Court of Appeal limits employers’ liability where no reasonable alternative to the system of work

Legal Directions

State of New South Wales v Briggs [2016] NSWCA 344

Ryan Briggs sought work injury damages in respect of a psychological injury that resulted from exposure to traumatic events in the course of his duties as a (general duties) NSW police officer.

He succeeded at first instance in the District Court, but the decision has been overturned by the Court of Appeal, which held there to be no breach of duty by the defendant.

The implications of the case are profound for all emergency service workers and particularly general duties police officers.

Fundamentally, and as confirmed in the headnote to the decision, the Court found that breach of duty must be assessed in a prospective manner by reference to a ‘postulated system’ probably applying to ‘all general duties police officers’.

The absence of identification at first instance of ‘some different, specified system of work which, if it had been implemented and maintained, across the NSW Police Force as a whole, would have been a reasonable response to the foreseeable risk of psychological injury’ was a critical factor in the decision on appeal (a factor to which Leeming JA referred several times, including at [150], ‘At no stage did the primary judge state expressly what should have been done’).

Given the absence of a single ‘clear cut course of action that would be appropriate in every case’ and noting Mr Briggs’ exposure to be confined to the ordinary (albeit horrible) traumas expected in general duties police work, it could be argued the decision provides tacit support for the current programs instituted by the NSW Police to manage the risk of trauma-related injuries.

The tension between an employer’s common law duty and an employee’s right to privacy (in respect of matters concerning potential psychological injury) played out in the separate decisions of McColl JA (courts should not be ‘timid about the need to ameliorate that risk’) and Leeming JA (‘a compelling case is required before the private affairs of an employee are subjected to scrutiny by an employer’).

On this issue, Leeming JA quoted extensively from Hegarty v Queensland Ambulance Service [2007] QCA 366, confirming his agreement with the proposition that the identification of a basis for suggesting to an employee that they seek assessment and treatment is riddled with difficulties. The court’s finding that a disclosure by the worker that he was ‘struggling’, without reference to specific work issues, was not enough to engage further inquiry by the defendant (the failure of which amounted to breach), which was directly linked to the difficulties identified in Hegarty.

Authored by Bradley Stringer, Partner and Safa Jan, Lawyer, Sydney.

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