In this alert, Senior Associate Aaron Clark and Solicitor Matthew Boyce discuss a recent decision of the New South Wales Supreme Court (NSWSC) in a case where the Commissioner of Police (Commissioner) breached the duty of care it owed to a long-serving police officer by failing to provide adequate mental welfare checks.  In spite of these breaches, the Commissioner was not found to have caused the psychological injuries subsequently suffered by the plaintiff.[1]  

Key Points

  • If an employee begins to display outward symptoms of stress relating to work-based tasks, it is within the employer’s duty of care to investigate and offer support;
  • Red flags for employers can range from an employee mentioning that they “cannot cope” to asking for a transfer to a lesser or lower ranked position; and
  • Loss of chance of a better outcome is insufficient to prove causation.  A plaintiff employee must still prove the failure of an employer to provide adequate care and support was the cause of the plaintiff’s injury.

Facts

Throughout his 35-year career, the plaintiff was subjected to a number of traumatic and distressing experiences, including:

  • Rescuing survivors and retrieving deceased bodies at the site of a derailed train incident that claimed the lives of 83 people and injured 210 others;
  • Investigating a number of violent crimes including the murder of a newborn child.  At the time, the plaintiff did not recall anybody checking on his welfare, nor was he made aware of any procedure requiring such checks to be conducted; and
  • Being called to the Silverwater Gaol to attend to six inmates who had hanged themselves in their cells.  The plaintiff was obliged to cut down two of the six men, as protocol required that a police officer, rather than a prison officer, perform this duty.

In addition to the anxiety accumulated from the experiences above, dwindling staff members at the plaintiff’s Local Area Command was alleged to have made it almost impossible to properly investigate crimes. When matters failed to improve, the plaintiff successfully applied to be transferred to a lower ranking general duties role.  The plaintiff informed a Detective Inspector that he had “had enough”, “can’t cope” and wanted to transfer to general duties to “have perhaps a quieter time.”

In September 2005, the plaintiff became the subject of a Police Integrity Commission (PIC) inquiry.  This is known to be an extremely stressful process for an officer and was one which necessitated the involvement and questioning of the plaintiff’s ex-wife and his elderly parents.  From the outset, the plaintiff’s superiors neglected to inform him of the counselling and psychiatric services available to him throughout the duration of the inquiry.  The plaintiff’s evidence was that he felt isolated and unsupported during the process as he was obligated, by statute, to not disclose information about the inquiry to anybody.

In 2007 the plaintiff was informed that in accordance with Section 181D of the Police Act 1990 (NSW), he was to be given notice that he was being removed from the NSW Police Force.  At the conclusion of the PIC inquiry, this notice was withdrawn.  However, the plaintiff considered that by this stage, it was “too little, too late”.  He no longer had faith in the system and believed his reputation to be ruined.  The plaintiff applied for a medical discharge in 2008 as a result of developing an Adjustment Disorder.  This was eventually granted in 2010.

The plaintiff commenced proceedings in the Supreme Court in June 2011.

Decision

In determining the duty of care owed by the defendant, Her Honour Adamson J acknowledged the plaintiff could not have performed his duties as a police officer without being exposed to stressful situations.  However, the Commissioner still had a non-delegable duty to provide a safe system of work for police officers.[2]  This included ensuring that they were protected from the risk of psychiatric injury.[3]  The court found that the defendant was aware that the claimant was not coping with work following the events at the Silverwater Gaol and had therefore breached its duty of care by failing to refer the plaintiff for psychiatric assessment and treatment when he applied for a transfer to general duties.  The defendant was similarly negligent in its failure to forewarn the client of the impending PIC inquiry and its failure to provide him with adequate support.

Her Honour was then required to decide whether these breaches of duty caused the harm suffered by the plaintiff.  Her Honour accepted that if the claimant was provided with adequate support and treatment, the risk of suffering an Adjustment Disorder would have been materially reduced.  However, for liability to be imposed, it is not enough for the plaintiff to establish that he was merely denied the chance of a better outcome.[4]  Here, the plaintiff needed to show if it were not for the negligent behaviour of his employer, he would likely have avoided suffering an Adjustment Disorder.  As the plaintiff was unable to show this, whilst the defendant was found to be negligent, it was not found to have caused the harm suffered by the plaintiff.

Her Honour dismissed the claim.