Police, ambulance and fire service first responders who are exposed to traumatic events as part of their job are entitled to a duty of care, like employees in other fields. RMB Compensation Division explains a case involving a police officer with Post Traumatic Stress Disorder:
Employers have a legal duty of care to take all reasonable care to prevent injury to their employees, including psychological injury.
But what happens in cases of first responders such as police and ambulance crews that are frequently exposed to traumatic events because of the nature of their work? When is an employer negligent in causing psychological injury to their workers in those settings?
In February 2019 in the NSW Supreme Court, Court of Appeal, the landmark case of Sills v State of NSW was handed down. The case provides guidance on where negligence can be found in the way the employer manages workers who are exposed to traumatic events as part of the inherent requirements of their role.
The ultimate decision fell in favour of the worker, however that final judgement was only given after the worker first lost her case in the District Court.
Melanie Sills became a Police Officer in 2003, aged 26. By August 2006 her GP diagnosed her as suffering Post Traumatic Stress Disorder (PTSD), so she utilised her annual leave for some needed time off work.
Her condition came to the attention of her superiors, and she filed a filed a compensation claim.
In October 2006 the Police Medical Officer (PMO), Dr Kirychenko, and a Police Psychologist, Ms Cimino, recommended Ms Sills be provided with psychological counselling and monitored to assist her following her return to work after a period of absence.
In the same month she was cleared by the PMO to return to work on full duties without having any real medical treatment. In mid-2007 Ms Sills took maternity leave until the end of 2008 and returned to work in February 2009.
By May 2009 Ms Sills was identified as an officer at risk and was offered counselling, but she indicated that she would seek counselling outside of her employment. She had made those appointments but never actually attended.
The employer then essentially left her to her own devices in terms of managing her PTSD.
From 2009 Ms Sills had been exposed to a number of incidents where people had died in fires and other fatal events. There were also a number of other non-work-related stressors that appeared in mid-2009, but Ms Sills failed to bring those or any other condition to the attention of her employer.
In 2010 Ms Sills was transferred to the Exhibits Office where she was no longer exposed to traumatic scenes.
In the initial trial Judge Mahony SC found that Ms Sills had not fully disclosed the extent of her psychological injuries to the PMO before being cleared to return to full-time general duties. The reason for the lack of disclosure was because of the stigmatisation she perceived in the police force to psychological injuries.
His Honour found: By the end of 2008, any need for monitoring, mentoring or counselling for the plaintiff had long since passed. The plaintiff 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 plaintiff 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.
Having regard to that history, I find that it was a reasonable response throughout that period for the defendant to do nothing in relation to the alleged breach identified by the plaintiff, i.e. the failure to implement the recommendations made by the PMO and the police psychologist in 2006.
The leading judgement was given by His Honour Judge Sackville AJA. The main ground of appeal was that the employer had not complied with its own very detailed system of work in managing psychological injuries of its staff when implementing a return to work. It was alleged that failure to comply with the system caused the psychological injuries claimed. Put another way, if Ms Sills’ injuries were properly investigated, treated and a suitable return to work plan implemented, she would not have suffered the injuries complained of. Ms Sills succeeded on that basis.
His Honour held: The recommendations (of the PMO) were not put into effect and the appellant never received the support and assistance the medical officer and psychologist deemed necessary for her psychological welfare. Since the referral to the PMO and Police Psychologist had been made precisely because the appellant was known to have sustained PTSD as a result of exposure to work-related trauma, it would seem to be almost self-evident that the State’s inaction breached the duty of care it acknowledged it owed to the appellant.
Further, His Honour found:
Ms Sills’ conduct (hiding the extent of her injuries) 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.
Ultimately His Honour found the State breached its duty of care to Ms Sills 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 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.
Ms Sills was ultimately awarded $1,405,000 minus the sum she had received in weekly benefits already paid by the workers compensation insurer.
If you have been involved in a simialr situation or need some clarrification, your first step should be to contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.