Melanie Sills v State of New South Wales  NSWDC 119
The Plaintiff was a former police officer employed by the NSW Police Force (NSWPF). She alleges that in her service she was exposed to numerous traumatic incidents, and as a result she brought a claim for damages for psychological and/ or psychiatric injury she suffered between May 2003 and 7 June 2012.
The Plaintiff alleged that she suffered PTSD, a Major Depressive Disorder and an Anxiety Disorder as a result of the Defendant’s negligence.
She argued that the Defendant owed her a non-delegable duty of care to avoid exposing her to a foreseeable risk of injury, including the risk of psychiatric or psychological harm.
The Plaintiff’s primary submission was that the NSWPF had breached its duty of care by failing to properly follow its established system of work, particularly in the circumstance where it had identified her as an officer at risk of suffering psychiatric harm.
Judge Mahony SC had to determine the following issues:
- Whether the Plaintiff had sufficiently pleaded the scope and content of the duty of care owed by the Defendant.
- Whether the Defendant breached its duty of care.
- Whether any such breach by the Defendant caused the Plaintiff’s psychological injury.
Scope and duty of care
The Defendant conceded that it owed a common law duty of care which was non-delegable, “to guard against its employees sustaining foreseeable injury or by exposure to the risk of injury and to have provided adequate safeguards.”
The Defendant also accepted that within the Tuggerah Lakes Local Area Command (TLLAC) it was reasonably foreseeable that police officers would suffer psychological injury as a result of exposure to traumatic incidents.
As such, His Honour was satisfied that the Plaintiff had established the scope and content of the duty of care owed by the Defendant.
The Plaintiff lodged a workers compensation claim for psychological injury in 2006. She was subsequently referred to the Police Medical Officer (PMO) and police psychologist who made recommendations in relation to her future duties.
The Plaintiff argued that the Defendant breached its duty by failing to:
- Follow the PMO and the police psychologist’s advice in 2006 to ensure the Plaintiff undertook psychological counselling, and to appoint a mutually acceptable officer to mentor and monitor the Plaintiff’s welfare;
- Follow up the TLLAC’s own reporting system in 2009, and its standard operating procedure, having identified the Plaintiff as an officer who had attended five or more critical incidents.
The evidence established that the recommendations of the PMO and psychologist were not followed. Thus, the Plaintiff submitted:
 By failing to fully adopt the recommendations of the PMO, the Police Psychology Unit and Dr Gertler, the Defendant breached its duty of care and the Plaintiff was further exposed to traumatic events, which aggravated and entrenched her PTSD and caused her ultimate incapacity for work.”
In determining whether the Defendant breached its duty of care, His Honour, among other considerations, took into account the following:
- In September 2006, the Plaintiff had a short period of time off work in addition to the annual leave she took for her wedding ceremony. At no time thereafter did she report psychological problems arising from her work as a police officer.
- After being certified fit for full-time work, the Plaintiff worked on general duties for a short period before being commencing station duties due to her pregnancy in mid-2007. She was on maternity leave throughout 2008.
- The Plaintiff had lied to the PMO by understating her psychological problems in order to get her appointments back and to return to full-time general duties. His Honour accepted that there was stigma attached to disclosing mental health problems in the NSWPF and such a disclosure could affect both prospects of promotion and relationships with other officers with whom they had to work. However, His Honour found that the Plaintiff’s intentional deception meant that the Defendant was not aware of the psychological issues she was experiencing.
- The Plaintiff was aware at all times of the support services available, including the EAP but did not seek those services.
- It was the Plaintiff’s decision to return to full-time duties in 2009 and it was in the course of those duties that she attended a number of traumatic incidents in the first half of 2009.
- The Plaintiff was identified as an officer at risk in May 2009 and offered psychological assistance by the Command, to which she advised that she was seeking counselling outside of work. However, the Plaintiff admitted that she had made appointments to see a psychologist but never actually attended.
- In mid-2009 the Plaintiff was suffering personal issues outside of the workplace, namely that her marriage had failed and her husband’s failed business was causing her financial pressure. Despite taking sick leave in excess of her entitlements and subsequently being spoken to, the Plaintiff did not disclose any psychological issues as a result of her police work.
- Once the Plaintiff was transferred to the Exhibits Office in 2010, His Honour found that she was no longer required to attend traumatic incidents.
His Honour found:
 During that period, there was no reason for the recommendations of the PMO or the police psychologist to be implemented. Following her return to work, the Plaintiff chose to return to general duties police work. By the end of 2008, any need for monitoring, mentoring or counselling for the Plaintiff had long since passed.
Additionally, His Honour concluded that the system for identifying at-risk police officers was a reasonable response and that any meeting with the Plaintiff would not have resulted in disclosure of her work issues.
Accordingly, His Honour held:
 …it was a reasonable response throughout that period for the Defendant to do nothing in relation to the alleged breach [the failure to implement the recommendations of the PMO and police psychologist in 2006]…I therefore find that the Plaintiff has failed to establish a breach of the duty of care owed to her. The Defendant had no way of knowing in 2009 and 2010 that the Plaintiff continued to suffer a psychological reaction to her exposure to traumatic incidents.”
The Plaintiff therefore failed to establish a breach of the duty of care by the Defendant.
His Honour noted, that if he was wrong in respect to his analysis of the question of breach, it is clear that the exposure to traumatic incidents in the Plaintiff’s work as general duties police officer was causative of her PTSD and was a contributing factor to the ultimate diagnosis of chronic PTSD and major depression.
What can we learn?
This case highlights the positive obligation of the Plaintiff to notify the Defendant of psychological symptoms likely to increase the risk of injury, so as to enable the Defendant to take action to minimise that risk. The Court will have regard to the responsibilities of the Plaintiff and Defendant as well as the specific factual matrix.
Furthermore, the Court will be reluctant to find negligence against a Defendant for failing to take action to prevent harm to a Plaintiff if the Defendant was not notified of the risk. Courts will analyse the conduct of the Plaintiff and Defendant in combination to determine if the Defendant should have been reasonably expected to take action to prevent the harm.
Candid disclosure is encouraged for workers suffering psychological issues in the course of their employment.
If you or somebody you know has suffered an injury during the course of employment, you may be entitled to compensation. For more information, and to arrange a free, no-obligation assessment of your claim, please call Stacks Goudkamp on 1800 25 1800, or alternatively make an online enquiry.
Written by Sylva Dankha.
Sylva Dankha is a solicitor in Ian Chipchase and Anna Tavianatos’ Practice Group. Sylva represents people in a wide variety of matters including motor vehicle accidents, workers compensation and public liability claims.