Sills v State of New South Wales

[2019] NSWCA 4

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Sills v State of New South Wales [2019] NSWCA 4
Hearing dates:	13 November 2018
Decision date:	07 February 2019
Before:	Payne JA at [1]; Sackville AJA at [6]; Simpson AJA at [178]
Decision:	1.   Appeal allowed. 2.    Set aside Order 1 and 2 made by the primary Judge on 10 May 2018. 3.   Direct the parties to file and serve within fourteen days agreed calculations of: • the amount for which judgment should be entered for the appellant having regard to s 151A(1)(b) of the Workers Compensation Act; •   the amount which is to be paid to the party which has paid weekly compensation to the appellant; • the amount of interest payable by the State to the appellant pursuant to s 151M of the Workers Compensation Act 1987 (NSW); and •   short minutes of order giving effect to the calculations referred to above. 4.   Order the State to pay the appellant’s costs of the proceedings in the District Court. 5.   Order the State to pay the appellant’s costs of the appeal.
Catchwords:	TORTS – action by a former police officer against the State pursuant to the Crime Proceedings Act 1988 (NSW) – alleged breach of non-delegable duty to take reasonable care to prevent psychological injury – satisfactory procedures in place to identify officers at risk of post-traumatic stress – whether the New South Wales Police breached its duty of care to the police officer by failing to implement the system for detecting and addressing psychological injury – whether failure to act on recommendations by a Police Medical Officer and Police Psychologist constituted a breach of duty – whether the New South Wales Police were entitled to assume that the appellant’s psychological problems had resolved on her return to work.   CONTRIBUTORY NEGLIGENCE – whether appellant’s own conduct contributed to her psychological injury – whether her conduct was the product of the breach of duty.
Legislation Cited:	Civil Liability Act 2002 (NSW) Crown Proceedings Act 1988 (NSW) s 5 District Court Act 1973 (NSW), s 127 Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8 Public Sector Employment and Management Act 2002 (NSW) Workers Compensation Act 1987 (NSW), Part 5 Police Regulation 2000 cl 11 Police Regulation 2008 cl 11 Public Sector Employment and Management (General) Regulation 1996 reg 6 Public Sector Employment and Management Regulation 2009, cl 4
Cases Cited:	Hegarty v Queensland Ambulance Service [2007] QCA 366; [2007] Aust Torts Rep 81-919 McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60 New South Wales v Doherty [2011] NSWCA 225 Sills v State of New South Wales [2018] NSWDC 119 State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 State of New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20
Category:	Principal judgment
Parties:	Melanie Sills (Appellant) State of New South Wales (Respondent)
Representation:	Counsel: DF Jackson QC / TM Ower (Appellant) EA Cheeseman SC / DE Baran (Respondent)   Solicitors: Cardillo Gray Partners (Appellant) Hunt & Hunt Lawyers (Respondent)
File Number(s):	2018/177130
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2018] NSWDC 119 Date of Decision: 10 May 2018 Before: Mahony SC DCJ File Number(s): 2016/151328

HEADNOTE

[This headnote is not to be read as part of the decision]

The appellant, a former general duties officer with the New South Wales Police Force (NSW Police), alleged that in her service as a police officer between May 2003 and June 2012, she was exposed to numerous traumatic incidents, and as a result suffered a psychological and/or psychiatric injury.

The appellant sued the respondent (the State) in the District Court, pursuant to section 5 of the Crown Proceedings Act 1988. The appellant sought damages, pleading that the State owed her a non-delegable duty of care to avoid exposing her to a foreseeable risk of injury, including the risk of psychiatric or psychological harm.

The primary Judge found that a Police Medical Officer (PMO) and a Police Psychologist had recommended that the appellant be provided with psychological counselling and other assistance to enable her to cope with the consequences of experiencing trauma but had failed to implement the recommendations. Nonetheless his Honour found that it was not unreasonable for the NSW Police to do nothing to implement the recommendations.

The primary Judge entered a verdict for the State. To allow for the possibility of a successful appeal, his Honour assessed damages at $1,405,000.

The appellant appealed as of right to the Court of Appeal.

Allowing the appeal, Sackville AJA (Payne JA and Simpson AJA agreeing), held:

(i) Since the appellant accepted that the NSW had an adequate system in place to identify and assist officers at risk of psychological injury as a result of trauma, the issue was not whether the State should have devised a better system. The question was whether the State breached its duty of care to the appellant by failing to implement the system already in place for detecting and addressing psychological injury: at [122].

State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344; Hegarty v Queensland Ambulance Service [2007] QCA 336 distinguished.

(ii) The evidence before the primary Judge established that the State breached its duty of care to the appellant in 2006 by returning her to general duties, without implementing the recommendations of the PMO and the Police Psychologist. At the time the NSW Police were aware that the appellant was suffering from post-traumatic stress disorder (PTSD) and that placing her on general duties was likely to expose her to further traumatic incidents: at [155].

(iii) The State also breached its duty of care by its inadequate response in 2009 to a report in the Critical Incidents Register. The NSW Police knew or should have known that the appellant continued to suffer from PTSD and that a “red flag” had been raised by her exposure to further critical incidents: at [156].

(iv) The State’s contention that the appellant was contributorily negligent unsustainable. It would be distinctly unjust if the appellant were to be held contributorily negligent by reason of conduct which was the product of the very condition the NSW Police should have detected and addressed: at [172].

(v)   Orders should be made allowing the appeal and providing for the calculation of the damages having regard to interest and an allowance for workers compensation payment: at [174]-[177].

Judgment

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. 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. 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. 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. 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. 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]

   1. Sills v State of New South Wales [2018] NSWDC 119 (Primary Judgment) at [403].

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”.

   2. Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8. See State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 (NSW v Briggs) at [33] (Leeming JA, McColl and Ward JJA agreeing).

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. 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]

   3. Primary Judgment at [2], [5], [9]; Respondent’s Written Submissions at [5].

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]

    4.    Primary Judgment at [298(11), (13)].

    5. Primary Judgment at [399].

    6. Primary Judgment at [401].

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. 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:

“2   The trial judge erred in finding that the [State], by doing nothing, discharged its duty of care to the appellant. This finding was:

a.   inconsistent with his findings of fact, set out at paragraphs 298 to 300 of the judgment,[7]

b.   inconsistent with the expert evidence of Dr. Diamond, whose evidence he preferred, and

c.   unsupported by the evidence.

3   In circumstances where the [State’s] defence did not propound a case that ‘doing nothing’ was a reasonable response, the trial judge erred in finding that, by doing nothing, the [State] discharged its duty of care to the appellant.”

7. See at [81]-[84] below.

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

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.

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.

    8. Primary Judgment at [180].

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]

    9. An example of such an email dated 26 March 2009 is reproduced at [68] below.

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]

    10. Primary Judgment at [174].

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]

    11. An email to this effect was sent to the appellant on 22 May 2009. The email is reproduced at [71] below.

    12. Primary Judgment at [181].

    13. Primary Judgment at [182].

    14. Primary Judgment at [181].

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]

    15. Primary Judgment at [175].

    16. Primary Judgment at [176].

14. 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:

“•   Duty officer or Team Leader are [sic] to attend all traumatic incidents where the welfare of staff may be an issue.

•   Duty officer or Team Leader to make assessment (to the best of their ability) of the wellbeing of any involved officers for any immediate interventions and if required make contact with Critical/Traumatic Incident Provider to arrange early debrief intervention. …

•   Before the end of the shift the on-duty Duty Officer/Team Leader is to complete the Critical/Traumatic Incident Debrief form detailing all involved officers and any persons that may need further monitoring. …

•   Officers to be provided with a list of Peer Support Officers/Police Chaplains or any other locally available support that may be required. …

•   Duty Officer/Team Leader to conduct a follow up check at one week, and then again at 3-4 weeks after the incident. Follow-up to be documented on Command welfare spreadsheet by senior management team member and forwarded to the General Administration Officer for copies to be filed on OHS or P file as appropriate.”

Examples of Traumatic Incidents included the death of a young child, a serious motor vehicle accident, gruesome sights and other significant distressing or confronting incidents.

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.

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.

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]

    17. Primary Judgment at [193].

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]

    18. Primary Judgment at [210].

    19. Primary Judgment at [212].

    20. Primary Judgment at [214].

A chronology

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]

    21. See at [81] below.

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]

    22. Primary Judgment at [15].

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]

    23.    Primary Judgment at [16]-[21].

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]

    24. Primary Judgment at [24].

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]

    25.    Primary Judgment at [25]-[26].

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]

    26.    Primary Judgment at [26]-[27].

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.

    27. Primary Judgment at [30].

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]

    28.    Primary Judgment at [31]-[32].

    29. Primary Judgment at [34].

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.

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

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.

    30.    Primary Judgment at [34], [35].

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]

    31. Primary Judgment at [36].

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]

    32. Primary Judgment at [38].

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

“Supervisor told pt to come here. Was a wreck last night, for no reason, Does not like to show it at work. Told him a bit about having - long story - went to a suicide where guy burnt himself in a car. Also 2 years ago attended another fire, where little 3 year old boy and fire man died. Went to counselling. In charge of this recent matter with car fire. Having dreams of self and boys burning alive. Mainly about fire. Not sleeping well, putting on front to go to work. Last night it came out. Also bad run of ‘deceaseds’, and in highway patrol last week, went to EAP with police force last time. Was crappy. Was made to go after house fire. [Her child] was exactly same age as boy who died.

Does not feel depressed. Loves being at home. Driving to work recently, was petrified going in to work. Pulled over had a bawl, wanted to go home, went to work, no-one knew anything. All of a sudden things have got to pt. Took couple of annual leave days. Boss recommended WC [workers compensation], not annual leave.

Actions:

Letter Created – re. PTSD to WC

Was not very happy with lady Psychologist - she just asked what happened, like media, without asking how pt was. Did not seem experienced. Walked out of there. Boss made pt go there. Nightmares since the incident in March 1st, the fire. 10 deceased and couple of suicides since then.”

33. Primary Judgment at [277].

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:

“the patient has had emotional reaction to traumatic events which she witnessed and been involved with through her work with the police force”.

The Certificate noted the date of injury as 11 March 2006 and recorded Dr Abery’s diagnosis as “Post traumatic stress disorder”. Dr Abery expressed his opinion that the worker’s employment was a “substantial contributing factor to [the] injury” and recommended referral to a psychologist.

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.

    34. Primary Judgment at [38].

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.

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.

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.

    35. Primary Judgment at [39].

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.

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.

    36. Primary Judgment at [223].

    37.    Primary Judgment at [40], [41].

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:

“Date of injury or illness 17/8/06    Date of Return to Work 26/9/06

Reason for Referral?

The officer reported off sick due to Post traumatic stress disorder on 18/8/06 and has now presented with a clearance for full duties from her Nominated Treating Doctor GP. Due to the short time of recovery a clearance for full duties by the PMO is requested.”

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.

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]

    38.    Primary Judgment at [226]-[227].

“[The appellant] states that she had to attend a number of very traumatic cases including a child that was burned to death, a suicide by fire in a car, cot deaths and other suicides. She thought she was handling these events well but she started to experience dreams. These showed her own children being burned or finding them dead. She became anxious about going to work and having to confront further traumatic situations. The lack of sleep also started to affect her.

She reported her problems on the 17/08/06. She had 3 weeks off on sick leave and 2 weeks on annual leave. She has returned to work and performed 5 shifts on restricted duties. She also consulted a psychologist but has only seen him once.

She states that she is now well and has no more dreams.

She performed Psychometric Tests and was assessed by the Police Psychologist. The results demonstrated no condition that would prevent her returning to full operational duties.

Recommendations

Return to full operational duties.

As she will be exposed to further traumatic cases a course of psychological counselling would be appropriate to teach her strategies to deal with her past and future traumatic events.

Arrange a mutually acceptable officer to mentor and monitor her welfare and be a source of support. She should be referred back to the PMO/Police Psychologist if any changes occur in her condition.” (Emphasis added.)

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:

“Referral by PMO re fitness for duty. Has been off sick due to PTSS [Post Traumatic Stress Syndrome] – 3 weeks sick leave and 2 weeks annual leave”.

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

“Impressions:

Symptoms consistent with PTSS. Appears her time away from work has been beneficial in alleviating symptoms. Advised PMO Dr Val Kirychenko of the outcome of assessment. Expressed my concerns that [the appellant] has not had sufficient psychological intervention to protect her should she again encounter a traumatic incident at work. Recommended that she should undergo CBT [cognitive behavioural therapy] to develop protective strategies to help her manage traumatic stress. Recommend she be closely monitored in the workplace.” (Emphasis added.)

39. Primary Judgment at [225].

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

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.

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.

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:

“Since previous reporting [the appellant] returned to work on suitable duties as per NTD recommendations. [The appellant] returned to work on pre injury hours, performing station duties only from 26 September 2006. A review was arranged with the Police Medical Officer to assess [the appellant’s] capacity to upgrade to full operational duties, particularly in relation to psychological functioning and risk of exacerbation of symptoms. [The appellant] attended the PMO, including psychological evaluation on 9th October 2006 and was certified fit for operational duties. She returned to Dr Abery who provided her with a pre injury duties certificate on 13th October 2006 and as such [the appellant] recommenced full operational duties as a Police Officer.

Following return to operational duties [the appellant] was monitored for a four week period, with no reports of issues by employer or [the appellant].

SUMMARY & CONCLUSION:

[The appellant] has successfully completed the current RTW Plan, and was monitored for a 4 week period on the final stage/goal of the plan. [The appellant] has not experienced a recurrence of initial trauma related symptoms and it is anticipated that she has achieved a durable and sustainable return to work and therefore is unlikely to require any future rehabilitation services related to this injury. [The appellant’s] rehabilitation with Hills Street ORS will cease as of 10/11/2006.”

The Closure Report did not refer to the recommendations that had been made by the PMO and the Police Psychologist.

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.

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.

55. 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”.

56. 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.

57. 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.

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

    40. The terms of the standard letter are reproduced at [68] below.

59. 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.

    41. Primary Judgment at [45].

60. 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]

    42.    Primary Judgment at [48], [51].

61. 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]

“[T]he work restrictions in my opinion, are appropriate at present. They are those which are in place, namely that she does not go out on calls but works with her team from the police station. She is fit for this type of work.

… [T]he prognosis for the Post-Traumatic Stress Disorder is fair. Symptoms which [the appellant] continues to experience are slowly diminishing with the passage of time. Given however that she is in a more controlled work environment which assists her in overcoming the symptoms of the Post‑Traumatic Stress Disorder, she would remain at risk for a worsening of her symptomatology if she were again exposed to her previous full range of duties.

Her prognosis would also be improved if she were able to have a further 6-8 sessions of counselling by an appropriately qualified psychologist.” (Emphasis added.)

The State was aware of Dr Gertler’s report. [44]

43. Primary Judgment at [233].

44.    Primary Judgment at [298(18)].

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.

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.

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.

    45. Primary Judgment at [53].

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]

    46. Primary Judgment at [55].

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

“Advice has been received that you were involved in a Critical Welfare Incident - Fatal MVA.

In order to ensure that you receive an appropriate debrief, arrangements can be made for you to see the EAP (Employee Assistance Program) counsellor for a one on one session. (For your information these counsellors are not employees of NSW Police and all discussions are highly confidential)

Attendance at this debrief is voluntary but we strongly advise people attend as past experience has proven them to be very beneficial.

Could you please respond as to whether or not you would like me to arrange this debrief.”

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.

    47.    Primary Judgment at [58]-[60].

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.

    48. Primary Judgment at [57].

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

“Last week an analysis of the Command Critical Incident Database was conducted by the HR Committee.

You have been indentified [sic] as an officer who has attended in excess of 5 critical incidents whilst working at the Tuggerah Lakes LAC.

Please advise (confidentially) if there is any assistance that can be offered to you by this Command regarding your welfare and support in light of the recorded incidents that you have attended whilst in this Command.

The intent of this email is to ensure you are aware that we are here to support you should you ask for any assistance.

Please do not hesitate to send me and email or come and see me for a chat.

ALL CORRESPONDENCE WILL BE TREATED CONFIDENTIALLY.”

The appellant responded the same day stating that “I am seeking counselling outside of work”. Chief Inspector Long replied that if the Command could assist the appellant she should not hesitate to ask.

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. Primary Judgment at [61].

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.

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.

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]

    50. Primary Judgment at [64].

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]

    51.    Primary Judgment at [65]-[67].

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.

    52. Primary Judgment at [69].

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.

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

Primary Judgment

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]

    53. Primary Judgment at [298].

Findings

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

    54. Primary Judgment at [298].

“(1)   From the time she was attested as a police officer in 2003, until she was diagnosed with PTSD in 2006, the [appellant] was a committed, hard‑working police officer, well regarded by her peers and superior officers at the TLLAC.

(2)   Between 2003 and 2005, the [appellant] attended a number of traumatic incidents, including suicides, motor vehicle accidents, stabbings and other violent events. On 26 July 2004 she attended the house fire at Doyalson, in which a young child perished.

(3)   Following that incident, the [appellant] attended an EAP psychologist, following which she felt worse.

(4)   The [appellant] suffered both nightmares and flashbacks of traumatic events attended by her, including the Doyalson house fire and a cot death she attended in November 2004. She commenced to drink heavily to enable her to get to sleep.

(5)   The [appellant] consulted a GP, Dr Abery, in 2004 and in 2005 was prescribed anti-depressant medication for the first time by Dr Abery.

(6)   In 2005 and 2006 the [appellant] attended a number of traumatic incidents including the drowning of a young man in a resort swimming pool at Blue Bay in December 2005, and the death by self-immolation of a man in his car at Norah Head in March 2006.

(7)   The [appellant] thereafter suffered symptoms of anxiety, that is heart palpitations and difficulty breathing at times. Her drinking escalated and her work was affected. She applied for a transfer out of general duties to avoid attending further traumatic incidents, but her application was unsuccessful.

(8)   On 17 August 2006 the [appellant] suffered a panic attack on her way to work. Having disclosed this to her team leader, Sergeant Trench, she accepted his advice and went home and saw her GP.

(9)   The [appellant] was examined by Dr Abery on 18 August 2006. … [Dr Abery’s] notes amply demonstrate the [appellant] suffering a psychological reaction to her work, which Dr Abery characterised as PTSD.

(10)   On her return to work on 26 September 2006, the [appellant] found her appointments double padlocked and was referred to the PMO and to the police psychologist.

(11)   The police psychologist, Ms Cimino, expressed concern that the [appellant] had not had sufficient psychological intervention to protect her should she again encounter a traumatic incident at work. She recommended the plaintiff ‘undergo CBT to develop protective strategies to help her manage traumatic stress’, and that ‘she be closely monitored in the workplace’.

(12)   The [appellant] did not undergo any such treatment, and was not monitored closely in the workplace.

(13)   The PMO, Dr Kirychenko, recommended the [appellant] return to full time operational duties. His recommendation was qualified … to the effect that she required a course of psychological counselling to teach her strategies to deal with her past and future traumatic events, and that a mutually acceptable officer be appointed to mentor and monitor her welfare.

(14)   The [appellant] underwent no course of counselling as recommended. I accept the [appellant’s] evidence that Sergeant Greene was selected to mentor her, however, for the reasons outlined by the [appellant], that did not eventuate …

(15)   In February 2007 the [appellant] attended a scene where an elderly man was run over and killed by a steamroller. She had to deliver a death message to his family.

(16)   In May 2007 the [appellant] was pregnant and was assigned to station duties.

(17)   To support her workers compensation claim, the [appellant] was examined by Dr Gertler, psychiatrist, on 1 August 2007, who diagnosed a chronic PTSD that was partially resolved, but that she remained at risk of a worsening of her symptomatology if she were again exposed to her previous full range of duties. He also recommended a course of counselling, which she did not receive.

(18)   [The State] was aware of Dr Gertler’s diagnosis and recommendations.

(19)   The [appellant] was on maternity leave for most of 2008. Following her return to work, she attended a number of traumatic incidents involving fatal motor vehicle accidents, and, on 3 July 2009, a house fire in which an elderly man died. She continued to suffer nightmares, flashbacks and distressing recollections about these events.

(20)   On 22 May 2009 the [appellant] received an email from [Acting Superintendent] Tony Long advising that she had been identified as an officer who had attended in excess of five critical incidents, and asking her to advise if there is any assistance that could be offered to her regarding her welfare.   

(21)   On the same day, the [appellant] advised that she was receiving counselling outside work.

(22)   The [appellant] in fact received no counselling, and at no time advised Mr Long or anyone at TLLAC that she had not received counselling.

(23)   In February 2010, the [appellant] transferred to the Exhibits Section at Wyong Police Station, however, a number of incidents in that workplace had a deleterious effect on her during 2010.

(24)   On 16 November 2010 the [appellant] was involved in a motor vehicle accident in which she suffered injuries to her neck, shoulders and back, and was off work for three to four months.

(25)   When she returned to work at the Exhibits Office, the [appellant’s] psychological condition did not improve. She suffered from nightmares and flashbacks which became more regular than they were six months before. At the end of May 2011, she had her second unsuccessful suicide attempt, following which, she saw Dr Abery, who referred her first to Mr Peters, psychologist, and then to Dr Murray, psychiatrist. She has remained under his care ever since.” (Emphasis added.)

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

“(1)   Dr Avery [sic] diagnosed the [appellant] as suffering from PTSD and certified her unfit for work in August and September 2006.

(2)   The [appellant] had not been candid with either the police psychologist, Ms Cimino, nor the PMO, Dr Kirychenko, in disclosing her symptoms at the time of her examination by both of them. This was to ensure that she had her appointments returned to her.

(3)   Both Ms Cimino and Dr Kirychenko were aware that she suffered symptoms of PTSD, having attended numerous traumatic incidents. Both made recommendations for ongoing treatment to cope with both past and future traumatic events and mentoring in the workplace.

(4)   On 18 August 2006, Dr Abery confirmed her diagnosis of PTSD.

(5)   There is no issue that since June 2011 the [appellant] has suffered a chronic PTSD. She has remained under the care of Dr Abery, Dr Peters, and Dr Murray since that time. In October 2011, Dr Murray commented on the fact that the [appellant] kept her condition ‘a secret’, because of the stigmatisation she perceived in the police force to psychological injuries.”

55. Primary Judgment at [299].

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]

“both agreed that at the time of her discharge from the New South Wales Police Force, the [appellant] suffered PTSD in its chronic form and there was no dispute that she also suffered a Major Depressive Disorder and a Substance Dependence Disorder. The opinions of Dr Diamond and Professor Tennant diverged, in that Professor Tennant’s position was that the [appellant] was fit to return to work in 2006, whereas Dr Diamond was of the opinion that her injury and impairment remained chronic and worsened over time following her return to work in 2006. Thus, the issue became whether the [appellant’s] current diagnoses were as a result of an ongoing existence of work-related trauma‑based illness or not.”

56. Primary Judgment at [253].

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]

• Dr Diamond’s evidence that there was a stigma attached to police officers suffering psychological injury and his evidence concerning the mentoring of police officers was “balanced”; and

• Professor Tennant’s opinion that the appellant did not have chronic PTSD with onset in 2006 and continuing until the trial could not be accepted.

57.    Primary Judgment at [299(6)], [300].

58.    Primary Judgment at [299(6)(iii), (vi)].

Issues

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

“(1)   Whether the [appellant] has, in her pleadings, identified the scope and content of the duty of care the [State] conceded was owed to her with sufficient particularity.

(2)   Whether that duty of care was breached by the [State].

(3)   Whether any such breach caused the [appellant’s] psychological injury.”

59. Primary Judgment at [366].

Duty of care

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

“7   At all material times the [State] owed the [appellant] [a duty] to take reasonable care to avoid exposing her to the foreseeable risk of injury, including the risk of psychiatric or psychological harm, and such duty was a non-delegable duty.

8   The duty referred to in paragraph 7 above required the [State] to institute and maintain systems of work which would:

a)   identify officers who, as a result of their duties, were at risk of suffering, and were suffering, psychiatric or psychological harm;

b)   take steps to ensure that any officer identified as suffering psychiatric or psychological harm as a result of their duties, received appropriate treatment and support to alleviate or lessen the effect of such injury.

c)   take steps to ensure that any such officer was not required to perform duties likely to aggravate, exacerbate or perpetuate such injury without appropriate safeguards against such aggravation, exacerbation or perpetuation being in place.

d) to discharge any such officer from their duties pursuant to s72A of the Police Act 1990 in the event that appropriate safeguards were unable to be implemented and maintained with respect to the performance of such an officer's duties.

9   The duty referred to paragraph 7 above also required the [State] to:

a) ensure that its officers were adequately educated and trained so as to permit them to identify and take steps to protect officers under the control, command or under their authority (within the meaning of the Police Act) against psychiatric or psychological harm or further psychiatric or psychological harm:

b)   draft publish, implement and enforce policies, guidelines procedures and directives so as to ensure that the duty referred to at 7 above was adhered to by its officers and civilian employees:

c)   obtain and maintain accurate records for the purposes of enabling it to take reasonable steps to permit it to perform the duties set out in paragraphs 7 and 8 above;

d)   implementing systems to obtain relevant information and records to assist it in performing the duties outlined at paragraph 7 above and that outlined at 9(c);

e)   upon the return to work of an injured officer and thereafter, to consult with appropriate persons in the workplace to identify hazards associated with the work environment and the associated systems of work and assess the risks of injury and further injury associated with the aforementioned hazards;

f)   to eliminate or control the risks mentioned in paragraph 9(e).”

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]

“within the TLLAC and at all relevant times … it was reasonably foreseeable that police officers employed there would suffer psychological injury as a result of exposure to traumatic incidents, and there was no issue in this case that the command established a system of identification of officers at risk, by reference to the number of such incidences attended within a two-year period.”

On that basis, the reasoning in the cases relied on by the State did not apply and the FASC properly pleaded the duty of care owed to the appellant.

60. (2007) 232 CLR 486; [2007] HCA 20 (NSW v Fahy).

61. Primary Judgment at [374].

Breach

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]

“(1)   To follow the [advice of the] PMO and that of the police [psychologist] in 2006 to ensure the [appellant] undertook a course of psychological counselling and to appoint a mutually acceptable officer to mentor and monitor the [appellant’s] welfare;

(2)   … to follow up [in 2009] the TLLAC’s own reporting system, and its standard operating procedure, having identified the [appellant] as an officer who had attended 5 or more critical incidents.”

62. Primary Judgment at [378].

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

“to implement the recommendations made by the police psychologist and the PMO who cleared the [appellant] to return to full general duties (and thus regain her appointments). Those recommendations included a course of psychological counselling on a prediction that the [appellant] would be opposed to further traumatic cases to teach her strategies to deal with her past and future traumatic events, together with the appointment of a mutually acceptable officer to mentor and monitor her welfare and be a source of support. The evidence establishes that neither occurred”. (Emphasis added.)[63]

63. Primary Judgment at [381].

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]

    64. Primary Judgment at [382].

    65. Primary Judgment at [383].

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]

    66. Primary Judgment at [384].

    67. Primary Judgment at [386].

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]

    68.    Primary Judgment at [387]-[389].

    69. Primary Judgment at [391].

93. The primary Judge found that:

• the appellant’s failure to make a candid disclosure as to the extent of her psychological problems to the PMO or police psychologist in 2006 was “result driven” in that she wanted her appointments back and to return to full-time general duties work; [70]

• notwithstanding the recommendations made by the PMO and the psychologist, the appellant was not aware of the full extent of her psychological condition at the time; [71]

• from the appellant’s perspective there was a stigma attached to disclosing mental health problems and she believed that a disclosure could affect both prospects of promotion and her relationships with other officers; [72] and

• the appellant had disclosed psychological problems in her workers compensation application in 2006 but at no time thereafter did she report psychological problems arising from her work as a police officer. [73]

  70. Primary Judgment at [394].

  71. Primary Judgment at [394].

  72. Primary Judgment at [395].

  73. Primary Judgment at [395].

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]

“There was no reason for the recommendations of the PMO or the policy psychologist to be implemented. Following her return to work the [appellant] chose to return to general duties police work. By the end of 2008, any need for monitoring, mentoring or counselling for the [appellant] had long since passed”. (Emphasis added.)

74. Primary Judgment at [396].

75. Primary Judgment at [399].

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.

    76. [2011] NSWCA 225.

    77. Primary Judgment at [399].

96. The primary Judge continued as follows: [78]

“399   … Following her return to work, the [appellant] chose to return to general duties police work. By the end of 2008, any need for monitoring, mentoring or counselling for the [appellant] had long since passed.

400   The [appellant] was aware at all times of the support services available, including the EAP, the peer support and Police Chaplain, but at no time sought out those services. Finally, when identified as an officer at risk in 2009, and having received Mr Long’s email, the [appellant] responded that she was seeking counselling outside work. Once she transferred to the Exhibits Office in 2010, notwithstanding that she suffered an exacerbation of her symptoms on occasions, she was no longer required to attend traumatic incidents.”

78.    Primary Judgment at [399]-[400].

97. The primary Judge concluded as follows: [79]

“401   Having regard to that history, I find that it was a reasonable response throughout that period for the [State] to do nothing in relation to the alleged breach identified by the [appellant], i.e. the failure to implement the recommendations made by the PMO and the police psychologist in 2006. I therefore find that the [appellant] has failed to establish a breach of the duty of care owed to her. 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. The report of Dr Gertler in 2007 advised that her symptoms were diminishing, and when identified as being at risk in May 2009, the [appellant] responded by advising that she was receiving counselling outside of work. The [State’s] system for identifying police officers at risk at that time was a reasonable response, and in the circumstances here, it could have done nothing more by way of response to that risk. Any “meeting” with the [appellant] would have provoked no further disclosure of her problems at work.

402   Further, the evidence established that the [appellant] was suffering personal problems outside of her workplace. Her marriage had failed and her husband's business failure led to financial pressures being placed on her. For the supervising officers employed by the TLLAC to intervene in respect of those matters would give rise to the difficulties highlighted by Keane JA in Hegarty[80] as set out above. The [appellant] has therefore failed to establish that the [State] has breached its duty of care to her, and there will be a verdict for the defendant. Having regard to that conclusion, the need to deal with the [State’s] pleading of contributory negligence does not arise.” (Emphasis added.)

79.    Primary Judgment at [401]-[402].

80. [Hegarty v Queensland Ambulance Service [2007] QCA 366].

Causation

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

“It is clear that the exposure to traumatic incidents in the [appellant’s] work as a general duties officer was causative of her PTSD and that was a contributing factor to the ultimate diagnosis of chronic PTSD and major depression suffered by her. I accept Dr Diamond’s opinion to that effect …”.

81. Primary Judgment at [403].

Damages

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

Submissions

Appellant’s submissions

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.

     82. See at [12] above.

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.

     83. Primary Judgment at [399]; see at [96] above.

     84. Primary Judgment at [395]; see at [48] above.

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.

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.

     85. Primary Judgment at [401]; see at [97] above.

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.

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:

• the failure to ensure that the appellant worked in a more controlled environment (as recommended by Dr Gertler);

• the failure to have the appellant psychologically evaluated before she was permitted to return to general duties in 2009; and

• the failure to direct positive inquiries as to the appellant’s welfare in view of her excessive sick leave, multiple transfer applications and her desire to “get off the truck”.

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.

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.

State’s submissions

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.

     86. See at [9] above.

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]

     87. Primary Judgment at [396]; see at [94] above.

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]

     88. Primary Judgment at [383].

     89. See at [71] above.

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.

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.

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

     110. Primary Judgment at [206].

“Chief Inspector Winmill gave evidence that any recommendations made by the PMO would be the subject of discussion of the injury management panel which generally involved the commander, an HR duty officer, an injury management adviser and the local area manager, together with the general administrative officer. Information given to the police psychology unit remained confidential, however, the PMO’s recommendations were dealt with by the injury management panel on a regular basis. He was asked:

‘Q:   So if there was a recommendation by the police medical officer to say further training to be given to an officer to inform them about the way to handle going to traumatic events, say, that would be carried out, correct?

A:   I would suggest it would. I certainly wouldn’t be going against that advice. But I can’t give you the advice unless I was on the panel and have access to the notes. But my suggestion, if I was involved, I wouldn’t going against a recommendation from a police medical officer, especially if it’s to give more training.

Q:   Any recommendation from the police medical officers, so far as the future health concerns of an officer is concerned, that’s something the panel would generally accept?

A:   That’s their role, is to look after the welfare of the staff and to get them back to their duties. That’s their job.

Q:   Also if there was a recommendation by a psychiatrist and an officer would be at risk to go back to general duties from a restricted duties position, that’s something also the panel would take on board?

A:    Yep.’” (Emphasis added.)

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.

     111. Primary Judgment at [382].

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.

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.

     112. Primary Judgment at [383].

     113. Primary Judgment at [394].

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.

     114. Primary Judgment at [383].

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.

     115. Police Regulation 2000, cl 11; Police Regulation 2008, cl 11.

     116. See Public Sector Employment and Management (General) Regulation 1996, reg 6 made under the Public Sector Employment and Management Act 2002 (NSW) (now repealed); Public Sector Employment and Management Regulation 2009, cl 4 (now repealed).

Return to work 2009

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.

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.

     117. Primary Judgment at [395].

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.

     118. See at [71] above.

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.

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.

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.

     119. Primary Judgment at [399].

     120. See at [96] above.

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.

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.

     121. See at [63] above.

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

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.

     122.    Primary Judgment at [378]-[402].

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:

“The correspondence from the PMO [in 2006] did identify the need for ongoing support and monitoring. The outcome however was inadequate because the support was provided by a nominated peer support officer who was considered in the Local Command to be unable to maintain confidence and spoke about other police officers in a public setting in the meal room. This was entirely inappropriate as far as [the appellant] was concerned since she was terrified of being identified as suffering from psychiatric injury or as somebody who was vulnerable in that way.

It meant that there was no periodic assessment or monitoring available by a suitably qualified, and importantly, impartial, individual. Had such further assessment and examination taken place and had there been an opportunity for [the appellant] to attend a confidential review with a properly qualified psychiatrist or clinical psychologist at that time, her obvious psychiatric illness would, in my opinion, have been clearly identified as an existing clinical state prior to 2011 and importantly up to five years earlier in close juxtaposition to the traumatising cluster of incidents in 2006.

…

… my view is that [the appellant] should have been monitored by the NSW Police Force. She was clearly identified as an officer at risk by the Police Medical Officer in 2006. The monitoring that was actually undertaken thereafter was facile and inappropriate. It is clear to me that [the appellant] did not want to draw attention to her psychological vulnerability at that time and in accordance with her-general propensity to avoid exposure to psychologically distressing experiences generally and in particular to avoid being identified as someone with a psychiatric illness, the advice of the Police Medical Officer ought to have been followed up more actively, in my opinion. Although her initial claim was rejected, on grounds that appear to me to have been clearly inappropriate, the fact that her condition was eventually accepted as a work-related psychological injury should, in my opinion, have required more assertive follow up of her condition rather than colluding with her wish to avoid being identified as psychiatrically unwell in a more public way, and allowing her to attempt to cope (highly inappropriately through the use of excess alcohol) on her own.

…

… [T]he failure to psychologically assess and monitor [the appellant] and not providing timely psychological treatment or changes of duties meant that her worsening psychiatric condition was left unattended except for her attempts at self-treatment with alcohol. Her self-treatment with alcohol was clearly detrimental and would have worsened her depressive illness …” (Emphasis added.)

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

“should have been monitored by the NSW Police Force, having been clearly identified as an officer at risk by the PMO in 2006. Such monitoring that was actually undertaken thereafter he described as ‘facile and inappropriate’, leading to her not being provided with timely psychological treatment. The deterioration of her conditions was, in his opinion, ‘very much affected by her return to general duties work’, particularly after she had signalled her wish not to be in that environment.”

123. Primary Judgment at [257].

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

“[His Honour]:   … in terms of the mentoring system there's a self-evident flaw in any such system the fact that the mentors are not psychologically trained. Can you answer that?

A:   The mentors are often officers who are well meaning. They are also officers who might be seen to be a bit more psychologically sensitive or amenable but very often they are not particularly skilled and they don't have sufficient training to provide the crucial input at the crucial time. And I've experienced times with patients that I treat where in fact the advice given is almost the opposite of what is needed so the skill levels are not high.”

124. Primary Judgment at [275].

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

“Q.   Did you also know that she was on a rehabilitation program which went through to 20 October 2006 and that she was not placed directly back on general duties?

A.    Yes.

Q.    You knew that?

A.    Yes.

Q.   That would have been an appropriate response, correct?

A.    To be taken out of the front line, yes.

Q.   It was only after she successfully completed that rehabilitation program where she did only station duties that she then went back onto general duties?

A.    That's the sequence, yes.

Q.   There's no flaw in those series of steps that you can detect, can you, in terms of the detection and the treatment of her first complaint that she was emotionally unwell?

A.   Well, I think there was enough information following her first complaint that she was unwell to have alerted her employers that she was an injured officer. The responses that that elicited are more complex than what you've put to me because there were other factors at play which had to do with her personality which was to try and cover her injury. Part of her post-trauma syndrome, and I'll call it PTSD because that's what it was in my opinion, was a very strong manifestation of avoidant behaviour which is a strong symptom of that condition where the attempt to protect oneself from the effects of trauma, is to not engage with any dialogue or any discussion about the trauma because of the triggering effect that it has. And the history that I obtained when I saw [the appellant] was that that was a very significant feature that was operating at the time. I appreciate from the employer's point of view that they couldn't mind-read what she was doing but that was a feature of her illness and it's the engagement with her, with the history that she had, of which I'm critical.

Q.   That's the aspect I wanted to turn to next, the mind-reading issue.

A.   Right.

Q.   Those steps, the acceptance of the complaint, the referral to the police medical officer, the police psychologist, rehabilitation, objectively seen were all reasonable responses to what this officer claims she had suffered, correct?

A.   Well, I don't mean to be difficult but the police medical officer gave a very qualified view about her vulnerability, her state at the time and I think the police psychologist did a very similar thing. It wasn't an unequivocal clearance for work. It was acknowledging the work-related injury at the time and it was to recommend certain things be done in order to bolster the support that she would need as they foreshadowed and so it was qualified so I can't simply agree with what you've put to me because I think there was clearly acknowledgment that she was unwell.

Q.   But did you find anything in the materials that were supplied to you that could have possibly alerted the employer to the fact that despite the plaintiff suggesting that she wanted to go back to general duties, the employer ought to have done something different and stopped her?

A.    Well, they should have talked to her, that's my point.

Q.   Well, you'd say that the police psychologist having a consultation with her is talking to her, correct?

A.   Well, no. The consultation that she had was very much a purpose-driven interaction. She was there for clearance; that was why she went there. She wasn't there for treatment. She wasn't there for assistance. She was there to be able to return to work, to retain her position because that was a primary driver on her part and she wanted that police clearance. She wanted to be able to go back to work, so in that environment, she came back from her period of leave, sick leave and recreational leave, and my understanding is that she then fronted up intent on saying, ‘I'm much better now. My symptoms are less and I want to go back to work’. If you read those documents, they are a bit uncertain and they are a bit qualified, and they talk about a need for support and they talk about observation, and they talk about access to somebody to support her in the work environment. So it's a very qualified clearance that occurred at that time and I don't think those warnings were properly heeded. I think the documentation is sensible to alert her and say these are things that could be helpful but I don't think it was followed through with any sufficient purpose or responsibility.” (Emphasis added.)

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

“Q.   If … if we start there the email [of 22 May 2009] is reproduced but then there's a response from the plaintiff where she says, ‘I'm seeking counselling outside of work’--

A.   Yes.

Q.   -- do you form the view that the employer should have done anything more if the employee had stated that?

A.    Yes, I do.

Q.   Such as what?

A.    Well they should have actually spoken rather than sent an email. If there's genuine concern about an officer who's been exposed as in that graded alarm system up to the red level of exposure to a number of critical incidents and there is genuine concern then a reasonable management decision is to spend ten minutes talking to that person not simply flicking emails backwards and forwards because the context of these emails, as I've learnt over many years, is that they serve the employer very often by having said that they have made an effort but the contact and the actual engagement with senior officers is actually quite superficial or non-existent and I think that listening bit is actually very important with regard to managing an injured police officer for this reason.

The reason being that a crucial opportunity exists for management to demonstrate to the injured officer that they have a real concern about their condition, not just a log of the number of incidents they might have attended or an invitation to seek help in these generic terms that are listed in these emails but that they are actually saying to one of their employees who they would know would be exposed to further trauma in the ordinary course of general duties to say, ‘Well what treatment are you getting’ or, or, ‘How are you going’ or, ‘Are you perhaps comfortable to talk about this’, or just to make those extra enquiries that would be, in my opinion, very useful for police and very valuable in assisting their (a) willingness to come forward with the full story of their condition and (b) to communicate more openly with, with management because there are other factors at play that make it hard for police officers to show vulnerability.” (Emphasis added.)

Finding on breach of duty

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.

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.

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.

Notice of contention

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.

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.

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.

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.

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.

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

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:

     125. Primary Judgment at [11].

“a.   Failing to report her symptoms at the earliest opportunity prior to 2006.

b.   Failing to properly avail herself of counselling, EAP and chaplaincy Services.

c.   Failing to report distress to superiors until August 2006.

d.   Failing to report any issues of concern or distress whilst at exhibits and seek medical or counselling help.

e.   Failing to disclose symptoms at debriefing sessions.

f.   Failing to report symptoms as at the date of each incident to team leaders and superiors as pleaded in the Further Amended Statement of Claim.

g.   Failing to immediately request a change of duties from exhibits upon symptoms of distress occurring.

h.   Failing to seek medical attention prior to August of 2006.”

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.

     126. Primary Judgment at [402].

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.

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.

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.

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.

     127.    Primary Judgment at [298(3)].

     128. See for example Primary Judgment at [134].

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.

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).

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]

“The avoidance symptom of post-traumatic stress disorder is particularly disabling because what avoidance does is that whenever there is the potential to have a heightened response in terms of intensification of distress or intensification of re-experiencing trauma, by avoiding there's an immediate relief so the short term effect of the avoidance is spectacularly successful. Unfortunately, it has a very powerful learning component so that it teaches you to avoid further. So whenever you get the propensity to become depressed or distressed by an external event the first reaction is to avoid and that avoidant behaviour becomes really entrenched and adds to compounding disability.” 

It would be distinctly unjust if the appellant were to be found contributorily negligent by reason of conduct which was the product of the very condition the State should have detected and addressed.

129. Primary Judgment at [267].

130. Primary Judgment at [274].

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

Orders

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.

     131. See at [11] above.

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.

176. The following orders should be made:

1.   Appeal allowed.

2.    Set aside Order 1 and 2 made by the primary Judge on 10 May 2018.

3.   Direct the parties to file and serve within fourteen days agreed calculations of:

• the amount for which judgment should be entered for the appellant having regard to s 151A(1)(b) of the Workers Compensation Act;

• the amount which is to be paid to the party which has paid weekly compensation to the appellant;

• the amount of interest payable by the State to the appellant pursuant to s 151M of the Workers Compensation Act 1987 (NSW); and

• short minutes of order giving effect to the calculations referred to above.

4.   Order the State to pay the appellant’s costs of the proceedings in the District Court.

5.   Order the State to pay the appellant’s costs of the appeal.

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.

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

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Endnotes

Decision last updated: 07 February 2019