families’ physical safety. Notwithstanding the extraordinary emotional and moral demands of the role, in the exercise of judicial power, judicial officers must consistently adhere to the highest standards of integrity and professionalism, modelling stoicism and mental clarity, irrespective of how they may be feeling.

These many and intense stressors of judicial office are well known; however, until recently it was anathema within the prevailing professional and cultural landscape to suggest that judges may indeed be psychologically impacted or distressed by them.²³ Although in recent years several judges and magistrates have begun to speak publicly about their personal experiences of stress and VT while on the bench,²⁴ empirical research was needed to determine to what extent judicial officers as a whole encounter psychological harm in the course of their work.

Recently in Australia, two major research projects on judicial officers’ psychological wellbeing have revealed high levels of traumatic stress and psychological distress among judges that threaten their mental health and occupational wellbeing.²⁵ These follow the socio-legal studies undertaken by Roach Anleu and Mack that explored, within a vast and detailed analysis of judicial workloads and daily tasks, Australian judges’ and magistrates’ emotional labour, discussing how they mask their feelings in court as they engage with the psychological burden of managing and deliberating on the consequences of disadvantage.²⁶ They also sit within a small but growing body of international literature on judicial psychological health, collectively demonstrating that judicial stress is a global phenomenon, and one frequently involving experiences of secondary trauma and VT.²⁷ The Australian and international empirical research combine with coronial inquest reports that reveal the suicide deaths in Victoria of two magistrates, in 2017 and 2018,²⁸ revealing that in numerous contexts judicial officers are vulnerable to suffering psychiatric harm as a result of working under the conditions of high stress and inadequate support.

The remainder of this part discusses the key findings arising from the two Australian judicial stress research projects, specifically as they pertain to the prevalence, severity and sources of VT among Australian judicial officers.

The Schrever Studies (2019, 2022, 2023)

Schrever and colleagues conducted Australia’s first empirical and psychologically-grounded research on judicial stress, with findings published across three reports (‘the Schrever Studies’).²⁹ Their large-scale, mixed-methods design provided the first set of baseline data on the nature, prevalence and severity of judicial stress in Australia. Five courts, from summary to appellate level, participated in the study. One hundred and fifty-two judicial officers participated in a survey that incorporated a number of standardised and validated psychometric instruments, with 60 going on to participate in in-depth interviews. As well as measuring non-specific psychological distress using the Kessler 10 Scale (K10)³⁰ and psychological ill-health using the Depression Anxiety and Stress Scale-21 (DASS-21),³¹ the Schrever Studies also measured burnout and secondary traumatic stress (respectively using the Maslach Burnout Inventory-General Survey (MBI-GS)³² and the Secondary Traumatic Stress Scales (STSS)).³³

They reported a number of significant findings relevant to this article:

Non-specific psychological distress, as measured by the K10, refers to stress and mental anguish not necessarily reaching the level of mental ill-health. The Schrever Studies found that Australian judicial officers had elevated levels of psychological distress compared to the general population, but not as much as the rest of the legal profession. More than half (52.9%) of judicial officers reported moderate to very high levels of non-specific psychological distress (compared with 32.8% of the general population, 62.6% of solicitors and 68.5% of law students).³⁴

Burnout, as measured by the MBI-GS, is an occupational stress syndrome characterised by three factors: extreme emotional exhaustion; feelings of cynicism or depersonalisation; and reduced professional efficacy, believed to result from prolonged excessive workloads and interpersonal demands. Three-quarters (75.2%) of judicial participants in the Schrever Studies scored in the ‘at risk’ range on at least one of the three burnout factors, with 20% scoring over the cut-off suggestive of burnout.³⁵

Secondary traumatic stress is a closely related construct to VT and refers to the development of post-traumatic stress disorder (PTSD) symptoms (avoidance, arousal and intrusion) as a result of secondary exposure to trauma, including repeated exposure to traumatic content in the course of one’s work. Alarmingly, the great majority (83.6%) of judicial officers in the Schrever Studies confirmed that they experienced at least one symptom of secondary traumatic stress in the one week prior to completing the survey, with almost one-third (30.4%) scoring above the cut-off suggestive of possible PTSD³⁶ – a rate similar to several groups of American social workers,³⁷ but dramatically higher than the 12-month population prevalence of PTSD in Australia (approximately 4%).³⁸

Mental ill-health, as measured by the DASS-21, refers to symptoms of depression and anxiety. An interesting finding from the Schrever Studies was that, despite the high levels of psychological distress, burnout and secondary traumatic stress among judicial officers, their levels of mental ill-health were relatively low³⁹ – approximately one-third that of practicing lawyers,⁴⁰ and lower even than the general population.⁴¹

In addition, the Schrever Studies reported that the only demographic factor robustly associated with levels of judicial stress was ‘jurisdiction’ (that is, court level within the court hierarchy). Judicial officers in the high-volume, lower courts were significantly more stressed across a range of measures than judges sitting in the higher courts.⁴² The greatest disparity was in levels of burnout exhaustion.⁴³ There were no differences in judicial stress levels according to seniority, age, gender, geographical location or even area of legal practice. Furthermore, the elevated levels of stress in the lower courts were shown to be almost entirely due to workplace factors, specifically lower levels of autonomy and relatedness satisfaction.⁴⁴ The interview study reported that, overwhelmingly, judicial officers identified oppressive workloads and other organisational, cultural and systemic issues as the major drivers of their stress, rather than case content or the tasks of judging itself.⁴⁵ It was also found that almost all judicial officers perceive that the judicial role is becoming more stressful due to rising workloads, intensifying external pressures bearing upon the courts and increased organisational demands.⁴⁶

The conclusion drawn by Schrever and colleagues was that the findings of their research, taken together, reveal ‘a judicial system not yet in mental health crisis, but under considerable stress’.⁴⁷ Notably, their research demonstrates that it is certain kinds of courts – not certain kinds of judicial officers or certain kinds of cases – which carry the most stress, and that this appears to be due to fewer opportunities for judicial officers to experience autonomy and collegial connection within those courts.⁴⁸ As a corollary, and significantly for the present article, this first empirical investigation of judicial stress in Australia underscores the imperative that the wellbeing of judges be treated as an organisational and systemic issue, rather that confined to the management of individual judicial officers.

The UNSW Study (2022)

Following the first of the Schrever Studies, a team of researchers from the University of New South Wales (UNSW) surveyed 371 serving and retired judicial officers from all levels of the state courts in NSW (the UNSW Study).⁴⁹ Two hundred and five (55.3%) judicial officers responded to questions that sought to assess the mental health status of judicial officers and to determine the incidence of negative events impacting their mental health status, with particular emphasis on three kinds of traumatic stressors: threats to the person,⁵⁰ vicarious trauma⁵¹ and vilification. Like the Schrever Studies, the UNSW Study used standardised measures of stress to enable normative comparisons: the K10⁵² (the same measure of non-specific psychological distress used by Schrever et al. and the Impact of Event Scale-Revised (IES-R: a different measure of traumatic stress).⁵³

The results indicated a concerning level of psychological distress among NSW judicial officers. Their K10 scores – with 54.5% scoring in the moderate to very high ranges⁵⁴ – were significantly higher than those of the Australian population (32.7)%),⁵⁵ and higher too than those of the judicial officers in the Schrever Studies (52.9%).⁵⁶ Even more alarming were their levels of traumatic stress as measured by the IES-R. Over 30.3% of NSW judicial officers scored above the cut-off normally used to indicate a probable diagnosis of PTSD.⁵⁷ This statistic is staggeringly similar to that reported by Schrever and colleagues, which, although using a different validated scale, found that 30.4% of the judicial officers scored above the cut-off warranting formal assessment for PTSD.⁵⁸ Furthermore, among those scoring above the cut-off suggestive of probable PTSD, more than two-thirds (equating to 22.1% of the total number surveyed) scored within the range considered high enough to suppress immune system functioning.⁵⁹ Importantly, like the Schrever Studies, the UNSW Study found that levels of psychological distress and traumatic stress were significantly higher in the high-volume, lower court – in NSW, the Local Court – than in the District and Supreme Courts.⁶⁰

In addition to reporting the prevalence and severity of psychological distress and traumatic stress among NSW judicial officers, the UNSW Study also sought to quantify the frequency and impact of three potentially traumatic areas of experience: (1) threats, for example threats to kill, or aggressive and threatening behaviour in court; (2) vilification,⁶¹ including personal vilification in print, broadcast or social media; and (3) VT, through exposure to trauma in the lives of others (including exposure to disturbing graphic material).⁶² Their survey also asked about the frequency and impact of certain ‘negative events’, including workload and administrative issues, which might trigger stress or exacerbate trauma. The reported incidence of these experiences and events was remarkable – for example, 60.9% reported having experienced direct threats of harm to themselves or their staff or family, with 22.9% having received a threat to kill. Fifty-three percent reported experiencing adverse public comment that, in their view, amounts to vilification. Seventy-five percent indicated that they had been negatively impacted by accounts of trauma, especially accounts of sexual offending against children. Magistrates from the Local Court reported experiencing threats, VT and other negative events significantly more frequently than did judges from the higher courts.

The study found that the frequency and perceived impact of many of the explored experiences and negative events were significantly correlated with IES-R scores⁶³ – demonstrating that not only are these experiences highly common in judicial work and perceived as burdensome by judicial officers, but they actually do give rise to elevated levels of traumatic stress symptoms when objectively measured using a validated psychometric tool. A key finding of the UNSW Study was that, compared to judges in the intermediate and superior courts, judicial officers in the lower courts are exposed to a greater frequency and intensity of these potentially traumatic experiences in the course of their work and experience significantly higher levels of psychological distress and trauma.

What we know about judicial trauma in Australia

Together, the Schrever Studies and the UNSW Study convey a very clear picture about the risk of VT in judicial work. With both projects – each using a different validated measure – finding that approximately 30%⁶⁴ of judicial officers’ levels of traumatic stress indicated probable PTSD, there can be no doubt that VT is a serious occupational hazard of judicial work. In addition, both projects found that the risks of VT and other forms of psychological harm are significantly higher in the high-volume, lower courts than they are in the trial and appellate courts – demonstrating the urgent need for organisational and systemic reform to support the psychological safety of magistrates. These findings corroborate, in no uncertain terms, the calls for such reform following the two deaths by suicide within the Magistrates’ Court of Victoria. The Schrever Studies found that a lack of autonomy and relatedness in the workplace was undermining magistrates’ psychological health, whereas the UNSW Study pointed to higher levels of traumatic exposure within the lower courts. Both studies provided evidence that magistrates are working at a pace and level of complexity that makes them significantly different from other judicial officers.

While the risk was demonstrably higher in the lower courts, it was clear from both studies that high levels of VT and other forms of psychological ill-health are experienced by judicial officers throughout the court system, and it appears the pressures on judicial officers are only increasing. Both studies concluded that the need for systemic intervention was inescapable. The UNSW team wrote: ‘We believe that this level of trauma and distress requires action’,⁶⁵ and proceeded to recommend a range of organisational initiatives that should be considered. Schrever and colleagues have summarised the implications of their findings this way:

Neither an individual nor a system can sustain elevated and increasing stress indefinitely, without showing signs of strain and impaired functioning. The quantitative findings that judicial officers experience elevated [psychological distress, burnout and secondary trauma], coupled with the qualitative suggestion that the sources and experience of judicial stress are on the rise, indicates a simmering occupational health and safety concern that demands attention.⁶⁶

2. Liability for vicarious trauma and Kozarov v Victoria

The tort of negligence is one way that people who are psychiatrically injured because of VT or trauma exposure in the workplace may obtain compensation for their injuries.⁶⁷ It might be argued that one goal or side effect of tort law is to encourage employers to provide safer workplaces and to attend to the organisational and systemic psycho-social hazards in the workplace.⁶⁸ Employers owe their employees a non-delegable duty of care in negligence to establish, maintain and enforce a safe system of work.⁶⁹ An action in negligence arises when an employer acts unreasonably and breaches that duty causing an injury to the employee. However, until the recent High Court case of Kozarov,⁷⁰ it was difficult to succeed in negligence claims for psychiatric injury against an employer in Australia even where there was a known risk of VT in the workplace.

Vicarious trauma cases pre Kozarov

In 2005, in Koehler v Cerebos Ltd (‘Koehler’),⁷¹ which concerned an injury from excessive work, the High Court held that the general duty owed by employers to employees did not automatically extend to psychiatric injury. It must be determined whether it was foreseeable to the employer that there was a particular risk of psychiatric injury to the particular employee.⁷² It was generally insufficient to assume that an employer was aware of risks to all employees.⁷³ The determination of reasonable foreseeability depended on whether the individual employee had given explicit or implicit signs they were at risk of injury and the nature of the work.⁷⁴ An employee’s agreement to work and carry out particular employment tasks could itself evidence that it was not foreseeable to an employer there was a risk of psychiatric injury to the employee.⁷⁵ It was also necessary to determine whether the scope of the employer’s duty should extend to psychiatric injury. As a matter of coherency, this scope could be restricted by the terms of the contract of employment and by relevant legislation such as industrial and anti-discrimination legislation.⁷⁶

Following Koehler, these principles were applied by Australian courts broadly to all categories of workplace psychiatric injury cases including VT cases and direct trauma cases.⁷⁷ Some cases concerning injury from VT were ultimately successful, typically where the employer was aware of the risk of VT to all employees due to the inherent nature of the work, was specifically made aware the employee was psychologically unwell (for example through complaints or disclosure by the employee), and the employer then failed to act to implement a safe system of work in response or ignored its own system.⁷⁸ In other cases, plaintiffs failed on the grounds that they had not been able to demonstrate duty, breach or causation. In a case decided prior to Koehler, NSW v Fahy,⁷⁹ the High Court held (by majority) that although the risk of psychiatric injury to a police officer exposed to trauma was foreseeable to the employer, a safe system of work did not require that police officers work in pairs to provide support to each other.⁸⁰ The majority of the High Court particularly considered the conflicting duties that may be owed by police pursuant to legislation including public safety and investigation of crime. Any requirement for a safe system of work needed to accommodate those conflicting duties.

In Hegarty v Queensland Ambulance Service,⁸¹ a Queensland Court of Appeal case concerning an ambulance officer who had suffered VT, the Court held that the scope of a duty of care will not always require an employer to intervene proactively and make enquiries of an employee showing signs of mental health deterioration on the grounds of employee privacy, dignity and ‘entitlement to be free of harassment and intimidation’.⁸² Similarly, in NSW v Briggs,⁸³ a case concerning a police officer who suffered from VT, the NSW Court of Appeal was also skeptical of any duty in ‘ordinary cases’ which required intervention in ‘the private affairs of an employee’ even by the suggestion of counselling.⁸⁴

Kozarov v Victoria

The Kozarov⁸⁵ case in 2022 was the first workplace psychiatric injury case to come before the Australian High Court in many years.⁸⁶ Notably, it concerned psychiatric injury suffered because of VT in a legal workplace closely associated with court work. Kozarov was a solicitor employed between 2009 and 2012 by the Victorian Office for Public Prosecutions (‘OPP’) in the Specialist Sexual Offences Unit (‘SSOU’). Kozarov’s role included interaction with survivors of trauma including children, instructing in sexual assault trials, meeting with victims and dealing with the aftermath of prosecutions including complainant suicidality and distress. She was exposed to graphic videos, audio and images of child sexual abuse and rape; highly distressed child complainants including complainants who attempted suicide; and to the preparation of complainants to give evidence and be cross-examined. There was also extensive evidence accepted at trial that Kozarov (and other SSOU employees) had excessive workloads and worked very long hours.⁸⁷

By comparison with Koehler, the OPP clearly did actually foresee the risk of psychiatric harm occurring to all solicitors in the unit, including Kozarov. The OPP was well aware of the very serious risk of VT to all employees employed in the SSOU as a result of the kinds of work activities discussed above.⁸⁸ For example, it had published a Vicarious Trauma Policy (‘VT Policy’) in 2008 which specified the risks of VT; outlined preventative strategies (which included avoiding excessive hours and excessive workload); and included management strategies such as rotation to other areas of the OPP, debriefing, relocation of files, ‘time outs’ and the provision of employee support. During 2011 and 2012, there were many indications that the staff of the SSOU (including Kozarov) were suffering stress, work overload and experiencing trauma as a result of their work.⁸⁹ These included a general staff meeting followed by memo to management with staff complaints which included a list of stress-related symptoms that solicitors in the SSOU were suffering; a staff session organised by the SSOU and convened by a psychologist; and management knowledge of excessive work hours being performed by staff.

Kozarov became outspoken about how work was affecting her daily life, including making her paranoid, and that not enough was being done about this.⁹⁰ There were particular communications between Kozarov and her manager in respect of her excessive workload and subsequent allocation of work to her despite her work overload.⁹¹ She took sick leave in August 2011. There was also a ‘sentinel event’ in which Ms Kozarov’s manager wrongly accused her of being late, and she sent him ‘a verbose and emotional’ email⁹² saying that because of this she could not work for the rest of the day. Finally, there was a communication by Kozarov in February 2012 advising of the effects of her work on her psychiatric health and requesting a transfer away from SSOU work.⁹³

Kozarov was initially successful at trial⁹⁴ with the trial judge finding (applying the Koehler principles) that a duty of care was owed to Kozarov due to the OPP’s knowledge of the risks of VT. This culminated in their specific knowledge of ‘evident signs’ of the particular risk to Kozarov as a result of her declining health culminating in the distressed communication to her manager in August 2011.⁹⁵ This duty was breached by the failure of the OPP to have and implement a safe system of work including an option for rotation to a different work area to reduce trauma exposure.⁹⁶ Kozarov’s injury was held to have been caused by this breach, with the trial judge satisfied that if offered rotation, Kozarov would have accepted the offer.⁹⁷ The Victorian Court of Appeal⁹⁸ held that the duty of care had been engaged by the end of August and had been breached by the OPP. However, the Court of Appeal held that Kozarov was unable to prove causation. The Court of Appeal was not satisfied that Kozarov would have accepted an offer of rotation away from the SSOU in August 2011.⁹⁹ The Court referred to statements in her distressed email defending her work record and indicating her passion for her work and her application later in 2011 for promotion.¹⁰⁰ The Court of Appeal also held, without detailed explanation, that under her contract of employment with the OPP she could not have been compelled to accept rotation away from the SSOU.¹⁰¹

Ultimately the High Court of Australia upon Kozarov’s appeal held that the OPP had breached their duty of care to Kozarov, causing her injury. While not overturning Koehler, the decision in Kozarov has in many respects reduced the barriers to recovery in negligence for employees who have suffered psychiatric injury because of VT in the workplace. All members of the High Court clarified that, where an employer has explicit knowledge of the risk to employee health from VT due to the nature of a workplace, a proactive and reactive duty of care to each employee arises from the inception of the employment relationship and continues during the employment relationship.¹⁰² Further explicit or implicit signs of injury from VT to an individual are not required to trigger a duty of care. This is a marked departure from what had been previously thought to be the requirements of the Koehler principles even in VT cases that there had to be explicit or implicit signs of injury to the employee before the duty arose. An employer is required to establish, maintain and enforce a safe system of work to respond to known risks of VT.¹⁰³ This obligation may not be restricted by employee preferences – for example, to continue exposure to VT even though there are signs of resultant psychiatric illness such as PTSD.¹⁰⁴ This includes requirements such as having an active occupational health and safety framework which identifies and responds to the risks of VT; training management and staff in the recognition and response to signs of VT; and implementing responses such as rotation away from work that is traumatic and offering assistance to employees.¹⁰⁵ The High Court was satisfied on the evidence in the Kozarov case, including the existence of the VT policy and the very nature of the SSOU workplace, that it was foreseeable to the OPP that each and every employee was subject to a risk of injury from VT such that a duty of care arose. The evidence, including the failure to take the measures the VT policy outlined, clearly showed significant failures by the OPP to adequately establish and implement a safe system of work. The High Court took a different view of the evidence than the Victorian Court of Appeal, being satisfied that if Kozarov had been properly trained to recognise the signs of VT, screened and assessed earlier as suffering from PTSD, she would have accepted a transfer away from for the SSOU.¹⁰⁶ Her later request for transfer and cooperative conduct when she was diagnosed as suffering from an injury and expert evidence in the trial that most people when diagnosed will agree, supported causation.¹⁰⁷

It appears following Kozarov that a duty of care to an employee will arise from the start of the employment where the exposure of an employee to trauma is inherent due to the dangerous nature of the work,¹⁰⁸ or where the risk of trauma to all employees as part of their work is known to the employer; or where there is explicit evidence that the employer has policies and procedures in relation to trauma exposure (for example, the VT policy in Kozarov).¹⁰⁹ Of course, a successful negligence case will still require evidence that the duty of care has been breached in that the defendant employer has failed to act reasonably in the circumstances to have and enforce a safe system of work in relation to the risks of trauma exposure, which caused the plaintiff’s injury. In some cases, this may still be difficult to prove. For example, as we discussed above in NSW v Fahy,¹¹⁰ the High Court considered the impact of conflicting duties owed by police and the police service in determining a safe system of work. Kozarov did not definitively determine whether considerations such as an employee’s privacy or personal dignity would mitigate against a safe system of work which required welfare checks or positive check-ins with an employee.¹¹¹ In addition, it is presently unclear to what extent requiring an employee to work excess working hours or to carry an excessive workload would constitute a breach of an employer’s duty.¹¹² If an employee was successful in arguing an employer’s breach in failing to carry out a welfare check, referral to offer support services or offer a change of work environment, the plaintiff employee would be required to show as part of proving causation¹¹³ that they would have acted in response to the employer’s actions to lower their trauma exposure and risk of injury.

3. Liability for psychiatric injury to judicial officers from trauma exposure

Part 3 considers whether, similarly to Kozarov, the State has potential liability in negligence for psychiatric injuries suffered by judicial officers (as non-employees) because of VT and trauma exposure. To sue in Australia for negligently inflicted psychiatric harm generally requires a plaintiff to prove that the defendant could reasonably foresee that the plaintiff might suffer psychiatric harm as a result of the defendant’s action or inaction giving rise to a duty of care; that the plaintiff suffered from a recognised psychiatric illness; that the defendant failed to act like a reasonable person and that this breach of their duty caused the psychiatric illness. There has not been a decided negligence case to date in Australia concerning liability for judicial psychiatric injury from trauma exposure. Factors that support liability include the reasonable foreseeability of harm to judicial officers from trauma exposure; that judicial officers (although not technically employees of the State) should be treated analogously to employees concerning liability for workplace injury; and that the general principles of negligence support a duty of care which would also be coherent with legislative WHS obligations. However, there are also a range of factors which may inhibit or limit any liability of the State for psychiatric injuries suffered by judicial officers because of trauma exposure or VT. Where a judicial officer is covered under the relevant workers’ compensation legislation for their jurisdiction, that legislation may limit or cap damages or provide other restrictions or thresholds on action.¹¹⁴ Further factors we discuss in this part include diffused responsibility for the judicial work environment and consequent difficulty in identifying an appropriate duty holder/defendant; constraints on liability because of the special status and nature of the judicial role including judicial independence and judicial immunity; and limitations and constraints due to civil liability legislative provisions concerning psychiatric injury and government and public authority liability.

Foreseeability of judicial psychiatric injury from trauma exposure

As in Kozarov, psychiatric injury to judicial officers from VT and direct trauma in their workplace is clearly reasonably foreseeable to the State. The common-law principles for a duty of care to be owed in negligence for psychiatric injury require foreseeability of psychiatric harm and that the psychiatric harm is a recogniseable psychiatric illness.¹¹⁵ As we discussed above, in Kozarov the High Court made clear that the test of reasonable foreseeability of psychiatric injury to a legal employee from VT resulting from court-related work does not require ‘signs’ from the individual they may be subject to harm from trauma exposure to trigger a duty of care. The risk of injury from trauma exposure may be considered reasonably foreseeable where the evidence shows the employer knew of the risk from trauma to all employees or where the risk arose inevitably from the inherently dangerous nature of the work. The obviously and inherently ‘dangerous’ workplace encountered by lawyers such as Kozarov is closely analogous to the judicial work environment with the presence of similar psycho-social risks and hazards. The research we discussed in Part 1 also clearly indicates the known psychological risks to judicial officers from trauma exposure in their work.

There is also other evidence that the risk to judicial psychological health from trauma exposure and VT trauma is now clearly known and foreseen by the State. The nature of this risk has been recognised by Australian courts, judicial commissions and CJOs.¹¹⁶ There are also judicial education programs considering judicial wellness and psychological health including trauma exposure and VT risks.¹¹⁷ It is apparent that, as in Kozarov, at least in some jurisdictions there are workplace policies and procedures in court and judicial workplaces that acknowledge the risks of VT and trauma exposure. For example, coronial findings concerning the deaths of two Victorian magistrates suggest that in Victoria very significant steps have been taken to improve judicial wellbeing at an organisational, cultural, strategic and structural level, including Health and Wellbeing Plan, induction programs, professional development and personalised psychological support for magistrates.¹¹⁸ Court Services Victoria has also adopted significantly stronger processes and support systems in relation to the psychological safety and wellbeing of those working in Victorian courts including the coroner’s court.¹¹⁹ These changes followed the death of the principal solicitor in the coroner’s court in 2018, which resulted in successful prosecution of Court Services Victoria by Work Safe for failing to provide and maintain a safe workplace.¹²⁰

Judicial officers are analogous to employees

It might be thought that, following Kozarov, the State would clearly owe a non-delegable duty of care in negligence to judicial officers who are exposed to reasonably foreseeable injury from trauma because of their judicial work. Judges could be treated like employees such that a duty of care analogous to that owed by an employer to an employee would be owed by the State. For example, Justice O’Meara in the Supreme Court of Victoria commented in obiter in 2022, in respect of possible work-related physical injury to a judicial officer:

That said, one can also readily imagine circumstances of a distinct kind in which the work of a particular judge could give rise to risks to personal safety outside the precincts of the particular court. It is unimaginable, in such circumstances, that there would not be – and that the State would not assume – an obligation to take reasonable care to ensure the security of the particular judicial officer. In that instance, a reasonable response to the risk might involve anticipatory police involvement, monitoring in respect of the litigant concerned and/or a security assessment and perhaps measures in respect of vehicles and at the judge’s home. In other circumstances, it might require the provision of personal security or protection.¹²¹

However, it may not be quite so simple. Judicial officers, as constitutional and statutory appointees, are not generally considered employees in Australian law.¹²² Nevertheless, there are good reasons to treat judicial officers as analogous to employees for the purposes of work-related injury including that the psycho-social hazards in the judicial workplace are beyond the control of individual judicial officers; that current judicial conditions and entitlements in relation to the workplace environment may be analogous to employment, particularly in lower-level courts; and analogous cases concerning public officials such as police have held a duty of care is owed by the State in relation to workplace trauma exposure.

Status and role of judicial officers and judicial independence

Judicial officers in Australia are appointed pursuant to relevant Commonwealth, State and Territory constitutions and legislation, and their powers, duties, remuneration and conditions are typically governed by statute. For example, judges in NSW are appointed by the Governor on the advice of the Executive Council and under the Public Seal of the State.¹²³ The judge is granted a commission by way of letters patent, rather than a contract of employment. They are more often called ‘public officials’ than employees.¹²⁴ Judicial officers cannot be removed from office unless they reach statutory retirement age or for proved misbehaviour or incapacity. This rule applies to all judicial officers throughout Australia.¹²⁵ This is an aspect of the independence of the judiciary which is regarded as foundational in both State and Commonwealth law. The constitutional significance of the independence of the judiciary should not be understated.¹²⁶ It is regarded as an essential element of the separation of powers in the Commonwealth context, and the other pillar in the State context that emphasises sovereignty of parliament and the independence of the judiciary as constitutional doctrines.¹²⁷ Emphasis on this is one of the reasons for the Australian courts’ traditional reluctance to regard judges as employees.¹²⁸ The High Court has stated expressly that ‘[m]inisters and judges are not employees of a state’.¹²⁹ However, as Blackham has pointed out, ‘the court did not explain what, indeed, judges were, if not employees’.¹³⁰

The decision about whether a person is an employee may be different for different purposes. The fact that a judicial officer has been held to be an employee in one context does not necessarily mean they will be held to be an employee in another context. For example, in the United Kingdom, it has been held that judges are ‘workers’ for the purposes of a ‘Framework Agreement’ on part-time work considering European Union human rights law.¹³¹ In Northern Ireland the Court of Appeal has similarly held, also in the context of European Union law, that judges are workers for the purposes of equal pay.¹³² Gilham v Ministry of Justice¹³³ concerned a claim by a judge for protection as a ‘worker’ or ‘person in crown employment’ under legislation for the purposes of statutory whistleblower protection (which did not derive from European Union law) for disclosures regarding workplace health and safety concerns including workload.¹³⁴ The Supreme Court of the United Kingdom, in rejecting the claim, held that she was not a worker or in Crown employment under the statutory definition because the manner of appointment was laid down in statute rather than via contract.¹³⁵ They also pointed to the independence of the judiciary as a factor against a contract of employment.¹³⁶ The Court noted, however, that ‘a judge may have a different status in employment law, depending upon whether or not the employment right in question is derived from EU law’.¹³⁷ Ultimately, the Supreme Court held that the exclusion of judges from whistleblower protection was a breach of the Human Rights Act 1998, rejecting claims that this would prejudice judicial independence.¹³⁸ Rather, protection could enhance judicial independence by discouraging the judiciary from going ‘public’ as a result of no ‘other avenue’ and being ‘drawn into what might be seen as political debate’.¹³⁹ The case was remitted to the Employment Tribunal.¹⁴⁰

Treating judicial officers as analogous to employees for the purposes of workplace injury

It is arguable that, when it comes to the consideration of workplace injury, judges should be considered through a ‘labour law lens’¹⁴¹ and treated analogously to employees who need protection from workplace-related injury. Blackham suggests that judicial officers have not typically been seen through a ‘labour law lens’ in Australia.¹⁴² This is attributable to ‘the fundamental importance of judicial independence and impartiality’ and the ‘fear that labour law will interfere with and affect judicial-decision-making’;¹⁴³ the ‘importance of independence and impartiality to the legitimacy of courts and judges’ including the deflection of ‘attention from the position of judges as individuals’;¹⁴⁴ and that the ‘differences between judging and other forms of employment may be seen as undermining the use of a labour law lens’ given judges are not in the same position of inequality of bargaining power or inferiority as other employees.¹⁴⁵ However, Blackham argues that the fact that judges might be considered as employees will not necessarily detract from their independence as required by the constitution and that in some circumstances there are benefits in viewing the judicial officers through a ‘labour law lens’:

Unlike in a traditional employment relationship, the state cannot (other than through the process of legislative reform) interfere in or direct how judges perform their work, at least while still maintaining the rule of law, separation of powers and judicial independence. This however, tempers how a labour law lens might be applied to judicial work, rather than negating the approach in its entirety.¹⁴⁶

There has been an increasing acknowledgement that judicial officers are also individuals and that they face ‘institutional and personal challenges’ in fulfilling their judicial role including ‘managing mental health, stress and capacity issues’ which ‘go to the heart of the sustainability and efficacy of the judicial role’.¹⁴⁷ Blackham has acknowledged the State occupies a challenging position in labour law in relation to judges, ‘given they are a different arm of government from which judges need separation and independence’.¹⁴⁸ Nevertheless she argues that aspects of labour law, for example discrimination law aimed at diversity and workplace flexibility, may draw ‘attention to organisational processes in courts, with a focus on what judges need to function, and other processes that may support a judge in fulfilling their role. It therefore adds the human dimension to discussion of the judicial role’.¹⁴⁹ We would suggest that the safety of the judicial work environment and prevention of judicial psychiatric injury is another area where the protection of the health of judicial officers by the State can only enhance the performance of the judicial role.

As Blackham suggests, between the State and judicial officer there is a ‘marked contrast to the level of power and control traditionally exercised by employers over employees, including in how work is performed’.¹⁵⁰ For example, as we note above, judicial officers typically cannot be removed from judicial office except when they reach statutory retirement age¹⁵¹ or because of significant serious misconduct or physical and mental incapacity.¹⁵² Nevertheless, there are many aspects of the relationship between the State and judicial officers where the State has ultimate control of the work environment and there is little room for negotiation by a judicial officer regarding working conditions or entitlements.¹⁵³ For example, judicial conditions and entitlements are typically stipulated in legislation¹⁵⁴ or delegated to bodies such as statutory judicial entitlement panels.¹⁵⁵ CJOs typically have statutory power in relation to allocation of judicial officers to particular courts, court lists and geographical locations where judicial officers serve.¹⁵⁶ Individual judicial officers generally have little control over their judicial workload or sitting hours and must often complete excessive workload.¹⁵⁷ Judicial officers, particularly in lower-level courts such as Magistrates’ or Local Courts, may be compelled to serve at some stage in regional, rural and specialist courts where they may be subject to isolation.¹⁵⁸ As we discussed in Part 1, the lower the level in the court hierarchy, the less individual control a judicial officer is likely to have in relation to their day-to-day work and workplace conditions. In addition, in lower-level courts such as Magistrates’ Courts, judicial officers may experience high-volume exposure to traumatic materials and work at a fast pace due to court workload. The institutional and systemic factors we discussed in Part 1 as most related to trauma-caused psychiatric injury are those that are also in the control of the State and beyond the control of or mitigation by an individual judicial officer.

The working conditions and entitlements of judicial officers vary across jurisdictions and by court hierarchy levels. For example, higher-level judicial officers, unlike normal ‘workers’, typically will have statutory pensions on retirement and a range of other entitlements.¹⁵⁹ Judicial officers, as a result of judicial independence, are not subject to direction in how they decide cases they are allocated for hearing. Nevertheless, for the purposes of certain workplace entitlements such as payment of a salary and PAYE tax deduction and salary sacrifice entitlements,¹⁶⁰ judicial officers may be treated similarly to public sector employees. Lower-level judicial employees, such as those in Magistrates’ or Local Courts, often have working conditions that are strikingly similar in many respects to other public sector employees, like capped sick leave, long service leave, annual leave entitlements and superannuation entitlements rather than a pension.¹⁶¹ There is also a strong argument that the State has already assumed responsibility for the safety of the judicial work environment and for work-related injuries suffered by judicial officers. It appears that judicial officers across Australia have access to workers’ compensation scheme entitlements or to accident insurance.¹⁶² In some jurisdictions, judicial officers are already directly included as people who are covered by the relevant workers’ compensation legislation for work-related injury.¹⁶³ In other jurisdictions, it appears judicial officers are covered by undertakings by the State that they will be indemnified and provided with entitlements in relation to workplace injury, as if they were covered by a workers’ compensation scheme.¹⁶⁴

Treating judicial officers analogously to police officers

A potential duty of care in negligence for judicial officers is also supported by analogous cases concerning public officials who have been treated as if they were employees for the purposes of a negligence action. Police officers are a good example of workers who were originally not regarded as employees, being seen as independent functionaries, but are now in many cases entitled to the benefits of being regarded as an employee.¹⁶⁵ The position of police has evolved statutorily to make them at least quasi-employees of the Crown, who appoints the police commissioner. It is clear that vicarious liability attaches to the Crown for the wrongs of police, and it is also clear that the Crown is responsible for the workplace in which police carry out their activities.¹⁶⁶ Much of this work has been done by statute which covers the appointment and conditions of police and provide that the Crown is vicariously liable for the wrongs of police.¹⁶⁷ On this basis the State has been held liable in negligence for psychiatric injuries suffered by other public officers such as police,¹⁶⁸ as a result of VT.¹⁶⁹

As with judicial officers, police officers are appointed by statute and given a commission; they also swear an oath of service and act independently. However, they are also bound to obey lawful orders.¹⁷⁰ At common law they were not employees, as there was not a contract of service. In Quince in 1948 Latham CJ said: ‘[i]t is, I think, true that a member of the forces is not a servant of the Crown in such a sense that the ordinary law of master and servant determines the relations of the parties’,¹⁷¹ seeing a parallel between the police and members of the armed services. In Attorney-General (NSW) v Perpetual Trustee in an action for per quod servitium amisit, the Privy Council held that:¹⁷²

[T]here is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original not delegated and is exercised at his own discretion by virtue of his office.

In State of NSW v Briggs¹⁷³ Leeming JA discussed the question (which had not been pleaded) of whether police were in an employment relationship with the Crown. In that case a police officer had brought an action claiming workers’ compensation for PTSD he claimed was caused by his workplace. Strictly speaking, Leeming JA did not need to consider this issue, as police were expressly included under the Workers Compensation Act 1987 (NSW). However, he emphasised the basic proposition that ‘the state is not an employer and a police officer … [is] not an employee’.¹⁷⁴ Instead, vicarious liability arose under statute.¹⁷⁵ He noted, however, that:

[T]here are statements pre-dating the High Court’s decisions in Koehler v Cerebos (Australia) Ltd and New South Wales v Fahy to the effect that police officers are largely treated as employees. In particular, Priestley JA’s analysis in Honeysett at [30] concluded that ‘in many ways the conditions of service of police officers had been substantially assimilated to those of ordinary employees’.¹⁷⁶

Carabetta argues that the better approach is the one taken by Dixon J in Attorney-General (NSW) v Perpetual Trustee Co Ltd¹⁷⁷ that:

[A]lthough a police officer has duties to perform which are derived directly from the law itself and require individual judgment and action, that fact does not, by itself, preclude him or her from being regarded as an employee.¹⁷⁸

Clearly it would be possible to see police as having both roles. There appears to be widespread support for this position.¹⁷⁹ As Priestley JA said in Honeysett:

The Police Service Act in my opinion shows a use of the idea of employment in its ordinary sense running in parallel with a recognition of the continuing office of constable as an office that can be exercised simultaneously with an employment relation existing between the police service and a police officer.¹⁸⁰

Cases concerning psychiatric injury to police have generally treated the police as employees, whether this point has been pleaded or not. These cases have acknowledged the existence of a general duty of care owed to police officers in relation to exposure to VT in their work and requirements of the State to take reasonable steps to respond to that risk.¹⁸¹ For example, the duty of care identified in the recent case NSW v Skinner,¹⁸² which had also been accepted by the police force in Sills v State of New South Wales¹⁸³ required the police force to:

1. Identify officers who, through the performance of their duties, were at risk of suffering, or were suffering, psychiatric or psychological harm;

2. 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;

3. Consult with appropriate persons in the workplace to identify hazards associated with the work environment and systems of work if and when the injured worker returned to duty, including the assessment of the risks of injury or further injury.¹⁸⁴

This discussion of the position of police officers shows that the ‘technical’ view that they are not employees has not been allowed to prevent them from access to the normal entitlements of the employee. The position of judges is analogous in many ways to that of police.

General principles of negligence support liability

It may also be possible to argue a duty of care in negligence is owed to judicial officers based on the general principles of negligence at common law including those principles relating to novel cases, psychiatric injury cases and public authority liability cases. We discuss further below potential limitations introduced by civil liability legislation on liability in some psychiatric injury and public authority cases.

Where a category of duty of care has hitherto not been recognised, the test for determining whether a new category can be created depends on the tests of reasonable foreseeability, salient features of the relationship between plaintiff and defendant¹⁸⁵ and, particularly in cases concerning public authorities,¹⁸⁶ possible incompatibility or incoherence with other law in existence and with relevant legislative provisions.¹⁸⁷ As we have discussed above, the requirement for reasonable foreseeability of the harm would clearly be satisfied in cases of diagnosed psychiatric injury from judicial exposure to trauma in the workplace. The general test for a duty of care to prevent psychiatric harm is based on reasonable foreseeability of psychiatric harm rather than just any form of personal injury. In Tame v NSW¹⁸⁸ the extra constraints on the duty – for example the requirement of sudden sensory perception – were jettisoned by the High Court and simply became facts which might be considered as part of the question of whether the psychiatric harm was foreseeable. Further salient factors which would support a duty may include the requirement for judges to hear difficult and traumatic matters; their constitutional status; the fact that they are situated in a workplace which is controlled by the Crown in all relevant respects; and that their role places them in a position where they are vulnerable to the psychological impacts of trauma and cannot act to self-protect.

Any new novel duty of care would critically also have to be coherent with any relevant legislative framework,¹⁸⁹ and any consideration of a duty owed by a public authority requires consideration of the legislative framework as ‘the starting point of any inquiry’.¹⁹⁰ Any duty of care owed by the State would clearly need to be consistent and coherent with relevant legislation concerning the ambit and nature of the judicial role, the principles of judicial independence and judicial immunity. We do not believe that liability in negligence by the State for judicial injury because of trauma exposure will always be incompatible with the judicial role, judicial independence or judicial immunity. The argument that the independence of the judiciary is so important that allowing actions for psychiatric harm by judges might bring the law into disrepute must be countered. For example, the argument about the independence of the judiciary has been used to prevent judicial salaries being cut,¹⁹¹ which is clearly part of the conditions of judicial work. As Blackham argues, the independence of the judiciary concerns the judiciary as an institution; the possibility of bringing an action for negligent infliction of psychiatric harm is very much an individual matter.¹⁹² These two things are not necessarily incompatible. Nevertheless, we consider the judicial role, judicial independence and judicial immunity further below as matters which may significantly limit and restrict liability, and accordingly any possible liability to judicial officers by the State may be substantially different in nature than that owed to employees such as Kozarov.

A duty of care owed by the State to judicial officers in relation to judicial trauma would be strongly coherent with recent legislative developments in WHS legislation across Australia. While breach of WHS legislation does not give rise to any specific rights of compensation for an individual for breach of statutory duty, recent reforms have significantly strengthened employer obligations in relation to management of workplace psycho-social risks and hazards in Australian workplaces.¹⁹³ Model WHS legislation implemented across Australia¹⁹⁴ binds the Crown and applies to public workplaces,¹⁹⁵ which would include courts.¹⁹⁶ The primary duty of persons ‘conducting a business or an undertaking’ to ensure that ‘so far as is reasonably practicable’ the health and safety of ‘workers’¹⁹⁷ and ‘other persons’¹⁹⁸ is not put at risk extends to both physical and psychological¹⁹⁹ safety. This duty is broad and extends to safe work environments, safe systems of work, provision of information, training and instruction to workers and monitoring the health and safety of workers at the workplace to prevent illness or injury.²⁰⁰ The meaning of ‘worker’ in WHS model legislation is also broad and extends beyond traditional employment to include people carrying out work ‘in any capacity for a person conducting a business or undertaking’.²⁰¹ This seems to be broad enough to include the work of judicial officers in court environments. A WHS duty would appear to be owed by the State in relation to the psychological safety of judicial officers in the judicial workplace, to the extent that any precautions or responses to the potential risk of injury from trauma are ‘reasonably practicable’.

Model WHS regulations in most jurisdictions contain provisions which provide particular duties to identify, manage and control psycho-social risks in the workplace.²⁰² Trauma exposure in workplace and exposure to violence and aggression are clearly identified as psycho-social hazards.²⁰³ WHS Codes of Practice in all jurisdictions apart from Victoria provide more detailed guidance on managing workplace psycho-social risks which include many of the factors identified in judicial workplaces discussed in the studies considered in Part 1. For example, the ‘Qld Managing the Risk of Psychosocial Hazards at Work Code of Practice 2022’²⁰⁴ particularly identifies ‘exposure to a traumatic event’ which may lead to ‘an acute stress response and/or post-traumatic stress disorder’ as a common psycho-social hazard.²⁰⁵ The Code identifies legal services as a particular area or occupation that may lead to exposure to traumatic events.²⁰⁶ In addition, the Code refers to violence and aggression as a common psycho-social hazard which includes ‘any incident where a person is abused, threatened, or assaulted at work or while they are carrying out work’.²⁰⁷ Other factors identified in the judicial studies we discussed in Part 1 are also reflected in the Code. These include high job demands, low job control, lack of support, lack of good workplace relationships and remote or isolated work.²⁰⁸

The Codes also make clear that the psycho-social hazards can interact to increase the risk of injury.²⁰⁹ For example, repeated exposures over time to trauma may be compounded by excessive work hours, working in a remote or isolated area, lack of ability to control individual workload and exposure to trauma. An assessment of what measures and responses would be reasonably practicable in a judicial work environment in relation to these psycho-social risks would have to consider ‘all relevant matters’ including ‘the availability and suitability of ways to eliminate or minimise the risk’.²¹⁰ This would likely include the nature of the judicial role, judicial independence and judicial immunity which are discussed further below. Given the nature of the judicial role and work environment it would likely be impossible to eliminate the risk of trauma exposure completely, and consideration would need to be given to minimising the risks.²¹¹ Methods of potentially controlling the risks of trauma referred to in the Code include allowing safe areas and time to recover from exposure to aggressive behaviour; considering appropriate work allocation and resourcing in areas which have high risk of VT such as child-related cases; work allocation which allows work-life balance; using trauma-informed approaches to minimise risk; designing physical work environments and processes to minimise exposure to aggression; worker and management training to identify and manage trauma risk and early signs of trauma; job rotation; access to employee assistance programs; and encouraging employees to raise and report psycho-social hazards which are then treated seriously.²¹²

Responsibility for judicial work environments and proper defendants

There are potential impediments and complexities to a judicial officer bringing a successful action in negligence against the State for injury caused by trauma exposure, due to diffused responsibility for the judicial workplace between various State bodies and public officials which may vary from jurisdiction to jurisdiction. For example, there may be difficulty in identifying an appropriate State defendant, identifying which potential State defendant had responsibility in relation to attending to the risks of judicial trauma exposure and finally in determining whether there are issues in holding particular State defendants liable for reasons such as judicial independence and judicial immunity.²¹³ In the police cases discussed above, the difficulties concerning identifying the appropriate State duty holder have typically been glossed over.²¹⁴ This has occurred on the basis that it is accepted by the parties that the State (in some form) owes a duty or is vicariously liable for any tortious action by senior police or police commissioners (although police are not technically employees), and accordingly the relevant Crown Proceedings legislation allows the State to be sued in relation to any civil proceedings.²¹⁵ However, the situation may be more complex in any litigation concerning judicial officers.²¹⁶

In the Gilham case in the Supreme Court of the United Kingdom discussed above, one of the impediments for the appellant judge in arguing an employment contract, noted by the Court, was the difficulty experienced by the appellant in identifying her employer.²¹⁷ In that case the proceedings had been brought against the Ministry of Justice; however, as the judge had been appointed by the then Lord Chancellor, ‘responsibility for the judiciary’ was ‘in fact divided between the Lord Chancellor, as a Minister of the Crown, and the Lord Chief Justice, as Head of the Judiciary’.²¹⁸ In addition, ‘many matters related to deployment and workload’ were directed to ‘local leadership judges’ and ‘senior officials in Her Majesty’s Courts and Tribunals Service’.²¹⁹ As the Court noted, ‘this fragmentation of responsibility has both statutory and constitutional foundations and highlights how different is the position of a judge from that of a worker employed under a contract with a particular employer’.²²⁰

This fragmentation of responsibility for the workplace and work of judicial officers because of constitutional and statutory issues also exists in Australia. For example, as discussed above, judicial officers are typically appointed by the Governor in Council or Governor-General on the advice of the Government pursuant to the relevant constitution or by court legislation.²²¹ Overall responsibility for the administration of justice through courts and by the judiciary will generally vest in the relevant minister of the Crown, for example the attorney-general as the chief law officer. CJOs have a statutory role in appropriately and efficiently managing their court and the administration of justice.²²² This includes managing the ongoing work of judicial officers including matters of court and work allocation,²²³ subject to considerations of judicial independence. The control of judicial working conditions may be even more subject to CJO control and direction in lower-level courts.²²⁴ Of course, a CJO’s ability to manage their courts is subject to budget controls and resources provided by the Government over which they may have little control. For example, a CJO may wish to have additional judicial officers appointed to their court to ultimately reduce workload and trauma exposure of existing judicial officers²²⁵ but this may be refused by the Government. Court support services including general administrative support for judicial officers and other employees, maintenance, security, WHS matters, employee support services and other necessary services are generally provided by government departments such as justice and attorney-general. In some jurisdictions, such as Victoria and South Australia, these services are provided by independent court services corporations as a measure to support judicial independence from the State.²²⁶ In some states, the responsibility for judicial education programmes which could include programmes in relation to identification and management of trauma exposure is specifically vested in CJOs²²⁷ or in judicial commissions²²⁸ or in a judicial college.²²⁹ In other jurisdictions, the responsibility for such programmes is unclear²³⁰ and presumably forms part of the responsibilities of CJOs or relevant government departments or bodies providing court support services. In some jurisdictions, judicial entitlements, which could include matters such as sick leave or entitlement to individual psychological support, are subject to independent determination by remuneration tribunals.²³¹ As a practical matter, when a judicial officer becomes ill because of trauma exposure, this may result from systemic and interacting failures by any number of different agents or manifestations of the State. As we discuss below, some of those failures may be beyond the scope of any duty of care or would not constitute a breach of duty due to considerations such as judicial independence, judicial immunity of CJOs and protective civil liability legislation.

Special status of judicial officers, judicial independence and judicial immunity

The High Court in Kozarov clearly indicated that State liability for employee VT may arise due to the inherently dangerous nature of the workplace. However, the nature of the judicial role, judicial independence and judicial immunity may limit the liability of the State for injuries to judicial officers as a result of inherently ‘dangerous’ work environments. The scope of any duty of care owed and what might be considered breach of that duty will be subject to those considerations. Wilson and Freckelton suggest that after Kozarov the scope of a duty of care and avoidance of breach may involve an ‘active occupational health and safety framework’; ‘intensive training for management and staff’ about risks to staff of psychological and psychiatric harm; welfare checks and referral for staff showing signs of heightened risk; and a ‘flexible approach to work allocation’, with temporary or permanent rotation from high-risk situations.²³² It might be argued that some of these precautions would be entirely consistent with and would enhance judicial independence. They would preserve judicial health through maintaining safer judicial working conditions and ultimately enhance the public administration of justice. However, considerations of judicial independence would likely preclude any scope of duty or potential breach which required the State to compel (rather than simply offer) a judicial officer to attend professional development training, rotate courts, reduce workload, take sick leave or seek treatment.²³³ The issue of requiring active welfare checks as part of the scope of duty has also, as discussed above, proven controversial with some members of judiciary in cases concerning employees²³⁴ on the basis of privacy and autonomy concerns. This might be even more controversial in any case concerning liability for judicial trauma where it might be argued by some that State intervention is inconsistent with judicial independence.

Questions of judicial immunity also arise in relation to any potential liability on the part of the CJOs for psychiatric injury suffered by a judicial officer due to trauma exposure. CJOs will typically have the power to allocate judicial officers to particular courts and to particular caseloads.²³⁵ This is an aspect of judicial independence to ensure the State cannot interfere with the judicial decision-making process. Accordingly, any scope of duty of care or reasonable precaution required to avoid breaching a duty of care that required the consideration of changing judicial work allocation, changing court allocation or rotating judicial officers between courts to reduce judicial exposure to trauma could only be owed by a CJO, rather than any other emanation of the State. However, it is very likely that CJOs would be protected from any negligence liability in respect of matters concerning work allocation or workload, given that administrative matters closely connected with the judicial function are protected by both the doctrine of judicial immunity at common law²³⁶ and in various states by statutory forms or extensions of the judicial immunity.²³⁷ The ambit of administrative functions connected to judicial function so as to immunise CJOs from responsibility for injuries suffered by judicial officers is unclear.²³⁸ It is possible that CJOs could be immune from all civil and criminal liability for failures to protect judicial officers from VT including failing to provide training, have an active WHS framework or failing to undertake welfare checks and referral to support services.

Civil liability legislation limitations in psychiatric injury and public authority cases

Civil liability legislation across Australia may provide further impediments to State liability for judicial trauma. Judicial officer plaintiffs covered by this legislation may find barriers in the legislation addressed to liability for psychiatric harm, issues concerning vicarious liability where a party may be a chief judicial officer or a State authority of some kind and difficulties where the defendant is a public authority.

Establishing liability for psychiatric harm under civil liability legislation

Civil liability legislation in some states (but not Queensland and the Northern Territory) have made the requirements for negligence liability for psychiatric harm stricter, especially in NSW, which has the strictest provisions. Where the legislation applies varies, but in most jurisdictions workers’ compensation matters are excluded from the application of civil liability legislation.²³⁹ The civil liability legislation²⁴⁰ prohibits an award for mental harm unless it is for a ‘recognised’ psychiatric illness. Handford has argued that the use of ‘recognised’ rather than the common law’s ‘recogniseable’ puts an extra limitation on nervous shock cases,²⁴¹ although the provision was put in as an attempt to reflect the common law. Given that PTSD and other likely psychiatric diagnoses are clearly recognised as well as recogniseable, the legislative requirement is not likely to produce any significant impediment to action except where a judicial officer suffers unspecified distress or symptoms.

Where a judicial officer claims a psychiatric injury as a result of trauma exposure in the workplace, they are likely to be considered a primary victim.²⁴² Establishing a duty of care for a primary victim is governed in NSW by section 32 and elsewhere by its legislative equivalents.²⁴³ These are negative provisions in that a duty of care is not to be found unless certain requirements are met. The NSW provision²⁴⁴ requires that the defendant ought to have foreseen that a person of normal fortitude might have suffered a psychiatric illness if reasonable care were not taken. This requirement was rejected as a requirement in the common law in Tame v NSW²⁴⁵ by Gummow and Kirby JJ as a precondition of liability, while Gleeson CJ and Gaudron J said it could not be a definitive test.²⁴⁶ They were in the majority in this view. Similarly, the High Court roundly criticised the use of ‘sudden shock’ as a requirement for deciding on the duty of care. They required only that it be foreseeable that a risk of psychiatric injury would arise in the circumstances. The stricter statutory rule about normal fortitude has led to rejection of the duty of care in a number of cases.²⁴⁷

The legislation also reverses the common-law position under Tame v NSW²⁴⁸ by requiring a judge to consider four factors in determining the foreseeability of harm to give rise to a duty of care.²⁴⁹ These factors include whether the harm was suffered as a result of sudden shock; whether the plaintiff witnessed at the scene a person being killed, injured or put into peril; the nature of the relationship between the plaintiff and a person killed, injured or put in peril; and whether or not there was a pre-existing relationship between plaintiff and defendant. While these factors do not require specific answers, the requirement to consider them raises the possibility that, for example, a judicial officer could find that without a ‘sudden shock’ preceding their psychiatric injury there may be no duty.²⁵⁰ On the other hand, the actual foreseeability of harm to judicial officers discussed above, the close nexus between the State and judicial officers and the control by the State of the judicial work environment could well be sufficient to satisfy the additional statutory requirements.

Although these parts of the civil liability legislation are restrictive, they probably would not preclude a judicial officer who has developed PTSD or other recognised psychiatric illness because of trauma exposure from establishing a duty of care against a defendant. As we have discussed above however, the question of who could be sued as defendant is the more difficult; and establishing a breach of duty while taking into account judicial independence and judicial immunity may be very difficult.

Restriction on public authority liability

Civil liability legislation across Australia has special protections for public authorities.²⁵¹ When determining whether a public authority owes a duty of care or has breached a duty, the court must take into account a range of additional factors including all the functions of the public authority and their resources; the broad range of activities the public authority carries out; and that a public authority can rely on evidence of its compliance with its own procedures and standards.²⁵² Importantly, in many jurisdictions the general allocation of resources by an authority cannot be challenged.²⁵³ This is a variant of the policy/operation distinction which might apply at duty or breach stage at common law²⁵⁴ which did not state this rule so firmly. This means, for example, that decisions not to allocate due to budgetary reasons more judicial officers or support staff to assist judicial officers to reduce trauma or workload may be non-justiciable. Accordingly, any liability by the State in negligence could not extend to these matters. There is also a further potential hurdle in civil liability legislation in relation to the determination of breach of duty. For example, in Queensland, an ‘act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions’.²⁵⁵ The practical implication of this is that proving any breach of duty in a negligence action by a judicial officer against the State may be even more difficult.

Conclusion

There is strong evidence that judicial officers across Australia are exposed to trauma and VT in their workplace which can cause psychiatric injury. This is increasingly recognised by courts, CJOs and judicial officers more broadly. These risks are exacerbated in lower-level courts. The personal costs to individual judicial officers and their health can be extreme. There are further costs, such as to judicial retention, judicial capacity and misbehaviour, the efficient administration of courts and ultimately to judicial independence itself. Action to protect judicial health and wellbeing can only enhance judicial independence and ultimately the administration of justice. We have argued in this article that there are significant reasons to treat judicial officers like other employees for the purpose of protection from workplace injury and compensation.

However, while the High Court of Australia has recently recognised in Kozarov that a negligence action can be sustained against the State by a legal employee who suffered psychiatric injury from VT in court-related work, we suggest it may be substantially more difficult for a judicial officer to be successful in obtaining compensation in negligence. In this article we have identified several strong arguments in favour of liability, including that psychiatric injury to judicial officers as a result of trauma exposure in their workplace is clearly reasonably foreseeable; that judicial officers could be treated analogously to employees for the purposes of workplace injury; that the State has been held to owe a duty of care to public officials such as police; and that liability would be consistent with the general principles of negligence and coherent with modern WHS obligations which apply to courts. However, we have also suggested that judicial officers would face significant complexities, barriers and hurdles to overcome. These include difficulties in identifying appropriate State defendants due to diffused responsibility for judicial workplaces; constraints on liability because of judicial independence and judicial immunity; and potentially restrictions in some circumstances by civil liability legislative provisions. This uncertainty could leave judicial officers unprotected and uncompensated for injury, to the extent that they are unable to obtain compensation from no-fault workers’ compensation schemes. This seems an unjust result in light of the recent Kozarov decision, which provided compensation to a lawyer injured in a court environment. It would be desirable to clarify in all relevant state and territory workers’ compensation legislation (where this is not already clear) that judicial officers are entitled to no-fault workers’ compensation benefits and entitlements where they suffer a workplace psychiatric injury. This may require further consideration of the extent to which the requirements of employees in the schemes are compatible with the judicial role.

More importantly, greater institutional change at the court level to minimise psychiatric injury in the workplace to judicial officers is urgently required. These changes might include some modelled on the WHS Codes discussed earlier²⁵⁶ to ameliorate and manage psycho-social hazards. For example, allowing judicial officers time and safety to recover from exposure to aggressive behaviour; work allocation and resourcing that allows work-life balance; training of judicial officers and CJOs to identify and manage trauma risk and early signs of trauma; rotation between courts or court lists to allow relief from VT exposure; proactive and regular access to psychological support; and encouraging judicial officers to raise and report psycho-social hazards which are then treated seriously by CJOs and the State. To be effective, these interventions would need to sit within a broader program of judicial wellbeing enhancement that would address the cultural and workplace factors driving judicial stress – such as maladaptive beliefs and messaging about stress, isolation and a lack of autonomy. This could include training for judicial leaders on leading for wellbeing, consultation activities to understand the matters believed to affect wellbeing within a particular court and judicial officers’ ideas for court-level responses, regular professional development opportunities and facilitated discussions designed to build collegial connection, reflection and knowledge sharing. We are also currently involved in a new national research study, ‘Judges’ Work, Place and Psychological Health’²⁵⁷ (the ‘National Study’) with colleagues from UNSW, UWA, Flinders University and University of Tasmania.²⁵⁸ The National Study encompasses judges from every state and territory jurisdiction in Australia, thus making it possible to compare the situation of judicial officers from every level and across metropolitan, suburban and remote settings. It will therefore allow global and granular consideration of a multitude of factors in judicial workplaces across the country, but also to consider whether the conditions in the two most populous states (NSW and Victoria) differ in some significant way from those in smaller states. Considering survey responses, interviews and diaries will enrich our picture of the judicial workplace and the best ways to deal with judicial trauma in a way that hitherto has not been possible.

Ethical standards

Declaration of conflicts of interest

Kylie Burns has declared no conflicts of interest.

Carly Schrever has declared no conflicts of interest.

Prue Vines has declared no conflicts of interest.

Ethical approval

All procedures performed in the Schrever Studies and the UNSW Study were in accordance with the ethical standards of the relevant Human Research Ethics Committees (HRECs), and with the 1964 Helsinki declaration and its later amendments and comparable ethical standards. The Schrever Studies received approval from the HRECs for the University of Melbourne (Ethics ID: 1646836) and the participating courts (JHREC Approval Number: CF/16/2871). The UNSW Study received approval from the UNSW HREC (HC No. 18920).

Informed consent

Informed consent was obtained from all individual participants included in the studies.

Notes

1 Judicial officers include judges, magistrates, coroners, judicial registrars and others appointed to judicial office within a court.

2 Patricia Weir, Liz Jones and Nicola Sheeran, ‘Australian Lawyers’ Experience of Exposure to Traumatic Material: A Qualitative Study’ (2021) 28(3) Psychiatry Psychology and the Law 363, 364.

3 Grace Maguire and Mitchell Byrne, ‘The Law is Not as Blind as It Seems: Relative Rates of Vicarious Trauma Among Lawyers and Mental Health Professionals’ (2017) 24(2) Psychiatry, Psychology and Law 233, 233.

4 Ibid.

5 Ibid, 234.

6 Ibid.

7 Weir (n 2) 367.

8 Ibid, 374.

9 Maguire and Byrne (n 3) 234. Maguire and Byrne suggest that an understanding of this risk has led to professional training programmes, embedded strategies for self-care and the ‘acceptance of ongoing professional support’.

10 Ibid.

11 Eg see Rachel Evans, Nancy Pistrang and Jo Billings, ‘Police Officers’ Experiences of Supportive and Unsupportive Social Interactions Following Traumatic Incidents’ (2013) 4(1) European Journal of Psychotraumatology <https://doi.org/10.3402/ejpt.v4i0.19696> accessed 2 February 2024.

12 Rachel Rauvola, Dulce Vega and Kristi Lavigne, ‘Compassion Fatigue, Secondary Traumatic Stress, and Vicarious Traumatization: A Qualitative Review and Research Agenda’ (2019) 3 Occup Health Sci 297.

13 Eg Weir et al (n 2); Maguire and Byrne (n 3); Patricia Weir and others, ‘A Diary Study of Australian Lawyers Working with Traumatic Material’ (2022) 29(4) Psychiatry, Psychology and Law 610; Samuel Hodge and Lauren Williams, ‘Vicarious Trauma: A Growing Problem Among Legal Professionals that May Become a More Prevalent Cause of Action’ (2020–21) 58 Texas Tech Law Review 511; Line Rønning, Jocelyn Blumberg and Jesper Dammeyer, ‘Vicarious Traumatisation in Lawyers Working with Traumatised Asylum Seekers: A Pilot Study’ (2020) 27(4) Psychiatry, Psychology and Law 665; Colin James, ‘Towards Trauma-informed Legal Practice: A Review’ (2020) 27(2) Psychiatry, Psychology and Law 275; Stine Iversen & Noelle Robertson, ‘Prevalence and Predictors of Secondary Trauma in the Legal Profession: A Systematic Review’ (2021) 28(6) Psychiatry, Psychology and Law 802.

14 Kozarov v Victoria [2022] HCA 12, (2022) 273 CLR 111.

15 See discussion in Kylie Burns, ‘Liability for Workplace Psychiatric Injury in Australia: New Coherence and Unresolved Tensions’ (2023) 45(2) Sydney Law Review 157.

16 Ibid 161–64.

17 CJOs include chief justices, chief judges and chief magistrates. Other public court officials such as deputy CJOs or judicial administrators may also carry out some of the functions of a CJO.

18 For a systematic review of international empirical research on lawyer stress and wellbeing, see Lucinda Soon, Almuth McDowall and Kevin RH Teoh, ‘Towards a Context-specific Approach to Understanding Lawyers’ Well-being: A Synthesis Review and Future Research Agenda’ (2023) Psychiatry, Psychology and Law <https://www.tandfonline.com/doi/full/10.1080/13218719.2023.2206879> accessed 2 February 2024.

19 See, for example, in the US: William W Eaton and others, ‘Occupations and the Prevalence of Major Depressive Disorder’ (1990) 32(11) Journal of Occupational Medicine 1079; in Australia: Janet Chan, Suzanne Poynton and Jasmine Bruce, ‘Lawyering Stress and Work Culture: An Australian Study’ (2014) 37(3) UNSW Law Journal 1062–1102; and in China: Feng-Jen Tsai, Wei-Lun Huang and Chang-Chuan Chan, ‘Occupational Stress and Burnout of Lawyers’ (2009) 51 Journal of Occupational Health 443.

20 See Terry Maroney, ‘The Persistent Cultural Script of Judicial Dispassion’ (2011) 99 California Law Review 629, 629. A number of scholars have also discussed the many practical challenges of researching the judiciary, including challenges of access and challenges of participation: Esther Nir, ‘Approaching the Bench: Accessing Elites on the Judiciary for Qualitative Interviews’ (2018) 21(1) International Journal of Social Research Methodology 77; Paula Casaleiro, Ana Paula Relvas and Joao Paulo Dias, ‘A Critical Review of Judicial Professionals Working Conditions’ Studies’ (2021) 12(1) International Journal for Court Administration 2; Dave Cowan and others, ‘District Judges and Possession Proceedings’ (2006) 33(4) Journal of Law and Society 547; Sharyn Roach Anleu and Kathy Mack, ‘Job Satisfaction and the Judiciary’ (2014) 28(5) Work, Employment and Society 683.

21 Carly Schrever, ‘Judge Stress’ (September 2015) Law Institute Journal 29; Carly Schrever, ‘Australia’s First Research Measuring Judicial Stress and Wellbeing: A Preview of the Findings’ in Justice Francois Kunc (ed), ‘Current Issues’ (2018) 92(11) Australian Law Journal 885; Carly Schrever, Carol Hulbert and Tania Sourdin, ‘The Psychological Impact of Judicial Work: Australia’s First Empirical Research Measuring Judicial Stress and Wellbeing’ (2019) 28(3) Journal of Judicial Administration 141.

22 Adapted from a passage in an unpublished chapter of Carly Schrever’s, ‘Where Stress Presides: Investigating Occupational Stress Within the Australian Judiciary’ (PhD Thesis, University of Melbourne 2023) <http://hdl.handle.net/11343/339363> accessed 2 February 2024.

23 The reluctance of the judiciary to countenance discussion, let alone research, about their occupational stress was described by Justice Michael Kirby in 1995 when he referred to judicial stress as ‘as unmentionable topic’: Michael Kirby, ‘Judicial Stress: An Unmentionable Topic’ (2015) 13 Australian Bar Review 101, 101.

24 David Heilpern, ‘Lifting the Judicial Veil: Vicarious Trauma, PTSD and the Judiciary – A Personal Story’ (The Tristan Jepson Memorial Foundation Annual Lecture, Sydney 2017) <https://www.judcom.nsw.gov.au/publications/benchbks/judicial_officers/lifting_the_judicial_veil.html> accessed 2 February 2024; Karen Adam, ‘The Price I Paid for Being a “Good Judge”’ (National Judicial College, Reflections from the Bench, 20 April 2017) <https://www.judges.org/news-and-info/the-price-i-paid-for-being-a-good-judge> accessed 2 February 2024.

25 Schrever, Hulbert and Sourdin, ‘Psychological Impact’ (n 21); Carly Schrever, Carol Hulbert and Tania Sourdin, ‘Where Stress Presides: Predictors and Correlates of Stress Among Australian Judges and Magistrates’ (2022) 29(2) Psychiatry, Psychology and Law 290; Carly Schrever, Carol Hulbert and Tania Sourdin, ‘The Privilege and the Pressure: Judges’ and Magistrates’ Reflections on the Sources and Impacts of Stress in Judicial Work’ (this issue) (2023); Kevin O’Sullivan and others, ‘Judicial Work and Traumatic Stress: Vilification, Threats, and Secondary Trauma on the Bench’ (2022) 28(4) Psychology, Public Policy, and Law 532.

26 See eg Sharyn Roach Anleu and Kathy Mack, ‘Magistrates’ Everyday Work and Emotional Labour’ (2005) 32(4) Journal of Law and Society 590; Sharyn Roach Anleu and Kathy Mack, Performing Judicial Authority in the Lower Courts (Palgrave 2017).

27 We are aware of approximately 30 empirical studies worldwide explicitly examining judicial stress and wellbeing. Several have focused specifically on experiences of secondary trauma, for example, Peter G Jaffe and others, ‘Vicarious Trauma in Judges: The Personal Challenge of Dispensing Justice’ (Fall 2003) Juvenile and Family Court Journal 1; David M Flores and others, ‘Judges’ Perspectives on Stress and Safety in the Courtroom: An Exploratory Study’ (2008) 45 Court Review 76; Stuart L Lustig and others, ‘Burnout and Stress Among United States Immigration Judges’ (2008) 13 Bender’s Immigration Bulletin 22; Charles P Edwards and Monica K Miller, ‘An Assessment of Judges’ Self-reported Experiences of Secondary Traumatic Stress’ (2019) 70(2) Juvenile & Family Court Journal 7.

28 Coroner’s Court of Victoria, Finding into Death Without Inquest (Stephen Myall), COR 2018 1210: 4/8/2020; Coroner’s Court of Victoria, Finding into Death Without Inquest (Jacinta Mary Dwyer), COR 2017 5371: 9/12/2020.

29 See n 21.

30 RC Kessler and others, ‘Short Screening Scales to Monitor Population Prevalences and Trends in Non-Specific Psychological Distress’ (2002) 32 Psychological Medicine 959.

31 PF Lovibond and SH Lovibond, ‘The Structure of Negative Emotional States: Comparison of the Depression Anxiety Stress Scales (DASS) with the Beck Depression and Anxiety Inventories’ (1995) 33(3) Behaviour Research and Therapy 335.

32 Christina Maslach and Susan E Jackson, ‘The Measurement of Experienced Burnout’ (1981) 2 Journal of Occupational Behaviour 99.

33 Brian E Bride and others, ‘Development and Validation of the Secondary Traumatic Stress Scale’ (2004) 14(1) Research on Social Work Practice 27. The survey also included a validated measure of ‘basic psychological need satisfaction’ – the Basic Psychological Need Satisfaction and Frustration Scale – Work Domain (BPNSFS) (Biewen Chen and others, ‘Basic Psychological Need Satisfaction, Need Frustration, and Need Strength Across Four Cultures’ (2015) 39(2) Motivation and Emotion 216); and the Alcohol Use and Dependency Identification Test (AUDIT) measure of alcohol misuse (JB Saunders and others, ‘Development of the Alcohol Use Disorders Identification Test (AUDIT): WHO Collaborative Project on Early Detection of Persons with Harmful Alcohol Consumption II’ (1993) 88(6) Addiction 791).

34 Schrever, Hulbert and Sourdin, ‘Psychological Impact’ (n 21) 154–56.

35 Ibid 157–59.

36 Ibid 159–61.

37 Brian E Bride, ‘Prevalence of Secondary Traumatic Stress Among Social Workers’ (2007) 52(1) Social Work 63; James Caringi and others, ‘Secondary Traumatic Stress and Licensed Clinical Social Workers’ (2016) 23(2) Traumatology 186.

38 Peter M McEvoy, Rachel Grove and Tim Slade, ‘Epidemiology of Anxiety Disorders in the Australian General Population: Findings of the 2007 Australian National Survey of Mental Health and Wellbeing’ (2011) 45 Aust N Z J Psychiatry 957.

39 Schrever, Hulbert and Sourdin, ‘Psychological Impact’ (n 21) 156–57.

40 Chan, ‘Lawyering Stress’ (n 19) 1081.

41 Population norms are provided by PF Lovibond and SH Lovibond, Manual for the Depression Anxiety Stress Scales (DASS) (Psychology Foundation of Australia, 1993).

42 Schrever, ‘Where Stress Presides’ (n 25) 309–11, 314.

43 Ibid, 310.

44 Ibid, 312–15.

45 Schrever, Hulbert and Sourdin, ‘Privilege and Pressure’ (n 25).

46 Ibid.

47 Schrever, Hulbert and Sourdin, ‘Psychological Impact’ (n 21) 167.

48 Schrever, Hulbert and Sourdin, ‘Where Stress Presides’ (n 25) 317.

49 Jill Hunter and others, ‘A Fragile Bastion: UNSW Judicial Traumatic Stress Study’ (2021) 33(1) Judicial Officers’ Bulletin 1–7; and O’Sullivan (n 25).

50 Monica Miller and others, ‘An Examination of Outcomes Predicted by the Model of Judicial Stress’ (2018) 102 Judicature 50; Monica Miller and others, ‘Judicial Stress: the Roles of Gender and Social Support’ (2018) 25 Psychiatry, Psychology and Law 602.

51 Alexia Resnick, Karen A Myatt and Priscilla V Marotta, ‘Surviving Bench Stress’ (July 2011) Family Court Review 610.

52 Kessler and others, ‘Screening for Serious Mental Illness in the General Population’ (2003) 60(2) Archives of General Psychiatry 184.

53 Daniel Weiss and Charles Marmar, ‘The Impact of Event Scale-Revised’ in JP Wilson and TM Keane (eds), Assessing Psychological Trauma and PTSD: A Practitioner’s Handbook (Guildford Press 1997) 399.

54 O’Sullivan (n 25) 538.

55 Gavin Andrews and Tim Slade, ‘Interpreting Scores on the Kessler Psychological Distress Scale (K10)’ (2001) 25(6) Australian and New Zealand Journal of Public Health 494.

56 Schrever, Hulbert and Sourdin, ‘Psychological Impact’ (n 21) 155.

57 Hunter (n 49).

58 Schrever, Hulbert and Sourdin, (n 21) 159–61.

59 O’Sullivan (n 25) 538.

60 Ibid 538–39.

61 ‘Vilification is a rhetorical strategy that discredits adversaries as ungenuine and malevolent advocates’: Marsha L Vanderford, ‘Vilification and Social Movements: A Case Study of Pro-Life and Pro-Choice Rhetoric’ (1989) 75 Quarterly Journal of Speech 166.

62 See Charles R Figley (ed), Compassion Fatigue: Coping with Secondary Traumatic Stress Disorder in Those who Treat the Traumatized (Brunner/Mazel 1995).

63 O’Sullivan (n 25) 7–8.

64 30.4% in the Schrever Studies; 30.0% in the UNSW Study.

65 O’Sullivan (n 25) 341.

66 Schrever, ‘Australia’s First Research’ (n 21) 862.

67 A negligence claim or statutory workers’ compensation claim for psychiatric injury may be subject to various limitations on compensation and recovery such as thresholds, caps, limitation on damages (and in the case of the Northern Territory abolition of damages claims) contained in workers’ compensation legislation throughout Australia. For a comparison of Australian schemes, see Safe Work Australia, ‘Comparison of Workers’ Compensation Arrangements in Australia and New Zealand’ (28th edn, 2021), 204–207 (Table 4.18) and 253–57 (Table 5.6) <https://www.safeworkaustralia.gov.au/doc/comparison-workers-compensation-arrangements-australia-and-new-zealand-2021> accessed 30 January 2024.

68 For example, see Anne Davies, ‘Stress at Work: Individuals or Structures?’ (2022) 51(2) Industrial Law Journal 403, 433.

69 Czatyrko v Edith Cowan University [2005] HCA 14, (2005) 214 ALR 349.

70 Kozarov (n 14).

71 [2005] HCA 15, (2005) 222 CLR 44.

72 Ibid [26]–[27], [35] (McHugh, Gummow, Hayne and Heydon JJ).

73 Ibid [34]. See also [55]–[56] (Callinan J).

74 Ibid [35] (McHugh, Gummow, Hayne and Heydon JJ).

75 Ibid [28].

76 Ibid [21].

77 For discussion of post-Koehler cases, see Burns (n 15) 165–70; Kay Wilson and Ian Freckelton, ‘Work Stress, Vicarious Trauma and the Public Mental Health Format: Kozarov v Victoria [2022] HCA 12 and Its Aftermath’ (2023) 30 Journal of Law and Medicine 641, 650–54.

78 Burns (n 15) 169. See, for example, Sills v New South Wales [2019] NSWCA 4, (2019) 285 IR 198; The Age Company Ltd v YZ [2019] VSCA, (2019) 60 VR 189.

79 [2007] HCA 20, (2007) 232 CLR 486.

80 Ibid [18]–[28], [59]–[77] (Gummow and Hayne JJ); [204]–[212] (Callinan and Heydon JJ). Gleeson CJ, Kirby and Crennan JJ dissenting.

81 Hegarty v Queensland Ambulance Service [2007] QCA 366, [2007] Aust Torts Reports 81–919. For discussion of Hegarty, see Burns (n 15) 169; Wilson and Freckelton (n 77) 651.

82 Ibid [43]–[47] (Keane JA).

83 New South Wales v Briggs [2016] NSWCA 344, (2016) 95 NSWLR 467. See Wilson and Freckelton (n 77) 651–52 for discussion of Briggs.

84 Ibid [124]–[131] (Leeming JA with whom Ward JA agreed).

85 Kozarov (n 14).

86 For discussion and analysis of Kozarov, see Burns (n 15) and Wilson and Freckelton (n 77). For a discussion of the history of the case, see Kylie Burns, ‘Liability for Workplace Psychiatric Loss and Vicarious Trauma: Kozarov v Victoria’ (2021) 43(4) Sydney Law Review 575.

87 Kozarov v Victoria [2020] VSC 78, (2020) 294 IR 1 (‘Kozarov VSC’) [761]–[767], [563]–[564], [573] (Jane Dixon J).

88 Kozarov (n 14) [3], [7] (Kiefel CJ and Keane J); [69]–[73] (Gordon and Steward JJ).

89 Ibid [75]–[78] (Gordon and Steward JJ); [33]–[44] (Gageler and Gleeson JJ).

90 Ibid [42] (Gageler and Gleeson JJ).

91 Ibid [44].

92 Ibid [46].

93 Ibid [48].

94 Kozarov VSC (n 87).

95 Kozarov (n 14) [23] Gageler and Gleeson JJ.

96 Ibid.

97 Ibid.

98 Victoria v Kozarov [2020] VSCA 301, (2020) 301 IR 446 (‘Kozarov VSCA’).

99 Kozarov (n 14) [24] (Gageler and Gleeson JJ).

100 Kozarov VSCA (n 98) [108]–[109].

101 Ibid [106].

102 Kozarov (n 14) [1]–[6] (Kiefel CJ and Keane J); [27]–[29] (Gageler and Gleeson JJ); [82]–[88] Gordon and Steward JJ; [103]–[104] (Edelman J).

103 Ibid [8]–[10], [19] (Kiefel CJ and Keane J); [27]–[28] (Gageler and Gleeson JJ).

104 Ibid [111] (Edelman J).

105 Ibid [86] (Gordon and Stewart JJ).

106 Ibid [10] (Kiefel CJ and Keane J); [59] (Gageler and Gleeson JJ); [95]–[97] (Gordon and Stewart JJ); [111]–[112] (Edelman J).

107 Ibid [59] (Gageler and Gleeson JJ).

108 For example, see the recent case of Paul v New South Wales [2023] NSWDC 277 which concerned a police officer who suffered psychiatric injury as a result of the trauma of being involved in intensive investigations and prosecutions over a several year period in support of the Royal Commission Into Institutional Responses to Child Sex Abuse. The plaintiff also suffered from a manifestly excessive workload.

109 For a discussion of the legal significance of Kozarov and post-Kozarov cases, see Burns (n 15) 177–85 and Wilson and Freckelton (n 77) 659–65. The recent Victorian Court of Appeal in Bersee v Victoria [2022] VSCA 231 does suggest that there may still be categories of cases where, like Koehler, a psychiatric injury to an employee may not be foreseeable until there are evident signs from an employee they are unwell, for example, in cases concerning injury from excessive work. For a contrary view see Burns (n 15) 181–83.

110 NSW v Fahy (n 79).

111 Burns (n 15) 183–84.

112 Burns (n 15) 176–77.

113 For example, see Civil Liability Act 2003 (Qld) s 11(3).

114 See n 67. Whether judicial officers are explicitly covered under workers’ compensation legislation as non-employees is a complex question and varies between jurisdictions and court hierarchy. Judicial officers in the Northern Territory appear to be covered under the Return to Work 1986 (NT) (s 3 definition of employer provides the Territory is the ‘employer’ of Supreme Court or Local Court judges). Section 52 of that legislation abolishes the right to any action for damages in relation to the injury or death of workers.

115 Tame v NSW [2002] HCA 35, (2002) 211 CLR 317. This would include conditions such PTSD, depression and anxiety disorders. See below n 240 in relation to a requirement under civil liability legislation for a recognised psychiatric injury.

116 Eg see The Hon Justice Helen Bowskill, ‘Cumulative Trauma and Stress as a Judicial Officer’ (Presentation to Queensland Magistrates, 25 March 2021) <https://classic.austlii.edu.au/au/journals/QldJSchol/2021/3.html> accessed 31 January 2024; Chief Justice Anne Ferguson, ‘Making Wellness Core Business’ (Wellness for Law Forum, Melbourne, February 2019) <https://www.supremecourt.vic.gov.au/sites/default/files/2019-05/remarksoffergusoncjatwellnessforlawforum_0.pdf> accessed 31 January 2024; Judicial Commission of New South Wales, Handbook for Judicial Officers: Stress and Vicarious Trauma Section (2023) <https://www.judcom.nsw.gov.au/publications/benchbks/judicial_officers/toc_stress_and_vicarious_trauma.html> accessed 31 January 2024.

117 See eg National Judicial College of Australia, ‘Judges: Angry? Biased? Burned Out?’ (NJCA/ANU Joint Conference, ANU Canberra, 2–3 March 2019) <https://www.njca.com.au/home/njca-anu-joint-conference/judges-angry-biased-burned-out/> accessed 31 January 2024; and Judicial College of Victoria, ‘Vicarious Trauma, Burnout, and Recovery’ (Judicial College of Victoria, Melbourne, 23 May 2023) <https://www.judicialcollege.vic.edu.au/events/vicarious-trauma-burnout-and-recovery> accessed 31 January 2024.

118 Finding into Death Without Inquest (Dwyer) (n 28) [119]–[141]; Finding into Death Without Inquest (Myall) (n 28) [48]–[66].

119 Court Services Victoria, ‘Response to the Work Safe Sentence’ (19 October 2023) <https://courts.vic.gov.au/news/response-worksafe-sentence> accessed 30 January 2024.

120 Work Safe Victoria, ‘Court Body Fined Almost $380 000 for Deadly Work Culture’ (19 October 2023) <https://www.worksafe.vic.gov.au/news/2023-10/court-body-fined-almost-380000-deadly-work-culture> accessed 30 January 2024.

121 Bell v Nexus Primary Health [2022] VSC 605 [174].

122 Re Australian Education Union; ex parte Victoria [1995] HCA 71, (1995) 184 CLR 188, 233 (Mason CJ, Brennan, Deane, Toohey Gaudron and McHugh JJ).

123 Supreme Court Act 1970 (NSW) s 26; District Court Act 1973 (NSW) s 13; Local Court Act 2007 (NSW) s 13.

124 As, for example, in the Independent Commission Against Corruption Act 1988 (NSW) s 3.

125 Constitution of NSW 1902 (NSW) s 72; Constitution of Queensland Act 2001 (Qld) s 61; Constitution Act 1934 (SA) s 75; Constitution Act 1975 (Vic) s 87 AAB; Constitution Act 1889 (WA), ss 54, 55. The territories do not have constitutions as such, being covered by the Commonwealth; Commonwealth Constitution of Australia 1901 (Cth) s 72. In some jurisdictions, judicial commissions have been established to examine complaints against judicial officers, judicial conduct and judicial incapacity – see eg Judicial Officers Act 1986 (NSW). For further discussion of removal for judicial incapacity see Andrew Lynch and Alysia Blackham, ‘Reforming Responses to the Challenges of Judicial Incapacity’ (2020) 48(2) Federal Law Review 214, 218–21.

126 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [3]–[4] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

127 Alysia Blackham, ‘Reconceiving Judicial Office Through a Labour Law Lens’ (2019) 47(2) Federal Law Review 203, 207–209.

128 Ibid.

129 Re Australian Education Union (n 122). This was repeated by Gleeson CJ in Austin v The Commonwealth [2003] HCA 3; (2003) 215 CLR 185 [25].

130 Blackham, ‘Reconceiving Judicial Office’ (n 127) 210.

131 O’Brien v Ministry of Justice [2013] UKSC 6; [2013] 1 WLR 522.

132 Perceval-Price v Department of Economic Development [2000] NI 141, [2000] WLUK 368.

133 [2019] UKSC 44; [2019] 1 WLR 5905.

134 Ibid [4]–[7]. The appellant claimed that she developed a psychiatric injury because of conduct following the disclosures and the adverse working conditions.

135 Ibid [18]–[20], [24].

136 Ibid [20].

137 Ibid [9].

138 Ibid [36].

139 Ibid.

140 Ibid [46].

141 Blackham, ‘Reconceiving Judicial Office’ (n 127).

142 Ibid 207. See also 204–205.

143 Ibid.

144 Ibid.

145 Ibid 208–209.

146 Ibid 208.

147 Ibid 204.

148 Ibid 205.

149 Ibid.

150 Ibid.

151 N 125. See also Alysia Blackham, ‘Judges and Retirement Ages’ (2016) 39(3) Melbourne University Law Review 738; Alysia Blackham, ‘Judicial Retirement Ages in the UK: Legitimate Aims and Proportionate Means?’ [2017] Public Law 196; Brian Opeskin, ‘Models of Judicial Tenure: Reconsidering Life Limits, Age Limits and Term Limits for Judges’ (2015) 35(4) Oxford Journal of Legal Studies 627.

152 N 125. See also Lynch and Blackham (n 125); Gabrielle Appleby and Suzanne Le Mire, ‘Judicial Conduct: Crafting a System that Enhances Institutional Integrity’ (2014) 38 Melbourne University Law Review 1.

153 Gilham (n 133) [18].

154 For example, see Judicial Entitlements Act 2015 (Vic); Magistrates Act 1938 (SA) pt 5; Local Courts Act 2007 (NSW) sch 1 pt 1; Judicial Remuneration Act 2007 (Qld).

155 For example, see the Judicial Remuneration Tribunal Act 1995 (Vic) which created the Judicial Remuneration Tribunal, now replaced by the Judicial Entitlements Panel.

156 For example, see Magistrates Court Act 1989 (Vic) ss 12A–13; Magistrates Act 1991 (Qld) s 12, pt 6 (Transfer Recommendations and Transfer Decisions); Magistrates Court Act 2004 (WA) s 24–25.

157 See, for example, recent discussion of unsustainable judicial workload in NSW by the NSW Chief Justice, The Hon AS Bell, ‘The Bicentenary of the Supreme Court and its Significance’ (Lecture at The Law Society of New South Wales, Sydney NSW, 31 January 2024) <https://supremecourt.nsw.gov.au/documents/Publications/Speeches/2024-speeches/chief-justice/Opening_of_Law_Term_Speech_2024.pdf> accessed 31 January 2024; Jessica Kidd, ‘NSW Chief Justice Andrew Bell Says Judges, Magistrates are “Overstretched” with Caseloads Unsustainable’ (ABC News Online) <https://www.abc.net.au/news/2024-02-01/nsw-chief-justice-andrew-bell-caseloads-unsustainable/103413252> accessed 31 January 2024.

158 See eg Magistrates Court Act 1991 (Qld) pt 6 (Transfer Recommendations and Transfer Decisions).

159 For example, see the conditions of employment of Supreme Court judges in Queensland: ‘Conditions: Judges of the Supreme Court’ (June 2011) <https://www.courts.qld.gov.au/__data/assets/pdf_file/0003/98472/Supreme-court-judicial-entitlements-2011.pdf> accessed 31 January 2024; ‘Judicial Salaries and Entitlements’ (Vic) <https://www.justice.vic.gov.au/judicial-officer-entitlements> accessed 31 January 2024.

160 Eg see Judicial Entitlements Act 2015 (Vic) s 14 which allows for salary sacrifice arrangements.

161 For example, see Magistrates Court (Conditions of Appointment) Decision 2019 (ACT) <https://www.legislation.act.gov.au/View/ni/2019-262/current/html/2019-262.html> accessed 1 February 2024 which includes annual leave, personal and sick leave, long service leave, other leave; Magistrates Court Act 1987 (Tas) s 10; Magistrates Act 1983 (SA) pt 5; Magistrates Entitlements: 16 November 2023 Executive Council Minute no 551 (Qld) <https://www.courts.qld.gov.au/__data/assets/pdf_file/0010/89677/atc-magistrates-entitlements-july-2010.pdf> accessed 1 February 2024.

162 Safe Work (n 67) 137 (Table 4.6 Workers’ compensation arrangements for judges and members of parliament).

163 For example, see the Return to Work 1986 (NT) (s 3); Magistrates Court Act 1987 (Tas) s 10(4) which specifies a magistrate is a worker for the purposes of the Workers Rehabilitation and Compensation Act 1988 (Tas); Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 14 which provides that the Act applies to a person holding a judicial office and such a person is a ‘worker’ for the purposes of the Act.

164 Eg see ‘Conditions: Judges of the Supreme Court’ (Qld) (n 159); Magistrates Entitlements (Qld) (n 161).

165 It has been suggested that the assertion that police are not employees is based on out-of-date arguments about vicarious liability, such as the ‘control theory’ of employment, now superseded by a multi-factorial test as in Hollis v Vabu [2001] HCA 44; (2001) 207 CLR 21.

166 NSW v Fahy (n 79).

167 Eg see Police Service Administration Act 1990 (Qld) s 10.5.

168 See NSW v Fahy (n 79) [97] (Kirby J) as to the ‘precise relationship’ between police service and police officers historically not being one of technical employment under police legislation. See also [26]–[27], [53] (Gummow and Hayne JJ)].

169 Eg see Sills (n 78); New South Wales v Skinner [2022] NSWCA 9 (‘Skinner’). For a further discussion of the evolution of the principles governing the tortious liability of the police force to police officers in relation to psychiatric injury see Skinner [7]–[8] (Basten JA).

170 Eg Police Service Regulations 2000 (NSW) pt 2.

171 Commonwealth v Quince [1944] HCA 1; (1944) 68 CLR 227.

172 Attorney-General for NSW v Perpetual Trustee [1952] HCA 2; (1952) 85 CLR 237. Note that this was not an action for negligence but a separate action for loss of an officer’s services.

173 Briggs (n 83).

174 Ibid [44] (Leeming JA).

175 Ibid [45] (Leeming JA).

176 Ibid [55] (Leeming JA).

177 [1952] HCA 2, (1952) 85 CLR 237 (with which Williams and Fullagar JJ agreed).

178 Joseph Carabetta, ‘Employment Status of the Police in Australia’ (2003) 27 Melbourne University Law Review 1, 17.

179 For example, Konrad v Victoria Police [1999] FCA 988, (1999) 165 ALR 23; Minister of Police v Western Australian Union of Workers [2000] WAIR Comm 226; Oceanic Crest Shipping v Pilbara [1986] HCA 34, (1986) 160 CLR 626; NSW v Williamson [2005] NSWCA 352; Police Service of NSW v Honeysett [2001] NSWCA 452, (2001) 53 NSWLR 592; Briggs (n 83); Jarratt v Commissioner of Police (NSW) [2005] HCA 50, (2005) 224 CLR 44.

180 Police Service of NSW v Honeysett [2001] NSWCA 452; (2001) 53 NSWLR 592, [22].

181 Eg see Briggs (n 83). The duty is well recognised now: see Paul v State of NSW (n 108); Sills (n 78); Skinner (n 169); NSW v Fahy (n 79). However, as mentioned above in Part 2, there has been discussion of whether the scope of the duty extends to the necessity to make active welfare enquiries due to considerations of privacy and dignity, see eg Hegarty v Queensland Ambulance Service (n 81).

182 Skinner (n 169).

183 Sills (n 78).

184 Skinner (n 169) [9] (Basten JA) quoting the trial judge and at [62] noting the ‘State accepted the judge correctly formulated the duty of care’. See also Sills (n 78) [9] (Sackville AJA).

185 Eg see Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258, (2009) 75 NSWLR 649 [103] (Allsop P) for a non-exhaustive list of salient features.

186 For a discussion of the test for duty of care including relevant salient features particularly in the context of public authority cases see Electricity Networks Corporation v Herridge Parties [2022] HCA 37, (2022) 406 ALR 1, [19]–[33] (Kiefel CJ, Gageler, Gordon, Edelman and Steward JJ). See also Minister for the Environment (Cth) v Sharma [2022] FCAFC 25, (2022) 291 FCR 311, [206]–[213] and [220]–[238] (Allsop CJ).

187 Sharma (n 186) [239]–[245], [267]–[272] (Allsop CJ).

188 Tame v NSW (n 115).

189 Electricity Networks Corporation v Herridge Parties (n 186) [32]–[33] (Kiefel CJ, Gageler, Gordon, Edelman and Steward JJ).

190 Ibid.

191 Eg Constitution of Queensland Act 2001, s 62(2); Judicial Remuneration Act 2007 (Qld) s 24. But note that in Baker v Commonwealth of Australia [2012] FCAFC 121 the Federal Court of Australia Full Court held that federal magistrates’ impartiality would not be affected by their lack of equivalent judicial pensions such as those provided to judges of the High Court, Federal Court and Family Court.

192 Blackham, ‘Reconceiving Judicial Office' (n 127) 208.

193 See discussion in Burns (n 15) 162–64; Wilson and Freckelton (n 77) 668–70.

194 All jurisdictions across Australia apart from Victoria have adopted model WHS laws which are constituted in local legislation, which may however vary somewhat from the model law. See Safe Work Australia, ‘History of the Model WHS Laws’ <https://www.safeworkaustralia.gov.au/law-and-regulation/history-model-whs-laws> accessed 31 January 2024. For the provisions of the model act, regulations and codes of practice see Safe Work Australia, ‘Model WHS Law’ <https://www.safeworkaustralia.gov.au/law-and-regulation/model-whs-laws> accessed 1 February 2024. In this article, we will refer to the provisions of the Qld legislation by way of example. The WHS legislation in Victoria is the Occupational Health and Safety Act 2004 (Vic).

195 For example, see Workplace Health and Safety Act 2011 (Qld) s 10 which provides that the State is bound by the legislation and liable for offences, and contraventions resulting in civil penalty. The Occupational Health and Safety Act 2004 (Vic) s 6 notes that the Act binds the Crown.

196 For example, see Workplace Health and Safety Act 2011 (Qld) s 8 which has a broad meaning of ‘workplace’. See also n 120 in relation to the recent WHS prosecution of Court Services Victoria.

197 See eg Workplace Health and Safety Act 2011 (Qld) s 19(1).

198 See eg Workplace Health and Safety Act 2011 (Qld) s 19(2).

199 See eg Workplace Health and Safety Act 2011 (Qld) sch 5 definition of health.

200 See eg Workplace Health and Safety Act 2011 (Qld) s 19(3).

201 See eg Workplace Health and Safety Act 2011 (Qld) s 7. The definition of ‘employee’ in the Occupational Health and Safety Act 2004 (Vic) s 5 (1) is a narrower definition which refers to contracts of employment and contracts of training. See also s 5 (2) which extends the definition to include police and s 5A in relation to labour hire arrangements.

202 For example, see Work Health and Safety Regulation 2011 (Qld) 55A–55D. Occupational Health and Safety Amendment (Psychological Health) Regulations have been proposed in Victoria but have not been introduced to date. For a discussion of the current situation in Victoria, including restricting the ability to claim compensation for psychiatric injury under the workers’ compensation scheme see Wilson and Freckelton (n 77) 216–17.

203 Ibid.

204 <https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0025/104857/managing-the-risk-of-psychosocial-hazards-at-work-code-of-practice.pdf> accessed 2 February 2024.

205 Ibid 15–16. This includes ‘investigating, witnessing, or being exposed to traumatic events’ including fatalities, serious injuries, abuse, neglect or serious incidents (eg investigating child protection cases).

206 Ibid 52.

207 Ibid 17. For examples of external and service-related violence that may be relevant to judicial officers see discussion at 21.

208 Ibid 16–17.

209 Ibid 15.

210 For example, see Workplace Health and Safety Act 2011 (Qld) s 18. See also ‘Qld Managing the Risk of Psychosocial Hazards at Work Code of Practice’ (n 204) 25–27.

211 ‘Qld Managing the Risk of Psychosocial Hazards at Work Code of Practice’ (n 204) 29–30.

212 Ibid 28–35.

213 An extra wrinkle arises where the possibility of vicarious liability arises. Where the ‘employer’ is a CJO or the State, the civil liability legislation in NSW (s 5Q) and Victoria (s 63) may create further difficulties through their requirement that non-delegable duty be treated as vicarious liability. If a CJO is immune from liability how can non-delegable be treated as vicarious liability, given the requirement that there must be a wrong before there can be vicarious liability? The State as model litigant might need to present itself as the direct employer of the CJO and the plaintiff in order to allow the complexities of this situation to be worked out.

214 Eg see NSW v Fahy (n 79) [22]–[28], [47] (Gummow and Hayne JJ) [96]–[98] (Kirby J).

215 Eg see Civil Proceedings Act 1988 (NSW) s 5.

216 For example, the Public Sector Act 2022 (Qld) s 268–69 specifically excludes Queensland judicial officers, which would include CJOs, from immunity from civil liability which attaches to public sector employees when acting in an official capacity and from provisions which attach any civil liability instead to the State. This may be because, as discussed below, judicial officers including CJOs have protection pursuant to judicial immunity including exercise of administrative functions. See, for example, Supreme Court of Queensland Act 1991 (Qld) s 27.

217 Gilham (n 133) [19].

218 Ibid.

219 Ibid.

220 Ibid.

221 See n 123.

222 For example, see Federal Court of Australia Act 1976 (Cth) s 15 which provides for the responsibilities of the Chief Justice of the Federal Court of Australia. This provision is broader and more detailed than many legislative provisions concerning CJO responsibilities which will typically provide for Chief Justices to be responsible for efficient and effective management and discharge of court business. The Chief Justice of the Federal Court had additional specific obligations (s 15(1AA) (b)) in relation to judicial wellness such as ensuring judges have ‘appropriate access’ to annual health assessments, short-term counselling and judicial education.

223 Ibid.

224 See n 158.

225 See n 157.

226 Court Services Victoria Act 2014 (Vic); Courts Administration Act 1993 (SA).

227 Eg see Supreme Court Act 1986 (Vic) s 28A which provides that the Chief Justice is ‘responsible for directing the professional development and continuing education and training of judicial officers’ and can direct a judicial officer to participate in a particular training or professional development activity.

228 The Judicial Officers Act 1986 (NSW) s 9 provides that the functions of the Judicial Commission of NSW include judicial education.

229 Eg Judicial College of Victoria Act 2001 (Vic).

230 For a discussion of judicial education in Australia, see Gabrielle Appleby, Jessica Kerr, Suzanne Le Mire, Andrew Lynch and Brian Opeskin, ‘Judicial Education in Australia: A Contemporary Overview (Report prepared for the Australian Institute of Judicial Administration)’ (December 2021) <https://www.aija.org.au/wp-content/uploads/2021/12/Judicial-education-in-Australia-a-contemporary-overview-2021.pdf> accessed 2 February 2024. The report notes (at 33, Figure 1) that from 2015/2016–2017/18 only 3% of judicial education programmes concerned wellness.

231 See n 222.

232 Wilson and Freckelton (n 77) 666. See also n 212 in relation to risk minimisation strategies suggested by WHS Codes of Practice in relation to psycho-social hazards.

233 The only available remedy in such a case may be to remove a judge from office due to incapacity which may be unduly harsh and fails to support a recovery-orientated approach to workplace psychiatric injury. For discussion of removal for incapacity see Lynch and Blackham (n 125).

234 Nn 81–83.

235 N 158.

236 See Theo Tsavdaridis and Dane Luo, ‘Immunity of Administrative Decisions by Judicial Officers’ (2023) 35(2) Judicial Officers Bulletin 14, 15–16 which discusses Fingleton v The Queen [2005] HCA 34, (2005) 227 CLR 166.

237 For example, Judicial Officer Act 1986 (NSW) pt 8A, Magistrates Court Act 1991 (Qld) s 51.

238 Tsavdaridis and Luo (n 236) 15 suggest it does not extend, for example, to exempting judges from disciplinary processes in relation to misbehaviour.

239 This means that a threshold question in each Australian jurisdiction in relation to whether the civil liability legislation in that jurisdiction will apply to any action by a judicial officer will require a consideration of whether that judicial officer is covered by the relevant workers’ compensation legislation and the interaction between workers’ compensation and civil liability jurisdiction in that jurisdiction. As we discuss above (n 67), this issue is complex, as in some jurisdictions judicial officers are expressly included as workers in the workers’ compensation legislation while other States have apparently agreed to indemnify judicial officers as if they were covered by the workers’ compensation legislation.

240 Civil Liability Act 2002 (NSW) s 31; Civil Law (Wrongs) Act 2002 (ACT) s 35; Civil Liability Act 2002 (Tas) s 33; Wrongs Act 1958 (Vic) s 75 (for economic loss); Civil Liability Act 2002 (WA) s 5S.

241 Peter Handford, ‘Psychiatric Injury: The New Era’ (2003) 11 Tort Law Review 13, 23.

242 This is the approach taken in workplace trauma cases such as NSW v Fahy (n 79). For this reason, we consider that provisions such as s 30 Civil Liability Act 2002 (NSW) are not likely to apply to judicial officers, as they are not typical ‘secondary’ victims.

243 The most restrictive provision is Civil Liability Act 2002 (NSW) s 32. Slightly less restrictive rules apply in Civil Law (Wrongs) Act 2002 (ACT) s 34; Civil Liability Act CLA 1936 (SA) s 33; Civil Liability Act 2002 (Tas) s 34; Wrongs Act 1958 (Vic) 72; Civil Liability Act 2003 (WA) s 5S. Queensland and the Northern Territory retain the common law. NSW (s 30(4)) and Victoria (s 73(3)) also prevent damages from being awarded if prevented by any provision in the Act or any other law, written or unwritten. See Sdrolias v Power Distribution Services Pty Ltd [2021] NSWSC 321.

244 N 243.

245 Tame v NSW (n 115).

246 Ibid. McHugh, Hayne and Callinan JJ appeared to give some support to this as a requirement, at [59], [62] (McHugh J); Hayne J at [273], Callinan J at [334].

247 Crump v Equine Nutrition Systems Pty Ltd [2006] NSWSC 512 (person of normal fortitude would not be likely to suffer psychiatric injury on the death of their horse caused by contaminated feed); AX v Ashfield Municipal Council [2012] NSWDC 32 (lacerated toe which prevented him from playing football would not cause schoolboy of normal fortitude to suffer mental condition).

248 Tame v NSW (n 115).

249 In Tasmania, only the requirements of sudden shock and pre-existing relationship are considered. See Civil Liability Act 2002 (Tas) s 34.

250 See discussion of the requirement for a ‘sudden shock’ in Christine Forster and Jeni Engel, ‘Reinforcing Historical Distinctions Between Mental and Physical Injury: The Impact of the Civil Liability Reforms’ (2012) 19 Journal of Law and Medicine 593.

251 The definition of public authorities is generally broad and will cover all potential State defendants such as the Crown, ministers, government departments, government authorities and public officials such as HOJs. For example, see Civil Liability Act 2002 (Qld) s 34.

252 Eg see Civil Liability Act 2002 (Qld) s 35; Civil Liability Act 2002 (NSW) s 42.

253 Civil Liability Act 2002 (NSW) s 42; Civil Law (Wrongs) Act 2002 (ACT) s 110; Civil Liability Act 2002 (Tas) s 38; Civil Liability Act 2002 (WA) s 5W; Civil Liability Act 2002 (Qld) s 35. The provisions in Victoria and the Northern Territory do not refer to challenging allocations of resources.

254 Brodie v Singleton Shire Council [2001] HCA 29, (2001) 206 CLR 512; see Mark Aronson, ‘Government Liability in Negligence’ (2008) 32(1) Melbourne University Law Review 44, 54.

255 Civil Liability Act 2002 (Qld) s 36. See also (with some variation) Civil Liability Act 2002 (NSW) s 43, 43A; Civil Law (Wrongs) Act 2002 (ACT) s 111; Civil Liability Act 2002 (Tas) s 40; Civil Liability Act 2002 (WA) s 5Y; Wrongs Act 1958 (Vic) s 84.

256 See eg n 204.

257 Australian Research Council, DP220100585.

258 Professor Jill Hunter, Professor Richard Kemp, (UNSW); Professor Natalie Skead and Associate Professor Kevin O’Sullivan (UWA); Professor Sharyn Roach Anleu (Flinders University); Associate Professor Terese Henning and Professor Kate Warner (University of Tasmania).