Melanie Sills –v- State of NSW  NSWDC 119
The Plaintiff, Melanie Sills, was exposed to a series of traumatic events during the course of her work as a police officer for the Defendant, The NSW Police Force between approximately 2003 and 2011. She alleged that she developed post-traumatic stress disorder, as a consequence of having to attend on those traumatic events. She argued that the Defendant owed her a duty of care which included a system of identifying and supporting members of the force who had been exposed to traumatic events and were at risk of developing mental illness. She further argued that the Defendant had breached its duty of care in that it had not appropriately identified and acted upon the risk of mental illness in her circumstances and the particular signs and symptoms of mental illness she displayed.
The trial judge found on 10 May 2018 that the Defendant had not breached its duty of care. Mahony DCJ found that the Defendant had taken reasonable steps and had in place a reasonable system to identify persons at risk such as the Plaintiff and otherwise it was reasonable for the Defendant to have done nothing in the Plaintiff’s circumstances.
The Plaintiff was attested as a probationary constable on 2 May 2003 and posted to work at the Tuggerah Lakes Local Area Command where she remained throughout her period of her service, working at Wyong, Toukley and The Entrance police stations. The traumatic events with which she had to deal are numerous and detailed at paragraphs 16-67 of the Judgment. In summary, and without minimising or seeking to lessen the disturbing nature of the events with which the Plaintiff had to deal, she attended various suicides, house fires and routinely dealt with members of the public who were violent and mentally ill.
On or about 26 July 2004, the Plaintiff was directed to attend counselling, i.e. an Employee Assistance Program (“EAP”), following a house fire and she complied with that direction. The Plaintiff gave evidence that the EAP was a ‘waste of time’ and she refused to return after she was told by the police psychologist to go home and have sex with her husband for stress relief. She continued with her normal duties.
The Plaintiff began to have trouble sleeping and her problems worsened following her attendance at a cot death in late 2004. She attended on her general medical practitioner in 2004 and again in May 2005 and was then prescribed anti-depressant medication.
The Plaintiff attended further traumatic events and in August 2006 had a discussion with her sergeant and discussed applying for a transfer to get off general duties. She ultimately made an application to transfer.
On 17 August 2006, the Plaintiff suffered a panic attack while driving to work. She was approached by her sergeant and she disclosed her symptoms and the sergeant sent her home to see her doctor. She attended on Dr Avery and obtained a medical certificate and completed a formal incident report. The Plaintiff was off work for three weeks and her time off was processed formally as workers compensation benefits.
The Plaintiff then had a period of planned leave in order to get married, before returning to work on 26 September 2006. The Plaintiff attended two to three sessions of formal counselling with an internal police psychologist. The psychologist made certain recommendations to the effect that the Plaintiff was at risk of deterioration of her condition if she were continually exposed to traumatic events. A peer support officer, i.e. a colleague, was appointed to mentor the Plaintiff’s return to work. Unfortunately, the Plaintiff shortly thereafter observed the peer support officer discussing with another colleague personal details relating to another officer, which undermined her confidence in that process.
The Plaintiff continued on general duties, attending further traumatic incidents.
In November 2006, the Plaintiff was interviewed by an investigator on behalf of the Defendant’s workers compensation insurer.
Shortly thereafter, a document was placed in her pigeon hole at work entitled, “Pre Liability Assessment Report”. The document had the names of two police officers blacked out. The author of the document stated that those officers were highly suspicious of her workers compensation claim. The Plaintiff, when holding the document up to the light, was able to ascertain that the blacked out names belonged to her chief inspector and team leader.
The Plaintiff began a period of maternity leave in December 2007.
During the period of her maternity leave, the Plaintiff decided to return to work and made an application to work for divisions that were not required to respond to jobs over the police radio, that is, she would be working on less stressful subject matter. Her applications were signed off by a team leader, though none were successful.
During 2009, the Plaintiff made a number of appointments to attend a counselling service, but did not attend. She confided in a fellow officer.
The Plaintiff received an email in May 2009 from a superior officer noting that she had been involved in five critical incidents and that she could avail herself of the EAP.
The Plaintiff increasingly took sick leave in the latter half of 2009. She obtained a position at the exhibits office at Wyong in early 2010 and commenced working there in February 2010. She was successful in applying to perform part time work in that role. Unfortunately, she was required during the course of that work to deal with horrendous exhibits which lead to further deterioration in her mental state. She gradually deteriorated into 2011 before she could no longer work due to the seriousness of her symptoms.
Mahony DCJ concluded in relation to the issue of breach of duty of care at paragraph 401, “Having regard to that history, I find that it was a reasonable response throughout that period for the Defendant to do nothing in relation to the alleged breach identified by the Plaintiff, i.e. the failure to implement the recommendations made by the PMO and the police psychologist in 2006. … The Defendant had no way of knowing in 2009 and 2010 that the Plaintiff continued to suffer a psychological reaction to her exposure to traumatic incidents.”
The Judge’s decision was informed by a number of factors, including:
- The Plaintiff was an under reporter (and at time specifically denied) that she was suffering from symptoms of her mental illness. He considered that the Defendant could not be expected to be aware that the Plaintiff was mentally ill at the relevant times.
- The Plaintiff failed to avail herself of the counselling and support services provided by the Defendant.
- The Defendant had systems in place to identify and support its staff.
The Judge’s decision was in spite of the fact the following evidence lead by the Plaintiff:
- The EAP program was perceived by the Plaintiff to be ineffectual (this was supported by witnesses at trial).
- The Plaintiff lacked confidence in the effectiveness of the peer support program.
- The Plaintiff gave evidence to the effect that there was a culture within the Defendant which marginalised those experiencing mental illness. The marginalisation took various form, for example, being looked over for promotion. There was a stigma regarding psychological illness.
The Decision is the most recent in a series of cases decided against police officers and paramedics. It is unfortunate that those tasked with a very difficult and confronting role, with a very high social utility are not supported by the common law. It is unknown to the author whether Ms Sills is receiving, or otherwise entitled to receive, workers compensation benefits.
It is unknown at this stage whether the decision will be appealed.
Turn to Turner Freeman
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