State of NSW –v- Briggs [2016] NSWCA 344 (9 December 2016)

The Supreme Court of NSW Court of Appeal handed down a judgment in the matter of Briggs on 9 December 2016. Mr Briggs served the State of NSW as a police officer and alleged that he developed a psychological injury, specifically post-traumatic stress disorder, as a consequence of a series of traumatic events that occurred during the period of his service. He sued the state in negligence, alleging that the state failed to provide him with a system of work that ameliorated the risk of him and officers like him developing a psychiatric injury as a consequence of exposure to traumatic events in the workplace.

In July 2003 the Plaintiff attended a SIDS death during the course of his duties. He was the father of a young child himself at that time. He attended a debriefing session some days later.

Between 2003 and 2011 the Plaintiff was exposed to a number of gruesome events including horrific murders, an incidence of self mutilation, autopsies, assaults and armed robberies.

The Plaintiff’s mental state travelled during the course of 2011, eventually causing him to cease work. The 2003 incident still loomed large in his mind.

Between 2003 and 2011 the Plaintiff had requested a transfer and changes in his duties which, with the benefit of hindsight, could be attributed to a deteriorating mental state.

The Plaintiff succeeded in the first instance before Levy DCJ but his case was overturned on appeal. The primary judgment of the Court of Appeal was given by Leeming JA. As a preliminary matter, His Honour was critical of the parties and for that matter of the trial Judge for failing to properly construe the duty of care owed by the Defendant to the Plaintiff. His Honour remarked that at trial, the matter had been approached on the basis that the Plaintiff was an employee of the Defendant and the Defendant owed the Plaintiff a non-delegable duty of care. Leeming JA identified that Mr Briggs was not an employee of the state, rather, he was an officer of the NSW Police Force. This could, he reasoned, have important distinctions from an employee/employer relationship, for example, the failure of an officer to follow a direction of a superior constitutes an offence under the Police Regulation 2000 and 2008.

Leeming JA held that the Plaintiff had failed to demonstrate what steps the state could and should have taken to obviate the risk of him developing a psychological injury. The trial Judge decided that matter against the State, on the basis that it ought to have taken a proactive approach towards the Plaintiff’s mental wellbeing in circumstances where he was exposed to consecutive traumatic events over a period of time and made a disclosure of sorts that he was struggling to his superior officer in 2011. Leeming JA rejected that approach. His Honour held at paragraph 227:

The values of autonomy and privacy are squarely relevant to the working out of the questions of duty and breach in a case such as the present. Here the plaintiff’s claim directly intrudes upon those values, but is unaccompanied by anything grounded in evidence to suggest that the intrusion is warranted, let alone to sustain the conclusion that a failure by the plaintiff’s superior officers to intrude is unreasonable.

His Honour was not satisfied on the evidence before him that the state could and should have taken any further steps to protect the Plaintiff’s mental wellbeing on the facts reasonably available to it.

The decision highlights the significant burden a police officer must overcome in order to establish negligence on the part of the State.

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