From the Law Reports: YZ v The Age [2018] VCC 148
Mental health: it is one of the industry’s favourite buzzwords as conversations around mental health become less taboo and more candid than they have ever been before, both inside and beyond the workplace. The legal profession in particular is notorious for its long hours, the stressful nature of the work, and a system that evolves at a frustratingly slow pace. Depending on the area of law, legal practitioners are exposed to varying degrees of stressful and traumatic content, which has great potential to cause distress and worst case, psychological injury.
This article discusses the recent case of YZ v The Age, which was a workers’ compensation case brought in the Victorian County Court late last year. The plaintiff, protected under the pseudonym “YZ”, was a journalist working for The Age who sued the media company for failing to provide a safe and supportive workplace in the context of her being a crime reporter for six years and a Supreme Court reporter for three. She had a brief stint in the sports division of the newsroom although that was short-lived when she was pressured by her superiors to go into the court reporting aspect of the job. The cases that would go to the Supreme Court were, in many instances, the natural progression of the crimes that the plaintiff used to report on immediately after they happened. Over the six years in the crime reporting division, the plaintiff reported on 32 crimes. She found the murders involving children the hardest to cope with. Throughout her time reporting in the crimes division and the Supreme Court division, the plaintiff exhibited worsening symptoms of mental disturbance, such as having trouble sleeping, being "snappy” and short-tempered in the workplace, and eventually starting to abuse alcohol to ease her mind and help her sleep. The damage that she alleged she suffered due to the negligence of The Age was posttraumatic stress disorder (PTSD).
Judge O’Neill handed down his decision in February 2019 that found in favour of the plaintiff, saying that The Age had breached its duty of care to its employees by failing to provide a safe workplace. In his reasons, Judge O’Neill found that the plaintiff’s psychiatric injury was foreseeable to her employer because a few things: the nature of crime reporting and Supreme Court reporting was filled with such traumatic material that it was obvious to the employer that exposure to this would cause trauma; there was documentation from experts that exposure to traumatic material poses a risk of mental injury; and the plaintiff herself had complained of and exhibited real signs and symptoms of emotional distress on multiple occasions, suggesting that her affliction was chronic and not isolated.
The decision is set to have a ripple effect on the way that media companies have to protect and support their employees, especially the employees that do emotionally and mentally taxing work.
This is clearly a case about a journalist and her employer, a print and online news and media corporation; what does it have to do with the legal profession? Well, more than what might be evident on its face. Lawyers and journalists often share an exposure to traumatic events and stories, which can potentially be emotionally absorbed by the lawyer or journalist. This is a phenomenon known as “vicarious trauma”. Vicarious trauma, when left unacknowledged, will snowball into more severe psychological issues. Depending on the area of law that a lawyer practices in, exposure to criminal acts and other distressing things is the nine to five for many lawyers. Working for community legal centres for oppressed and marginalised citizens and smaller firms that deal with criminal law and family law are especially rife with material that can upset and distress people.
Vicarious trauma is a recognised concept that describes the “negative transformation in the helper that results (across time) from empathic engagement with trauma survivors and their traumatic material, combined with a commitment or responsibility to help them” (Pearlman and Caringi, 2009, 202-203). For law students, especially students that want to pursue a career in family law and criminal law, it is vital to be aware of what vicarious trauma is so that it can be detected and treated.
The workplace culture can also look the same between the journalism and legal industries. In her evidence, the plaintiff said that newsroom attitudes are of the general calibre that one does what they are told and puts up with it. In one instance, the plaintiff said that she had been told to “toughen up, princess”. Not only can the workplace, be it the newsroom, courtroom or boardroom, be a place where employees are passively encouraged to ignore their individual health needs and prioritise the job but are actively pressured to push through legitimate obstacles that they face. Further, in this case the plaintiff was a female working in a “blokey environment” as she said in her evidence, which adds an extra layer of gender into the disastrous mixture. The legal profession is a male-dominated one and the feeling of needing to keep up is familiar to many women. Such a culture of a workplace can more often than not have a negative impact on employee wellbeing.
This is an extreme case and in litigation and socially, The Age has become quite well known as being a “get on with it” type of workplace. This is very much illustrated in the evidence of the plaintiff and other employees at The Age as YZ fought her case, and also the defence that The Age put to the court.
The Age is no stranger to this kind of employee action in court. An earlier case that shares similar facts in that a different journalist sued The Age or psychological injury landed on the desk of the County Court, however, on the evidence available, the court was not satisfied that The Age had breached its duty of care to provide a safe workplace for its employees. YZ v The Age represents a shift away from this earlier judgement and is placing greater burdens on media companies to provide actually effective and supportive measures in place for employees who perform work of a highly traumatic nature.
We live in an era of millennial professionals who are breaking down the stigma surrounding mental health and wellbeing through candour and empathy. We are all going through something, after all. The significance of this case cannot be understated for achieving greater protections for employees that work in environments that expose them to traumatic and sensitive material. According to Bruce Shapiro, the executive director of the Dart Centre for Journalism and Trauma in the United States, this case is a world-first decision. With case law like this going through the courts, we can be rest assured that if we cannot get the peer and employer support needed at work, we can fight for it and depending on the facts of the case, be successful.
Article written by Ashton Darracott
This article appeared in the Torts Illustrated I Object (2019) Publication