In cases of apprehended psychiatric injury – when should an employer intervene?

State of New South Wales v Doherty [2011] NSWCA 255

In the landmark Queensland Court of Appeal decision of Hegarty v Queensland Ambulance Service, conducted by Crown Law¹ — in which the plaintiff ambulance officer unsuccessfully sued his employer for psychological injury caused by not having in place a system whereby supervisors could identify dysfunction in an employee and make a referral for treatment — the Court of Appeal held there was no breach of duty by the employer to provide a safe system of work. An important factor for the Court of Appeal in making its decision was that Mr Hegarty had failed to advise his supervisors of his psychological symptoms and that being a competent worker and not having discussed his problems at work essentially negated any liability on the part of his employer.

A different decision was reached in a recent New South Wales Court of Appeal matter of State of New South Wales v Doherty, where the court has held that the nature of the work performed by crime scene police officers required the employer to impose a high standard of monitoring of such officers and in particular conducting independent psychologist and/or psychiatric testing. The court noted:

The employer should have foreseen a significant risk of psychological injury to officers involved in crime scene investigation; it should have foreseen that this psychological injury could be very serious indeed.

The distinction between these two decisions appears to rest with the presence of a known pre-existing vulnerability, which was the case in the Doherty decision.

In Doherty, the court considered the fact the plaintiff failed to report or under reported his problems was not a basis to negate liability on the part of the employer. It noted that:

A reasonable response required a high standard of monitoring … which took into account that some of them [the officers] would be likely to be seeking to disregard or minimise any symptoms in order to continue to fulfil their commitments.³

Background

Mr Doherty, a police officer, sued the State of New South Wales, alleging psychological injury suffered in the course of his employment. As a member of the Forensic Services Group from 1988 until 2005, Mr Doherty had been required to attend numerous crime scenes involving death and serious injury. By 2001, Mr Doherty’s employer was organising psychometric testing, however in the case of Mr Doherty the note that he was 'likely to be under-reporting psychopathology' was not followed up.

Between 1988 and 2005, Mr Doherty:

• had completed a peer support course
• was a member of the Forensic Services Group welfare committee
• had completed psychometric testing organised by the employer
• was diagnosed with post-traumatic stress disorder
• was off work for a period.

On his return to work Mr Doherty was assessed by police medical officers before finally ceasing active duties in May 2005. Mr Doherty was subsequently diagnosed with psychiatric illness caused by exposure to multiple traumatic incidents experienced over the course of his career in the forensic unit.

At first instance

Mr Doherty had under reported his symptoms over a number of years with the various doctors and psychologists who routinely examined him. The trial judge ⁴ found in favour of Mr Doherty, after applying a 35% reduction for contributory negligence. The reduction was based on Mr Doherty hiding from his employer that he was psychologically unwell.

On appeal

The employer appealed the findings of liability and a cross-appeal was filed by Mr Doherty as to contributory negligence. The Court of Appeal dismissed the appeal both in relation to liability and contributory negligence, however reduced the damages awarded for future economic loss.

The Court of Appeal held that the employer should have foreseen a significant risk of psychological injury to officers involved in crime scene investigation. The primary judge considered that:

reasonable precautions against the foreseeable high risk of psychiatric injury included placement on restricted duties, psychometric testing and a clinical interview by a psychologist before he was returned to crime scene investigation duties. Upon his return to these duties, the plaintiff should have been closely monitored ... a reasonable person in the position of the police force would have taken those precautions and in failing to do so, the police force breached its duty of care to the plaintiff.⁵

The primary judge’s finding in this respect was not disturbed on appeal.

In contrast, Keane JA in Hegarty, held that:

in cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer’s intervention and the making of a decision to intervene. An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee’s performance of his or her duties at work.⁶

Distinctions between Hegarty and Doherty

Mr Hegarty had been subjected to traumatic exposure over a lengthy period; however, there was no evidence of any pre-existing condition. He did not present with any ‘red flags’ such as excessive sick leave or a decline in work performance.

Mr Doherty, however, had made a prior psychiatric injury claim relating to traumatic exposure in his employment. The employer then, with this knowledge of his pre-existing vulnerability, returned him to work within the same environment, albeit with ongoing psychological testing. It is in light of the knowledge of the pre-existing condition that the employer ought to have had in place a better system of monitoring, including a follow up of Mr Doherty.
Another distinction is the different occupations involved in the two decisions, with arguably an increased risk of injury being involved in the case of a crime scene officer.

Implications for government agencies

Hegarty remains good law in Queensland in situations where an employee does not have any known prior history, and has not placed the employer on notice directly or indirectly through observable indicators. In those circumstances, the employer will likely be able to satisfy its duty of care with the availability of a free and confidential counselling system.

The law as set out in Doherty sets a high bar for employers, however only in situations where the employer is aware of pre-existing vulnerabilities.

The Queensland courts have yet to test the application of the principles set out in Doherty. Until then, employers should ensure that they have in place adequate systems for the monitoring and follow up of employees with prior psychiatric injury and in terms of their exposure to traumatic events if employers are returning these employees to the same working environment. However, relying on medical certification that an employee is fit to return to normal duties and an employer doing no more than that raises doubt as to whether the employer will be seen to have satisfied its duty of care.

However, there remains other matters to consider when determining whether a government agency is liable in particular circumstances of a case, including whether it in fact owes a duty of care to the person injured, and whether the duty has been breached. There will likely always be distinguishing facts to be considered. Equally, in Queensland, common law considerations will need to be looked at in conjunction with the existing legislative provisions which detail the liability of public authorities such as workers’ compensation legislation and the Civil Liability Act 2001.

^{1 [2007] QCA 366
2 At [69]
3 At [69]
4 [2010] NSWSC 450
5 [2011] NSWCA 225 at [52]
6 [2007] QCA 366 at [45]}

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}