WCRA: emergency services and PTSD – cracks in Hegarty defence

State of New South Wales v Doherty [2011] NSWCA 225

Issues: an appeal from Price J in Doherty v State of New South Wales [2010] NSWSC 450 where judgment was given in favour of a crimes scene police officer suffering PTSD, but reduced by 35% for contributory negligence. The reduction was based on the plaintiff hiding from his employer that he was psychologically unwell, when he knew and it caused him to be placed in a position of risk by continuing to work. The defendant appealed the finding of liability and the plaintiff cross appealed the contributory negligence finding.

The factual nature of the decision is somewhat akin to Hegarty v Queensland Ambulance Service [2007] QCA 366, however, a different approach was adopted, namely to find the failure to report as a contributing factor as opposed to a fatal basis to deny liability. The rationale for this was the finding of the trial judge and upheld by the NSWCA that the nature of the work required the employer to impose independent psychiatric testing of the plaintiff. If this had taken place, such testing would have revealed that the plaintiff was unwell and suffering from PTSD. This was despite the plaintiff was under reporting his problems:

 

Hodgson JA (with whom Whealy JA and Handley AJA concurred):

 

81.          In my opinion, it was open to the primary judge to find that, had the under-reporting observation of April 2001 been followed up, by a psychologist with qualifications apt to detect signs of PTSD, the problems then being experienced by Mr Doherty of feelings of extreme fear, helplessness and horror, flashbacks and nightmares, would have been disclosed by targeted questioning, even if Mr Doherty had attempted to withhold disclosure of these things; and this would have meant he would not be further exposed to traumatic scenes without having psychological treatment and being subject to monitoring.

82.          In my opinion also, it was open to the primary judge to find that but for the breaches in 2003, Mr Doherty would not have returned to crime scene work on 4 June 2003, and (subject to what I say below concerning the conflict between Professor McFarlane and Professor Tennant) that if he had been taken out of crime scene work in mid-2003 and provided appropriate treatment, he would still be working full-time. Again, in my opinion it was open to find to the effect that targeted questioning of Mr Doherty would have disclosed his problems. However, I do note that the primary judge did not explicitly find that Mr Doherty would never in fact have returned to crime scene work, or that PTSD would not in any event have developed at some other time or in some other way than it did; and this has some relevance to grounds 10 and 12.

83.          In my opinion, it was open to the primary judge to find that, but for breaches in 2004, Mr Doherty would not have been certified as fit for full operational duties in November 2004, that he would not then have been exposed to traumatic events in 2005, and that he would still then have had capacity for some employment within the police force. However, it seems that the primary judge did not quantify the extent of this capacity, and this too has some possible relevance to grounds 10 and 12.

84.          In my opinion, it is not an answer to these findings that Mr Doherty’s own contributory negligence contributed in a “but for” sense to his own injuries; nor in my opinion can it be said in terms of s 5D(1)(b) that Mr Doherty’s own contribution was such that SNSW’s liability should not extend to Mr Doherty’s injuries. The effect of Mr Doherty’s contributory negligence is appropriately dealt with by apportionment.

85.          In my opinion, it was open to the primary judge to find that the negligence of SNSW was, in terms of s 5D(1)(a), a necessary condition for the occurrence of Mr Doherty’s injuries, as they occurred after about April 2001, by which time the Lette and Mutton recommendations of May 1999 should have been put into effect, and the under-reporting comment should have been followed up.

 

 

Brisbane Barrister – David Cormack

 

 

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