Police inaction ‘a breach of care’

The NSW Police Force (NSWPF) breached its duty of care to a constable it continued to send to traumatic incidents after she was diagnosed with PTSD, the NSW Appeal Court has ruled.

Acting Justice Ronald Sackville, with whom Justices Anthony Payne and Carolyn Simpson agreed, overturned NSW District Court Judge Phillip Mahony’s 10 May 2018 decision to clear NSWPF of breaching its duty of care because then-officer Melanie Sills had told NSWPF she sustained no ill-effects after a series of incidents.

Judge Mahony found NSWPF acted reasonably when it decided not to implement police psychologist recommendations to move Ms Sills to less stressful duties.

If he were wrong, Judge Mahony said he would have awarded Ms Sills $1.4 million.

AJ Sackville said NSWPF had identified Ms Sills as being at risk but senior officers chose not to implement police psychologists’ recommendations to limit her exposure.

He said officers should have been aware general duties exposed her to traumatic incidents that could worsen her condition. “It seems almost self-evident [NSWPF’s] inaction breached the duty of care it owed [Ms Sills],” AJ Sackville said.

Justice Payne said NSWPF’s breach of duty was established by the force failing to follow clear procedures and recommendations made as part of its own system.

The Appeal Court heard Ms Sills joined NSWPF as a 26-year-old probationary constable in 2003, working in three regional stations. On her first day she was sent to a suicide and, until she was retired unfit on 7 June 2012, attended traumatic incidents, including suicides, domestic violence and fatal crashes.

Incidents she said specifically affected her included removing a man’s incinerated body from a car; attending a house fire where a child and a fire officer died; undressing a cot-dead baby for a police photographer; and being confronted by a man with a firearm in a domestic dispute.

She had physical and psychological symptoms and her doctors and police psychologists diagnosed PTSD.

The Appeal Court heard senior police denied several requests and recommendations for Ms Sills to be transferred to other duties. They argued that was partly because a worker’s compensation insurer’s report cast doubt on her psychological illness and Ms Sills’s repeated denials the job had traumatised her.

On 7 February 2019, the Appeal Court upheld Ms Sills’s appeal against Judge Mahoney’s decision.

AJ Sackville said NSWPF was aware Ms Sills was certified fit for general duties “on the basis she received counselling and support”. Though support was offered and refused, senior officers did not ensure Ms Sills got support.

AJ Sackville rejected NSWPF’s claim Ms Sills contributed to her injuries by failing to admit to feeling stressed. He said pressure on police officers not to admit psychological illnesses for fear of being seen as weak was well known and senior police should have recognised that as an issue for Ms Sills.

“It would be distinctly unjust if [Ms Sills] were found contributorily negligent by conduct which was the product of the condition [NSWPF] should have detected and addressed.”  

Justice Payne said the contributory negligence claim was, “at best, an afterthought”.

AJ Sackville awarded Ms Sills $1.4 million in damages, less amounts already paid in workers’ compensation and plus interest.

Sills v State of NSW [2019], NSWCA 4, 07/02/2019