Claims for psychiatric harm are becoming more common due to social change and awareness. There has been an influx of claims being made against employers for not protecting their employees from exposure to psychiatric harm. These claims are being made on the basis that an employer owes their employee a duty of care. Duty of care is the obligation to ensure the safety or well-being of others.
However, the notion of personal autonomy to take care of your own mental health in the workplace is something affirmed by the courts, especially regarding a highly traumatic workplace such as the police force. In the State of New South Wales v Briggs [2016] NSWCA 344, a police officer told his supervisor that he was struggling at work. At first instance the NSW Police Force was found to have negligently caused a psychiatric injury, however, on appeal their Honours found that it would only be a breach of duty if the supervisor was acting unreasonably. It was found that an adult is entitled to continue working at high pressure, even though he or she runs the risk of damaging his health, whether mental or physical.
Subsequently, other cases involving psychiatric harm require that the risk of psychiatric harm in the workplace must be a foreseeable risk and if it is an unforeseeable risk, it is outside the scope of an employers’ duty of care.
The recent case of Sills v State of New South Wales [2019] NSWCA 4 expanded upon the ideas of personal autonomy outlined in Briggs. The plaintiff, a former general duties officer with the NSW Police alleged that in her service as a police officer between May 2002 and June 2012, she was exposed to numerous traumatic incidents, and as a result suffered a psychological and/or psychiatric injury. The plaintiff sought damages, pleading that the State owed her a non-delegable duty of care to avoid exposing her to a foreseeable risk of injury. At first, the primary judge found that the plaintiff failed to comply with psychological counselling to enable her to cope with the consequences of experiencing trauma and failed to implement the recommendations of the Police Medical Officer (PMO) and Police Psychologist. However, the plaintiff successfully appealed the decision. The plaintiff embraced the consideration of personal autonomy as identified in Briggs, with the principal reach of duty being relied upon was the admitted failure of the State to comply with the recommendations of the PMO and Police Psychologist. The reason for this was that someone with Post-Traumatic Stress Disorder (PTSD) is reluctant to be identified with the stigma of having PTSD and therefore it is difficult for them to take personal responsibility for their own mental health.
Therefore, the case of Sills creates an exemption to personal autonomy for those suffering with PTSD as the illness restricts the acceptance of the existence of such an illness. The responsibility fell completely to the State, with the State’s contributory negligence contention rejected.
It seems that both Briggs and Sills affirm personal autonomy for psychiatric harm in the workplace, however, it requires the vulnerable person who has suffered the harm to be in a position to do something about it.
This is not legal advice.
