Officer wins $860k for police failure to review mental health prior to return to duty

An appeal court has upped the damages police must pay an officer for deploying her back to general duties after the onset of multiple non-work related traumas where there was a failure to review mental health.

Kristen Skinner completed training at the Goulburn Police Academy in October 1994.

Over a 6-year period she attended as a first responder to three suicides, a fatal motor vehicle accident and the discovery of a heavily decomposed body hanging from a tree.

On another occasion she was in a police vehicle that was approached by a man firing a rifle.

In 2003 she took up the position of manager – involving mainly clerical duties – at the police station at Morisset at Lake Macquarie.

Following a back injury in 2006, she was placed on restricted duties. At around the same time she faced numerous personal stressors – a troubled relationship with her boyfriend and the dual diagnoses of cancer of her sister and father – that caused “mental fragility”.

Her father died in February 2007 and she reported symptoms of depression from all of these issues at a self-initiated Employee Assistance Program (EAP) counselling session in May 2007.

An officer in Ms Skinner’s own team committed suicide in June 2007 by hanging himself at home. Another friend and colleague suicided two months later.

Post-suicide counselling initiated by the force was not directed specifically to her circumstances and no report as to her fragile mental condition at that time was received by her commanding officer.

Officer Skinner experienced conflicts with fellow officers and superiors between 2007 and 2008 including in relation to a transfer to general duties at nearby Toronto, a prospect she dreaded in part due to the presence there of a particular officer with whom there was a history of antagonism.

In January 2008, she sought to join the mounted division for which she underwent a job suitability assessment – absent any thorough review of her mental health – by police psychologist Diane Hanna without disclosing any difficulties experienced on return to general duties or any symptoms of depression.

In 2010, the officer was discharged on medical grounds for worsening depression.

Her lawsuit against the State of NSW that was eventually filed in 2017  alleged NSW Police breached its duty of care as employer by failing to conduct thorough mental health assessment in May 2007 in advance of her transfer back to general duties and for failing to provide adequate support for her psychiatric conditions.

In March 2021 Judge Alister Abadee in the NSW District Court upheld the claim – insofar as it related to major depression, but not in respect of her PTSD –  and awarded her damages of $743,780.

In arriving at that figure, the judge reduced the damages that would have applied had her entire psychological deficit been her employer’s responsibility – by 40% – to reflect the “real chance” that her earning capacity would have been adversely impacted in any event by other conditions including her PTSD for which the police force was not liable for failing to detect.

He also held Skinner to have been contributorily negligent to the extent of 10% for having failed to report her condition to Ms Hanna during the 2008 mounted division intake assessment.

Judge Abadee identified NSW Police’s duty as requiring it to “identify officers who, through the performance of their duties, were at risk of suffering, or were suffering, psychiatric or psychological harm” and to “ensure any officer so identified received appropriate treatment and support”.

Such duty extended – so ruled the judge – to the identification of hazards associated the injured worker’s return to duty and the assessment of the risks of further injury posed by a return to duty.

The State appealed the finding of liability and Ms Skinner cross-appealed against the findings that the force’s failings did not cause her PTSD.

In delivering the lead judgment, Justice John Basten upheld Judge Abadee’s articulation of the force’s duty to its employees.

He also affirmed the ruling that NSW Police had breached its duty of care to Ms Skinner by failing to conduct a thorough mental health assessment after May 2007 that would have alerted her superiors as to the seriousness of her depression.

Her commanding officer “knew, or should have known, about Ms Skinner’s depressive condition” at that time but failed to provide her adequate psychological assistance and did not obtain any reports about Ms Skinner’s mental condition from the police psychologist or the EAP counsellors.

Moreover, further investigation should have been prompted by the officer’s “strong resistance to resuming general duties” in 2007-2008 and the transfer to Toronto.

His Honour also observed that – because traumatic exposure is almost unavoidable when performing general duties – an officer already suffering from a depressive condition will foreseeably sustain further psychological harm by that deployment.

The appeal judges concluded that the employer’s conduct of exacerbating – or failing to ameliorate – her existing condition was sufficient to establish the requisite ‘causation’.

They concurred with the trial judge’s view that her PTSD would not have been diagnosed even had a full work-up been performed in May 2007 and hence her employer was entitled to the discount on damages that had been applied in the lower court.

They did however reject his conclusion that Ms Skinner had been contributorily negligent in failing to mention her depressive condition to Hanna on the basis that it was Hanna who should have done the enquiring about whether the officer had mental health symptoms given the latter’s failure to answer a question in relation to same on the interview form.

The appeal court dismissed the appeal by the State of NSW and increased Ms Skinner’s award to $857,948.

State of New South Wales v Skinner [2022] NSWCA 9 Basten JA Brereton JA McCallum JA, 8 February 2022 Read case

source https://cartercapner.com.au/blog/officer-wins-860k-for-police-failure-to-review-mental-health-prior-to-return-to-duty/

Theatre man cops second big compo bill for under-age sex abuse of employee

The former owner of a suburban Sydney cinema has been hit with a second million-dollar compensation order for under-age sex abuse of a male employee in the 1980s.

Darren Lewis – then 14 yrs – was recruited by Philip Doyle to work at the Kogarah Mecca Cinema in April 1986.

On August 6 that year, a record 327mm of rain fell in Sydney within a 24-hour period causing chaos, flood, and killing five people.

Flooded roads prevented Darren’s parents from collecting him at the cinema after work resulting in an offer from Doyle that he spend the night at his San Souci residence.

Once there, Doyle manipulated the youth into a situation where it became clear he was expected to engage in sex acts in Doyle’s only bed, the shock of which froze him in terror while he complied with the predator’s requests.

The boy was prevailed upon on three further occasions that year and another in September 1987.

Darren’s description of the change that the encounters had brought about was that he “started to become a different person, felt dirty and disgusted with himself and carried shame”. He “had nothing good to offer anyone as a friend or person” and would “only be valued if he was being taken advantage of”.

He left his job at the cinema in 1987 and as attested to by his parents and school friend Kerry Baird – whom he married in 1993 and then separated from in 2005 – became withdrawn and began experimenting with drugs.

Darren did not seek treatment for his depressed mood or alcohol & cannabis addiction until after he provided a statement to Police in 2009.

His proceedings in the NSW Supreme Court – filed in 2015 – relied upon evidence from psychiatrist Richard Baker whose testimony was that the sexual assaults were a cause of Darren’s Persistent Depressive Disorder.

Baker and colleague Alex Apler agreed that other factors contributed to the condition including substance abuse, his bipolar disorder, his parents’ separation and a tragic accident which had befell his own son in 2009.

Justice David Davies accepted Darren’s accounts of four episodes but in relation to the fifth, ruled the evidence insufficient to conclude that any assault – as opposed to an attempt at solicitation – had actually occurred.

Rejecting the defence plea that the boy had been a willing partner, His Honour observed that it was never possible for a child to consent to sex and that his employee status – which Darren swore made him feel under ‘pressure’ – compelled a conclusion to the contrary.

Although there were many other stressors that may have played a part, the defendant had failed to discharge its onus of disentangling the assaults from them so as to exclude the assaults as a contributory cause.

His Honour was “entirely satisfied” the sexual assaults “substantially contributed to his condition” and were its “principal cause” not least because of the evidence from his extended family that pointed to a significant change in his behaviour at about the age of 15 and Dr Baker’s view that other life issues would not probably have led to a depressive order of a persistent nature.

General damages were awarded on a common law basis – as is allowed in NSW for sexual assault – at $400,000 and aggravated damages in the sum of $40,000.

Relying on evidence from Mark Thompson of Vincent’s – who postulated the financial loss from Darren’s lacklustre work history – Justice Davies ordered Doyle also pay $250,000 for past loss of income and $200,000 for future loss of earning capacity.

The total award in Darren’s favour of $1.36 million includes interest of $358,000.

This judgement comes just four months after Doyle was ordered to pay $1.27 million to Paul Miles for similar assaults in 1985 when he was employed at same the Kogarah theatre when aged 16.

Doyle was convicted of the assaults on Lewis in 2012 and sentenced to 3 years’ jail.

Lewis v Doyle [2022] NSWSC 92 Davies J, 18 February 2022 Read case

source https://cartercapner.com.au/blog/theatre-owner-cops-second-big-compo-bill-for-under-age-sex-abuse-of-employee/

Judge lashed for poor job on tractor driver’s repetitive strain injury claim

What happens if after years of preparation for a trial – a judge fails to give reasonable consideration to a party’s evidence and then provides hopeless reasons for the decision he made?

Consider the case of Anthony Cavanagh who sued his employer for an over period of time repetitive strain injury arising out of work he undertook as a racecourse manager.

Cavanagh had been employed at the Bushland Drive Racecourse for 12 years since leaving high school – which he did not complete – until February 2011 and has not worked since.

What constituted the defective system of work of which he complained was the need to continuously look back over his right shoulder from the seat of a tractor to judge the height of a leveller attachment being dragged behind to smooth out top dressing.

That this had to be done “every few seconds” – six days per week in 3 to 4 hour stints – meant such system had been negligently designed, he alleged.

It was that history that had been put to his expert medical witnesses and upon which his claim depended for its success in circumstances where the Manning Valley Race Club failed to remediate the set-up by installing a mirror or rear-vision camera as well as a swivel seat.

Cavanagh called ergonomist Fiona Weigall who swore – in unchallenged evidence –the injury could have been prevented by the adoption of such measures.

Counsel for the race club – aided by intervention from the bench – was skilful enough to promote confused accounts from Cavanagh as to the frequency of his neck and shoulder rotation.

Having answered he was required to look back at the leveller “30 seconds out of the minute” he then responded in the affirmative to the trial judge’s question “so you would glance back every 30 seconds or every minute”.

Then – having successfully re-explained to counsel that he turned his head back at least 10 times each minute for five or six seconds each time – His Honour posed questions that effectively confused him again.

Although complicit in causing the plaintiff’s confused testimony, His Honour went on to labour the “inconsistencies in [Cavanagh’s] accounts” and his failure to provide a “best estimate”, to dismiss the claim.

The need to turn backwards once only each minute – the judge decided after a four-day trial – did not create any reasonably foreseeable risk of injury.

Cavanagh’s claim was dismissed with a notional assessment of damages of just over $1 million, a sum that the parties had agreed.

In lambasting the acting District Court judge, Justice Mark Leeming in the NSW Court of Appeal noted the 4 ½ page judgement was “strikingly short …for a trial worth more than $1 million”.

So “poorly crafted” were the reasons, that the appeal court had to work to do in deciding whether a finding had actually been made that Cavanagh had turned backwards only once per minute.

Favouring the “charitable” view that such a finding should be inferred because that was relied on to dismiss the case, Justice Leeming reasoned that such conclusion faced “insuperable difficulties”.

Those difficulties included the failure to even refer to Cavanagh’s reasonably concise re-explanation of what had occurred and the absence of any reconciliation his several explanations that his attention had been predominantly directed to the rear.

“There is real doubt as to how the reasons for judgement are to be understood on the issue which was treated by the primary judge as dispositive of the entirety of the claim,” the appeal judges ruled. “It follows that the judgment cannot be sustained and the appeal must be allowed”.

Because damages had been agreed and the only factual issue in contest was that on which the defendant had failed, the court refused its request for a retrial and instead concluded the race club had been negligent for the reasons contended by Cavanagh and entered judgement – then and there – in his favour.

who sued his employer for an over period of time injury arising out of work he undertook as a racecourse manager.

Cavanagh had been employed at the Bushland Drive Racecourse for 12 years since leaving high school – which he did not complete – until February 2011 and has not worked since.

What constituted the defective system of work of which he complained was the need to continuously look back over his right shoulder from the seat of a tractor to judge the height of a leveller attachment being dragged behind to smooth out top dressing.

That this had to be done “every few seconds” – six days per week in 3 to 4 hour stints – meant such system had been negligently designed, he alleged.

It was that history that had been put to his expert medical witnesses and upon which his claim depended for its success in circumstances where the Manning Valley Race Club failed to remediate the set-up by installing a mirror or rear-vision camera as well as a swivel seat.

Cavanagh called ergonomist Fiona Weigall who swore – in unchallenged evidence – the injury could have been prevented by the adoption of such measures.

Counsel for the race club – aided by intervention from the bench – was skilful enough to promote confused accounts from Cavanagh as to the frequency of his neck and shoulder rotation.

Having answered he was required to look back at the leveller “30 seconds out of the minute” he then responded in the affirmative to the trial judge’s question “so you would glance back every 30 seconds or every minute”.

Then – having successfully re-explained to counsel that he turned his head back at least 10 times each minute for five or six seconds each time – His Honour posed questions that effectively confused him again.

Although complicit in causing the plaintiff’s confused testimony, His Honour went on to labour the “inconsistencies in [Cavanagh’s] accounts” and his failure to provide a “best estimate”, to dismiss the claim.

The need to turn backwards once only each minute – the judge decided after a four-day trial – did not create any reasonably foreseeable risk of injury.

Cavanagh’s claim was dismissed with a notional assessment of damages of just over $1 million, a sum that the parties had agreed.

In lambasting the acting District Court judge, Justice Mark Leeming in the NSW Court of Appeal noted the 4 ½ page judgement was “strikingly short …for a trial worth more than $1 million”.

So “poorly crafted” were the reasons, that the appeal court had to work to do in deciding whether a finding had actually been made that Cavanagh had turned backwards only once per minute.

Favouring the “charitable” view that such a finding should be inferred because that was relied on to dismiss the case, Justice Leeming reasoned that such conclusion faced “insuperable difficulties”.

Those difficulties included the failure to even refer to Cavanagh’s reasonably concise re-explanation of what had occurred and the absence of any reconciliation his several explanations that his attention had been predominantly directed to the rear.

“There is real doubt as to how the reasons for judgement are to be understood on the issue which was treated by the primary judge as dispositive of the entirety of the claim,” the appeal judges ruled. “It follows that the judgment cannot be sustained and the appeal must be allowed”.

Because damages had been agreed and the only factual issue in contest was that on which the defendant had failed, the court refused its request for a retrial and instead concluded the race club had been negligent for the reasons contended by Cavanagh and entered judgement – then and there – in his favour.

Cavanagh v Manning Valley Race Club Ltd [2022] NSWCA 36 Leeming JA Simpson AJA N Adams J, 15 March 2021 Read case

source https://cartercapner.com.au/blog/judge-lashed-for-poor-job-on-tractor-drivers-repetitive-strain-injury-claim/

Expert’s report tossed out, Judge does own calcs on Park Rd motorcycle crash

Determining what happened and who was responsible for a car or motorcycle crash is often confounded by differing accounts as to the position of vehicles and their paths leading up to the point of impact.

The qualifications of and scientific method adopted by accident reconstruction experts – who reach conclusions by mathematical extrapolation from measurements taken and observations made at the scene – is often called into question.

Exactly that recently occurred in the District Court in Brisbane in relation to a peak hour commuter accident in Brisbane’s inner west.

The accident occurred in November 2016 after Steven Kickbusch – riding a Honda CT 110 motorcycle – followed a truck towing a trailer from a stopped position in the outbound turn lane of Coronation Drive into Park Road at Milton.

Kickbusch – aged 47 yrs – sustained serious injuries to his neck, back and shoulder after being knocked from by the truck his motorbike to the roadway surface while on his way home from work at QUT.

He contended that the truck had swung wildly to the right as he attempted to overtake.

Jason Lehane – the truck’s driver – on the other hand recounted that the motorcycle had collided with the side of the truck for no apparent reason.

Kickbusch engaged mechanical engineer Ray Hope to support his contention that it was the driver of the truck/trailer was wholly responsible for the collision.

Dr Hope took the accepted starting positions of each vehicle on Coronation Drive and the accepted resting position of the truck and by assuming the point of impact was at or near that location, deduced the course of each vehicle leading up to the impact.

CTP insurer Allianz asserted that such opinion was inadmissible on grounds that the engineer’s conclusions were speculative and the methodology was not within his expertise.

Judge Michael Byrne agreed there was nothing in the expert’s opinion which required “the application of special knowledge, expertise or experience” and that “the court was in as good a position to determine such matters as anyone else”.

To show what he meant, His Honour undertook a view of the scene during the three-day trial and describes the intersection in detail in his 35-page reasons for judgement.

He accepted the motorcycle rider’s account of having – after rounding the turn – maintained a line of travel on the right-hand side of the northbound lane of Park Road at all times.

In doing so, he noted the single marked lane was wide enough to accommodate two vehicles and the “illogicality” of the motorbike deviating towards the truck.

He also concluded that the angle at which the truck came to rest – relative to the direction of travel – compelled a finding that Lehane turned the truck sharply to the right without indicating, thereby failing to give way to the motorbike and to take precautions against causing harm to other motorists as he was required to do.

Judge Byrne though apportioned 40% responsibility for the accident upon Mr Kickbusch for attempting to overtake the truck/trailer while it was “too early in the combined vehicle’s turning manoeuvre” to assess its path of travel up Park Road.

The only point on which the expert’s report was allowed in evidence was with respect to the resting position of the truck derived from photos taken on the day of the collision.

As a result of the injuries, the plaintiff could not undertake his PhD studies to the same standard and with the same efficiency as before and risked missing a cut-off date for submission of his thesis.

His Honour accepted that he will likely require treatment and medication for headaches and neck pain – that significantly restrict his ability to perform his work and his studies – for the rest of his life.

A 6% WPI of the neck yielded an ISV of 8 which was upgraded to 11 after considering pain and other injuries. That resulted in general damages at just $18,000 and loss of past and future income of about $200k.

The total award of $288,000 was reduced by 40% to arrive at a figure of $173,000 which Allianz was ordered to pay the unfortunate motorcycle commuter.

Kickbusch v Lehane & Anor [2022] QDC 16 Byrne QC DCJ, 14 February 2022

source https://cartercapner.com.au/blog/experts-report-tossed-out-judge-does-own-calcs-on-park-rd-motorcycle-crash/