Claims for psychiatric harm – case law update

Nature and scope of duty of care

There is a need for plaintiffs to precisely identify the nature and scope of the duty that it is alleged was owed. A general statement, often repeated across claims, should be resisted.

State of New South Wales v Briggs [2016] NSWCA 344 shows that defendants should take care in pleading to the scope of their duty of care. The NSW Police Force was found to have negligently caused a psychiatric injury at first instance, however this was overturned on appeal. The Court of Appeal found that the scope of an employer’s duty of care must be formulated prospectively, not by engaging in a “hindsight” analysis of whether the risk of injury could have been reduced or eliminated.

In this case it was not a breach of duty for the supervisor to have taken no action when the plaintiff said he was “struggling”, even though, had he taken action, he might have eliminated the risk of injury. It would only be a breach of duty if the supervisor was acting unreasonably. The Court of Appeal cited with approval the following passage:

In Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21, the plaintiff attended a training day at Optus’ premises, where he was attacked by another trainee who tried to throw the plaintiff off the roof. At first instance, Optus was found to have breached its non-delegable duty of care. On appeal, the Court of Appeal found that the plaintiff had failed to establish that Optus owed him a duty of care. A duty is only owed to take reasonable steps to prevent foreseeable risks, and it was not foreseeable that the other trainee would attempt to kill the plaintiff.

Breach of duty

Once the nature and scope of the duty is known, breach can be considered.

In New South Wales v Briggs [2015] NSWDC 235 the plaintiff served as a police officer for fourteen years, in which he was exposed to events that were potentially traumatic. On only one occasion, the plaintiff stated to his senior officer that he “was struggling” and needed a break. The senior officer was called to give evidence but could not remember the plaintiff ever having made such a comment. On the basis of this single disclosure, District Court judge Levy SC DCJ found that the NSW Police Force breached its duty of care to the plaintiff and awarded the plaintiff damages in the sum of $969,136. The decision was overturned on appeal, however employers might well ask if they are required to intervene every time an employee mentions they are “stressed” or “struggling”, comments that are not uncommon in any place of employment.

In Melanie Sills v State of New South Wales [2018] NSWDC 119, the plaintiff alleged she suffered a psychiatric injury arising from the defendant’s breach of duty of care. The defendant was in effect NSW Police, in which the plaintiff served for a number of years. The plaintiff alleged that NSW Police breached its duty of care by failing to follow the police medical officer’s recommendation in 2006 that the plaintiff undertake a course of psychological counselling.

District Court judge Mahony SC DCJ rejected that submission, noting that the plaintiff lied to the police medical officer in underreporting her symptoms. She then became pregnant, took herself away from general duties and worked station duties, and then went on maternity leave until the end of 2008. In this period there was no reason for NSW Police to require the plaintiff to undertake psychological counselling. By the end of 2008, when the plaintiff returned to general duties, “any need for monitoring, mentoring or counselling for the plaintiff had long since passed”, and NSW Police did not breach its duty of care by failing to implement recommendations by then over two years old. The plaintiff did not from that date ever report struggling or requiring mental health help.

His Honour concluded that it was a reasonable response for the defendant to do nothing in relation to the breach alleged by the plaintiff, i.e. the failure to implement the recommendations made by the police medical officer. After the plaintiff’s return to general duties, the plaintiff did not self-report any problems, and that system of identifying police officers at risk at that time was a reasonable response.

Causation

Establishing a breach of duty is insufficient to on its own to give rise to an award of damages. That the breach was causative of the loss must be proven.

In Carangelo v State of New South Wales [2016] NSWCA 126, the plaintiff was a police officer who was alleged to have sustained a psychiatric injury in the course of his service. At first instance it was found that NSW Police breached its duty of care to the plaintiff, but that the breach did not cause the plaintiff’s damage. The plaintiff appealed to the Court of Appeal.

In dismissing the plaintiff’s appeal, the Court of Appeal held that when mental injury or harm is proved, the question is whether it was caused by a relevant negligent act or omission. A plaintiff will fail if the evidence does not establish the link between the act or omission of the defendant and the damage or harm suffered. It must be able to be said that, but for the act or omission, the claimant would not have suffered the injury or harm. Mere loss of a chance at a better outcome is not compensable: Tabet v Gett [2010] HCA 12.

Quantum

Damages for psychological injuries often exceed $1,000,000. Past and future economic loss is the most significant head of damage and courts will often accept medical evidence that plaintiffs are unable to work.

In the matter of Melanie Sills, Judge Mahony held that he would have awarded $1,405,000 for economic loss to the plaintiff for post-traumatic stress disorder, had he held for her. The plaintiff was in her late 20s at the time she ceased work. Although the defendant tendered expert reports indicating she had capacity to work in other employment than NSW Police, his Honour preferred the plaintiff’s expert evidence and assessed damages on the basis that she had no capacity to return to work at all.

In Hadassa Erlich v Malka Leifer & Another [2015] VSC 499 the plaintiff attended an ultra-orthodox Jewish school, ran by the second defendant, where she was sexually abused by the headmistress, the first defendant. The plaintiff alleged she suffered consequential psychiatric injury. Damages were awarded to the plaintiff in the sum of $1,124,428. The plaintiff’s own evidence was that she was working up to 20 hours a week as a carer, but she also tendered expert evidence that she was incapable of working more than part time casual roles due to her illness. This evidence was accepted and the plaintiff was awarded damages on the basis that she had lost 50% of her future earning capacity, minus 15% for vicissitudes.

Almost $4,000,000 was awarded to the plaintiff in the matter of Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21. The quantum of damage was appealed, however this was not considered by the majority of the Court of Appeal as the Court found that the defendant was not liable.

Summary

It is trite to go back to basics. What is the duty alleged and was that duty owed to the plaintiff? Was there a breach of duty and was the breach causative of the loss claimed? The above cases highlight the importance of analysing these fundamental issues within the factual matrix of each case. One size does not fit all and each matter must be assessed on its merits.