Professor Kylie Burns1, Associate Professor Carly Schrever2, Professor Prue Vines3
1Griffith Law School, Griffith University, Brisbane, Australia, 2UWA Law School, UWA, Perth; Australia; Human Ethos: Wellbeing for Judges and Lawyers, Melbourne, Australia, 3Professor Prue Vines School, School of Private and Commercial Law, University of New South Wales, Sydney, Australia
Abstract:
The risk and prevalence of psychiatric injury because of vicarious trauma (‘VT’) to judicial officers is now increasingly recognised. There has been growing recognition by the High Court of Australia of the likelihood of psychiatric harm arising in people whose court related work exposes them to traumatic material in Kozarov v Victoria (‘Kozarov’). In this paper we investigate the possibility that judicial officers may be entitled to compensation for such harm. Part 1 of the paper examines existing research on judicial stress and trauma. It considers 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 Australian law in negligence to a judicial officer for psychiatric injury resulting from VT. Overall, we argue 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.