Organisational Liability & Psychosocial Hazards In The Government and Not-For-Profit Sector

by | Jun 4, 2024 | Daniela Anicic

Author: Daniela Anicic

The recent SafeWork NSW investigation into the Coffs Harbour Community Corrections office for its hazardous workplace culture raise important considerations for the future of personal injury claims within the government sector. On Tuesday 7 May 2024, SafeWork issued the Coffs Harbour Community Corrections office with three improvement notices (INs). INs are issued to businesses or departments where potential breaches of the Work Health and Safety Act have been found. Following numerous complaints by staff, and submissions by the Public Service Association, regarding inadequate management of psychosocial hazards, including bullying, harassment, and unfair and inconsistent management of workplace performance and behaviours, SafeWork NSW deemed it necessary to place the NSW Department of Community Corrections, on notice regarding its response to such hazards. This also included direction to improve relevant policies and procedures in relation to responding to psychosocial hazards and management of complaints by staff. 

In relation to the wider implications for personal injury sector, this investigation should assist firms in identifying that there are strong claims for both psychosocial workplace injuries and potentially, class actions against government departments and sectors. The investigation and PSA claimed the workplace issues are not isolated to the Coffs Harbour Office but have identified broader concerns for health and safety of workers within the corrective services sector. 

Identifying, responding to, and initiating claims against government departments on a broader level, is a unique opportunity for firms and legal advocates who are passionate about supporting and achieving outcomes for individuals or group claimants. Whilst the investigation has identified the need by the Department to respond adequately, the INs issued are not mandatory, and it is at the discretion of the Department as to how they will respond and manage the identification of these hazards. Failure to appropriately respond could lead to a question of the integrity of the complaints process and adequacy of investigative procedures. Failure to respond and obviate identified risks can also lead to increase in injuries for individuals working in these departments. As advocates in the personal injury sector, the response by senior management in the Department should be monitored. Legal advocates should prepare to provide accurate and responsive advice that will assist individuals to understand their rights as they relate to workplace health and safety laws, and of course, personal injury law in general. 

Bullying and harassment, and other psychosocial hazards are not unique to the government departments but also are prominent within the community services sector. Individuals who are subject to significant bulling, harassment, and unfair treatment by management often lack the necessary information to proceed with claims, that could substantially affect their life in the long term. Legal professionals in the personal injury sector are in a unique position to advocate and provide timely advice that could assist individuals to make informed decisions as to how they wish to proceed with their claims and rights, more broadly. 

Legal professionals should also develop an understanding of psychosocial hazards, and the different types that exist and how they can combine and interact to cause further risks at work, within different sectors. Psychosocial hazards may interact or combine to create new, changed, or higher risks. For example, employees working in the corrective services sector with high-risk offenders need to be able to assess and respond to risk and potential harm to the community. If an individual is subject to bullying, harassment, or unfavourable working condition, it could result in a failure to appropriately manage risk of offenders as their mental health and well-being is impacted over a period, leading to diminished decision-making capabilities.

Further, from a personal injury claim perspective, there have been instances where individuals who have been subject to serious harassment and bullying have been isolated, and pressured into making decisions that are not in their best interest, simply due to a lack of appropriate advice. This may include returning to work too early, or not proceeding with a claim for damages or TPI assessment. This pressure is imposed by the employer’s insurers and the return-to-work facilitators. Advice should be made available to the public and how this is best achieved, is now for our profession to work towards. 

Organisational Liability and Psychosocial Hazards in the Workplace

Organisations may be held to have breached their non-delegable duty of care to employees, who have experienced emotional, psychological, and physical abuse encountered within government departments by failing to appropriately investigate and obviate risks identified by staff and/or external Workplace Health and Safety inspectors.

Departments may also be vicariously liable for the actions of management. Managers who are in positions of power, trust, authority, and control and utilise their position to bully, harass, isolate, and cause psychological injury to employees, provide legal advocates with an alternative form of claim and of cause of action. Assess the nature of the injury, and more importantly, the context of the employment and management dynamic and whether this meets the criteria or vicarious liability or even direct liability for organisations and departments that have failed to adequately respond to, or investigate complaints made. Departments where managers, who by virtue of their position have had the opportunity and occasion by virtue of their roles, to cause emotional, psychological, or physical harm, may meet the necessary criteria for a claim in vicarious liability. Further, departments or organisations that have become aware or have known about such issues and have failed to respond appropriately, are exposing themselves to direct liability, whether through a breach of nondelegable duty of care or statutory duty.  Failure to assess the objective seriousness of the investigation by SafeWork NSW and respond adequately to the INs issued by SafeWork NSW, places the NSW Department of Corrective Services in a precarious legal position. 

Legal professionals have a duty and responsibility to advocate for their clients, provide timely and appropriate advice and develop a strong understanding of the most appropriate cause of action to be taken. 

This author has experience and qualifications in high risk offender management with Community Corrections (Corrective Services NSW), mental health and law.


Putting the “Human” back into Legal Practice

by | May 6, 2024 | Daniela Anicic

Author: Daniela Anicic

Trauma informed practice and client engagement in protracted legal matters within personal injury.

The integration of trauma-informed practice within a law firm requires an understanding of the impact trauma has on an individual. Trauma leaves an indelible effect on the individual, their families, and the wider community. This may be witnessed in the over-representation of individuals in the criminal justice system. Many claims that present before Personal Injury firms, are from individuals who are either incarcerated or have been incarcerated, experience significant drug and alcohol issues coupled with both diagnosed and undiagnosed mental health issues. This is compounded by additional factors of homelessness and socioeconomic disadvantage.

Engagement with clients who present with complex needs represents a unique challenge to legal practitioners and requires a likewise approach that facilitates and fosters an experience of understanding and compassion. Understanding the principles of trauma-informed practice will undoubtedly assist in the development of client-centered firms. However, there is a dual need for each practitioner to reflect on their respective client engagement and even more importantly, how working in complex and protracted cases, can lead to vicarious trauma and burnout. Trauma has an impact on both client and practitioner alike.

Whilst there are compounding psychosocial hazards to consider and obviate, there is a real opportunity for firms and practitioners alike, to develop awareness of how to engage effectively with clients to achieve an outcome that provides closure and at the same time, sets the firm apart in its representation and engagement with the client.


Trauma and the Practitioner

Change always starts with the individual. How do we create real and lasting change that challenges how we work as practitioners? We need to be open to challenging our perceptions of other’s experiences that resoundingly differ from our own. We may also need to consider whether we as practitioners have our unresolved trauma, that leads to perfectionism, over-work, over-achievement, and other maladaptive coping strategies, not limited to addiction. If we can start from our own life experiences, both personally and professionally, that have indelibly shaped and defined our own lives, we can then begin to understand others. You can only meet someone as deep as you have met yourself. Stated in such terms, would no doubt, be discordant with normal practitioner development strategies. Nevertheless, my experience working in high-risk, highly volatile professional environments along with adverse life experiences, has provided me with a unique perspective on how to approach the complex nature of our more vulnerable clientele.

The Client

Trauma is not the distressing event(s) itself. As Gabor Mate (2022) stated “[it] is the psychic injury, lodged in our nervous system, mind and body, lasting long past the originating incident (s), triggerable at any moment”. Trauma can result from one incident, or several, and can be chronic in nature. Prolonged exposure to stressful life events can also impact an individual that leads to trauma. No matter the definition, trauma is a highly subjective and personal experience. There is no scale of suffering.

Practitioners need to be aware of the basic knowledge of the impacts of stress on the brain and body and strategies to avoid exacerbating possible trauma-related responses. Trauma can have impacts on several levels, including emotional, physical, and mental. It can induce feelings of anger, fear, shame, gastrointestinal issues, musculoskeletal, dermatological, and self-harm, and commonly, substance abuse1. Trauma also damages the brain. This is widely acknowledged. However, and importantly, positive relational experiences not only assist in the resolution of trauma but ‘enhance general well-being’2. Conversely, negative relational experiences impede integration and compound the effects of stress3.

How does this translate into practice and application within our practices?

It starts with communication. Effective engagement is defined by our ability to relate to others on their level, adapt our responses according to the context, and how this interacts with our legal duty to represent the client and their best interests. The most consistent feedback that I have heard from clients, in addition to their support and advocacy agencies, has been a lack of communication and feeling as though ‘they simply do not know where they stand’. Whilst it may seem trite to assume that during a protracted legal matter, practitioners would have regular contact with their clients. Nevertheless, this one simple aspect of the case is one of the most reported to be the client’s concern. How can we possibly understand, respond, and adapt to trauma and apply trauma-informed principles, if we can’t even contact our client regularly?

We also need to be aware of how client’s who have experienced trauma may engage with us, as legal representatives. Individuals who have suffered from trauma, may present as difficult to communicate with (little, inconsistent or no engagement), incongruent response such as becoming aggressive, excessive sharing, overly agreeable, flat affect, periods of silence are some examples4. Providing a safe space is crucial. Ask the client what method of communication do they prefer? By phone, by video or in person. Whatever the setting, it is critical that the legal professional is aware of the impact a space has on an individual.

Your client’s response is not necessarily a reflection of the individual practitioner, but rather, trauma impacts the way an individual relates to the world at large. Discussing deeply personal events, particularly sexual, emotional and physical abuse, will re-trigger most individuals. Adjusting the space (whether physical or not) is one strategy to provide a safe method for your client’s engagement.

Further, our use of language is so powerful. Clients have stated they do not understand their lawyers. This is not only feedback from personal injury clients, but also those who have engaged with criminal practitioners. Ensuring that we adapt our communication and language skills is paramount and should not be difficult for lawyers to do. I understand our training, and years of writing a certain way, but it is possible to simplify, confirm with a client their understanding, and send confirmation emails that are written in basic language.

Another concerning feedback is that personal injury clientele has signed Deeds of Release and settlements, without really understanding the implications. This is not an oversight. This is simply bad practice. Take the time with your client, understand that they have been in situations where their sovereignty has been taken from them, and accordingly, are more susceptible to boundary violations and intimidation. A lawyer is in a position of power vis-à-vis the client, and this relational dynamic cannot be understated.

Another very important example concerning language is how we phrase our questions. Stating to a client “So that only just happened once?” “Was it only once that you experienced that”. Simple rephrasing could be “Can I clarify that there were no further incidents?”. A simple effort to change the language we use can change the whole dynamic of a client’s relational experience. Using phrases such as just and only, or even ‘I understand’, whilst it may seem a simple way to confirm a fact, or demonstrate compassion, can minimise a client’s experience.

We aim to hear and importantly, to validate a client’s experience. Reducing exposure to re-traumatisation is a key principle of trauma-informed practice. Regular communication, ensuring the clients understand their rights, how Deeds operate, and phrasing during Witness Statements, is paramount to reducing a client’s exposure to re-traumatisation. Adapting our language is another key strategy.

The Australian Human Rights Commission (2021) provides: “[S]afety, trustworthiness, choice, collaboration and employment” are foundational to trauma-informed practice. Applying the above strategies are just some examples of how to facilitate this approach. Our clients are the best advocates for themselves, if the space you create with your approach safe. They know their story and working with them in a collaborative way by including them in the decision-making process, and demonstrate trustworthiness and providing choice, are great examples at trauma-informed practice. As Gabor-Mate so poignantly identified, there is a “wisdom of trauma”, that means, our clients have an innate capacity and ability to reflect on their experiences and draw from that, where they can demonstrate a profound level of wisdom. This is facilitated by our approach as professionals and compassionate individuals.

Vicarious Trauma and the Practitioner

One final and well-discussed aspect of trauma-informed practice is the obviation and reduction of psychosocial hazards for practitioners working in the personal injury field. This has been identified as vicarious trauma but can also be conflated with our own personal experiences. That is, we can be traumatised by the nature of our work, but also if unresolved, our own personal life experiences, may have led to our own trauma and the combination of the two can cause stress, and potentially other mental health issues. There are several services that have training available, such as the Mental Health Co-ordinating Council (MHCC) and Mental Health First Aid courses, that assist practitioners to identify and responds to such risks.

I approach my professional practice in this way – consistently “do the internal work”. That is, take time to develop your inner coping strategies, assess unresolved aspects of your life, and whether this has impacted you in a way that has resulted in maladaptive coping strategies. Make sure you spend time looking after yourself, really looking after yourself. Identify issues early that may be arising from your work (particularly in the Institutional Abuse practice area) and discuss them with other professionals. De-briefing is a key strategy, whether that is with a colleague or via a professional counselling service. Engage in non-professional activities. I love to draw, paint, and compose music.

Our lives are more than our career, it is the reputation we build through our relational experiences with others, professional and personal, that will shape how others remember us and the legacy we leave. My challenge to practitioners is also to adapt – or risk being side-lined in an industry where understanding clients, and responding to their needs – on all levels, requires practitioners who are responsive to change and most importantly, open to looking at themselves.

The author has qualifications in Sociology, Mental Health, and high-risk offender management and is a Certified Life Coach, Neurolinguistic Practitioner, and Certified Recovery and Wellness Coach.

1 Florence Thum, Engaging in Trauma-Informed approach to lawyering, Lawyers Weekly (22 March 2024)

2. https://www.communitylegalqld.org.au/wp-content/uploads/2016/10/blue_knot_paper_trauma_informed_practice.pdf

3. Ibid,

4. Thum, above n 1.