Police officer suffering PTSD now successful in negligence claim against the State of NSW
A young police officer, who was medically discharged having suffered from post-traumatic stress disorder (PTSD), has now been successful in her claim of negligence against the State of NSW, with the Supreme Court of New South Wales Court of Appeal overturning a lower court ruling and finding the State negligent in failing to follow recommendations.
Melanie Sills joined the NSW Police on 2 May 2003, at the age of 26. She was based at the Tuggerah Lakes Local Area Command and worked at stations in Wyong, Toukley and The Entrance. Between her first day at work (when she was required to attend the scene of a suicide) and early 2004, Ms Sills attended a number of “traumatising” incidents, including suicides, fatal motor vehicle accidents and a domestic dispute involving a firearm. 
She was medically discharged from the NSW Police on 7 June 2012 having suffered from PTSD contributed to by exposure to traumatic incidents in her work as a general duties officer.
Ms Sills commenced proceedings in the District Court of New South Wales against the State of NSW. She alleged that the State owed her a non-delegable duty to take reasonable care to avoid exposing her to the foreseeable risk of injury, including the risk of psychiatric or psychological injury, and was in breach of such duty.
The State admitted that it owed a non-delegable common law duty of care to guard against police officers sustaining foreseeable injury or being exposed to the risk of injury and to provide adequate safeguards against such injury.  It also alleged contributory negligence in that Ms Sills failed to report her symptoms at the earliest opportunity, failed to disclose her symptoms at debriefing sessions and failed to properly avail herself of services.
The primary judge found in favour of the State, that the NSW Police did not implement recommendations that Ms Sills be provided with psychological counselling and monitored to assist her following her return to work after a period of absence, but critically that in the circumstances there was no reason for the NSW Police to do so. It was reasonable for the NSW Police to do nothing to implement the recommendations.  In the event that the primary judge was to be found wrong in his findings, his Honour assessed damages in the total sum of $1,405,000.
Ms Sills appealed the primary judge’s findings. She argued that the primary Judge erred in finding that the State, by doing nothing, discharged its duty of care owed to her.
The court found that the State breached its duty of care to Ms Sills in 2006 by returning her to general duties without implementing the recommendations made by the PMO and the Police Psychologist. At the time the decision was made, the State was aware that Ms Sills was suffering PTSD and that placing her on general duties was likely to expose her to further traumatic incidents. The failure to implement the recommendations exposed Ms Sills to precisely the risk of which the State had been made aware.  The State also breached its duty of care to Ms Sills by its entirely inadequate response to the report in the Critical Incidents Register in May 2009; the State knew or should have known that Ms Sills was continuing to suffer from PTSD.
Accordingly, the court allowed Ms Sills’ appeal, with damages to be calculated.
This article first appeared in the CCH Australian Tort, Personal Injury, Health and Medical Law Tracker and is reproduced in full with permission from CCH, a division of Wolters Kluwer Australia: www.wolterskluwer.cch.com.au
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