Statement By Health and Safety in Employment Amendment Act 4/4

Margaret Wilson Labour

Statement By Health and Safety in Employment Amendment Act

21 December 2001

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.