Special Leave Application Explores Employer's Liability Regarding System of Work - Is it Better to Speak Up? - Carroll & O'Dea Lawyers

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Special Leave Application Explores Employer's Liability Regarding System of Work - Is it Better to Speak Up?

Special Leave Application Explores Employer’s Liability Regarding System of Work – Is it Better to Speak Up?

Published on December 6, 2017 by Thomas Felizzi

A Special Leave Application (‘Application’) was filed with the High Court in respect of Mr Ryan Briggs work injury damages claim dealing with the alleged negligence of the NSW Police Force (‘the Defendant’) and its response to his disclosure to Inspector Sipos that he was struggling his direct manager. Before considering this Application the history of the claim should be considered.

Mr Briggs brought a claim for work injury damages in respect of a psychological injury caused or contributed to by traumatic events which he experienced in his general duties as a NSW police officer.

The District Court found that the Defendant was in breach of its duty to Mr Briggs in two respects:

  1. In failing to provide any counselling or debriefing opportunities in respect of critical incidents between 2003-2011;
  2. In failing to take any steps to explore or follow up the struggling disclosurehe had made to his managing Inspector in July 2011.

Essentially, the Defendant should have been proactive in its approach towards Mr Briggs psychological wellbeing.

The Court of Appeal set aside both of these findings and found that when assessing a duty of care and its breach, an assessment must be conducted in a manner which applies to all general duties of police officers. Leeming JA rejected the approach of the District Court relying on the decision of Hegarty v Queensland Ambulance Service [2007] QCA 366 and its findings on in relation to autonomy and privacy (see paragraph 222 of the Court of Appeal decision).

The focus of the Application was whether the Defendant had breached its duty in failing to respond reasonably to Mr Briggs struggling disclosure that he wanted to get off the trucks. Being on the trucks was understood as a colloquial expression referring to being on vehicle patrol where a police officer could encounter traumatic incidents. 

It was conceded in the Court of Appeal that there was an obligation of the Defendant to take reasonable care to avoid foreseeable risk of injury arising from the service of a police officer. It was also conceded that the risk of a police officer sustaining a recognisable psychological injury consequent to encountering traumatic events was foreseeable. Knowledge that a psychological injury could occur by intermittent exposure to traumatic events was something that was found by the District Court to form part of the corporate knowledge of police officers in supervisory roles. Inspector Sipos fell into that category.

The Application argued that any disclosure of an inability to cope was sufficient to trigger reasonable further enquiry by a superior officer. It was argued that the Defendant had an obligation to reasonably respond to the struggling disclosure and at the very least, investigate the reasons and the extent as to why Mr Briggs was distressed.

The Honorable Justice Edelman accepted this submission and that since Mr Briggs had been rebuffed when he had previously indicated that he was struggling there was no need to disclose anything further.  Since he was rebuffed, it was accepted that if a struggling disclosure was made and if this was brought to the attention of a responsible superior and nothing happened to investigate it, then it was entirely foreseeable that the psychological condition could worsen. 

Special leave was granted although the matter settled shortly after.

Whether the Court of Appeal erred in respect of the struggling disclosure will remain untested although it appears a disclosure of this kind is enough to prompt further enquiry by a police officers superior, the failure of which will amount to a breach of duty.

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