Moral Injury: An Emerging Aspect of the Employer’s Duty of Care to Employees?

Abstract

Moral injury is a discrete form of harm affecting individuals as a potentially avoidable consequence of exposure to a morally injurious event. That injury (independent of psychological injury or illness) has been identified as a cause of physical symptoms, suicide and suicidality. Originally identified within military and veteran cohorts, it is observable in emergency responders, healthcare providers, human rights advocates and others. Its aetiology suggests that other groups where the potential for tensions between personal morals, professional ethics and occupational activities arises (such as whistleblowers, law enforcement personnel and lawyers) may be at risk. Despite increasingly diverse evidence identifying moral injury as a substantive harm with significant consequences, the legal options for redress are unclear. This article explores whether requirements for establishing a duty of care as a precursor to a negligence claim are likely to pose an insurmountable obstacle for plaintiffs, including in the context of employer–employee duty relationships. It concludes that despite popular perceptions that negligence law is unlikely to be able to accommodate moral injury claims, a closer reading of key judgments indicates that there are opportunities for it to potentially be recognised as a harm on a principled basis—consistent with existing jurisprudence and legislation—for the purposes of establishing a duty of care. In the event that normative claims for its recognition are resisted, the justification for that resistance must be found outside historical development of legal principles from case law.