It is not good enough for an employer to have a system to prevent injury to its employees if adherence to that system is not enforced.
The New South Wales Court of Appeal has overturned a decision of the NSW District Court in which a police officer, Ms Sills, was denied common law compensation for a post-traumatic stress disorder (PTSD) claim. The Court of Appeal found that the State of New South Wales was liable for her injury and she was awarded damages of $1.405 million.
Of interest was that it distinguished the cases of Hegarty v Queensland Ambulance Service in Queensland and State of New South Wales v Briggs. These cases were heavily relied upon by the State of NSW in its defence and the trial judge.
In those cases, it had been found that the claimants had not disclosed or had “hidden” their psychological injuries from their employers and that the employers could not be expected to impinge upon their employees’ privacy when the employees were reluctant to disclose the psychological stress or symptoms they were suffering from as a result of their employment.
Between 2004 and 17 August 2006, Ms Sills had encountered a number of distressing events during the course of her work, including a fire in which a child was burnt to death and the subsequent death of a fire officer, a cot death, a swimming pool drowning and finding the body of a man who had set fire to himself in a motor vehicle.
On 17 August 2006, she suffered a panic attack whilst driving to work and her Sergeant told her she needed to go home and see her doctor, whom she saw the next day. Her doctor provided her with a medical certificate with a diagnosis of post-traumatic stress disorder and she subsequently made a workers’ compensation claim.
She was seen by a Police Medical Officer (PMO) in October 2006. The report from the PMO contained recommendations that she could return to full operational duties but that she needed to undergo a course of psychological counselling to help her deal with her past and likely future traumatic events and that she should have a mutually acceptable officer to mentor her and monitor her welfare.
On the same day, she saw a Police Psychologist who recommended that she should undergo cognitive behavioural therapy to help her manage traumatic stress and that she be closely monitored in the workplace.
Then in November 2006, a report prepared for the workers’ compensation insurer stated that she required no further rehabilitation services and that her claim could be closed. The report contained no reference to the recommendations made by the PMO or Police Psychologist.
But in that report, there was a reference to two of her senior police officers expressing suspicions about her claim because she had been taking “excessive sick leave” and comments were made by them about her husband who was a previous police officer. Although the names of these persons were blacked out, she was able to discern who they were and she was upset and felt betrayed by those senior officers with whom she thought she had a relationship of trust.
Almost immediately upon returning to work in February 2007, Ms Sills attended a fatal industrial accident.
In August 2007 she was assessed by a psychiatrist. He produced a report which was made available to the State and he gave an opinion that Ms Mills would remain at risk for a worsening of her symptomatology if she were again exposed to her previous full range of duties. He also recommended a further 6 to 8 sessions of counselling.
By at least this time, the Police Force had a procedure whereby if an officer was involved in a “Traumatic Incident”, there were certain procedures to be followed. Further, if there was a record of 5 or more traumatic incidents within 2 years then that would be a “red flag” to the officer’s superiors. Again, there were procedures to be followed.
She returned to work for a short time in 2007 but then commenced 12 months maternity leave, returning to work late in 2008. She sought a role that did not require her to respond to calls over the radio. Her request was unsuccessful.
In March 2009, she attended a motor vehicle accident in which 2 people died. Her PTSD symptoms began to re-emerge. In April 2009 she attended a fatal motor accident in which a 17-year-old girl was killed and she was required to advise the parents of their child’s death.
Some emails were sent in accordance with the aforementioned procedures to apply when an officer had attended in excess of 5 traumatic incidents in a 2 year period. Her response was that she was “seeking counselling outside of work” but she did not, in fact, do so.
In June and July 2009, Ms Sills attended a suicide where the deceased had been dead for some time and then a house fire in which an elderly man died.
In August 2009, senior officers queried her extensive sick leave history over the previous 12 months. She was advised she would need to produce a medical certificate in support of every leave of absence for the following 6 months.
Despite finding a position away from general duties and working part-time, in November 2010, she suffered injuries in a motor vehicle accident and was off work for some months. She attempted self-harm during that period. She returned to work for a short time but there was no improvement in her psychological condition and she again attempted self-harm. She was medically discharged from New South Wales Police on 7 June 2012.
In the lead judgment of Sackville AJA, he found the State of New South Wales breached its duty to Ms Sills by failing to properly carry out the system it had in place to avoid such injuries.
Quoting from the High Court in McLean v Tedman, he said:
The employers obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system.…… in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands”
The court also found that her avoidance of and reluctance to confide in her senior officers was understandable given her previous experiences with them. It was also relevant that her avoidance was part of the very condition (PTSD) from which she suffered.
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).