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Written by Peter Carter

March 24, 2022

An appeal court has upped the damages police must pay an officer for deploying her back to general duties after the onset of multiple non-work related traumas where there was a failure to review mental health.

Kristen Skinner completed training at the Goulburn Police Academy in October 1994.

Over a 6-year period, she attended as a first responder to three suicides, a fatal motor vehicle accident and the discovery of a heavily decomposed body hanging from a tree.

On another occasion, she was in a police vehicle that was approached by a man firing a rifle.

In 2003 she took up the position of manager – involving mainly clerical duties – at the police station at Morisset at Lake Macquarie.

Following a back injury in 2006, she was placed on restricted duties. At around the same time she faced numerous personal stressors – a troubled relationship with her boyfriend and the dual diagnoses of cancer of her sister and father – that caused “mental fragility”.

Her father died in February 2007 and she reported symptoms of depression from all of these issues at a self-initiated Employee Assistance Program (EAP) counselling session in May 2007.

An officer in Ms Skinner’s own team committed suicide in June 2007 by hanging himself at home. Another friend and colleague suicided two months later.

Post-suicide counselling initiated by the force was not directed specifically to her circumstances and no report as to her fragile mental condition at that time was received by her commanding officer.

Officer Skinner experienced conflicts with fellow officers and superiors between 2007 and 2008 including in relation to a transfer to general duties at nearby Toronto, a prospect she dreaded in part due to the presence there of a particular officer with whom there was a history of antagonism.

In January 2008, she sought to join the mounted division for which she underwent a job suitability assessment – absent any thorough review of her mental health – by police psychologist Diane Hanna without disclosing any difficulties experienced on return to general duties or any symptoms of depression.

In 2010, the officer was discharged on medical grounds for worsening depression.

Her lawsuit against the State of NSW that was eventually filed in 2017  alleged NSW Police breached its duty of care as employer by failing to conduct thorough mental health assessment in May 2007 in advance of her transfer back to general duties and for failing to provide adequate support for her psychiatric conditions.

In March 2021 Judge Alister Abadee in the NSW District Court upheld the claim – insofar as it related to major depression, but not in respect of her PTSD –  and awarded her damages of $743,780.

In arriving at that figure, the judge reduced the damages that would have applied had her entire psychological deficit been her employer’s responsibility – by 40% – to reflect the “real chance” that her earning capacity would have been adversely impacted in any event by other conditions including her PTSD for which the police force was not liable for failing to detect.

He also held Skinner to have been contributorily negligent to the extent of 10% for having failed to report her condition to Ms Hanna during the 2008 mounted division intake assessment.

Judge Abadee identified NSW Police’s duty as requiring it to “identify officers who, through the performance of their duties, were at risk of suffering, or were suffering, psychiatric or psychological harm” and to “ensure any officer so identified received appropriate treatment and support”.

Such duty extended – so ruled the judge – to the identification of hazards associated the injured worker’s return to duty and the assessment of the risks of further injury posed by a return to duty.

The State appealed the finding of liability and Ms Skinner cross-appealed against the findings that the force’s failings did not cause her PTSD.

In delivering the lead judgment, Justice John Basten upheld Judge Abadee’s articulation of the force’s duty to its employees.

He also affirmed the ruling that NSW Police had breached its duty of care to Ms Skinner by failing to conduct a thorough mental health assessment after May 2007 that would have alerted her superiors as to the seriousness of her depression.

Her commanding officer “knew, or should have known, about Ms Skinner’s depressive condition” at that time but failed to provide her adequate psychological assistance and did not obtain any reports about Ms Skinner’s mental condition from the police psychologist or the EAP counsellors.

Moreover, further investigation should have been prompted by the officer’s “strong resistance to resuming general duties” in 2007-2008 and the transfer to Toronto.

His Honour also observed that – because traumatic exposure is almost unavoidable when performing general duties – an officer already suffering from a depressive condition will foreseeably sustain further psychological harm by that deployment.

The appeal judges concluded that the employer’s conduct of exacerbating – or failing to ameliorate – her existing condition was sufficient to establish the requisite ‘causation’.

They concurred with the trial judge’s view that her PTSD would not have been diagnosed even had a full work-up been performed in May 2007 and hence her employer was entitled to the discount on damages that had been applied in the lower court.

They did however reject his conclusion that Ms Skinner had been contributorily negligent in failing to mention her depressive condition to Hanna on the basis that it was Hanna who should have done the enquiring about whether the officer had mental health symptoms given the latter’s failure to answer a question in relation to same on the interview form.

The appeal court dismissed the appeal by the State of NSW and increased Ms Skinner’s award to $857,948.

State of New South Wales v Skinner [2022] NSWCA 9 Basten JA Brereton JA McCallum JA, 8 February 2022 Read case

Categories: First Responders , psychological injury

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