Background

In State of New South Wales v Briggs[1] a Police Officer (the worker) alleged he sustained psychiatric injuries over a period of time from 2003 to 2011 as a result of exposure to traumatic events during the course of his employment with the State of New South Wales (the employer).

At first instance, the worker was successful and was awarded damages of $969,136.00.

The trial judge found the employer breached its duty of care owed to the worker because the employer:

  • Failed to provide the worker with any counselling or debriefing in respect of critical incidents between 2003 and 2011;[2] and
  • Failed to respond to a reasonably foreseeable risk of psychiatric injury in circumstances where in July 2011 the employer was put on notice of the risk of psychiatric injury to the worker after the worker disclosed to his ‘man manager’ he was ‘struggling’. The trial judge concluded that a reasonable supervising officer or ‘man manager’ ought to have made further enquiries of the worker’s wellbeing at that time which would have likely revealed the extent of the difficulties he was experiencing.[3]

The employer appealed the trial judge’s findings on liability and quantum.

Appeal

The New South Wales Court of Appeal allowed the appeal and found that the trial judge had erred in finding that the employer breached its duty of care owed to the worker.

As to the reasonableness of providing (or not providing) a worker with counselling or debriefing following exposure to trauma, Leeming JA referred to the decision of Hegarty v Queensland Ambulance Service (Hegarty)[4] in which Keane JA found that the risk of psychiatric injury to a worker may be less apparent to an employer than in cases of physical injury, and therefore, the response to the risk of psychiatric injury (and the reasonableness of same) involved a greater degree of uncertainty.[5]

Leeming JA affirmed the decision of Hegarty and went on to state:

“… it is neither clear as a matter of common knowledge nor unequivocally established by evidence that debriefing or counselling is in all cases either appropriate or necessary. This is the point made by Keane JA at [41] reproduced above, and by senior counsel by reference to that paragraph in oral submissions (“In other words, is it really going to help to talk to the employee? Is it necessarily going to help? Might help with some, might not with others”). If some employees respond very well to counselling, while for others it is of no assistance and for still others it is actually counterproductive, then how is the employer to know into what category any particular employee falls?”[6]

Leeming JA opined that an employment relationship required the employer to respect the privacy and autonomy of the worker and that ‘a compelling case is required before the private affairs of an employee are subject to scrutiny by an employer’.[7]

His Honour held that there was no clear course of action (that is, no clear identifiable response required by an employer to a risk of psychiatric injury to a worker) that would be appropriate in each case.[8]

His Honour found that the trial judge had erred in failing to identify a system of work, or general instruction, which should have been prescribed in response to an identified risk of psychiatric injury. On this point, His Honour highlighted that:

“ In order for liability to be made out, what was required was the identification of some different, specified system of work which, if it had been implemented and maintained, across the NSW Police Force as a whole, would have been a reasonable response to the foreseeable risk of psychological injury.”

Most importantly, at no stage was there a finding as to what instruction should have been given by the Commissioner to officers in the NSW Police Force, over and above the systems which were already in place.”[9]

Lastly, His Honour was not satisfied that the worker’s disclosure to his employer that he was ‘struggling’, in the context of the worker having applied for a theoretical demotion, put his employer on notice of some underlying psychiatric injury that required further investigation. His Honour found that, had further enquiries been made of the worker at that time, it was more likely the worker would have pointed to unrelated factors such as his long commute and his wife’s pregnancy and health issues rather than his work duties.

His Honour concluded:

"Mr Briggs himself was ignorant of the psychological illness which he has been found to have. Of course, with the benefit of hindsight one wishes that he and his colleagues had been more perceptive. But if the question of breach is to be addressed prospectively, as it must, and in relation to the thousands of police officers on general duties in the NSW Police Force such as Mr Briggs, then the answer must be given by reference to (a) a specific system of work or general instruction which should have been put in place in order to address the risk of psychological injury which is inherent and unavoidable in policing and (b) demonstrating that Mr Briggs’ undiagnosed injury would more likely than not have been detected had such a system of work or instruction been in place. No such system was formulated by the primary judge, and any such system would have to have had regard to important values of police officers’ autonomy, dignity and privacy. That is the essence of my conclusion that the primary judge erred in finding a breach of duty for which the State was liable.”[1]

summary

  • Counselling or debriefing a worker who has been exposed to trauma will not be necessary and appropriate in every case. More particularly, a failure to do so will not necessarily amount to a breach of the duty of care an employer owes to a worker in such circumstances.
  • There is no clear action required to be taken by an employer to respond to a risk of psychiatric injury to a worker who has been exposed to trauma.
  • The reasonableness of an employer’s response to a risk of psychiatric injury will turn on its own facts.
  • Where a Plaintiff alleges an unsafe system of work caused or materially contributed to their injury, the Plaintiff must establish an alternative system of work which, if had been implemented, would have been a reasonable response to a reasonably foreseeable risk of psychiatric injury and which, if had been implemented, would have materially reduced or avoided the risk of psychiatric injury which ultimately manifested and befell the Plaintiff.

A copy of the judgment can be found here.