Skinner v The State of New South Wales (No 2) [2021] NSWDC 49 is the latest case dealing with the duty owed by emergency services to take reasonable care to protect responder’s mental well-being. As with many of these cases the applicant was a police officer, but the principles would be equally applicable to other emergency services.

In this case there were many allegations of negligence regarding police management, the conduct of senior officers toward the plaintiff and how the police responded to the plaintiff’s disclosure that she was not coping with various parts of the job.  It was a mixed win with some of the allegations of negligence being rejected and others upheld.

This decision is a decision of a single judge in the NSW District Court. It does not therefore set a precedent but what is relevant is Judge Abadee’s useful summary of the law he was required to apply. He said (at [446]-[449]):

There was no dispute that the Police Force owed a duty to take reasonable care to avoid foreseeable risks of injury arising from the plaintiff’s service. Further the risk of a police officer suffering recognisable psychiatric injury through encountering traumatic events is also foreseeable.

Since State of New South Wales v Briggs (2016) 95 NSWLR 467 (‘Briggs’), it has been established that the content of the duty of care must: (a) accommodate the relevant statutory context, including provisions of the Police Force Act 1990 (NSW) and the special nature of service rendered by police officers to the Crown; (b) take into account some of the incidents of the usual employer-employee relationship (adjusted to take into account the matters in (a)); and (c) be formulated prospectively…

In my view the duty of care required the Police Force to:

(a)        identify officers who, through the performance of their duties, were at risk of suffering, or were suffering, psychiatric or psychological harm;

(b)       take steps to ensure that any officer so identified received appropriate treatment and support to alleviate or lessen the effect of his or her injury;

(c)        consult with appropriate persons in the workplace to identify hazards associated with the work environment and systems of work if and when the injured worker returned to duty, including the assessment of the risks of injury or further injury.

These matters were all accepted by the Police Force as comprising its duty of care …

Critically the duty of care has to take into account ‘the special nature of service rendered by police officers’ and I would suggest other first responders. That is it is the nature of the emergency services that they will attend scenes of violent and horrific death and injury. Police have the extra burden of being expected to deal with offenders often in situations of violence and all face threats to their own safety. It is not possible to avoid events that will expose emergency service personnel to a risk to their psychological health.  As a result, the service’s duty is set out in Abadee DCJ’s paragraphs (a) to (c) above.

A common law duty of care does not require that an employer ensure that no harm comes to employees. The duty is a duty to take reasonable care. Abadee DCJ said (at [450]-[458] emphasis added):

…  The reasonable response, by the Police Force, to the foreseeable risk of its general duties officers suffering psychiatric injury through their exposure to traumatic incidents requires consideration of the “magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have” [Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J at 47-48].

I consider that there is virtually unarguable that the probability of the risk that front line officers exposed to traumatic incidents over the course of a career in the Police Force would suffer psychiatric injuries is high (the same may be said for other emergency services, such as the ambulance service). The general issue is the response of the Police Force to that risk.

The considerations adverted to in Shirt, and especially the consideration of ‘other conflicting responsibilities’ are to be tailored to the responsibilities operating on the Police Force and individual officers, especially in relation to the requirements for obedience to lawful orders and the carrying out of lawful duties. Further, in assessing the adequacy of response to the risk, the focus needs to be on how police officers should have been instructed to perform their work. The task is to identify the system of work that was, or should have been, prescribed in response to the risk of psychiatric injury.

… the appropriate response, by way of formulating a system of work, necessarily had to recognise the ‘inevitability’ of officers encountering traumatic events and pay close attention to practical consequences of the posited response, including, for example, the finite nature of police resources and command requirements for the adaptable deployment of officers.

… it is erroneous, in determining the question of breach, to reason from the circumstance that a suggested step could have been taken to reduce the risk of injury to the result that there was a breach of duty in failing to take it. An associated point is that an omission to take a step is not negligent simply because it would eliminate the risk of harm. It is negligent because it is unreasonable not to take the step…

Further … when assessing the adequacy of the systems, consideration needed to be given to certain values, such as respect for individual autonomy, privacy and the protection of confidentiality and the likely efficacy of intervention by an ‘employer’ in the face of those values, without a ‘paternalistic’ approach being adopted. For example, a requirement directing an employee to attend counselling may infringe such values; and/or could be counter-productive.

… the significance of respecting an officer’s autonomy or privacy is reduced where the Police Force knows that the officer has actually suffered psychological or psychiatric harm.

Briggs was a case where a police officer failed because of his failure to identify a system of work which was not, but allegedly should have been, in place. By contrast, the Court of Appeal’s decision Sills, upon which the plaintiff relied, did not challenge the adequacy of the system of work itself, or argue that it was negligent not to have had a better system of work. It was the failure of the Police Force to properly implement with its system of work, in relation to its dealings with the officer, who was known to suffer from PTSD, which gave rise to the breach…

From that summary we can identify that it is one thing to allege that the police, or other employer, should have had a different system of work or management in place (as was the case in Briggs). It is a different (and easier) case to show that they had an appropriate system in place, but failed to apply or follow it (as discussed in my post NSW Police liable for mismanagement of officers PTSD (February 9, 2019)).

In Vozza v Tooth & Co Ltd [1964] HCA 29 (cited in Briggs at [222] Leeming JA), Windeyer J said this about workplace injuries:

The vigorous assertion of [the obligations to ‘maintain a safe system of work’ and ‘not to subject a worker to unnecessary risk’] may sometimes obscure for juries the essential simplicity of the issue in a common law action for negligence. It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. That is not so.

In context, even if one can point to something that defendant could have done that would reduce the risk of psychological injury, even eliminate it, it does not prove that the failure to adopt that practice is negligent.  Adoption of any proposed alternative has to be reasonable taking into account ‘the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have’ which includes the responsibility on police, fire and ambulance services to dispatch their staff to deal with traumatic events and the responsibilities of those officers to in fact respond and do the job they are employed to do – provide police, fire or ambulance services for the benefit of those in need and the community generally. Proof of injury does not prove negligence.