State of New South Wales v Skinner

Case •

[2022] NSWCA 9

•

08 February 2022

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: State of New South Wales v Skinner [2022] NSWCA 9
Hearing dates: 14, 15 October 2021
Date of orders: 8 February 2022
Decision date: 08 February 2022
Before: Basten JA at [1];
Brereton JA at [162];
McCallum JA at [163]
Decision:

(1)   Dismiss the appeal by the State of New South Wales filed on 4 June 2021.

(2)   With respect to the cross-appeal filed by Kristen Skinner on 9 July 2021:

(a)   set aside the judgment entered in the District Court on 9 April 2021;

(b)   in lieu thereof, give judgment for Kristen Skinner against the State of New South Wales in the amount of $857,948;

(c)   direct that the judgment take effect from 9 April 2021;

(d)   otherwise dismiss the cross-appeal.

Catchwords:

NEGLIGENCE – vicarious liability of State – persons in service of Crown – police officers

NEGLIGENCE – breach – standard of care – mental illness – major depressive disorder – post-traumatic stress disorder – traumatic events – employer’s systems of work – whether plaintiff should have been referred for psychiatric assessment

NEGLIGENCE – breach – foreseeability of risk – objective test – whether psychiatric harm to plaintiff reasonably foreseeable

NEGLIGENCE – causation – factual causation – whether plaintiff would have disclosed mental condition if referred for assessment

NEGLIGENCE – causation – concurrent cause – non-tortious psychiatric and physical injury – whether properly taken into account in assessing damages

NEGLIGENCE – defences – contributory negligence – whether plaintiff should have reported symptoms

WORKERS COMPENSATION – common law remedies – interest on damages – Workers Compensation Act 1987 (NSW) s 151M – whether mediation offer unreasonable

Legislation Cited:

Civil Liability Act 2002 (NSW), s 3B

Workers Compensation Act 1987 (NSW), ss 151G, 151M

Workers Compensation Regulation 2016 (NSW), cll 94, 96

Cases Cited:

Bonnington Castings Ltd v Wardlaw [1956] AC 613 (HL)

Carangelo v State of New South Wales [2016] NSWCA 126

Coote v Kelly [2013] NSWCA 357

DC v State of New South Wales [2016] NSWCA 198

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Sills v State of New South Wales [2019] NSWCA 4

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

Strategic Formwork Pty Ltd v Hitchen [2018] NSWCA 54

Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12

Van Opstal v Australian Iron & Steel Pty Ltd (No 2) [2000] NSWSC 1125

Texts Cited:

H Luntz and S Harder, Assessment of Damages for Personal Injury and Death (5th ed, Lexis Nexis, 2021)

Category:Principal judgment
Parties: State of New South Wales (Appellant/Cross-Respondent)
Kristen Skinner (Respondent/Cross-Appellant)
Representation:

Counsel:
Mr M McCulloch SC / Mr D Stanton (Appellant/Cross-Respondent)
Mr D Jackson QC / Ms W Liu (Respondent/Cross-Appellant)

Solicitors:
SMK Lawyers (Appellant/Cross-Respondent)
Prominent Lawyers (Respondent/Cross-Appellant)
File Number(s): 2021/83723
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Civil
Citation:

[2021] NSWDC 49; [2021] NSWDC 115

Date of Decision:
5 March 2021; 9 April 2021
Before:
Abadee DCJ
File Number(s):
2017/90426

HEADNOTE

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

The respondent (the plaintiff at trial), Ms Kristen Skinner, was employed as a police officer in the New South Wales Police Force. She commenced training at the Goulburn Academy in October 1992. Her career in the Police Force was marked by several traumatic events. These included being in a vehicle that was approached by a man firing a rifle, three suicides, a fatal motor vehicle accident, and the discovery of a heavily decomposed body hanging from a tree.

Ms Skinner also experienced personal and work-related problems including several interpersonal conflicts with fellow officers and supervisors between 2006 and 2008. In 2007, Ms Skinner’s father died and two colleagues committed suicide. She received psychological and psychiatric counselling and assessment on several occasions from 1998. Some appointments were initiated by Ms Skinner; some by the Police Force.

In 2006, Ms Skinner was placed on restricted duties due to a back injury. In October 2007, she expressed opposition to a proposal to transfer her from the role of station manager at Morisset Police Station to general duties at Toronto Police Station. In January 2008, she sought to join the mounted police and was assessed by a police psychologist, Ms Hanna. Ms Skinner did not disclose any difficulties that she had with a return to general duties, nor any symptoms of post-traumatic stress disorder (PTSD). In February 2010, Ms Skinner was discharged on medical grounds. At that time, she was suffering from a major depressive disorder and PTSD.

In March 2017, Ms Skinner commenced proceedings in the District Court seeking work injury damages from the State for the negligence of the Police Force. Ms Skinner alleged that the Police Force owed her a duty of care and was negligent in failing to provide adequate supports for her psychiatric conditions.

On 5 March 2021 Judge Abadee held that the Police Force breached its duty of care as Ms Skinner’s employer by failing to conduct a thorough mental health assessment of Ms Skinner from May 2007. This breach caused Ms Skinner to suffer major depression, but not her PTSD. A 40% reduction was made for the contingency that her disability would have arisen in any event from non-tortious PTSD and a pre-existing disposition to depression and anxiety. A 10% reduction was also made for Ms Skinner’s contributory negligence in failing to report her psychological condition to Ms Hanna. The trial judge awarded her damages of $743,780.

The State appealed against the finding of liability. Ms Skinner cross-appealed against the findings that the breach did not cause her PTSD, and the reduction of damages for contingencies and for contributory negligence.

The main issues before the Court were whether:

  1. the Police Force breached its duty of care to Ms Skinner by failing to conduct a thorough mental health assessment after May 2007;

  2. the risk of injury to Ms Skinner was reasonably foreseeable;

  3. the breach of duty caused the major depressive disorder and/or PTSD;

  4. the non-tortious psychiatric conditions were independent causes of harm and properly taken into account in reducing the damages by 40%;

  5. Ms Skinner was contributorily negligent; and

  6. Ms Skinner was entitled to recover pre-judgment interest on the damages.

Held by Basten JA (Brereton and McCallum JJA agreeing) dismissing the appeal and allowing the cross-appeal in part:

Issue 1 – breach of duty

  1. The primary judge did not err in identifying the scope of the duty owed by the Police Force at a level of generality sufficient to cover the relevant harm, without relying upon hindsight: [70].

  2. By May 2007, Commander Clarke knew, or should have known, about Ms Skinner’s depressive condition. The psychological assistance provided to Ms Skinner was inadequate and not appropriately directed to Ms Skinner’s circumstances. Commander Clarke did not obtain any relevant reports about Ms Skinner’s mental condition from the psychologist or the Employee Assistance Program counsellors who saw Ms Skinner. Further investigation should have been prompted by Ms Skinner’s strong resistance to resuming general duties in 2007-2008: [73]-[75].

State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 applied.

Issue 2 – reasonable foreseeability of injury

  1. Foreseeability is determined objectively. While it depends on an assessment of particular circumstances, it does not require a finding that Commander Clarke actually foresaw, or should have foreseen, a risk of injury. Ms Skinner’s history of traumatic incidents was sufficient to show that such events were mostly unavoidable when performing general duties and, at least in a person suffering from a depressive condition, will foreseeably cause further psychological harm: [78]-[79].

Issue 3 – causation of major depressive disorder and/or post-traumatic stress disorder

  1. The judge did not err in finding that the events of May to October 2007 exacerbated Ms Skinner’s pre-existing depressive condition. The Police Force failed to refer her for formal psychiatric assessment. It was probable that, had she been referred in 2007, she would have disclosed her depressive condition. The exacerbation of, or failure to ameliorate, an existing condition was sufficient to establish causation: [101], [103], [106].

  2. Nor was the judge in error in concluding that the evidence was insufficient to show that, had Ms Skinner been referred for psychiatric assessment in 2007, PTSD would have been diagnosed. There was limited contemporaneous evidence of her reactions to the traumatic events: [111]-[112].

  3. The evidence was insufficient to show that the mere prospect of a return to general duties materially exacerbated the symptoms of her PTSD: [117].

Issue 4 – non-tortious psychiatric conditions as independent causes of harm

  1. Ms Skinner suffered both tortious and non-tortious harm. The calculation of damages required an evaluation of Ms Skinner’s earning capacity that was caused by the Police Force’s negligence. The trial judge appropriately reduced the damages for the possibility that she would have been disabled as a result of non-tortious exposure to traumatic events causing her PTSD: [124]-[126].

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, applied; Bonnington Castings Ltd v Wardlaw [1956] AC 613 (HL); DC v State of New South Wales [2016] NSWCA 198, referred to.

Issue 5 – contributory negligence

  1. Ms Skinner was not contributorily negligent in failing to mention her depressive condition to the police psychologist, Ms Hanna. Ms Hanna should have inquired whether Ms Skinner had symptoms of PTSD when Ms Skinner did not answer that question on a form. The award of damages should not have been reduced by 10%: [130]-[131].

Issue 6 – prejudgment interest under the Workers Compensation Act

  1. An entitlement to prejudgment interest depended on whether the State’s offer in mediation was unreasonable. That depended on what it knew and took into account at that time. There was no indication as to likely costs incurred by Ms Skinner at the date of the offer. The State was entitled to base its offer on particulars of negligence that were asserted, but not ultimately relied on, by Ms Skinner. The State was also entitled to have regard to the possibility that the case would not proceed at all since it was commenced out of time, and the likelihood of any liability being established: [134], [141], [146], [148], [152].

Workers Compensation Act 1987 (NSW) s 151M, applied

Judgment

  1. BASTEN JA: From 1993 until February 2010 the respondent, Kristen Skinner, was a member of the NSW Police Force. In February 2010 she was discharged on medical grounds. In March 2017 she commenced proceedings in the District Court, seeking work injury damages from the State as her employer. (It is convenient to refer to Ms Skinner as “the plaintiff”.) There was no dispute that, by the time of her discharge, she was suffering from two psychiatric conditions, being a major depressive disorder and post-traumatic stress disorder (PTSD). Although proceedings were not commenced until March 2017, a notice of intention to make a claim had been given in April 2012. The application for an extension of time was not dealt with until the final hearing, which commenced on 8 February 2021. The trial judge, Abadee DCJ, granted the extension of time and gave reasons for that decision in the principal judgment. [1] There was no challenge to that order.

    1. Skinner v State of New South Wales (No 2) [2021] NSWDC 49 (Skinner (No 2)) at [5]-[91].

  2. Following an eight day hearing in February 2021, the trial judge gave judgment with admirable expedition on 5 March 2021. The findings made in that judgment were as follows:[2]

“(a)   The Police Force’ breach of duty in failing to conduct a thorough mental health assessment of the plaintiff from May 2007 and through and beyond October 2007 caused the plaintiff to suffer Major Depression;

(b)   The plaintiff has not established that the breaches of duty I have identified as against the Police Force caused her to suffer PTSD or worsen the severity of that condition;

(c)   The plaintiff is entitled to Judgment against the defendant, being vicariously liable for the conduct of personnel within the Police Force;

(d)   There should be a 40% reduction in damages on account of the contingencies;

(e)   There should be a 10% reduction for contributory negligence.”

2. Skinner (No 2) at [683].

  1. Final orders were dealt with in a further judgment delivered on 9 April 2021. [3] The claim, though not subject to the provisions of the Civil Liability Act 2002 (NSW), [4] being a claim for work injury damages, was limited to the heads of economic loss permitted by the Workers Compensation Act 1987 (NSW), s 151G. The parties agreed that the various components of loss totalled some $1.9 million. The judge assessed, for reasons which will be addressed below, that there should be a 40% reduction for vicissitudes and a further 10% reduction for contributory negligence. From the balance so calculated, the claimant was required to repay workers compensation payments. The result was a judgment in her favour for $743,780.

    3. Skinner v State of New South Wales (No 3) [2021] NSWDC 115 (Skinner (No 3)).

    4. Civil Liability Act 2002 (NSW), s 3B(1)(f).

  2. Both the scope of the finding of liability and the reduction for vicissitudes required a disentangling of her psychiatric conditions. Thus, while it was accepted that both psychiatric conditions from which the plaintiff suffered were caused, or at least contributed to, by her employment, the judge concluded that only the major depressive disorder was caused by tortious conduct on the part of her employer, the State. [5] The disentangling of the two conditions resulted in a global assessment of damages, which was reduced by 40% by way of vicissitudes, that is, in effect assessing that proportion of her injury to the non-tortious PTSD, and a pre-existing disposition to depression and anxiety.

    5. Skinner (No 2) at [618]-[619].

  3. Two factors were left to be resolved, namely a claim for interest on the award of damages and the proper order as to costs. In Skinner (No 3) the judge rejected the claim for interest and determined that each party should bear her and its own costs of the proceedings.

  4. Both parties appealed. The State appealed the finding of liability; Ms Skinner cross-appealed on the basis that (i) the State’s breach of duty should have extended to a finding of causation that included the post-traumatic stress disorder; (ii) the finding of contributory negligence was erroneous; (iii) the reduction of the damages by 40% for contingencies was excessive, and (iv) there should have been an award of pre-judgment interest. There was no challenge to the failure to award costs, but she claimed her costs of the trial, on the basis that the cross-appeal would succeed on all or some of the grounds.

Nature of claims at trial

  1. In the last 15 years, the principles governing the tortious liability of the Police Force for psychiatric injury suffered by officers in the course of their employment have been clarified. The principles were crystallised in two recent decisions of this Court, namely State of New South Wales v Briggs [6] (Briggs) and Sills v State of New South Wales [7] (Sills). As pithily summarised by the trial judge, there are two main categories of such cases:

“[458]   Briggs was a case where a police officer failed because of his failure to identify a system of work which was not, but allegedly should have been, in place. By contrast, the Court of Appeal’s decision Sills, upon which the plaintiff relied, did not challenge the adequacy of the system of work itself, or argue that it was negligent not to have had a better system of work. It was the failure of the Police Force to properly implement … its system of work, in relation to its dealings with the officer, who was known to suffer from PTSD, which gave rise to the breach. In that case, the breach of duty was partly established by the Police Force’s failure to act upon recommendations of the PMO [police medical officer] and a police psychologist, generally, relating to providing protective strategies and the appointment of a mentor to help and monitor the officer to deal with the stress. It was also partly established by its failure to respond to the knowledge that the officer had accumulated exposure to multiple incidents within a short period.”

6. (2016) 95 NSWLR 467; [2016] NSWCA 344 (McColl, Ward and Leeming JJA).

7. [2019] NSWCA 4 (Payne JA, Sackville and Simpson AJJA).

  1. Clearly the two categories are not entirely independent of each other and do not cover the field. However, relevantly for present purposes, the plaintiff’s case fell within the latter category illustrated by Sills. As the trial judge noted:

“[460]   The plaintiff centrally contends that it was negligent for the Police Force not to direct her into the care of treatment providers until after the PTSD condition was entrenched. This, it was said, was contrary to what was ‘mandated’ by the Commissioner of Police’s Circular, ‘Major Incidents Policy’ and the NSW Ombudsman’s report of 1999, which introduced the Critical Incident Management Guidelines. I note, however, that the Circular referred to by the plaintiff was not in evidence.”

Thus, the case was one involving a failure to implement a policy for dealing with traumatic stress. There was some degree of ambivalence as to whether the claim was limited to a failure by senior officers to act on evidence of stress of which they were aware, or whether, to some extent, it extended to circumstances of which they should have been aware.

  1. The trial judge identified the content of the duty of care, which was said to have been breached in the following terms:

“[448]   In my view the duty of care required the Police Force to:

(a)   identify officers who, through the performance of their duties, were at risk of suffering, or were suffering, psychiatric or psychological harm;

(b)   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;

(c)   consult with appropriate persons in the workplace to identify hazards associated with the work environment and systems of work if and when the injured worker returned to duty, including the assessment of the risks of injury or further injury.

[449]   These matters were all accepted by the Police Force as comprising its duty of care in Sills v State of New South Wales [2019] NSWCA 4 (‘Sills’) per Sackville AJA (Payne JA and Simpson AJA agreeing) at [9]. The defendant did not suggest any distinguishing factors in this case.”

  1. The trial judge dealt with the allegations of breach of duty according to the following headings:

“[461]   In his oral submissions, Counsel for the plaintiff identified the following breaches of duty:

(a)   ‘targeting the plaintiff’ in 2002. This was alleged to cause her depression and anxiety;

(b)   Commander Shearer’s interfering with the plaintiff’s move from the Waratah Command to the Lake Macquarie Command;

(c)   The failure to pass on the plaintiff’s history and depression at the switch of command from Waratah to Lake Macquarie;

(d)   not allowing the plaintiff to continue as a station manager at Morisset because of budgetary reasons when there was a holding out that the plaintiff could continue in that capacity;

(e)   not following up the plaintiff after her EAP counselling session in May 2007;

(f)   putting the plaintiff ‘back on the truck’ in late 2007, after the suicides of two officers who were close to the plaintiff after ‘disclosures’ had been made about her psychological symptoms. These ‘disclosures’ were identified as having occurred:

(i)   in June 2005, at the point of the plaintiff’s exposure to the fatality (Mr Garland) in the motor vehicle accident;

(ii)   on 15 October 2005, after the ‘dead man Danny’ incident;

(iii)   the plaintiff’s taking sick leave in March 2007 and 22 March 2007;

(iv)   her expressed resistance to Commander Clarke’s allusion to the prospect of her going back to general duties, after a Neighbourhood Watch meeting in May 2007.

(v)   not following up with the plaintiff after the EAP counselling session on 16 May 2007;

(vi)   the suicides of officers the plaintiff’s reaction to the psychologist briefing after the suicides of colleagues in 2007; and

(vii)   notifications given by the plaintiff on 25 October [2007] and 5 February 2008.”

  1. The division into these categories was, as the judge explained, not entirely satisfactory. Paragraphs (a) and (b) identified intentional conduct of an administrative kind which may or may not have caused stress, but was not demonstrative of negligence.

  2. Paragraph (c) related to a transfer from Morisset Police Station (under the Waratah Command) to Lake Macquarie. The plaintiff had been examined by the police medical officer in April, May, June and August 2002. The failure to pass on the reports of the medical examinations when the plaintiff was transferred to Lake Macquarie Command was found by the trial judge to involve negligence. [8] That in turn required an assessment of the incidents which had occurred prior to April 2003 which involved direct or vicarious trauma.

    8. Skinner (No 2) at [500].

  3. With respect to par (d), the judge rejected the plaintiff’s contention that there was a breach of duty by her superior, Commander Clarke, in not assigning her to a foreshadowed role as station manager and directing her “back on the truck”, that is performing operational duties on the street (general duties). Accepting that there were operational reasons for that change of plan, the plaintiff did not establish that the change constituted a breach of the duty of care owed to her. That finding was not challenged and in any event was, as the trial judge noted, of limited significance when compared with other events which took place shortly thereafter in 2007. That was because the decision to return her to general duties, though taken in May 2007, was not effected until October 2007. The manner of giving effect to the decision from May to October 2007 was critical to the plaintiff’s case.

  4. In these circumstances, it is convenient to consider the critical events in periods, being (i) prior to May 2003; (ii) 2005; (iii) April 2006 (when the plaintiff suffered a back injury) – January 2007, and (iv) 2007-2008.

First period – 1992 to May 2003

  1. Before she had completed her training, the plaintiff spent time on duty at Newcastle Police Station. In October 1992, when she was 20 years old, the vehicle in which she was a passenger (and then unarmed) was approached by a man in Navy uniform, who fired a rifle in the air. She was concerned he would shoot at the police vehicle; he eventually turned the gun on himself. She was involved in dealing with the body with its shattered face.

  2. When the plaintiff returned to the Goulburn Academy to continue her training, she started a silly joke with some friends which came to the attention of the Academy psychologist. The psychologist thought her odd behaviour was due to post-traumatic stress because she was having psychotic delusions after the Newcastle incident. The plaintiff was referred to a psychiatrist who apparently dismissed the suggestion that she was having psychotic delusions. There is no evidence as to what the psychiatrist considered in relation to possible PTSD. The psychologist at the Goulburn Academy apologised but the plaintiff described in her first statement the “witch hunt” she was put through at the Academy. The incident demonstrated the fine line between psychological support and intrusive interventions which may be resented and treated as evidence of victimisation.

  3. In her first statement the plaintiff referred to completing her training and then moving to North Sydney for three months before being transferred to Mona Vale, Hornsby and then Mayfield.

  4. The first statement (Ex A), although typed on solicitor’s letterhead, was clearly prepared by the plaintiff without the assistance of a solicitor. It was 50 pages in length and was accompanied by 57 annexures. The evidence revealed that it may have been prepared in August 2019, although it was undated. A second statement (Ex B) prepared as an “evidentiary statement” was in fact dated 16 August 2019 and contained much of the material contained in the closely typed statement prepared by the plaintiff (Ex A).

  5. Her second statement identified an event whilst at North Sydney Police Station, her first placement after leaving the Academy. She described attending on a 19-year-old girl who had committed suicide in a hotel by taking pills and wrapping a plastic bag around her head. Two years later (1995) she attended another suicide (by hanging) at Hornsby Heights when she was stationed at Hornsby Police Station. She also recounted attending a third suicide in Newcastle in the “mid to late 1990s”. Although each of the events had occurred more than two decades earlier, the plaintiff was able to include harrowing details of the occasions, including dealing with members of the deceaseds’ families.

  6. In March 1998 the plaintiff was referred by her general practitioner to Dr F R Spruce for a psychiatric consultation. The history elicited at that time was one of anger and distress at the break-up of a personal relationship and difficulties in her relationship with her mother. She also informed Dr Spruce that her father had suffered from depression and erratic behaviour. Dr Spruce noted in his report of 2 March 1998:

“Away from that at work there are no problems with discipline, no problems with attendance and no troubles in dealing with members of the public which one would expect if this was secondary to any more pervasive psychiatric disorder. Of course here again I am relying on her observations.”

  1. Dr Spruce prepared a second report in February 2003 at the request of solicitors in Newcastle apparently acting for the plaintiff in relation to a compensation claim. The further report repeated his findings of 1998.

  2. The issue on which the plaintiff had apparently sought legal assistance related to stress caused by the handling of a complaint she had made about Sergeant and Acting Inspector Dave Matthews. She described in her statement Mr Matthews using sexually suggestive gestures and language towards another female police officer which the plaintiff had found offensive and highly inappropriate. Her reporting of the incidents to her immediate supervisor, Sergeant Neil Robertson, appears to have resulted in an investigation which continued until mid-2000.

  3. A team involving two psychologists undertook an investigation which resulted in a “stress” assessment report. The dates on the report are confusing, but the report was probably prepared in February 2002, after a referral in January 2002. It described an incident on 26 August 2001 where, in the course of a shift, the plaintiff had been asked to do something she thought was a low priority task and had become extremely distressed. She had attended a doctor on 29 August 2001 and, according to the psychologists, had not returned to work by the date of their interview with her, apparently in February 2002. Under the heading “Brief medical history”, the report, referring to the plaintiff’s account, read:

“She denied ever having had a serious illness or a serious accident or ever having been hospitalised. She also denied that she had taken time off work prior to this claim for emotional reasons nor had she applied for compensation prior to this claim. She stated that she had seen a psychiatrist on one occasion in 1997 as a result of a personal relationship breakup. She stated that her father had suffered depression between 1986 and 1988 and had not had a relapse since. Ms Skinner denied experiencing problems with stress prior to this claim and also denied having taken medication for depression, anxiety or disturbed sleep prior to this claim.”

  1. On 30 October 2001 Dr Murray Wright, consultant psychiatrist, reported to the referring general practitioner that the plaintiff presented to him “with symptoms of depression arising in the context of work-related stresses.” Dr Wright reported:

“Kristen’s concern arises largely from her perception that she received no support having made the complaint against another officer and that she remains concerned about the management style and the lack of resolution of her issues.

…

I believe that Kristen has experienced a major depressive episode arising from work-related stresses, and that this illness is resolving as a result of antidepressant treatment and absence from work. The differential diagnosis is that of an adjustment disorder with depressed mood.”

  1. On 28 June 2002 Dr Wright signed a WorkCover medical certificate stating that she was fit for half-time full operational duties. On 24 June 2002 a police medical officer, Dr Chern, had assessed the plaintiff as fit for return to full duties. [9] However, Dr Chern recommended that she work for no longer than the 19 hours per week she was currently working, unless an extension were to be advised by Dr Wright, and that she work with another officer when carrying out operational duties. Dr Chern also noted the possibility of “psychological counselling via EAP” to assist her deal with her anger and depression.

    9. Report of Dr Inglis Chern, 26 June 2002.

  2. The term “EAP” referred to an “Employee Assistance Program” through which counselling was available to members of NSW Police and immediate family. Although records showed that the plaintiff later engaged in EAP sessions in 2007 and 2008, the possibility raised by Dr Chern in 2002 appears not to have been pursued.

  3. To summarise the state of the plaintiff’s psychological health in May 2003, two points stand out. First, it was true that the plaintiff had, over a 10-year period, been involved in at least four traumatic incidents involving death and, on at least two occasions, had dealings with family members of the deceased in highly distressing circumstances. There was, however, no evidence that she had experienced distress or depression as a result of those events. She had reported none, although she had seen general practitioners, psychiatrists and psychologists in relation to other issues.

  4. Secondly, there was no doubt that she had suffered disabling distress and depression which, in 2001-2002, had resulted in a lengthy period of sick leave. However, there was no evidence that, although the stress was employment related, it resulted from any breach of duty owed to her by superior officers in the NSW Police Force.

Second period – 2003-2005

  1. The next step in the inquiry is to address the circumstances of the plaintiff’s transfer to Lake Macquarie Command in the second quarter of 2003. The trial judge made the following findings in respect of the circumstances at the time the plaintiff was transferred to Lake Macquarie Command in April 2003:

“[497]   I now address the plaintiff’s complaint ([461(c)]) about the failure to pass on the plaintiff’s medical history to the commander at LAC Lake Macquarie before sending her out to front line duties.

[498]   I accept that the unexplained omission in passing on an officer’s health history, including, in this case, suggested diagnosis of the anxiety and depression (the latter being treated by antidepressant medication) from August 2002, when the plaintiff move from Waratah to LAC Lake Macquarie suggests a failing somewhere within the organisation. I accept Commander Clarke’s evidence to the effect that, as an LAC, at the handover from a predecessor, would wanted, if not expected, to have had that information. Although he did not give evidence, I have no reason to think that Commander Kenny (Commander Clarke’s predecessor) would have thought differently.

[499]   I also note that on 28 August 2002, Dr Chern had recommended a review of the plaintiff in 6 months’ time. That did not occur for reasons which were not explained.

[500]   These omissions meant that the Police Force was not able to discharge one of the incidents of the duty I referred to at [448(a)], namely identifying officers who may be at risk. Given the plaintiff’s identified anxiety and depression from at least August 2002, the plaintiff fell into that category. I am willing to accept that these facts suggest a breach of duty prior to the plaintiff commencing front line duties in April 2003.”

  1. Curiously, in the period up to August 2002, as appears from a complaint made by the plaintiff on 25 August 2002, her concerns at that stage were that she had been cleared by her treating doctor to work “full duties but on restricted hours”, which she said Commander Lee Shearer of the Waratah Local Area Command obstructed. She complained about a referral by Commander Shearer to the police medical officer seeking a further assessment.

  2. It is clear that the plaintiff clashed with Commander Shearer, but there was no indication that there was inadequate medical assessment at that time. The resolution of the problem lay in a transfer of the plaintiff to the neighbouring area command, Lake Macquarie. The Commander at Lake Macquarie was Superintendent Michael Kenny. There was an exchange of emails between Shearer and Kenny seeking to organise a swap of officers. On 14 March 2003, Ms Shearer emailed Mr Kenny in the following terms:

“At this stage I am not in a position to take [TB] or even prepared to consider it. Kristen Skinners issue was entirely different to you sending over a long term sick officer she was virtually on full duties. The Commander has changed at Lake Macquarie and it is my view that the rehabilitation of this officer rests, in the first instance, with Lake Macquarie. The problem with Kristen Skinner was with me and her ability to be managed in this Command having regard to her relationship with me. …”

  1. It is reasonably clear from the exchange of emails and other communications within the regional command that senior officers at Lake Macquarie were aware of the fact that the plaintiff was undergoing rehabilitation, having been on sick leave and was working full duties, but subject to restrictions. It is possible that Lake Macquarie Command did not have her medical file, but the evidence as to what files were held (and where) was sparse and was not the subject of any particular finding by the trial judge. Further, it is unclear that there was any causal connection between this finding of breach of duty and the plaintiff’s subsequent psychiatric conditions. In considering causation, the trial judge identified the relevant finding as that set out in [499] above, namely “omitting to review the plaintiff’s capacity in April 2003”. [10] The judge concluded that there was no causal connection in relation to that omission,[11] explaining:

“[591]   There are several difficulties with the argument for causation associated with the failure to have the plaintiff reviewed prior to her return to front line [duties] in April 2003. First, there is no proof that had a review taken place in February 2003, when Dr Chern said it should have occurred, or prior to her return to frontline [duties] in April 2003, that the plaintiff would not [have been] medically fit, physically or mentally, to engage in frontline duties from that point. Secondly, other than a clear difficulty that the plaintiff had working with Michelle McSweeney, there was nothing to objectively indicate trouble in the plaintiff being able to cope with frontline [duties], until, arguably June 2005, which I will come to below. For example, from late 2004 through early 2005, she appeared to be performing operational duties well. She received praise from Chief Inspector Rae and [Morisset] hospital staff in relation to separate incidents occurring in August 2004.”

Traumatic incidents – 2005

10. Skinner (No 2) at [582].

11. Skinner (No 2) at [592].

(a)   the fatal motor vehicle accident (Garland)

  1. The plaintiff encountered two traumatic events in 2005. In June 2005 she attended a motor vehicle accident with Senior Constable Richardson. She entered the vehicle from the passenger side and clambered into the wrecked vehicle to reach across to the driver. She stated that she tried to pull the driver upright and was “still trying to reposition him when the ambulance arrived.” The ambulance officers placed a monitor on his chest and found no response. They were unable to revive him.

  2. The officers were also required to locate the next of kin of the deceased (Peter Garland), who were the parents. In her statement, the plaintiff recounted in detail meeting the young man’s mother and telling her about the accident. The officers stayed with the family for about two hours until the father arrived home. [12] The officer in charge of the station directed the plaintiff and Constable Richardson to prepare the death notices.

    12. Exhibit B, pars 86-124.

  3. There is no doubt that the plaintiff performed admirably in difficult circumstances and received letters of appreciation from both the Commander at Lake Macquarie and the Commissioner, after the parents wrote a letter to the Commissioner commending the work of the officers. [13]

    13. Skinner (No 2) at [164], [170].

  4. The trial judge found that there had been a breach of duty on the part of her senior officers (presumably Sergeant Sharman) in failing to activate a “critical incident team” in accordance with guidelines in a report prepared by the New South Wales Ombudsman in 1999. One circumstance in which such a step was required was where an officer had been exposed to “prolonged rescue work.”[14] Accordingly, there was a breach of duty in failing to organise a “critical incident debriefing”. [15] The judge found there was no breach of duty in Sergeant Sharman directing the plaintiff and Senior Constable Richardson to prepare and deliver death notices to family members of the deceased. [16]

    14. Skinner (No 2) at [502].

    15. Skinner (No 2) at [504].

    16. Skinner (No 2) at [507]-[509].

  5. Before turning to the consequences of the breach that was established, it is convenient to deal with a second event which occurred in October 2005 and was dealt with by the judge in combined findings with the motor vehicle accident.

(b)    decomposing corpse (Danny)

  1. In October 2005, bushwalkers had reported seeing a deceased person in Watagan Forest. The plaintiff and Constable Richardson discovered the body hanging from a tree and extensively decomposed. It was undoubtedly an horrific experience: the man’s flesh was rotting and the plaintiff described “the stench” as “unbearable”. She and Constable Richardson assisted the rescue squad in pulling the body down and removing his wallet. The body had to be placed in two bags given the extent of the decomposition. They recovered the car keys from his pocket and searched his nearby car.

  2. Over the ensuing days the plaintiff spent some time cleaning the contents of the deceased’s wallet so that his personal effects could be returned to the family. She was relieved of the duty of preparing the death statements and contacting the family face-to-face. She obtained no counselling to cope with the emotional stress and, although aware of the employee assistance program, was not encouraged to use it, and did not at that time.

  3. The 1999 Ombudsman report specified that one of the mandatory circumstances in which debriefing should be offered to officers was after “exposure to gruesome sights”. [17] The judge found that there was a breach of duty in not activating a critical incident team in the circumstances in October 2005. There remained, however, an issue as to the consequences of failure to provide any form of debriefing or counselling in June and October 2005.

    17. Skinner (No 2) at [351], [510].

  1. It will be necessary in due course, in the context of the cross-appeal, to address the expert medical evidence and the manner in which the trial judge dealt with aspects of it. It is convenient at this stage to note the careful reasoning with respect to the failure to conduct debriefings in 2005. The essence of the judge’s reasoning was as follows:

“[593]   Whether or not a critical incident debriefing was ‘mandatory’ or needed to be ‘considered’, the NSW Ombudsman’s report indicated that the debriefing required the voluntary participation of the serving officer. For the debriefing to be effective, then, two (related) things were required: first, the consent of the officer to participate; and secondly, the preparedness of the officer to genuinely and honestly participate in the provision of relevant information.

[594]   Further, it is necessary to posit what consequences would likely flow from the debriefing. Questions would arise as to what treatment the plaintiff would require, whether the plaintiff would be assessed as fit to undertake further general duties, and if not, what steps the Police Force might take; before a comparison is made with the situation that actually occurred.

[595]   I find that it is more likely than not that had the debriefings been proposed for the plaintiff after each incident in 2005, the plaintiff would have consented to participate and she would have provided an honest account of her difficulties. …

[596]   I am, unable, however, to determine what difference it would have made if the plaintiff did receive a thoroughgoing psychological assessment in 2005. SC Richardson did not notice any ongoing behavioural concerns about the plaintiff in 2005. The chronologies of the parties do not indicate any significant event occurring in the plaintiff’s service from October 2005 until April 2006, when the plaintiff sustained a back injury. As I noted earlier, in the period from 2004 to June 2005, the plaintiff appeared to be travelling well at work, at least in the performance of her duties, save for her dispute with Officer McSweeney.

…

[600]   Accepting, as I do, that it was the exposure to a large range of incidents over a long career which contributed to the PTSD, in my view, the plaintiff has not proven that the negligence [of] the Police Force in its lack of response to the two incidents in June and October 2005, respectively, altered the risk of her suffering psychiatric illness, or alleviating the severity of that condition in 2005. I consider that the position is the same in relation to her condition of Major Depression.

[601]   However, the omission to conduct critical incident debriefings was procedurally significant and had consequences for causation findings on other breaches of duty that I have found, occurring in 2007. …

[602]   That being so, had the critical incident debriefings occurred, as I consider that they should have, there would (or should) have been a record for those health practitioners of the plaintiff having endured the incidents that she had in relation to the Garland MVA and ‘dead man Danny’, which would (or should) have been accessible for any health practitioner assessing her in 2007, and thereafter. Records of her exposure and, at least, some identified reaction to traumatic incidents would, in my view, have been relevant evidence for a health practitioner considering her mental health in 2007.”

  1. There was no challenge to any part of that reasoning, either by the State or by the plaintiff in her cross-appeal. It is, in any event, persuasive.

April 2006 – January 2007 (back injury)

  1. The plaintiff suffered an injury to her back whilst arresting a large man involved in a fight. The precise extent of the injury is unclear from the contemporaneous medical report of Dr Isaacs, an orthopaedic surgeon. However, Dr Isaacs stated that the plaintiff was suffering from “a chronic strain to her lower back with referred pain to the right leg” and advised that she should not continue to wear the appointments (being the belt containing a radio, gun and other equipment and weighing 6-7kg). [18] The judge noted that the plaintiff was away from work for about four weeks and did not perform general duties again. Rather, she was restricted to clerical work in the station at Morisset and, from October 2007, the station at Toronto. [19]

    18. Report of Dr Abe Issacs, 20 July 2006.

    19. Skinner (No 2) at [171]-[172].

  2. In October 2006 a “Proposed Return to Work Plan No 1” was prepared, listing the injury as “back pain” and proposing a return to “pre-injury duties” by 4 December 2006. That date was later put back to 29 January 2007. In January 2007 the plaintiff’s father died and she took compassionate leave for what was described as “an extended period” in a further return to work progress report of 12 February 2007. The progress report stated:

“Ms Skinner continues to advise of pain to her low back. Increases in pain were previously attributed to her appointments belt, which has now been replaced by a gel belt.”

  1. On 7 April 2007 her general practitioner, Dr Benney, signed a WorkCover medical certificate referring to “ongoing back pain”.

Fourth period – May-December 2007

  1. The plaintiff had a history of conflict with fellow officers and supervisors. The trial judge set out parts of that history for the period from 2006 to 2008. [20] The judge noted that between “22 May and 6 June 2007 the plaintiff was again on sick leave due to what was described as ‘situational stress’”: at [198]. On 16 May 2007 she consulted an EAP counsellor, who completed a “client call record” as follows:

“Kristen is currently on a workplace rehabilitation program, having injured her back last year. She has been relieving office manager at [Morisset] Police Station for the past three months and was informed last week that the position would be rotated. Reported acute anxiety and stress with underlying depression (for which she is currently receiving treatment with anti-depressants). Provided CBT [cognitive behavioural therapy] & solution focused counselling strategies (eg requesting job performance appraisal in current position, lodging a formal complaint re workplace bullying, harassment by a colleague in relation to a past ICAC investigation). Requested follow-up face to face counselling appointment. Please call today.”

20. Skinner (No 2) at [175]-[205].

  1. On 28 June 2007 an officer in the plaintiff’s team at Morisset, Sergeant Ian Muir, committed suicide by hanging himself at home. Some two months later, another colleague and a friend, Leading Senior Constable Scott Gray, committed suicide. It is clear from the emotional tone of her written evidence that the plaintiff was not only greatly distressed by the death of a colleague and friend, but was also deeply concerned at what she considered was the failure of the police force to identify officers who were at risk. During 2007, the plaintiff spoke to an EAP counsellor on three occasions, namely 16 May (noted above), 21 August and 4 October 2007.

  2. In September 2007 the plaintiff was treated for a broken finger, an injury which had occurred outside her work environment, whilst riding a horse. She also spoke to a psychologist, Dr Ross Leembruggen, on 5 October 2007. She saw the psychologist in early September 2007 and again in October 2007. She said that she was “extremely upset and angry in both meetings.” The aftermath of one meeting resulted in the plaintiff being uncontrollably distressed and an exchange with the sergeant at Morisset as to whether she needed to complete her shift. She advised the duty officer that she was “a mess and didn’t want to hang around in tears at Toronto anymore because it brought up too many emotions. Scott [Gray] and Ian Muir were from Toronto Station when they committed suicide.”

  3. On 15 October 2007 the plaintiff was advised that Commander Alan Clarke was proposing to transfer her from station manager at Morisset to general duties at Toronto. Commander Clarke responded the following day seeking to arrange a time to speak with her.

  4. On 16 October 2007 she referred Commander Clarke to the fact that her doctor had placed her on restricted duties for a further month due to the injury to her finger. (The finger required surgical correction.) She also sought a statement of reasons for her transfer to Toronto. Commander Clarke responded with an explanation for the decision on Monday 22 October 2007 and asked to see her on the following morning.

  5. After speaking with Commander Clarke, and apparently being dissatisfied with the outcome of the conference, the plaintiff completed an “accident/incident notification” identifying “anxiety/depression due to work-related issues including the suicide of two work colleagues and other matters”, with the date being given as “prior to 25/10/2007”. She then went on leave.

Events of 2008

  1. It appears that the plaintiff was on leave for the greater part of 2008. She sought to join the mounted police in January 2008 and was interviewed and assessed by a psychologist, Diane Hanna. The application was unsuccessful, but the State relied on the record of that interview as evidence that she did not avail herself of an opportunity to raise with a police psychologist any difficulties she had with a return to general duties, which was work required of mounted police.

  2. The plaintiff consulted her psychiatrist, Dr Spruce, on several occasions in the course of 2008. There were various interviews with welfare personnel, with the plaintiff maintaining that she wished to return to police duties. The trial judge stated that “[b]y September 2008, the plaintiff resumed at Toronto, to assist the supervisor, performing restricted duties.”[21] On 3 September she had sought “special sick leave” which was granted for the period to 15 December 2008. [22] After two months on “special sick leave”, in November 2008 a new commander (Commander Rae, who had replaced Commander Clarke) indicated that the period of sick leave would end. After the cancellation of the special sick leave in November 2008, she may have returned to work on 10 November 2008. [23] (The judge noted that police records indicated that that was her last day of work. [24] ) There were further appointments with psychologists and psychiatrists over the ensuing 14 months. She was medically discharged on 18 February 2010. [25]

    21. Skinner (No 2) at [272].

    22. Skinner (No 2) at [273].

    23. Skinner (No 2) at [274].

    24. Skinner (No 2) at [279].

    25. Skinner (No 2) at [294].

Evidence of breach of duty

  1. In discussing the systems of work operating in the Police Force between 2000 and 2008, following the release of the report by the New South Wales Ombudsman, “Officers Under Stress” in June 1999, the trial judge outlined the lay evidence and the expert psychiatric and psychological evidence in some detail. The evidence covered both the circumstances of the plaintiff and the facilities available, and those which should have been available, in the Police Force. It is not necessary to repeat the careful summary given by the trial judge of the evidence. However, two qualifications should be noted.

  2. First, the judge stated that the joint expert report of the psychiatrists did not address the systems of work in place at the time of the plaintiff’s service. [26] However, when the experts gave concurrent evidence the questioning was directed to “the adequacy of the Police Force’s response to certain events, on the basis of limited assumptions said to be borne out by the facts.” As the judge rightly understood, the relevance of that evidence turned upon whether the factual findings supported the assumptions. [27] In addition to noting that the assumptions were “narrowly framed” by the plaintiff, the judge noted some general issues:

“[444]   The first of those is the danger of hindsight bias. There was a danger that these experts were being asked, in retrospect, including information they possessed at the trial but which was not in possession of decision-makers at the time, to evaluate conduct when the test for breach is prospective. The second tendency was that the technique was apt to elicit what the experts, from their psychological or psychiatric perspectives, would have wanted to have happened. But the test for negligence is what was, or were, the reasonable response, or responses, in the position of the plaintiff’s supervisors or commanders in the light of an assessment of risk. As authorities in this area (which I refer to below) indicate, issues of breach have to take into account the exigencies of a police officer’s service in an inherently hazardous workplace where responsibilities and statutory obligations are owed to the community in general. A third tendency, associated with the second, is that the question on breach is not whether something else that was not done could have been done which might have produced a different outcome, but whether the failure to take that step was unreasonable. To take an example. A prominent theme throughout Professor McFarlane’s written and testimonial evidence was to emphasise that in his experience associated with the Australian Defence Force, and possibly other organisations, formalised steps were taken to ensure that certain members receive mandated monitoring for their mental welfare at discrete intervals. He believed those steps would also be appropriate for the New South Wales Police Force. Reasonable minds may differ as to whether that policy is desirable, and there is no question about Professor McFarlane’s suitability to express [that] view, but a question, not seriously addressed in the evidence or submissions, is whether any omission to institute such policy at an organisational level was unreasonable. Plainly that would involve cost and also have other implications for the distribution of resources. But if it was not unreasonable at an organisational level, it would be easy for a proponent of such policy, like Professor McFarlane, to consider that at a unit level, or even more narrowly, in the case of an individual supervisor, the policy should have been implemented. However, the issue remains the same, even at the lower level: the question is whether the failure to take a suggested step was unreasonable.”

26. Skinner (No 2) at [395].

27. Skinner (No 2) at [443].

  1. It will be appropriate to turn shortly to the findings of breach accepted by the trial judge. At this stage it is convenient to note the evidence of the two experts preferred by the trial judge. In terms of general factors, the judge noted that the psychiatrists giving evidence concurrently often deferred to the views of Professor McFarlane, whose experience and expertise were undoubted. [28] Secondly, the judge noted that in relation to the individual circumstances of the plaintiff, Professor McFarlane gave weight to the views of her treating psychiatrists, Dr Murray and, to a lesser extent, Dr Spruce. [29] However, Dr Murray, whilst having on average three consultations a month with the plaintiff from September 2012 until December 2015 (being the date of his report), was first consulted on 10 September 2012, that is some four years after the plaintiff effectively ceased working as an officer. There were in evidence earlier medical reports, more nearly contemporaneous with the events which caused the illnesses.

    28. Skinner (No 2) at [438].

    29. Skinner (No 2) at [564].

  2. In February 2002 the plaintiff’s general practitioner at the time, Dr Lawrence Moses, saw the plaintiff, diagnosed “depression and anxiety” and prescribed an antidepressant, Cipramil. [30] Dr Moses referred the plaintiff to Dr Wright, consultant psychiatrist. The source of the plaintiff’s problems at that time was identified as internal dissension at the workplace and an internal affairs investigation into her complaint against another officer. In a report dated 30 October 2001 Dr Wright noted:

“There is no past history of any psychiatric illness although she saw a psychiatrist on one occasion after a relationship breakup in 1997. There is no sustained history of alcohol or drug problems although there was a period when she drank excessively. There was no past history of any significant medical problems.”

His diagnosis has been set out at [24] above. He recommended that she remain on Cipramil but might benefit from “further psychotherapeutic treatment with a cognitive-behavioural type strategy.”

30. StressSolutions Stress Assessment Report, p 20.

  1. Dr Wright saw the plaintiff again in January 2002. The plaintiff indicated that her depressive illness had improved but Dr Wright thought that she “remained unfit for work” and sought to review her progress in February. [31] There was no further report from Dr Wright.

    31. Report, Dr Wright, 29 January 2002.

  2. Dr Spruce first saw the plaintiff on 24 February 1998, and then some 10 years later in 2008, on three occasions in May 2008 and again in June, July, October and November 2008. For the purposes of preparing a report, he saw her again in July, August and September 2009. Noting that her first appointment related to her relationship with her then boyfriend, Dr Spruce stated that when she returned in May 2008 “she presented with depressive symptoms that she attributed to difficulties she had experienced at work over the previous decade.” [32] She gave a history of moving to Morisset in 2003, where her co-workers were “generally suspicious of her, and then she had a series of confrontations with another constable after Ms Skinner had criticised her performance.” The confrontations (with Constable Michelle McSweeney) came to a head not long before she went off work and attended Dr Spruce. She recounted other difficulties, including hurting her back, attendance at a fatal accident and dealing with a decomposing corpse. She also reported the suicide of a fellow officer in 2007. Dr Spruce stated:

“From the history provided to me, Ms Skinner has presented with Major Depression predominantly as a result of her inability to resolve conflict with her Employer and a number of fellow workers in a situation in which she found herself ostracised, isolated and mistreated. This appears to have begun on 1998 and continued on throughout the last decade in various settings. She was treated with Efexor antidepressant, and with that, her depression improved to the point that she returned to work, but nothing had changed at work and her ability to continue to function at work once again deteriorated. Nowadays any return to that situation appears to provoke a powerful emotional response and associated physical and emotional dysfunction.”

32. Report of Dr Spruce, 11 September 2009.

  1. Of the earlier incidents, Dr Spruce identified the consequences in terms of inter-personal isolation. After referring to the fatal accident, and the decomposing corpse, Dr Spruce stated:

“She said that following those incidents there was a suicide of a fellow Officer in 2007 and since the fatal [sic], she had become heavily involved in Occupational Health and Safety issue with the Police and tried to raise the issues of two suicides of Police Officers from the Toronto Office, but her passion in those matters had further ostracised her.”

  1. The evidence contained written reports from Dr Spruce to the plaintiff’s general practitioner, Dr Graham Benney, of 2 March 1998, 9 May 2008, 23 May 2008, 30 May 2008, 13 June 2008 and 25 September 2009.

Grounds 1 and 2 – Duty and breach

  1. The State accepted that the judge correctly formulated the duty of care owed by the Police Force, as an employer of the plaintiff, in the following passage:

“[448]   In my view the duty of care required the Police Force to:

(a)   identify officers who, through the performance of their duties, were at risk of suffering, or were suffering, psychiatric or psychological harm;

(b)   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;

Decision last updated: 08 February 2022

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