Psychiatric injury is common in many types of front-line employment. Whether or not psychiatric injury is caused by negligence is something that can be particularly controversial.
Recently the NSW Court of Appeal provided guidance on the difference between tortious and non-tortious psychological harm as well as the application of contributory negligence.
The NSW Court of Appeal had to consider:
- Generally, whether the police force breached its duty of care to the claimant, and caused her psychological injury;
- Whether non-tortious causes of harm were properly considered and applied to reduce the damages awarded; and
- Whether the claimant was contributorily negligent.
The claimant, who joined the New South Wales Police Force (‘the police force’) in 1993, experienced several traumatic events during her employment, compounded by personal and work-related conflicts and difficulties. Most notably, this included:
- Being a passenger in a vehicle approached by an armed man;
- Attending various suicides and being active in the aftermath;
- Making a complaint regarding a sergeant’s sexually offensive behaviour;
- Witnessing two particularly traumatic and gruesome events in 2005; and
- Experiencing the loss of colleagues and friends by suicide.
In February 2010, the claimant was discharged on medical grounds, suffering from major depression and PTSD. She later commenced proceedings alleging the State was negligent in failing to provide adequate support for her psychiatric conditions during her time as a police officer.
The decision at trial
The NSW Supreme Court found that:
- The police force breached its duty of care by failing to conduct a thorough mental health assessment of the claimant between May 2007 and October 2007, which caused her to suffer depression.
- The breach of duty by the police force did not cause the claimant to suffer PTSD or worsen the severity of PTSD.
- A 40% reduction of damages should be applied for contingencies, which included a consideration of the entanglement of the non-tortious harm (i.e. the PTSD) and tortious harm (i.e. the depression).
- A 10% reduction of damages should be applied for contributory negligence, because the claimant did not disclose her full psychiatric condition to a police psychiatrist in 2008 and sought an alternative position within the mounted police.
The claimant was awarded damages in the sum of $743,780.
The issues on appeal
The State appealed the finding of liability and the claimant cross appealed the finding on breach of duty, contributory negligence and the discount for contingencies.
The decision on appeal
The Court of Appeal rejected the State’s arguments and maintained that the police force breached its duty of care by failing to conduct a thorough mental health assessment of the claimant in 2007. By May 2007, the claimant’s superior officer knew, or should have known, about the claimant’s depressive condition. The psychological assistance provided to her was inadequate and not appropriately directed to her circumstances. The relevant superior officer did not obtain any relevant reports about the claimant’s mental condition from the psychologist or the Employee Assistance Program counsellors who saw her. Further investigation should have been prompted by her strong resistance to resuming general duties in 2007-2008. If the claimant had been referred for formal psychiatric assessment in 2007, it was probable that she would have disclosed her depressive condition. The exacerbation of, or failure to ameliorate, an existing condition was sufficient to establish causation.
The Court of Appeal found that there was no evidence that the claimant was contributorily negligent. Although the claimant did not tick “yes” or “no” to a question on a form inquiring about symptoms of PTSD prior to her appointment with a police psychologist, that psychologist had a responsibility to make inquiries and clarify any uncertainties. All other grounds of cross-appeal were rejected.
The Court of Appeal increased the damages award to $857,948.
Implications for you
This case offers useful guidance on how courts may approach psychiatric claims made by persons with concurrent, non-tortious psychological injuries and a longstanding and complex history of mental harm. More broadly, the judgment highlights the risks of appeal. While appealing an unfavourable decision can be an attractive proposition, clients and legal professionals alike must be aware of the risks involved, including the possibility that an appeal will result in an even less favourable outcome.