In an earlier post, Negligence claims relating to PTSD (May 14, 2018) I reported on the decision in [Name omitted] v State of New South Wales [2018] NSWDC 119. That case involved a NSW Police Officer who sued the State, as the agency responsible for the conduct of police, for negligence in the way the police dealt with her exposure to traumatic incidents and the development of PTSD.  In the NSW District Court, Mahony DCJ dismissed her claim for damages.  In my discussion of Mahony DCJ’s decision I said:

Identifying that a person is at risk or is suffering psychiatric injury requires consideration of matters of utmost privacy.  If the employee does not take advantage of assistance that is on offer, or fails to disclose or worse, lies about their situation, there is little an employer can do.  We can recognise that there are cultural barriers to such disclosure and that is something the employer should seek to negate (as they did here, see [178]).  Given that it is not reasonable or possible to require an employer to ‘ensure’ that a person seeks assistance or takes advantage of that assistance.

Following that decision in the District Court, the plaintiff appealed to the Court of Appeal.  (In my earlier discussion I did not given the plaintiff’s (now the appellant’s) name.  I will again refrain from naming her. The online version of the decision does give her name, but I don’t need to).  In [Name Redacted] v State of New South Wales [2019] NSWCA 4 the Court of Appeal set aside the decision of Mahoney DCJ and entered a verdict in the appellant’s favour of $1,405,000.

Reasons

The Court of Appeal found that this was not a case where the appellant’s claim was based on a failure of the police to have in place systems to identify and support officers exposed to traumatic events and who did, or were at risk of, developing PTSD and other psychological injuries.  The system of work was in place; what was alleged was a failure by police to actually follow or apply the system that was there.   At [122] Sackville AJA (with whom Payne JA and Simpson AJA agreed) said:

The question for determination is not whether the State should have devised a system, or a better system, to identify police officers at risk of suffering psychological injuries as a result of exposure to trauma and to provide those officers with appropriate assistance. The appellant accepted that the procedures in place, if implemented, were satisfactory. So much was recognised by the primary Judge.  The question is whether the primary Judge should have found that the State breached its duty of care by failing to implement the system in place for detecting and addressing psychological injury.

That is, the issue was not whether reasonable procedures were in place; it was whether those procedures were followed. The appellant’s case (at [124]) was that having had her assessed by a police medical officer and police psychologist the Police Service was on notice that she had suffered PTSD and although she was fit to return to normal duties, those doctors recommended follow up and monitoring that was not done.  In short, the Police knew she was vulnerable, had recommendations from their own doctors as to what to do, and did not do what was recommended.

Further, it was alleged that the Police failed to provide an adequate response when it was recorded that the ‘appellant had experienced at least five traumatic incidents within a relatively short period’.  There stated procedures would have required some face-to-face intervention, not just an email ([144]).  Further (at [143]):

…On 5 August 2009, she was warned about her poor attendance record. While the letter invited the appellant to discuss any issues on a confidential basis, the obvious purpose of the communication was to require her to provide medical certificates to support any future sick leave she might take. The letter was hardly a sympathetic response to someone exposed to traumatic incidents and who was known to have suffered from PTSD.

The response was particularly inadequate, it was argued, given her superior officers knew of her earlier symptoms and were aware of her increased risk of psychological injury, that having been reported in the police medical reports.

At [131] the Court said:

Whatever the reasons, the recommendations [of the police medical officers] were not put into effect and the appellant never received the support and assistance the medical officer and psychologist deemed necessary for her psychological welfare. Since the referral to the PMO and Police Psychologist had been made precisely because the appellant was known to have sustained PTSD as a result of exposure to work-related trauma, it would seem to be almost self-evident that the State’s inaction breached the duty of care it acknowledged it owed to the appellant.

So why did the District Court find there had been no negligence?  Sackville AJA said (at [145]-[148]):

The primary Judge justified on two grounds the State’s failure to respond more actively to the accumulation of Critical Incidents.  First, by the end of 2008, any need for monitoring, mentoring or counselling for the appellant “had long since passed”.  Secondly, the appellant did not disclose to the State the nature and extent of her psychological condition.

The foundation for the first finding is obscure. The State was aware or should have been aware by the latter part of 2006 that the appellant was suffering from work-related PTSD and that in the absence of monitoring and counselling (and even with support) she was at risk of her psychological condition persisting and worsening if she was exposed to further traumatic incidents. While she had been on leave for a considerable period before recommencing work in 2009, the State had no information suggesting that her PTSD had improved to the point where she was no longer in need of support and assistance, if not a transfer from front line duties. The appellant’s return to general duties in early 2009 swiftly exposed her to renewed trauma with predictable consequences.

… At the beginning of 2009, State had no information to suggest that the mere passage of time (during which the appellant had not been exposed to traumatic incidents) removed her vulnerability to trauma if and when she resumed general duties.

The second reason encounters the difficulty that the State did not contend that its failure to take any action other than sending an email resulted from a considered view that any additional action would be futile. The finding that any meeting between an appropriate person (not necessarily a senior officer) and the appellant would have “provoked no further disclosure” on her part ignores the fact that a meeting held in consequence of a series of Critical Incidents would have taken place in very different circumstances than earlier interchanges between the appellant and senior officers. A combination of a previous diagnosis of PTSD and a series of Critical Incidents should have raised a very prominent red flag.

In conclusion Sackville AJA said (at [155]-[156]):

In my opinion the evidence established that the State breached its duty of care to the appellant in 2006 by returning her to general duties without implementing the recommendations made by the PMO and the Police Psychologist. At the time the decision was made the State was aware that the appellant was suffering PTSD and that placing her on general duties was likely to expose her to further traumatic incidents. The State was aware that the PMO and Police Psychologist had certified the appellant as fit for general duties on the basis that she received the counselling and support recommended by them. The failure to implement the recommendations exposed the appellant to precisely the risk of which the State had been made aware.

The State also breached its duty of care to the appellant by its entirely inadequate response to the report in the Critical Incidents Register in May 2009. The State knew or should have known that the appellant was continuing to suffer from PTSD. The accumulation of five Critical Incidents within a relatively short period should have raised a “red flag” that intervention well beyond an exchange of emails was required. At the very least the exercise of reasonable care required a meeting in person with the appellant to determine what measures were needed to protect her from yet further trauma. That course of action would have been consistent with the practice senior officers considered appropriate and said that they implemented as a matter of course.

Contributory negligence

The state argued that the appellant contributed to her own injuries by failing to disclose the extent of her symptoms or otherwise discussing the matter with her senior officers or taking advantage of the Employee assistance program.  The court rejected that argument noting (at [169]) that:

The appellant explained her reluctance to attend the EAP on the ground that she felt worse after attending a session with a counsellor… If a person seeking help from a psychologist or counsellor feels that the service provider is actually making things worse, that person cannot reasonably be expected to return to the same source of assistance.

The court also noted that despite the diagnosis of PTSD that was on record, senior officers questioned her time off on sick leave and the honesty of her claims. At [171] Sackville AJA said:

By November 2006, the appellant became aware of … the fact that two senior officers … had expressed doubts about her genuineness. Not surprisingly she did not trust them as persons with whom she would wish to discuss her psychological problems. This provides cogent explanation as to why she was reluctant to confide in them or, for that matter, other senior officers with whom she served (all of whom seem to have been male).

The Court found no basis for a finding of contributory negligence.

At trial, Mahony DCJ has (as trial judges do) calculated the damages that should be awarded so that if there is an appeal, the matter does not have to return to the trial court for assessment. There was no challenge to the trial judge’s assessment so the court, upholding the appeal, ordered the state to pay the $1.4 million from which the appellant had to repay the Workers Compensation Insurer for any compensation she had already received.

Discussion

In my post Identifying that your employee is suffering isn’t enough, you have to do something about it! (January 27, 2019) I said ‘In colloquial terms, if (and particularly if you are an employer) you’re going to ask ‘R U OK?’ you have to be prepared to do something if the answer is ‘no’.

In this case the appellant was asked ‘…if she was feeling all right. She said that she was not well’.  Her sergeant ‘told her she needed to go home and to see her doctor’ and so started a process that included doctors, engaged by the Police Service, giving advice on how to manage her return to work. Advice that, it appears, was largely ignored and not brought to the attention of superior officers who then questioned why she was taking sick leave.

In the District Court, the trial judge determined that NSW Police had adequate procedures in place to deal with traumatised police officers, but if a police officer failed to take advantage of those procedures there was no negligence.  The Court of Appeal agreed with that assessment. But the judges of appeal said that this case was not about whether there were proper procedures, but whether those procedures and were followed. The fail to manage this officer’s return to work in accordance with the procedures and advice of the Police Service’s own medical officers was negligent and failed to protect the appellant from further injury and the subsequent loss of career and income.

In an unrelated case, Daniel Racek v DP World Sydney [2019] FWC 772, an employee was unsuccessful in his claim for unfair dismissal.  He had been a loyal employee at a stevedoring company for 23 years. He attended work ‘in a suicidal and depressed state of mind.’  Whilst at work he consumed alcohol to build up the courage to take his own life.  He communicated to a friend who in turn told the team leader who spent ½ an hour talking Mr Racek out of taking his own life.  But no-one took it any further, in fact they allowed Mr Racek to return to work.  Stevedoring is a dangerous profession and the employer had random drug and alcohol testing.  Mr Racek was subject to that random testing (not because he had tried to kill himself because everyone just hushed that up). He was found to have a Blood Alcohol Content of 0.118.   In investigative and disciplinary proceeedings the circumstances came to light, but rather than recognise that Mr Racek was suffering a mental illness, caused by circumstances that don’t need to be repeated, the employer dismissed him. And the Fair Work Commission found that this decision was neither ‘harsh, unjust or unreasonable’.  Is it any wonder that people don’t report mental ill health or seek support when that is the reaction of their employer?  It seems to me that many in the community will only tolerate or be sympathetic to a person’s mental illness provided they react in an ‘acceptable’ way – see also the discussion in Victoria SES Commander guilty of an offence, but no conviction recorded (April 22, 2014).

Anyone who is in the emergency services, or follows the news, will know that mental illness in the emergency services is both common and not unexpected.  Given what those in the police, ambulance, fire and rescue services are exposed to, ‘one does not need to be a psychiatrist to understand the reality’ of those reactions (see Deceased driver liable for police officer’s PTSD (February 1, 2019)).  Even so it appears that employers, both in the emergency services and elsewhere, are failing to recognise that they need to actually support their staff.