The scope of an employer's duty of care: the privacy tightrope

13 July 2018

The District Court of NSW has denied a claim by a former Police Officer seeking work injury damages for psychological injury arising from her exposure to traumatic incidents over the course of her service with the NSW Police Force (NSWPF).

In determining that NSWPF had not breached its duty of care to the plaintiff, the Court considered the content or scope of the duty owed by reference not only to the duty as “moulded” by other  statutory provisions but also having regard to issues of privacy and autonomy.

The approach adopted by the trial judge closely follows the reasoning of the NSW Court of Appeal in State of NSW v Briggs [2016] NSWCA 344 in which Leeming JA sited Hegarty v Queensland Ambulance Service [2007] QCA 366 with approval and insisted that absent adequate disclosure, there must be a compelling reason for an employer to scrutinise the private affairs of an employee.

The facts

The Plaintiff was attested as a police officer on 2 May 2003 and posted to the Tuggerah Lakes Local Area Command where she worked until 2 June 2011. During the course of her duties as a police officer she attended various traumatic incidents and events, which ultimately led to her psychological decompensation in 2011. The Plaintiff was medically discharged from the NSW Police Force on 7 June 2012.

The Plaintiff subsequently sought modified common law damages (work injury damages) alleging that the State was negligent for failing to discharge its duty of care and exposing her to a foreseeable risk of injury.

The essence of the Plaintiff’s case was that the NSWPF failed to institute an adequate system of work, with particular reliance placed on the fact that the NSWPF identified her as a person at risk of psychological injury in 2006 and 2009. Despite the defendant’s knowledge of this vulnerability, it was alleged that the NSWPF failed to implement and enforce the recommendations of its own medical officers or adequately monitor the plaintiff’s mental health.


Judge Mahony did not accept the evidence established the NSWPF had breached its duty of care. In summary, the Court noted:

  • It was not disputed that the NSWPF owed the Plaintiff a non-delegable duty of care to avoid exposing her to a foreseeable risk of injury;
  • When determining whether a breach of duty occurred it was necessary to consider whether the risk of injury was reasonably foreseeable. This required consideration of whether a reasonable person in the position of the defendant would (or should) have seen that the system of work (or conduct) involved a risk of injury to the claimant or to a class of persons including the claimant: Wyong Shire Council v Shirt [1980] HCA 12;
  • Whether injury was reasonably foreseeable was to be determined prospectively and not with the benefit of hindsight: State of NSW v Briggs [2016] NSWCA 344;
  • It was accepted by the NSWPF that it was reasonably foreseeable that police officers could suffer psychological injury as a result of exposure to traumatic injuries and events. However, this was not the end of the matter as it was necessary to determine the reasonable response to that risk having regard to the magnitude of the risk; the degree of probability of its occurrence; the expense, difficulty and inconvenience of taking alleviating action; and any other conflicting responsibilities the defendant may have: Wyong Shire Council v Shirt [1980] HCA 12;
  • In the context of sworn police officers, regard must be had to the statutory purposes and functions of the police service and the duties of police officers who were routinely tasked with confronting injury, death and destruction: State of NSW v Fahy [2007] HCA 20; State of NSW v Briggs [2016] NSWCA 344;
  • When considering what amounted to a reasonable response, it was also relevant to consider the private and personal nature of psychological illness: Hegarty v Queensland Ambulance Service [2007] QCA 366 and State of NSW v Briggs [2016] NSWCA 344;
  • The Plaintiff did not make a candid disclosure as to the extent of her psychological difficulties to the Police Medical Officer (PMO) or the police psychologist in 2006 as she was ‘results driven’ and wanted to return to full-time duties. As a result the NSWPF was not aware of the full extent of her psychological condition at that time;
  • The Plaintiff was aware at all times of the support services available to her, including the Employee Assistance Program, peer support and the Police Chaplain, but at no time sought out those services; and
  • In relation to the pleaded breaches of duty:
    • The NSWPF’s system of identifying police officers at risk was a reasonable response to the risk of injury and any meeting with the Plaintiff would have provoked no further disclosure of her problems at work;
    • It was reasonable for the NSWPF not to implement the recommendations made by the PMO and police psychologist in 2006; and
    • The Plaintiff was suffering from a number of personal problems outside of the workplace, such that further intervention and enquiry by supervising officers into her psychological well-being would have given rise to the privacy issues highlighted by Keane JA in Hegarty v Queensland Ambulance Service.

As a result, the Plaintiff failed to establish her psychological injury was caused by a breach of the NSWPF’s duty of care and there was a verdict for the Defendant.


The decision in Sills confirms that an employer’s liability in negligence for a foreseeable risk of injury is not strict.

Following on from the decision in Briggs, the recent judgement of Mahony J signals an increasing willingness by the Court to return to “first principles” and define the scope or content of an employer’s duty of care not as an abstract concept but rather as a duty impacted by competing statutory obligations and notions of individual privacy, autonomy and dignity.

This article was written by Chris Lehmann, Special Counsel and Brad Quillan, Special Counsel.

Chris Lehmann 

P: +61 2 9334 8413


Brad Quillan 

P: +61 2 9334 8866


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