Sills v State of New South Wales

1. [1]

   PAYNE JA: I have had the privilege of reading the decision of Sackville AJA in draft. I agree with the orders proposed by his Honour for the reasons his Honour gives. A few matters addressed by those reasons bear particular emphasis. These additional observations are not intended to qualify my agreement with Sackville AJA.

2. [2]

   The first is that this case is of a different character to State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 and Hegarty v Queensland Ambulance Service [2007] QCA 366, two cases relied upon heavily by the respondent and by the primary judge. The appellant’s case here does not challenge in any way the principles established by those cases; rather it embraces them. This is a case where there is no challenge to the system established by the State to identify and manage the risk of psychological harm to police officers arising from their police service. Rather, the sole focus of the appellant’s case is the failure by the State to follow its own system in dealing with the appellant. A further important point of distinction was identified in Briggs itself by Leeming JA who noted at [177] that considerations of privacy and autonomy, which were at the heart of Briggs and Hegarty, “apply with much less force” where, as here, an employee or officer has already supplied medical certificates. As Sackville AJA explains, the appellant’s post-traumatic stress disorder had been diagnosed by two psychologists retained by the NSW Police who each made recommendations to address that condition. Those reports were available to the State. The principal breach of duty relied upon by the appellant was the admitted failure of the State to comply with those recommendations.

3. [3]

   The second matter which bears emphasis is that this appeal has a limited scope. The questions posed relate to a finding of breach of duty and not causation. The State did not challenge the primary judge’s finding that a cause of the appellant’s post-traumatic stress disorder was her exposure to work related traumatic incidents. No other issue of causation was raised by the State. As Sackville AJA explains, the primary judge’s critical finding about breach of duty is not sustainable. It may be, had the case on behalf of the State been conducted differently, that some of the complaints made on the appeal about the subsequent conduct of the appellant could have been relevant to causation. No such causation case was advanced in this Court. As Sackville AJA explains, it is clear that a breach of duty was here established in the State failing to follow clear procedures and recommendations made as part of its own system.

4. [4]

   The third matter which should be emphasised is that the notice of contention filed by the State was without merit. The first ground repeated a central misconception in the State’s case. The appellant’s case, clearly and from the beginning, was that the State ignored its own system and failed to implement the recommendations made as a result of the working of that system. It was no answer to that case for the State to point out, in considerable detail, the merits of the design features of that system. The second ground of the notice of contention must also be rejected. The conversation relied upon by the State took place before the appellant spoke to the police medical officer and the police psychologist who each diagnosed her post-traumatic stress disorder. The State’s submission that the conversation should be found to “bolster the trial judge’s findings that [the appellant] would not have disclosed her symptoms” cannot be accepted. The conversation had no real significance in the circumstances of this case and the primary judge did not err in failing to make the finding sought.

5. [5]

   The final matter bearing emphasis is that the contributory negligence claim made by the State in this Court was, at best, an afterthought. The topic was barely mentioned in the written submissions at the trial and not at all in oral address before the primary judge. Contributory negligence was not mentioned in the written submissions in this Court, save to assert that if the appeal was successful it would be necessary to remit the matter to the primary judge to address the issue. This approach should be deprecated. If contributory negligence was seriously to be pressed in this Court, the State should properly have addressed the issue in its written submissions. In any event, the State ultimately consented to the issue being addressed in this Court and leave was given to file additional written submissions on the issue. For the reasons given by Sackville AJA, the State’s contributory negligence claim must fail.

6. [6]

   SACKVILLE AJA: The appellant is a former police officer who was attested into the New South Wales Police Force (NSW Police) on 2 May 2003, at the age of 26. The appellant was medically discharged from the NSW Police on 7 June 2012 having suffered from post-traumatic stress disorder (PTSD). It is now common ground that exposure to traumatic incidents in the appellant’s work as a general duties officer was a contributing factor to her suffering from PTSD and major depression. [1]

7. [7]

   The appellant sued the respondent (State) pursuant to s 5 of the Crown Proceedings Act 1988 (NSW) as the entity vicariously responsible for the tortious acts of the Commissioner of Police and his or her officers. [2] The appellant alleged that the State owed her a non-delegable duty to take reasonable care to avoid exposing her to the foreseeable risk of injury, including the risk of psychiatric or psychological injury. For the most part neither the primary Judge nor the parties distinguished between the NSW Police and the State. It is convenient to adopt their approach and in general to refer in this judgment only to the “State”.

8. [8]

   The appellant’s psychological injuries entitled her to workers compensation payments. Her claim for common law damages is limited by Part 5 of the Workers Compensation Act 1987 (NSW) (Workers Compensation Act) to damages for economic loss. The Civil Liability Act 2002 (NSW) does not apply to her claim.

9. [9]

   The State admitted that it owed a non-delegable common law duty of care to guard against police officers sustaining foreseeable injury or being exposed to the risk of injury and to provide adequate safeguards against such injury. The State accepted that pursuant to its duty of care it was required to identify officers who, as a result of their duties, were at risk of suffering and were suffering psychiatric or psychological harm. It was also required to 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. The State further admitted that upon an injured worker’s return to duties and thereafter, the State’s duty required it to consult with appropriate persons in the workplace to identify hazards associated with the work environment and with systems of work. They duty extended to assessing the risks of injury or further injury associated with the hazards. [3]

10. [10]

    After a trial which occupied 13 hearing days between 4 December 2017 and 6 March 2018, the primary Judge (Mahony SC DCJ) delivered a lengthy judgment on 10 May 2018 in which he entered a verdict for the State. His Honour accepted that in October 2006 a Police Medical Officer (PMO), Dr Kirychenko, and a Police Psychologist, Ms Cimino, recommended that the appellant be provided with psychological counselling and monitored to assist her following her return to work after a period of absence. [4] His Honour found that the NSW Police did not implement those recommendations but also found that in the circumstances that occurred after September 2006 there was no reason for the NSW Police to do so. [5] Accordingly it was a “reasonable response” through [the relevant] period for the [NSW Police] to do nothing … to implement the recommendations”. [6]

11. [11]

    The primary Judge quite properly assessed damages to take account of the possibility that he was wrong in finding that the State had not breached its duty of care. His Honour assessed the appellant’s damages at $1,405,000. In the event that the appeal on liability succeeds, the State does not challenge this assessment.

12. [12]

    The appellant appeals as of right pursuant to s 127 of the District Court Act 1973 (NSW). The notice of appeal contains seven grounds but the main challenge is to the primary Judge’s finding that the State, by doing nothing, discharged its duty of care to the appellant. Grounds 2 and 3 of the notice of appeal are as follows:

13. [13]

    The State has filed a notice of contention. Ground 1 contends that the State had in force a reasonable response to the risk that the appellant would suffer psychiatric injury by implementing a system designed to identify police officers at risk and to establish mechanisms for providing assistance and support where required. Ground 2 contends that the primary Judge should have found that the appellant told Chief Inspector Sorenson in October 2006 that she was not really sick but tired of general duties.

System of work

1. [14]

   The State’s written submissions in this Court described in detail the system of work in operation at the Tuggerah Lakes Local Area Command (TLLAC), where the appellant was based, at the relevant times. The system was said to incorporate a variety of procedures and support mechanisms designed to identify, respond to and monitor the risks arising from the exposure of police officers to traumatic events. The submissions identified, among other procedures and facilities, a Traumatic Incidents Register, a post-incident debriefing process, shift handover reports including notes on welfare issues, the Police Employees Assistance Program (EAP), and written and oral communications relating to officer welfare. The following is a brief account of the principal components of the system revealed by the evidence.

2. [15]

   In 2005 the TLLAC commenced a program called “Traumatic Incident Register and Response”. This required the identification of incidents above “normal policing response” which might involve a degree of trauma. [8] The Register took the form of a spreadsheet maintained over a rolling two year period.

3. [16]

   Chief Inspector Peet, who was posted to TLLAC in 2004, gave evidence that a notification in the register would trigger a variety of responses. Once Command management was made aware that an officer had been involved in a traumatic incident, a private email was sent to the officer advising that one-to-one counselling was available through the EAP. The email was in standard form. Five such emails sent to the appellant were in evidence. [9]

4. [17]

   Chief Inspector Sorenson agreed in cross-examination that the Register contained no reference to two traumatic incidents experienced by the appellant in July 2004 (a fatal house fire) and February 2006 (when an offender spat at her). While the first incident may have predated the Register, the second occurred after the Register had been put in place. Mr Sorenson explained the omission by pointing out that “the spreadsheet is only as good as the supervisors that drive it”. [10]

5. [18]

   When an officer was recorded as having been exposed to five or more traumatic incidents, a senior officer would send an email offering assistance and providing an opportunity for the officer to have a discussion. [11] According to Chief Inspector Peet a debriefing process was also to occur. [12] The “first” form of debriefing was an “onsite response” from the Psychology Branch who would dispatch a counsellor. [13] Chief Inspector Peet said that, if he was on duty, he would telephone the officer personally to check on the officer’s welfare and offer support. [14]

6. [19]

   Chief Inspector Sorenson, who was promoted to Chief Inspector at TLLAC in 2003 and remained in that position until he left in 2006, explained that once a police officer had five or more incidents recorded in the register of traumatic incidents he would contact the EAP hotline and suggest that they contact the officer. [15] He accepted that a record of five or more traumatic incidents within two years would be a “red flag” to the officer’s superiors. In those circumstances Mr Sorenson would have addressed the situation by sitting down himself with the appellant and asking her “how she was travelling”. [16]

7. [20]

   On 16 August 2007 the Director of Safety Command NSW Police issued a document entitled “Critical/Traumatic Incident – Standard Operating Procedures for Reporting”. Once a Duty Officer or Team Leader became aware of an officer’s involvement in a “Traumatic Incident”, the document laid down the procedure to be followed:

8. [21]

   At the end of each shift the supervisors and duty officers would meet for a handover. They were required to complete a pro-forma shift report, which included a section to record “Welfare Issues”. According to Chief Inspector Sorenson, who was attached to TLLAC from 2003 to 2006, any event out of the ordinary that would have an impact on an officer’s welfare was recorded in the report and transmitted to senior management. The object was “to keep an eye on the officer and make sure that … they were travelling okay”. Chief Inspector Peet said that if the shift report suggested that debriefing was required, that information would carry over to the duty officer’s handover so that action could be taken and the debriefing process finalised.

9. [22]

   The principal purpose of the EAP was to provide for the referral of officers experiencing traumatic incidents to qualified external professionals. Chief Inspector Peet explained that there was a cap of six on the number of consultations in a twelve month period but the cap could be extended. The process was confidential.

10. [23]

    Chief Inspector Peet gave evidence that if an officer had been placed on duty restrictions the injury management panel would oversee the return to duty process. The situation would be monitored in a variety of ways, including reviewing medical certificates, holding case conferences and having “active consultations” with the officer. Chief Inspector Peet stated that the process was “quite formalised” and was not taken lightly. [17]

11. [24]

    Ms Boswell, the Local Area Manager at TLLAC in 2006, said that an injury management team met monthly, mostly to consider the cases of police officers on sick leave. If an officer had attended a traumatic event Ms Boswell or another officer would contact the person concerned and ask whether they needed the EAP or other assistance. [18] Once an officer experienced two or three traumatic incidents, he or she would be “proactively” followed up. The shift supervisor or duty officer would touch base to see if the officer was “okay” or needed the EAP or other assistance. [19] She agreed that NSW Police was obliged to ensure that when an injured officer returned to work, appropriate persons would identify hazards in the workplace that might cause further injury. [20]

A chronology

1. [25]

   The following chronological narrative is largely taken from the Primary Judgment but has been supplemented by reference to uncontroversial documentary evidence. It is convenient to set out the narrative notwithstanding that it overlaps to some extent with the primary Judge’s summary of findings set out later in this judgment. [21]

2. [26]

   On the appellant’s attestation as a Probationary Constable in 2003 she was posted to TLLAC. She remained there throughout her police service and worked in stations located at Wyong, Toukley and The Entrance. [22]

3. [27]

   Between her first day at work (when she was required to attend the scene of a suicide) and early 2004, the appellant attended a number of “traumatising” incidents, including suicides, fatal motor vehicle accidents and a domestic dispute involving a firearm. [23]

4. [28]

   For example, on 26 July 2004, the appellant was required to attend a house fire in which a child was burnt to death and which led to the death of a fire officer. The appellant said that she had been traumatised by this experience. Within a day or so she was instructed by Acting Superintendent Mitchell to attend the EAP. [24]

5. [29]

   The appellant attended a consultation with a psychologist arranged through the EAP. However, she found the consultation to be a “waste of time” and refused thereafter to return to the EAP. [25]

6. [30]

   The appellant continued her normal duties. In November 2004, she attended a cot death and was required to undress the dead baby for the police photographer. [26]

7. [31]

   On 17 May 2005, the appellant was prescribed anti-depressants by her General Practitioner, Dr Abery. [27] His clinical notes recorded that the appellant had used annual leave to take time off work because her request for stress leave had been refused. The appellant saw Dr Abery on several other occasions in May and June 2005 in connection with her feelings of stress and to discuss the medications prescribed for her. The clinical notes do not suggest that Dr Abery diagnosed PTSD.

8. [32]

   In December 2005, the appellant attended the site of a swimming pool drowning. On 11 March 2006, she had to remove the body of a man who had set fire to himself in a motor vehicle. [28] After the latter incident the appellant suffered heart palpitations and other physical symptoms. [29]

9. [33]

   On 7 April 2006, the appellant completed a six-monthly debriefing questionnaire for “pool” undercover and street level operatives. The questionnaire noted that her last debriefing had been on 30 September 2005 and that she had been deployed in three operations in the preceding six months. The appellant recorded that none of those deployments stressed or traumatised her. The appellant also said that she did not wish to be referred to assistance offered by the Police Service in relation to personal or professional matters, including the EAP and the psychology branch.

10. [34]

    On 30 April 2006, the appellant was certified by a Superintendent as competent to progress from Constable Level 3 to Constable Level 4.

11. [35]

    At some time before August 2006, the appellant asked Sergeant Trench at TLLAC to be transferred away from general duties to another area. On his advice she submitted a formal application known as a “Godfrey Report”. [30] It appears that the application was not successful.

12. [36]

    In late July or early August 2006, the appellant applied for two weeks leave. The requested leave was to commence shortly after the appellant’s marriage, which was to take place on 9 September 2006. [31]

13. [37]

    On 17 August 2006, the appellant suffered a panic attack whilst driving to work. She started having difficulty breathing and became very emotional. She was approached by Sergeant Trench who asked her if she was feeling all right. She said that she was not well. Sergeant Trench told her she needed to go home and to see her doctor. [32]

14. [38]

    The appellant consulted Dr Abery on 18 August 2006. His notes included the following: [33]

15. [39]

    On the same day, Dr Abery completed a WorkCover NSW Medical Certificate certifying that the appellant was unfit for work until 25 August 2006. The Certificate stated that:

16. [40]

    A few days later the appellant completed an Accident/Incident Notification Form for the purposes of a workers compensation claim. [34] The nature of the injury was said to be “psychological” and “stress/work related”. The date of the “incident” was recorded as 17 August 2006. Sergeant Trench was identified as a witness to the incident.

17. [41]

    On 23 August 2006, an officer within the Rehabilitation Section of the NSW Police completed a Rehabilitation Referral Form which recorded the appellant’s injury as PTSD.

18. [42]

    The appellant consulted Dr Abery again on 25 August 2006. His notes recorded no real change in the appellant’s condition. Dr Abery also observed that the appellant was embarrassed and did not want people told about her condition.

19. [43]

    Dr Abery provided further medical certificates and the appellant remained off work for the period of three weeks prior to her wedding. There was no improvement in her condition. [35] On 25 September 2006, the appellant had a further consultation with Dr Abery in which she advised him that she wished to return to work.

20. [44]

    On 25 September 2006, a rehabilitation provider, Hill Street Group, prepared a Return to Work Plan (Plan) for the appellant at the instigation of the workers compensation insurer. The Plan identified the appellant’s injury as PTSD. The Plan provided for restricted station duties for a period of two weeks and noted that the appellant’s return to full operational duties was awaiting a medical clearance from the PMO. The Plan recommended that Ms Boswell, the Local Area Manager at TLLAC, should arrange an appointment with the PMO and that the appellant should be monitored for four weeks following her return to full duties.

21. [45]

    The appellant returned to work on 26 September 2006. She found that her police weapon had been double padlocked and that she had been placed on restricted duties within the station. [36] She was advised by a senior officer that she was to have a “psych shoot” before she could obtain her appointments back. [37] This appears to be a reference to a clearance by a PMO or Police Psychologist or perhaps both.

22. [46]

    On 26 September 2006, Ms Boswell completed a Medical Officer Referral Form requesting that the appellant be referred to the PMO. The Form noted that the referral was “routine But ASAP”. A psychological assessment was also required if deemed necessary by the PMO. Ms Boswell recorded the following:

23. [47]

    The appellant completed another six monthly debriefing questionnaire on 28 September 2006. She again did not report any stress or trauma from undercover or street level operative work. She also stated that she did not wish to receive any assistance offered by NSW Police.

24. [48]

    The appellant attended the PMO, Dr Kirychenko, on 9 October 2006 in accordance with Ms Boswell’s referral. Dr Kirychenko’s report to the Rehabilitation Officer stated that the appellant had been assessed as per Ms Boswell’s referral. The report included the following: [38]

25. [49]

    On the same day the appellant had a consultation with Ms Cimino, a Police Psychologist. Ms Cimino’s report identified the reason for the consultation as:

26. [50]

    The report concluded with the following “Impressions”: [39]

27. [51]

    Dr Kirychenko wrote separately to the Rehabilitation Officer on 9 October 2006 repeating the recommendations in her report of the same date.

28. [52]

    On 12 October 2006, Dr Abery completed another WorkCover NSW Medical Certificate which noted the appellant’s diagnosis as PTSD. The Certificate stated that appellant was “apparently seen by Police Medical Officer and a Psychologist, did a psychology test, and was told that is fit for pre-injury duties”. The Certificate recorded that the appellant was fit for pre-injury duties. The form of the Medical Certificate implies that Dr Abery had not been made aware of the recommendations made by the PMO and the Police Psychologist.

29. [53]

    On 20 October 2006, the appellant returned to full duties. In response to the appellant’s request to reduce her hours of work a Chief Inspector told her that she could reduce her hours but that there was no guarantee that she could stay in her existing team. The appellant’s reason for asking for a reduction in hours was that she did not want to work on the nightshift because that was when most traumatic incidents occurred.

30. [54]

    On 10 November 2006, the Hill Street Group prepared a Rehabilitation Case Closure Report (Closure Report) which recorded the appellant’s progress since the previous report as follows:

31. [55]

    In November 2006 the appellant was interviewed by a psychologist, Mr Briggs, on behalf of the workers compensation insurer. Mr Briggs prepared a document entitled “Psychological Pre Liability Assessment – Claim Summary” dated 6 November 2006. This summary assessed the appellant as fit for pre-injury duties and suggested that the claim raised questions about her motivation and attitude to work. The report noted that Mr Briggs had been unable to contact Dr Abery. Mr Briggs did not refer to the reports of the PMO or the Police Psychologist, nor to their recommendations.

32. [56]

    Mr Briggs’ report recorded that Acting Inspector Sorenson (at the time acting as Superintendent while the Commander was on leave) was suspicious of the appellant’s claim because her stress leave coincided with her marriage and a trip overseas. Inspector Sorenson thought that the appellant’s performance had deteriorated over the previous twelve months. This coincided with her relationship with her husband, a former policeman, who had “questionable attitudes about stress claims”. Inspector Sorenson was not aware of any critical incidents that might have triggered the appellant’s emotional problems.

33. [57]

    Mr Briggs’ report also recorded that Acting Inspector Shiels, who had been the appellant’s team leader, was also suspicious of her claim in part because she had been taking “excessive sick leave”. Inspector Shiels also thought the appellant might be influenced by her husband, who had a “dubious attitude to stress claims”.

34. [58]

    A copy of Mr Briggs’ report was provided to the appellant with the names of the two police officers blacked out. Nonetheless, the appellant was able to discern their names. She became upset because she felt betrayed by senior officers with whom she thought she had a relationship of trust.

35. [59]

    On 29 November 2006, the workers compensation insurer wrote to the appellant and advised her that it was discontinuing provisional payments based on Mr Briggs’ report. The insurer wrote in similar terms to the NSW Police.

36. [60]

    On 2 February 2007, the appellant attended a fatal industrial accident. She received a standard letter offering a session with a counsellor. [40]

37. [61]

    The appellant continued working in general duties from 20 October 2006 until she became pregnant in May 2007. [41] During that period she attended a fatal accident and on another occasion had to inform parents that their child had been killed.

38. [62]

    The appellant was assigned light station duties from about May 2007 until she commenced twelve months of maternity leave in December 2007. During those two periods she was not exposed to any work-related traumatic events. [42]

39. [63]

    On 1 August 2007, the appellant was assessed by a psychiatrist, Dr Gertler, at the request of the appellant’s solicitors. Dr Gertler prepared a report stating that in his opinion the appellant was suffering from chronic PTSD which was “partially resolved” and consistent with the history she provided. Dr Gertler opined as follows: [43]

40. [64]

    On 23 May 2008, while the appellant was on maternity leave, the responsible officer at TLLAC recommended that she be promoted to the rank of Senior Constable.

41. [65]

    In an undated letter sent some time after 10 July 2008, the workers compensation insurer advised the appellant’s solicitors that “for commercial reasons” the insurer had agreed to pay weekly benefits from 18 August 2006 until 8 September 2006 without any admission of liability.

42. [66]

    On 21 November 2008, the appellant advised Central Hunter Local Area Command that she had been on paid maternity leave and annual leave and had received her last pay on 23 October 2008. She requested leave without pay until 30 January 2009 when she said she would return part-time to general duties. She hoped to be assigned to teams that did pro-active work but were not required to respond to calls over the police radio. [45] This and other similar applications made by the appellant were unsuccessful.

43. [67]

    In March 2009, the appellant attended a motor vehicle accident in which two people died. Following that incident, the appellant’s nightmares and flashbacks began to increase and became as severe as they had been in 2006. At about this time the appellant was also experiencing personal problems with her marriage and associated financial difficulties. [46]

44. [68]

    On 26 March 2009, the appellant received the standard “Critical Incident” email, as follows:

45. [69]

    In April 2009, the appellant attended a fatal motor accident in which a 17 year old girl was killed. She was required to advise the parents of the death of their child. She found this experience very distressing. [47] Shortly thereafter she received the standard Critical Incident email.

46. [70]

    On 11 May 2009, the appellant attended a suicide where the person concerned had been deceased for some time. [48] The following day the appellant once again received the standard Critical Incident email.

47. [71]

    On 22 May 2009, the HR Duty Officer at TLLAC, Chief Inspector Long, sent an email to the appellant as follows:

48. [72]

    In June 2009, the appellant attended a suicide where the deceased had been dead for some time. On 3 July 2009, the appellant attended a house fire in which an elderly man died. [49] The appellant received the standard Critical Incident letter on 6 July 2009.

49. [73]

    On 5 August 2009, the Local Area Commander wrote to Inspector Eggleton at the TLLAC requiring him to arrange for the appellant to be interviewed. The appellant was to be reminded of her responsibilities under the NSW Police Sick Leave Policy because of her sick leave history over the previous 12 months. The letter stated that inquiries had been made and no evidence had been discovered for the poor attendance record. The letter also stated that the appellant was to be invited to discuss any health issues on a confidential basis. If that occurred, the details were to be reported to Chief Inspector Long. If, however, no health issues were raised, the appellant was to be advised to produce a medical certificate in support of each leave absence for the following six months. If she did not do so, the absence would be regarded as leave without pay. The evidence does not reveal why the Local Area Commander was apparently unaware that the appellant had been diagnosed as having PTSD.

50. [74]

    On 9 September 2009, Inspector Eggleton noted that the appellant had been advised that further absences would require medical certificates and that the position would be reviewed in three months. On 14 September 2009 Acting Superintendent Long sent a letter to the appellant directing her to produce a medical certificate for all sick leave absences during the following period of three months.

51. [75]

    In early 2010, the appellant became aware that a position was available in the Exhibits Office at Wyong, away from general duties. She successfully applied for that position and commenced work there in February 2010. She also received approval to work three 12 hours shifts per week. [50]

52. [76]

    While working in the Exhibits Office the appellant experienced stress on a number of occasions. For example, she suffered stress when a nail gun used by a man who had attempted suicide was delivered to the Exhibits Office. [51]

53. [77]

    On 16 November 2010, the appellant suffered injuries in a motor vehicle accident. As a consequence, she was off work for a period of three to four months. [52] During this period the appellant attempted self-harm.

54. [78]

    Prior to returning to work the appellant applied for a transfer to the Central Hunter LAC at Cessnock. This application was rejected and she returned to work at the Wyong Exhibits Office two days per week. There was no improvement in her psychological condition and the appellant again attempted self-harm. At this point, Dr Abery certified that she was unfit for work and arranged for an urgent referral to a psychologist. In early September 2011, the appellant was referred to a consultant psychiatrist.

55. [79]

    The appellant was medically discharged from NSW Police on 7 June 2012.

Primary Judgment

1. [80]

   The primary Judge found that all witnesses who gave evidence in the proceedings did so candidly. In particular the appellant had been a witness of truth who did not embellish her account. [53]

2. [81]

   His Honour summarised his findings of fact as follows: [54]

3. [82]

   The primary Judge made the following findings on the basis of the medical evidence: [55]

4. [83]

   The primary Judge also addressed evidence given by two psychiatrists: Dr Diamond, who provided reports to the appellant’s solicitors, and Professor Tennant, who provided a report to the State’s representatives. His Honour noted that following a conclave between the two psychiatrists: [56]

5. [84]

   The primary Judge preferred Dr Diamond’s evidence to that of Professor Tennant and gave detailed reasons for reaching that conclusion. [57] In particular the primary Judge found that: [58]

6. [85]

   His Honour identified three issues that he had to determine: [59]

7. [86]

   The appellant’s Further Amended Statement of Claim (FASC) pleaded the duty of care owed by the State as follows:

8. [87]

   In reliance on the reasoning in State of New South Wales v Fahy [60] and NSW v Briggs, the State submitted to the primary Judge that the FASC was defective because it failed to formulate any general instruction that should have been given within the NSW Police in order to address the foreseeable risk of mental illness. His Honour observed, however, that this was not a case where the system of work employed by NSW Police was in issue. Moreover the State accepted that: [61]

9. [88]

   The primary Judge noted that it was not the system of work employed by TLLAC which informed the scope and content of the duty of care the State owed to the appellant. The appellant’s case was that the State had breached its duty to avoid psychiatric injury to the appellant once she had been identified as an officer at risk by failing: [62]

10. [89]

    The primary Judge explained that the breach relied on by the appellant was the State’s failure:

11. [90]

    In his Honour’s view, the reasonableness or otherwise of the State’s response had to be determined in the context of what occurred thereafter. [64] The appellant had lied to the PMO by understating her psychological problems in order to get her appointments back. She would not have gone to the EAP unless directed and there was no power to direct her to do so. [65]

12. [91]

    The primary Judge found that while working in general duties from October 2006 until May 2007 the appellant attended at least two traumatic incidents but sought no psychological assistance after each incident. [66] It was the appellant’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. [67]

13. [92]

    In May 2009, the appellant had been identified as an officer who had attended in excess of five critical incidents and she had received the email from Chief Inspector Long offering assistance for her welfare and support. The appellant had replied that she was seeking counselling outside of work. Although the appellant had made numerous appointments to a counselling service she did not attend and at no time did she advise Chief Inspector Long or anyone else at the Command that she was not in fact seeking counselling. Nor did she seek any medical treatment for her psychological problems until June 2011. [68] This was despite the fact that the appellant continued to suffer nightmares and flashbacks as a result of her exposure to traumatic incidents during 2009 and was taking sick leave in excess of her entitlements. [69]

14. [93]

    The primary Judge found that:

15. [94]

    The primary Judge did not accept the appellant’s submission that had the recommendations of the PMO and the Police Psychologist been followed, the appellant should not have been required to attend traumatic incidents following her return to duty in December 2008 and that this constituted a breach of the relevant duty of care. [74] The appellant had been certified fit to return to work by the PMO in October 2006 and thereafter she worked on general duties for a relatively short period of time before being allocated station duties as the result of her pregnancy. This was followed by maternity leave. In his Honour’s view: [75]

16. [95]

    The primary Judge distinguished State of New South Wales v Doherty, [76] in which this Court upheld a finding that the Police Service should have foreseen that an officer required to attend many crime scenes was at significant risk of psychological injury and should have maintained a high standard of monitoring. [77] The appellant had been certified fit by the PMO to return to work in October 2006. She had worked on general duties for a short time before being allocated to station duties in mid-2007 by reason of her pregnancy. She was on maternity leave throughout 2008. Therefore there was no reason during this period to implement the recommendation of the PMO or the Policy Psychologist.

17. [96]

    The primary Judge continued as follows: [78]

18. [97]

    The primary Judge concluded as follows: [79]

19. [98]

    In case he was wrong on the question of breach, the primary Judge made a finding on causation as follows: [81]

20. [99]

    As previously noted, the primary Judge made a contingent assessment of damages at $1,405,000.

Submissions

1. [100]

   The appellant’s written submissions in support of Grounds 2 and 3 in the Notice of Appeal [82] contended that the State had failed to establish a safe system of work for the appellant. She submitted that although the State had a system in place to ensure the safety of police officers, it failed to enforce the system and the primary Judge should have made a finding to that effect.

2. [101]

   Mr Jackson QC, who appeared with Mr Ower for the appellant, submitted that the primary Judge made two “fundamental assumptions that led to error”. The first was to assume that by the end of 2008, any need for monitoring, mentoring or counselling for the appellant had “long since passed”. [83] This assumption, so it was submitted, overlooked the fact that between September 2006 and December 2008 the appellant had largely been on restricted duties or leave. It also reflected the primary Judge’s failure to recognise that the PMO’s 2006 certification that the appellant was fit to return to general duties [84] was significantly qualified by his recommendations, as was the report of the Police Psychologist.

3. [102]

   The appellant’s return to general duties in 2009 “should have reignited the importance of implementing [the] recommendations [made by the PMO and the Police Psychologist]”. The State was aware of the appellant’s history of PTSD and her vulnerability to future traumatic exposure. It was therefore unreasonable to ignore the recommendations, which were not limited to any particular time frame.

4. [103]

   The second erroneous assumption made by the primary Judge was that the State had no way of knowing in 2009 and 2010 that the appellant continued to suffer a psychological reaction to her exposure to traumatic incidents. [85] This assumption overlooked the finding that the State knew from Dr Gertler’s August 2007 report that the appellant’s chronic PTSD had only partially been resolved and that she remained at risk if exposed to a full range of duties. It also overlooked that if the State had followed its own procedures, there would have been a personal discussion with the appellant in May 2009 about her difficulties. Moreover, the appellant’s response to Inspector Long’s email of 22 May 2009 showed that she was experiencing psychological difficulties requiring outside counselling. She did not say that she was free from symptoms. It was unsafe for the State to assume that the appellant’s symptoms had resolved when she resumed full duties in 2009 or that she did not continue to be at risk.

5. [104]

   Mr Jackson submitted that the primary Judge did not engage with the opinions expressed by Dr Diamond, whose evidence his Honour appeared to accept. Dr Diamond had opined that the email exchange that took place in May 2009 when the appellant recorded at least five traumatic incidents was an inadequate response to the appellant’s situation and that there should have been a meeting in person.

6. [105]

   Ground 4 of the notice of appeal contended that the primary Judge erred by failing to address several arguments put to him. Mr Jackson identified three such arguments said to constitute breaches of the State’s duty of care:

7. [106]

   Ground 5 in the notice of appeal claimed that the primary Judge erred by finding, in effect, that the appellant was responsible for managing the risk of psychological injury. Mr Jackson did not suggest that Ground 5 added anything significant to the other arguments advanced on the appellant’s behalf.

8. [107]

   Ground 6 in the notice of appeal asserted that the primary Judge erred in relying upon principles of personal privacy as a basis for rejecting the appellant’s contention that the State breached its duty of care. Mr Jackson submitted that the authorities cited by the primary Judge did not involve cases of diagnosed PTSD and were therefore distinguishable.

9. [108]

   The State’s written submissions commenced with the concessions already noted. [86] The submissions outlined in some detail the system of work that was in operation at the relevant times by reference to the evidence of Chief Inspectors Peet, Sorenson and Winmill.

10. [109]

    Ms Cheeseman contended that the system provided the context in which the reasonableness of the State’s conduct had to be assessed. The system was designed to provide ongoing support to a police officer experiencing work-related trauma. The fact that it was in place supported the primary Judge’s finding that the State had not breached its duty of care to the appellant. In particular, the existence of a system designed to address and monitor trauma suffered by police officers justified the primary Judge’s finding that the State did not breach its duty of care by requiring the appellant to attend traumatic incidents following her return to general duties in 2009. [87]

11. [110]

    Ms Cheeseman submitted that the appellant had mischaracterised the primary Judge’s reasons for finding that the State was not in breach of its duty of care. His Honour did not make assumptions but rather had made findings of fact based on the evidence. It was significant in assessing the reasonableness of the State’s conduct, so Ms Cheeseman contended, that the appellant lied to the PMO by understating her symptoms in order to get her appointments back. The primary Judge’s finding that the appellant would not have gone to the EAP unless directed was also significant [88] since it showed that she refused to take advantage of the assistance and support explicitly made available to her. This was exemplified by her failure to take up the offer made in Chief Inspector Long’s email of 22 May 2009. [89]

12. [111]

    Ms Cheeseman supported the primary Judge’s finding that the State had no way of knowing in 2009 and 2010 that the appellant continued to suffer PTSD as a consequence of her exposure to a series of traumatic incidents. The State’s response during this period was reasonable taking into account that the appellant failed to disclose the true extent of her psychological issues despite numerous opportunities to do so.

13. [112]

    The State’s submissions acknowledged that the primary Judge’s summary of the appellant’s case did not explicitly refer to the three arguments said by the appellant to have been overlooked. Ms Cheeseman contended, however, that on a fair reading of the Primary Judgment, his Honour did address each argument, either implicitly or explicitly. Thus the primary Judge’s finding that it was the appellant’s own decision to return to full-time duties in 2009 implicitly rejected the submission that Dr Gertler’s report should have led the State to ensure that the appellant worked in a “more controlled environment”. His Honour’s finding that the State did not know of the appellant’s PTSD in 2009 was inconsistent with her contention that she should have been psychologically evaluated before resuming full-time duties. The finding that any meeting with the appellant would have provoked no further disclosure of her problems should be understood as addressing Dr Diamond’s opinion that the State had failed to make appropriate inquiries about the appellant’s state of health upon her return to work in 2009.

14. [113]

    The State’s submissions maintained that the primary Judge was correct to take into account the need to protect a police officer’s privacy and autonomy in determining whether the State’s response to the appellant’s exposure to trauma was unreasonable. The State relied heavily on the judgments of Keane JA in Hegarty v Queensland Ambulance Service [90] and Leeming JA in NSW v Briggs to support its argument.

Reasoning

1. [114]

   Personal injury claims by employees who allege that they have suffered psychological injury by reason of their employer’s breach of duty present particular difficulties. In Hegarty Keane JA observed that: [91]

2. [115]

   The difficulties are exacerbated when claimants, such as police officers, have responsibilities that necessarily expose them to the risk of psychological injury. In NSW v Fahy, a case involving a claim by a police officer who suffered PTSD in consequence of exposure to a single traumatic incident, Gummow and Hayne JJ noted that: [92]

3. [116]

   The authorities have accepted that care must be taken before concluding that an employer is duty bound to take positive measures to ascertain whether an individual officer exposed to stress or trauma has suffered psychological injury. Keane JA in Hegarty explained the difficulties in the context of a claim by an ambulance officer who maintained that his employer should have intervened to determine whether he was showing signs of mental deterioration: [93]

4. [117]

   Claims by police officers founded on a breach of the State’s duty of care must also be assessed having regard to the officers’ statutory duty to obey and carry out lawful orders. Thus in determining whether the State has failed to respond reasonably to situations in which police officers are exposed to the risk of psychological injury, regard must be had to the responsibilities imposed on the NSW Police and on individual police officers. Obedience to lawful orders and the carrying out of lawful duties may be of “primary and determinative significance” when considering whether the State has breached its duty of care. [94]

5. [118]

   Ms Cheeseman relied in particular on the warning given by Leeming JA in NSW v Briggs: [95]

6. [119]

   The context in which this warning was given is important. The plaintiff in NSW v Briggs alleged (relevantly) that the State breached its duty of care by failing to ensure that his psychological health was regularly reviewed. One difficulty with this claim was that the system postulated on the plaintiff’s behalf would have had to apply to all general duties police officers. Leeming JA considered that the plaintiff had not formulated an appropriate instruction that would have enabled senior officers to identify police officers who had sustained psychological injury. [96]

7. [120]

   Another difficulty facing the plaintiff in NSW v Briggs was that he was unaware while serving as a police officer that he had actually suffered psychological injury. [97] That fact was also unknown to the State. Leeming JA considered that any system designed to detect whether front line police officers were suffering undiagnosed psychological injuries would inevitably raise issues of privacy and individual autonomy. However, his Honour also recognised that: [98]

8. [121]

   The issues raised in the present case are very different from those considered in NSW v Briggs, Hergarty and NSW v Fahy. As the primary Judge recognised [99] and the appellant’s submissions emphasised, her case is not that the State failed to devise a safe system of work. She relies on the principle stated by the plurality in McLean v Tedman: [100]

9. [122]

   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. [101] 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.

10. [123]

    The appellant relied principally on two particular failures by the State to implement the system in place. Both are said to have occurred at a time when the State was aware, through medical and psychological reports and the appellant’s workers compensation claims that she had actually sustained PTSD as a result of exposure to work-related trauma.

11. [124]

    First the appellant relied on the State’s failure to act on the recommendations made in October 2006 by the PMO and the Police Psychologist. That failure resulted in the appellant being returned to general duties for a period during which she experienced further traumatic incidents without the training, counselling and support that had been recommended. The second alleged failure was the inadequate response to the notification in the register in May 2009 that the appellant had experienced at least five traumatic incidents within a relatively short period. That response, so it was argued, was manifestly inadequate, particularly having regard to the information available concerning the appellant’s vulnerability to trauma.

12. [125]

    Consistently with the observations of Leeming JA in NSW v Briggs, the appellant’s claim that the State breached its duty of care does not raise the fraught issues of privacy and autonomy that were present in that case and other authorities. The appellant’s case essentially raises factual issues, in particular whether the primary Judge correctly found that the State’s response, or lack of response, to the recommendations of the PMO and Police Psychologist and to the notification of five traumatic incidents was not unreasonable.

13. [126]

    In addressing these issues the parties’ respective submissions diverged and to some extent passed each other. The State devoted considerable attention to explaining the procedures and support mechanisms designed to address and monitor the risks to police officers exposed to traumatic incidents. This aspect of the submissions reflected Ground 1 of the State’s notice of contention, which sought to uphold the primary Judge’s decision on the basis that the systems the State had in force were a reasonable response to the risk that the appellant and other police officers would suffer psychiatric injury. But as has been seen, the appellant’s submissions did not dispute that the system that had been put in place was reasonable. Her submissions were directed to a different point.

14. [127]

    Ms Cheeseman justified the emphasis on the system of work on the ground that it provides the “context” for assessing whether the State’s responses to the facts known about the appellant’s psychological condition and the recommendations made in relation to it, were unreasonable. If that submission was intended to convey that it is important to understand what procedures were in place to address the risks associated with the exposure of police officers to traumatic events, the submission can be readily accepted. But the fact that reasonable procedures were in place does not necessarily answer the appellant’s case.

15. [128]

    In determining whether the primary Judge erred in rejecting the appellant’s case, the matters not disputed by the State are significant. As has been noted, [102] the State accepted that it was under a duty to identify officers whose duties exposed them to the risk of psychological harm and that its duty included taking steps to ensure that any such officers received appropriate treatment and support. Except for Ground 2 of the notice of contention, the State did not dispute any of the primary Judge’s findings of fact or ask for further findings. In particular, the State did not dispute that it failed to implement the recommendations made by the PMO and the Police Psychologist in October 2006 and that there had been no face to face meeting with the appellant following the May 2009 notification of five Critical Incidents. [103] The State did not challenge the primary Judge’s finding that the appellant’s PTSD was causally related to her exposure to traumatic incidents and did not raise any other issue of causation.

16. [129]

    Whether the State’s responses to the matters brought to its attention involved a breach of duty must be assessed by reference to the circumstances that were known or should have been known to it. The referral of the appellant to the PMO and Police Psychologist by the Rehabilitation Officer occurred on 26 September 2006. At that point the appellant had just returned to work after a period of sick leave (taken together with a period of pre-arranged annual leave). The State was aware that the appellant had suffered an episode on 17 August 2006 requiring intervention and that Dr Abery had subsequently certified that she was suffering from PTSD as a result of an emotional reaction to traumatic work-related events. On 23 August 2006 a Rehabilitation Officer had completed a Rehabilitation Referral form stating that the appellant was suffering from PTSD.

17. [130]

    When the appellant first returned to work she was subject to restrictions imposed by reason of her psychological condition, including a denial of access to firearms. The primary Judge found that “[f]ollowing clearance from the PMO, [the appellant] returned to full operational duties on 10 October 2006”. [104] But as the State knew, the PMO’s clearance for the appellant to return to full duties was heavily qualified. Dr Kirychenko’s report correctly anticipated that the appellant was likely to be exposed to further traumatic incidents if she returned to general duties and recommended that she be given psychological counselling to teach her to deal with both past and future traumatic events. Dr Kirychenko also recommended that a mutually acceptable officer should be appointed to mentor the appellant and to monitor her welfare (not simply to have a one-off chat or discussion). The recommendations of the Police Psychologist (Ms Cimino) were similar, focusing on protective strategies and close monitoring to help the appellant manage stress induced by exposure to trauma.

18. [131]

    There is nothing in the evidence to suggest that the recommendations were not implemented because senior officers made a considered judgment that intervention was not necessary. It may have been thought that the return to work plan devised by Hill Street Group was enough or perhaps the view was taken that the onus was on the appellant herself to initiate action. Whatever the reasons, the recommendations 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.

19. [132]

    In any event, the evidence of Chief Inspector Peet and Ms Boswell, referred to earlier, [105] supports the conclusion that the State’s response was unreasonable and that it breached its duty of care. Chief Inspector Peet was asked what procedure he would have adopted if the appellant had discussed with him the emotional trauma she was suffering arising out of her work. He answered as follows: [106]

20. [133]

    Chief Inspector Sorenson, who did not have the PMO’s report when he expressed suspicions to Mr Briggs about the appellant’s workers compensation claim, [107] said that if he had known about Dr Kirychenko’s recommendations he would have spoken to the appellant and suggested that she take up the recommendations, first with the EAP and then through the Psychology Branch. [108] Chief Inspector Sorenson stated that the Command was responsible for referring the appellant back to the PMO and Policy Psychologist if any changes occurred in her condition. [109]

21. [134]

    Chief Inspector Winmill’s evidence was to the same effect. The primary Judge recorded that: [110]

22. [135]

    The primary Judge referred to the evidence of the senior police officers in his detailed account of the facts, but considered that the State’s lack of response to the recommendations of the PMO and the Police Psychologist had to be determined in the “context” of what occurred thereafter. [111] It is not apparent, however, why anything that the appellant did after she returned to general duties bears on whether the State breached its duty of care by failing to act on the recommendations of the PMO and the Police Psychologist. The failure to act meant that the appellant was exposed to further traumatic incidents and to the risk that her condition would worsen.

23. [136]

    The appellant’s conduct might have been relevant to other issues, such as the causal relationship between the State’s breach of duty and any continuation or exacerbation of her psychological condition. But her conduct could not alter the significance of the State’s contravention of its own system of work and its failure to act on the very recommendations it had solicited. For example, it is difficult to see why the appellant’s reluctance to seek out or take advantage of sources of assistance between October 2006 and May 2007, in the absence of any monitoring or counselling, should detract from a finding that the State breached its duty of care. It is also to be remembered that the primary Judge accepted that many police officers felt that there was a stigma attached to those officers who disclosed mental health problems. The State knew or should have known that police officers would be inhibited by reason of the perceived stigma.

24. [137]

    Two further points should be noted. First, the primary Judge attributed some significance to the fact (as he found) that the appellant lied to the PMO by understating the extent of her psychological problems. [112] Yet the PMO still recommended monitoring and mentoring, as well as psychological counselling. Presumably if the appellant had disclosed the true extent of her difficulties to the PMO, her recommendations would have been couched in even stronger terms. It may be true, as the primary Judge found, [113] that in 2006 the State was not aware of the full extent of the appellant’s psychological condition. But it knew more than enough to appreciate that action was required to prevent the risk of further harm to the appellant materialising.

25. [138]

    Secondly, the primary Judge found that the appellant would not have gone to the EAP for assistance in late 2006 or early 2007 and that there was no power to direct her to do so. [114] Ms Cheeseman submitted that the State was unaware of the reasons why the appellant did not want to use the EAP. This submission seems to imply that in the absence of an explanation by the appellant, senior officers could assume that the appellant would reject any form of counselling. In fact the appellant had explained to the Police Psychologist, that she did not find her contact with the EAP beneficial. Ms Cimino’s report incorporating that explanation was available to senior police officers. The appellant’s reluctance to return to the unhelpful EAP (as she saw it) did not mean that she would necessarily reject all forms of counselling or other forms of intervention designed to minimise the risks to her mental health.

26. [139]

    It is also not clear that the primary Judge was correct to conclude that there was no power to direct a police officer to attend counselling, whether at the EAP or elsewhere. At the material times the Commissioner had the power to direct a police officer to undergo a health assessment in accordance with the relevant regulations in the same way as if the person were being considered for appointment to an officer’s position in the public service. [115] While the scope of this power was not explored in argument it would seem to be broad enough to include a direction to undergo an assessment of psychological health. [116] The exercise of the power in the circumstances of this case, where it was known that the appellant was suffering from PTSD, would not have given rise to the same issues of privacy and autonomy as arose in cases like NSW v Briggs.

27. [140]

    The appellant returned to work in early 2009 after a period of leave of approximately 13 months. During the six months prior to her commencing the period of leave she had been assigned to station duties. Prior to resuming work in 2009, she requested an assignment that did not involve responding to radio calls but her request was not approved.

28. [141]

    Between March and May 2009, the appellant attended at least three critical incidents. After each she received the standard form email offering a voluntary debriefing, but nothing more. Given that the primary Judge found that from the appellant’s perspective and that of other low-ranked officers in the Police Force there was a stigma attached to mental problems, [117] it is hardly surprising that an impersonal standard form email elicited no response.

29. [142]

    On 22 May 2009, Chief Inspector Long emailed the appellant because she had been identified as having attended “in excess of 5 critical incidents while working at Tuggerah Lakes LAC”. [118] The letter offered assistance and invited the appellant to see Chief Inspector Long for a “chat”. The appellant responded, “I am seeking counselling outside of work”. That response did not state that the appellant had received counselling. It said that she was seeking counselling, but the response did implicitly acknowledge that the appellant needed counselling. It appears that there was no follow up by Chief Inspector Long, except for a further email, and no real effort to arrange a face to face meeting with the appellant.

30. [143]

    Over the next two months, the appellant attended two further critical incidents. 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.

31. [144]

    Ms Cheeseman accepted in oral argument that each of the three Chief Inspectors who gave evidence agreed that when the Register recorded that an officer had been exposed to five traumatic incidents within twelve months a face to face meeting with the officer should have taken place. Chief Inspector Peet said that in such a case in addition to an onsite response from a counsellor, he would telephone the officer personally to check on his or her welfare. Chief Inspector Sorenson said that exposure to five or more incidents would be a “red flag” and that his response would be to sit down with the officer personally to discuss the situation. Chief Inspector Winmill said that an email offering assistance would only be one response and that the appropriate course was actually to meet the officer concerned. The perfunctory response to the “red flag” raised in the appellant’s case clearly did not conform to the approach experienced senior officers considered appropriate if the Critical Incidents Register was to achieve its objective.

32. [145]

    The primary Judge justified on two grounds the State’s failure to respond more actively to the accumulation of Critical Incidents. [119] First, by the end of 2008, any need for monitoring, mentoring or counselling for the appellant “had long since passed”. [120] Secondly, the appellant did not disclose to the State the nature and extent of her psychological condition.

33. [146]

    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.

34. [147]

    The primary Judge cited the comment in Dr Gertler’s report of 2 August 2007 that the appellant’s symptoms were “slowly diminishing”. But at that stage the appellant had been transferred to station duties because of her pregnancy, a transfer noted and approved of by Dr Gertler. More importantly, Dr Gertler specifically warned that the appellant would remain at risk of a worsening of her symptomology if exposed to her previous full range of duties. [121] 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.

35. [148]

    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 any event the primary Judge’s finding goes to the question of causation which the State does not raise, rather than whether the State breached its duty of care.

Dr Diamond

1. [149]

   The primary Judge analysed the evidence given by Dr Diamond in considerable detail. Despite expressing a preference for Dr Diamond’s evidence over that of Professor Tennant, his Honour did not refer to Dr Diamond’s evidence when considering whether the State had breached its duty of care to the appellant. [122] That evidence provides strong support for the appellant’s case.

2. [150]

   Dr Diamond prepared a detailed report on 5 July 2015 following an interview with the appellant lasting three hours fifteen minutes. The report canvassed many issues, and included the following observations:

3. [151]

   The primary Judge appears to have accepted this evidence. His Honour recorded without adverse comment Dr Diamond’s opinion that the appellant: [123]

4. [152]

   The primary Judge also recorded the following exchange during Dr Diamond’s oral evidence: [124]

5. [153]

   In his cross-examination Dr Diamond elaborated on points made in his written reports:

6. [154]

   Dr Diamond also explained why the State’s response to the incident report in May 2009 was inadequate:

7. [155]

   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.

8. [156]

   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.

9. [157]

   In my opinion it is not necessary to address separately Ground 4 of the notice of appeal. There are a number of actions the State could have taken to address the obvious risks to which the appellant was exposed. The two principal claims relied on by the appellant have been made out. Since no issue of causation arises there is no occasion to consider whether the State breached its duty of care in other respects.

10. [158]

    Ground 1 of the notice of contention has been addressed in the course of considering whether the primary Judge should have found that the State breached its duty of care. Ground 2 seeks a finding that in a conversation with Chief Inspector Sorenson on 5 October 2006 the appellant stated that she was not really sick, but just tired of general duties.

11. [159]

    Mr Briggs recorded this conversation in his report which questioned the genuineness of the appellant’s claimed psychological disorder. The information recorded by Mr Briggs was presumably provided by Chief Inspector Sorenson to Mr Briggs. The report was tendered and admitted into evidence. The appellant was not asked any questions about the conversation either in examination in chief or in cross-examination. Chief Inspector Sorenson’s attention was directed in cross-examination to Mr Briggs’ report but he too was not asked about the conversation. Consequently he did not give his own account of the exchange recorded in Mr Brigg’s report.

12. [160]

    It is not surprising that the primary Judge did not make a specific finding about the conversation. Chief Inspector Sorenson did not give first hand evidence of it and the conversation was not put to the appellant. The only evidence was a second hand account in a report hostile to the appellant’s claims that she was suffering from PTSD.

13. [161]

    In any event, whether the conversation recorded by Mr Briggs did or did not take place has little bearing on the issue of breach of duty. The State’s written submissions cited the conversation as “another manifestation of [the appellant’s] concealment of her emotional difficulties”. There is no real dispute that she was not forthcoming to senior officers about her psychological condition, a reluctance that no doubt contributed to Mr Briggs’ unjustified suspicions about her genuineness. Once the State received the reports of the PMO and the Police Psychologist there could be no doubt that the appellant was suffering from PTSD and was at risk of a deterioration in her condition (or at least an inability to recover) if she was exposed to further trauma without receiving the recommended support and assistance to enable her to cope.

14. [162]

    As the primary Judge found, the appellant’s reluctance to reveal the true extent of her difficulties was in part due to the stigma many police officers felt was attached to mental illness. As Dr Diamond explained, the appellant’s reluctance was also due to the appellant’s desire to avoid being identified as someone with a psychiatric illness, a phenomenon common among those suffering from PTSD.

15. [163]

    In my opinion the primary Judge did not err by not making a finding concerning the conversation between the appellant and Chief Inspector Sorenson. In any event, the conversation has little bearing on the issue of the State’s breach of duty.

Contributory negligence

1. [164]

   As the primary Judge recorded, [125] the State pleaded that the appellant’s psychological condition was caused or contributed to by her own negligence. The particulars to this plea were as follows:

2. [165]

   The primary Judge rejected the appellant’s case based on breach of duty and therefore did not need to consider contributory negligence. [126] Had he done so he would have received little assistance from the State’s submissions since contributory negligence was barely mentioned at the trial.

3. [166]

   The State’s written submissions on the appeal did not address the issue, beyond indicating that if the appeal succeeded it would be necessary to remit the proceedings to the primary Judge to determine whether the appellant had been contributorily negligent. In the course of oral argument, however, both parties agreed that this Court should deal with the question rather than remitting it to the primary Judge. Each party was given leave to make further written submissions on contributory negligence.

4. [167]

   In its written submissions the State relied on the failure of the appellant prior to 2006 to disclose to the State that she was suffering mental health problems which had caused Dr Abery to prescribe anti-depressants as early as May 2005. The State also relied on the appellant’s failure to take advantage of the opportunities to seek counselling and support, for example when she completed the six-monthly debriefing questionnaires and when she refused to contemplate returning to the EAP after her unsatisfactory experience with that service. The State further submitted that the appellant’s lack of candour about the degree of distress she was experiencing justified a reduction in the aware of damages.

5. [168]

   There are a number of difficulties with these submissions. As the appellant’s written submissions pointed out, prior to August 2006 the appellant had not been diagnosed with PTSD. She could hardly be said to have failed to take reasonable care for her own safety by volunteering to her employer that she was suffering from depression and anxiety. When she was diagnosed in May 2005, for example, she had recently experienced a relationship breakdown, a matter recorded by Dr Abery as being related to her psychological state at that time.

6. [169]

   The appellant explained her reluctance to attend the EAP on the ground that she felt worse after attending a session with a counsellor. The primary Judge accepted her evidence on this point. [127] Other witnesses gave evidence that they had much the same experience with the EAP. [128] Whether the appellant did or did not misjudge the quality of the service offered by the EAP is not to the point. 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. As has been noted, the appellant informed Ms Cimino that she had not found the contact with the EAP to be beneficial and the State was aware of Ms Cimino’s report.

7. [170]

   From October 2006 the State was aware that the appellant was suffering PTSD and that she was at risk if exposed to further trauma, at least without the support and assistance recommended by the PMO and the Police Psychologist. The State did not need the appellant to tell her superiors of these facts. Moreover, she had disclosed her distress to Sergeant Trench in August 2006.

8. [171]

   By November 2006, the appellant became aware of the Briggs report and of the fact that two senior officers (Acting Superintendent Sorenson and Acting Inspector Shiels) 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).

9. [172]

   Most importantly, as the primary Judge evidently accepted, an element of the appellant’s PTSD was “a very strong manifestation of avoidant behaviour”. [129] As Dr Diamond explained: [130]

10. [173]

    In my view no finding of contributory negligence should be made.

Orders

1. [174]

   The appellant’s notice of appeal seeks orders setting aside the judgment of the District Court and substituting a verdict for the appellant in the sum of $1,405,000. [131] However, as Mr Jackson acknowledged, s 151A(1)(b) of the Workers Compensation Act requires the amount of weekly payments of compensation already paid in respect of the appellant’s injury to be deducted from the award of damages. That amount is to be paid to the person who paid the compensation.

2. [175]

   Subject to s 151A(1)(b) of the Workers Compensation Act, the appellant is entitled to judgment in the sum of $1,405,000. The parties will need to calculate the amount which is to be deducted from the judgment and paid to the party which has paid weekly compensation to the appellant. The parties will also need to calculate the amount of interest payable by the State to the appellant pursuant to s 151M of the Workers Compensation Act.

3. [176]

   The following orders should be made:

4. [177]

   If the parties cannot agree on the calculations they should inform the Court in writing, identifying the points of difference. The Court will then determine whether further written submissions are required or whether the matter should be remitted to the District Court to resolve the outstanding issues.

5. [178]

   SIMPSON AJA: I agree with Sackville AJA and also with the additional observations of Payne JA.