06 November 2002
It Was the National Party Which Made the Police Liable For Employee Stress!
“The National Party were responsible for the law changes which made the Police liable for damages claims for employee stress,” Council of Trade Unions president Ross Wilson said today.
National Party police spokesman Tony Ryall, and the Commissioner of Police, have stated today that the Health and Safety in Employment Amendment Bill will impose some new liability for stress on the Police as an employer.
“It worries me that senior politicians and police are so ignorant of the law,” Ross Wilson said.
“Work-related stress has been covered by the Health and Safety in Employment Act for almost ten years,” he said.
“The new amendment will merely highlight that fact.”
Ross Wilson said it was the National Government which passed the HSE Act ten years ago, and it was the National Government which passed the Injury Prevention and Rehabilitation Act in 1991 which made employers directly liable in damages at common law for stress-related claims.
“Both Mr Ryall and the Police Commissioner should know that because one of the landmark Court decisions in the High Court in 2000 awarded a police photographer, Mr Brickell, nearly a quarter of a million dollars in damages against the Police as employers,” said Ross Wilson.
“It is therefore both wrong, and absurd, for the National Party and the Police Commissioner to try and now pretend that there is some new imposition in the law”.
Brickell v Attorney-General (9 June 2000, McGechan J, High Court, Wellington)
Background: This was a successful claim for damages for failure to provide a safe system of work.
The plaintiff was a former police video producer for the New Zealand Police. There was no dispute that while employed the plaintiff filmed and edited a considerable amount of horrific material. The plaintiff alleged that the defendant failed to provide a safe system of work as a result of which he was subjected to undue stress, resulting in a disabling post traumatic stress disorder ("PTSD"). The plaintiff claimed that the defendant failed to reduce his exposure to such material, and to provide therapy and required him to carry on despite awareness of the risks. The claim was brought under both the employer's common law duty in tort and on the basis of statutory duties under the Health and Safety in Employment Act 1992.
The defendant denied the existence of a duty and any breach. It asserted that it put in place a system of work which was reasonable and sufficient in the circumstances and argued that the plaintiff involved himself in the horrific aspects more than was necessary. The defendant argued that the plaintiff's stress arose not from horrific aspects but from unrelated management and interpersonal problems. The defendant also pleaded contributory negligence on the part of the plaintiff through excessive involvement and failure to communicate concerns.
The following issues were considered: (i) did the plaintiff's PTSD arise from horrific aspects of video work or from managerial and interpersonal relationship problems, (ii) were horrific aspects of the plaintiff's work obligatory, or merely discretionary, (iii) should the defendant over time have perceived a risk or the actuality of stress leading to PTSD, (iv) should the defendant in the circumstances have restricted or reduced the amount of horrific work which the plaintiff was undertaking, (v) should the defendant have been more proactive in requiring the plaintiff to undertake precautionary or curative therapy, (vi) whether the production of "Death, A Fact of Life" was such as to warrant exemplary damages, and (vii) the extent to which the plaintiff contributed to stress and the resultant PTSD.
The Court held: The predominant cause of the plaintiff's PTSD was his work with horrific videos. The plaintiff was exposed over a 15 year period. He was exposed regularly, often under emotionally demanding conditions while filming and exposed again during the subsequent editing process. Other stressors on the plaintiff such as managerial and interpersonal relationship problems played a part but were no more than aggravating subsidiary factors.
There was no doubt that where the plaintiff's visits to operations were in search of material to use in training videos they were obligatory. This applied to "corporate communication" videos also. Beyond that, attendance at operational scenes and forensic work was not obligatory. Such attendance was better identified as discretionary. It was proven that all or virtually all of the plaintiff's involvement with horrific material either was within obligations imposed by his employment, or was activity which in terms of his employment he had a discretion to undertake.
Until the late 1980s there were countervailing factors which diminished appreciation of the risk of stress leading to PTSD. Police personnel were expected to handle occupational stress. At the end of the 1980s the defendant should have been aware of the potential of horrific material to disturb, but in the then circumstances that risk reasonably could have been regarded as no more than low to moderate. From at least August 1993 (when the plaintiff wrote pointing out stresses on staff and requesting counselling) the defendant reasonably should have known that the plaintiff was at significant risk of PTSD occasioned by the horrific material handled in the course of his employment.
>From the early 1990s the defendant, acting reasonably, should have reduced the plaintiff's exposure to horrific material. At that stage the exposure was a major factor in the psychological problems the plaintiff was encountering. Additional staff and resources were needed so that the plaintiff could be rotated off the more horrific work and given respite at regular intervals. To some extent this was due to the plaintiff's own insistence. Subject to contribution of that character, the defendant acting reasonably, should have restricted or reduced the plaintiff's exposure to horrific work from at the latest August 1993 onwards.
From 1993 the defendant should have been more proactive in requiring the plaintiff to undertake counselling. This was placed beyond doubt by the plaintiff's request for counselling in the 1993 letter. To some extent the defendant was proactive but matters became confused and unsatisfactory when the defendant refused the plaintiff's request for counselling by a preferred practitioner. It was basic to counselling that a relationship of trust and confidence developed. Other counsellors should have been engaged.
The circumstances of the production of "Death, A Fact of Life" were not so extreme as to warrant exemplary damages. While the defendant as a whole should have intervened more on matters of work practice and counselling, this did not warrant exemplary damages. It was not excused, but it was not such as to call for non-compensatory punishment.
Overall the plaintiff did advise of his concerns, but particularly in the later stages, and when matters were deteriorating, the plaintiff could have done more to keep his position prominent. The plaintiff also attended many operational scenes and other locations involving death and disturbing incidents of his own volition and undertook more exposure than was strictly necessary. The plaintiff failed to seek a different workload or work mix contributing to the situation that led to PTSD. The plaintiff's contribution was assessed at 35 percent.
Liability in negligence and breach of statutory duty was established. The police failed to provide a reasonably safe system of work. The PTSD which followed was a reasonably foreseeable consequence.
Remedy: The following damages were appropriate: general damages for pain and suffering and loss of amenity ($75,000), general damages for calculated future earnings and superannuation less actual earnings ($293,915.01), special damages (counselling) ($4,035.35), all subject to a 35 percent reduction due to contributory negligence. Total damages were $242,417.74.
Reproduced with the kind permission of Brookers Ltd. ENDS