It is readily foreseeable that a first responder may suffer psychiatric injury as a result of performing that work;
A compelling case is required before the psychological well-being of an employee is subjected to scrutiny by an employer;
Extent of employer's duty to first responder employee is greater because of the officers’ statutory duty to obey and carry out orders;
Concealing the existence of the condition is a phenomenon common among those suffering from PTSD;
A case of failure to observe an established system, is easier to succeed on than a case of failure to design and implement a system;
Psych report provided in workers comp process is deemed to give notice to the employer of its content including ongoing serious symptoms.
An appeal court has cleared a major injury compensation payment to a crack-hardy police constable whose superiors neglected to monitor her known PTSD condition during the four years after a return-to-work medical made the monitoring recommendation.
Constable Melanie Sills had joined the force in May 2003 at age 26. When her GP diagnosed the condition in August 2006, she took time off on annual leave. On the recommendation of her commanding officer, she then filed for workers comp.
She received a qualified “full duties” approval from the NSW police medical team in October 2006, after just a 5 week absence and no additional treatment.
In February 2011 she was certified unfit for work.
Melanie’s lawsuit against the state of NSW – only begun in 2016 – conceded as good, the system for identifying officers involved in horrific events and the support that was offered.
Judge Phillip Mahoney upheld her argument that – despite the very good systems in place – NSW police had been negligent in failing to provide the close mentoring and monitoring that was recommended in October 2006.
He went on though, to conclude that by at least by 2008, “any need for monitoring, mentoring or counselling had long since passed” and for that reason such neglect was not a breach of the duty of care that was owed to her.
After all – reasoned the judge – she had for long periods avoided exposure to traumatic events by being rostered for station duties and before she was medicaled out, had enjoyed long periods of leave for a pregnancy and other things.
The plaintiff conceded to the District Court having disguised her medical condition when on duty and that she did not report any “stress or trauma” – as she was required to do – in her 6 monthly debriefing questionnaires.
The constable had also refused after 2006, to participate in further psych debriefings – branding the only one she ever attended “a waste of time” – because the psychologist appeared only to be interested in the gruesome details, rather than giving her help.
“Having regard to that history,” wrote the judge after a 13 day hearing, “I find that it was a reasonable response throughout that period for the [State] to do nothing in relation to the … the recommendations made by the PMO and the police psychologist in 2006. I therefore find that the [plaintiff] has failed to establish a breach of the duty of care owed to her”.
He concluded that NSW police “had no way of knowing in 2009 and 2010 that she continued to suffer a psychological reaction to her exposure to traumatic incidents”.
On what grounds then did the appeal judges reverse that ruling?
It wasn’t contested that by being present at more than her fair share of horrid happenings, Melanie’s condition was chronic.
Three burnt bodies – “a suicide where a guy burnt himself in a car” and one “where a little 3-yr-old boy and a fireman died” – recurred frequently in nightmares and flashbacks.
A “bad run of deceaseds” including several horrific highway accidents – that required her to then inform family with the shrilling news – escalated her mental deterioration.
Even in the two month period after returning to general duties from maternity leave in February 2009, she confronted four more bloody bodies as a first responder.
Secondly, suspicions of malingering harboured by the insurer-commissioned psychologist (Mr Briggs) – based on “stress leave coinciding with her marriage and a trip overseas”, “excessive sick leave” and “deteriorating performance” – were entirely unjustified.
Third, Melanie’s decision to keep her condition “a secret” because of “the stigmatisation she perceived in the force to psychological injuries” – was foreseeable. It was also “a phenomenon common among those suffering from PTSD”. Having discovered that two of her superiors had concurred with Mr Briggs’ suspicions as to her genuineness, “not surprisingly she did not trust them to discuss her psychological problems”.
On this basis her untruthful response to a superior’s email – that “I am seeking counselling outside of work” – not only could be excused but served to inform her employer that she was at that point, not symptom free.
Fourth, when still more gruesome incidents prompted another “red-flag” in May 2009, she was offered counselling and support only by email, when according to the at-risk personnel protocol, an in-person interview should have been “proactively” sought.
Fifth, a psychiatric report provided in August 2007 in connection with Melanie’s workers comp claim, had the effect of alerting the employer to her chronic condition and the ongoing risk she faced if exposed to further traumatic incidents.
Sixth, the monitoring and mentoring recommendations made by the psychologist and police medical officer in 2006, were not time-limited.
Justice Ronald Sackville – in delivering the lead judgement – recognised “that a compelling case is required before the private affairs of an employee are subjected to scrutiny by an employer”. Equally though, the extent of the force’s duty to intervene in an employee’s psychological welfare “must also be assessed having regard to the officers’ statutory duty to obey and carry out lawful orders”.
Because this the plaintiff’s case asserted a ‘failure to observe’ an established system, rather than a ‘failure to implement’ a system, his honour concluded that the department had been negligent by returning her to general duties in 2006 without implementing the medical and psychological recommendations. It was also negligent again in 2009 by failing to intervene after the further “red flag” had been raised.
It was clear in his view that such neglect was responsible for the worsened mental condition for which Melanie sued and as a result she was entitled to the $1.4 million in damages less any weekly compensation that had already been paid. Read case
Sills v State of New South Wales  NSWCA 4; Payne JA, Sackville AJA, Simpson AJA, 7 February 2019