State of New South Wales v Skinner (NSWCA 2022)

Link to Decision

Key Takeaways

To be successful in a claim for work injury damages, any breach of duty of care must be causative of a worker’s injury. If a worker is diagnosed with multiple psychological injuries as a result of their employment, it is possible for a breach of duty to have caused one injury, but not the others.

Brief Facts

The worker was exposed to several traumatic events during the course of her employment with the NSW Police Force. In May 2007, the worker advised a supervisor that she had ‘had enough’ of psychological injuries following the suicides of her colleagues and opposed a transfer to general duties later that year.

The worker was assessed by a police psychologist in early 2008 and did not disclose any difficulties she had with returning to general duties, or any symptoms of post-traumatic stress disorder. She was discharged on medical grounds in February 2010. The worker was suffering from two psychiatric conditions at that time, being post-traumatic stress disorder and a depressive disorder.

Judgment

The worker brought proceedings in the NSWDC seeking work injury damages. She alleged the NSW Police Force had breached its duty of care and was negligent in failing to provide adequate psychiatric support, causing her psychological injury.

The NSWDC held that the NSW Police Force breached its duty of care by failing to conduct a thorough mental health assessment of the worker from May 2007. This breach caused the worker to suffer major depression, but not her post-traumatic stress disorder.

The worker’s assessment of damages was reduced by 40% for the contingency that her incapacity for work would have arisen in any event from her post-traumatic stress disorder, which had not been caused by a breach of duty of care, and a pre-existing disposition to depression and anxiety. A 10% reduction was also made for the worker’s contributory negligence in failing to report her psychological condition to the police psychologist in 2008.

Appeal to the NSWCA

The State of NSW lodged an appeal in the NSWCA. The worker lodged a cross-appeal.

The NSWCA agreed that the worker’s supervisor knew, or should have known, about her depressive condition by May 2007 and did not obtain any reports about her psychological condition. The worker’s resistance to resuming general duties should have prompted further investigation, and the NSW Police Force had breached its duty of care to the worker in 2007.

The NSWCA also agreed that there was insufficient evidence the worker would have been diagnosed with post-traumatic stress disorder had she been referred for psychological assessment in 2007.

It was found that the NSWDC appropriately reduced the assessment of damages for the possibility she would have been disabled as a result of her post-traumatic stress disorder, which was not caused by breaching a duty of care.

The NSWCA further held that the worker did not contribute to her injury by failing to mention her depressive condition to the police psychologist, and no deduction for contributory negligence should be made. The psychologist should have asked her if she had any symptoms when she left that question on a form blank.

Implications

If a worker is diagnosed with two distinct psychological injuries, it is important to consider whether any breach of duty of care was causative of both injuries. Any calculation of damages will need to be reduced for incapacity caused by non-tortious injuries.