Benic v State of New South Wales - [2010] NSWSC 1039

No judgment structure available for this case.

CITATION: Peter Steven Benic v State of New South Wales [2010] NSWSC 1039

HEARING DATE(S): 5-14 July 2010

JUDGMENT DATE :
30 November 2010

JUDGMENT OF: Garling J

DECISION: Judgment for the defendant.

CATCHWORDS: NEGLIGENCE — Duty of care — Police service — Statutory framework of the NSW Police Force –Commissioner of Police owes non-delegable duty to members of NSW Police Force – Duty owed by Commissioner of Police is in the nature of an employer’s duty in common law – Duty to provide safe system of work for members of the NSW Police Force – The Crown is liable for conduct of the Commissioner of Police and his delegates – The State of NSW as defendant in proceedings against the Crown. - NEGLIGENCE – Breach of duty – Where the plaintiff was a police officer assigned to providing protection to the Premier of NSW – Where the plaintiff received serious death threats in the course of his duties – Where the superior officers made inquiries of the plaintiff’s wellbeing – Where the plaintiff informed his superior officers that he was fine – Where the superior officers did not refer the plaintiff to psychiatric or psychological assessment – Where the plaintiff later developed post traumatic stress disorder (PTSD) – The test under s 5B of the Civil Liability Act 2002 – Whether the superior officers knew or ought to have known of the risk of the plaintiff suffering psychiatric injury – Whether the risk was non insignificant – Whether in the circumstances the superior officers acted in a manner less than was reasonable in failing to refer the plaintiff to psychiatric or psychological assessment. - NEGLIGENCE – Causation – The test under s 5D of the Civil Liability Act 2002 – Whether the plaintiff would have developed PTSD but for the failure of his superior officers to refer him for psychiatric or psychological assessment – Whether the evidence establishes that early intervention in the treatment for PTSD in the plaintiff would, on the balance of probabilities, have prevented his present injury. - DAMAGES – Assessment of damages for personal injury – Where there is evidence that the plaintiff would have continued in the NSW Police Force at the rank of an inspector – Whether the plaintiff is fit for other forms of employment outside of personal protection – Assessment of non-economic loss – Assessment of future economic loss under s 13 of the Civil Liability Act 2002. - EVIDENCE – Applicable principles where there has been a lack of cross-examination on disputed facts – Importance of contemporaneous documents and records.

LEGISLATION CITED: Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Crimes Act 1900
Crimes Act 1914 (Cth)
Crown Proceedings Act 1988
Law Reform (Vicarious Liability) Act 1983
Occupational Health & Safety Act 2000
Police Regulation (Superannuation) Act 1906
Police Act 1990

CATEGORY: Principal judgment

CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Ainsworth v Levi (Court of Appeal, 30 August 1995, unreported)
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167
Bulstrode v Trimble [1970] VR 840
Chapman v Hearse (1961) 106 CLR 112
Chappel v Hart (1998) 195 CLR 232
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
Czatyrko v Edith Cowan University (2005) 214 ALR 349
Doherty v State of NSW [2010] NSWSC 450
Drinkwater & Ors v Howarth [2006] NSWCA 222
Duysellshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Erwin v Iveco Trucks Australia (2010) 267 ALR 752
Fabre v Arenales (1992) 27 NSWLR 437
Fox v Percy (2003) 214 CLR 118
Griffiths v Haines [1984] 3 NSWLR 653
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hamod v State of NSW (No.12) [2009] NSWSC 242
Harriton v Stephens (2006) 226 CLR 52
HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44
Kondis v State Transport Authority (1984) 154 CLR 672
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22
M & EM Holt Pty Ltd v Thompson [2001] NSWCA 359
McDonald v State of NSW [2001] NSWCA 303
Mount Isa Mines Limited v Pusey (1970) 125 CLR 383
NSW v Williamson [2005] NSWCA 352
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Law Rep 403
Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505
Patrech v State of NSW [2009] NSWCA 118
Pearce v The State of NSW
Police Service of NSW v Honeysett (2001) 53 NSWLR 592
Reeves v State of NSW [2010] NSWSC 611
Rhodes v Lake Macquarie City Council [2010] NSWCA 235
RTA v Dederer (2007) 234 CLR 330
RTA v Refrigerated Roadways Pty Limited [2009] NSWCA 263
S v State of NSW [2008] NSWSC 933
S v State of NSW [2009] NSWCA 164
Scott v Davis (2000) 204 CLR 333
Shaw v Thomas [2010] NSWCA
Sociètè d’Avances Commerciales (Sociètè Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The ‘Palitana’) (1924) 20 Lloyds Law Rep 140
State of New South Wales v Fahy (2007) 81 ALJR 1021
State of NSW v Fahy (2007) 232 CLR 486
State of NSW v Seedsman [2000] NSWCA 119
State of NSW v Seedsman [2000] NSWCA 119; (2000) 217 ALR 583
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16
Stojan v Kenway [2009] NSWCA 364
Swain v Waverley Municipal Council (2005) 220 CLR 517
Waverley Council v Ferreira [2005] NSWCA 418
Waverley Council v Lodge [2001] NSWCA 439
Woolworths Ltd v Strong [2010] NSWCA 282
Wyong Shire Council v Shirt (1980) 146 CLR 40

TEXTS CITED: Final Report of the Review of the Law of Negligence
Law of Torts (9th ed), Fleming, Law Book, 1998
The Management of PTSD in Adults and Children in Primary and Secondary Care March 2005 National Collaborating Centre for Medical Health

PARTIES: Peter Steven Benic (Plaintiff)
State of New South Wales (Defendant)

FILE NUMBER(S): SC 2007/265221

COUNSEL: A.G. Melick SC with K. Earl (Plaintiff)
P. Menzies QC with P. Mallon (Defendant)

SOLICITORS: Baker & Edmunds Solicitors Pty Ltd (Plaintiff)
Henry Davis York (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GARLING J

TUESDAY, 30 NOVEMBER 2010

2007/265221 PETER STEVEN BENIC v STATE OF NEW SOUTH WALES
JUDGMENT

1 HIS HONOUR: By an amended statement of claim filed on 5 July 2010, Peter Stephen Benic, the plaintiff, sues the State of NSW claiming damages for negligence arising out of his service as a police officer with the NSW Police Force.

2 The plaintiff claims that as a consequence of a threat he received to his life, he developed post traumatic stress disorder and associated anxiety and depression spectrum conditions. He claims that had he been referred promptly and properly for expert psychological or psychiatric assistance, he would not have developed this condition and would not have lost his capacity for work. In this judgment, it will be convenient to use the expression early intervention to describe that which the plaintiff claims he was entitled to.

3 The plaintiff claims that as a consequence of his post traumatic stress disorder he is now unfit for work and will remain so for the balance of his anticipated working life.

4 For the reasons below, I have decided that there should be a judgment for the defendant because the plaintiff has not proved that the Commissioner of Police has been in breach of the duty of care which was owed to the plaintiff. As well, the plaintiff has not proved that the psychiatric illness from which he now suffers was caused by a failure on the part of the Commissioner to comply with his legal obligation to the plaintiff.

The Proceedings

5 The plaintiff, who was born on 24 November 1963, joined the NSW Police Force on 5 January 1987. On 13 September 1992, the plaintiff joined the Special Branch of the NSW Police Force as part of a protective security group which is now known as the NSW Police Counter Terrorism Coordination Command (CTCC). From that time onwards, the plaintiff worked in the area of close personal protection engaged in looking after various dignitaries and politicians.

6 In February 1995, he was selected to work as a member of the personal security team which was allocated to the then Leader of the Opposition Mr Robert Carr MP. Mr Carr was elected Premier on 4 April 1995 and the plaintiff continued in that role of providing close personal protection until Mr Carr’s resignation on 3 August 2005. The plaintiff worked as one of the three close personal protection officers dedicated to taking care of the Premier of NSW.

7 For a period of three weeks after Mr Carr’s resignation as Premier, the plaintiff worked for his replacement, Mr Morris Iemma MP. He was then seconded to work for the former Premier, Mr Carr, on 24 August 2005. He continued in that job until early March 2006, when he went off for a period of sick leave because of a right heel injury.

8 The plaintiff has not returned to work with the NSW Police Force since that time. On 2 February 2007, the plaintiff was discharged from the NSW Police Force on the basis that he was medically unfit to continue in the role of being a police officer. He had by that stage (21 December 2006) commenced these proceedings, initially in the District Court of NSW.

9 The plaintiff’s claim against the State of NSW (the State) for negligence was based upon the proposition that it was liable for the negligence of the Commissioner of Police in his capacity as controlling and managing the NSW Police Force.

10 The State admits that the plaintiff was owed a duty of care. I will describe the nature and content of that duty in due course. The State disputes that there was any negligence and disputes that any negligence has caused any damage to the plaintiff.

11 Additionally, there is a significant dispute as to the plaintiff’s capacity for work and what his career path would have been had his post traumatic stress disorder not intervened.

Witnesses Names

12 In this judgment it will be necessary to refer to a number of individuals who were police officers at the time of the various events with which this case is concerned. Some of them were promoted during the course of these events and accordingly had different ranks depending upon the particular date. Some, during the course of this period of time, acted in more senior positions and hence held different ranks depending upon what they were doing. By the time evidence was given before me, some of the police officers had retired from the NSW Police Force, and others had been promoted and bore a different rank.

13 In order to avoid confusion in the judgment, I will not refer to them by rank but simply by their surname. Where the position they held or else their rank was of importance in the specific context of my judgment, that will be addressed. It will be convenient if I set out below a table of those witnesses from the NSW Police Force who provided evidence:

Name	Full name rank/title at relevant time	Role (December 2003 – April 2006)
Benic	Peter Steven Benic, Senior Constable, Acting Inspector	Assigned to provide close personal protection for Mr Carr.
Donohue	David Donohue, Sergeant	Acting Inspector at Maroubra Police Station in December 2003. Involved in arresting Hussein on 26 December 2003.
Kirgiz	Ishmail Kirgiz, Senior Constable, later Acting Inspector	Benic’s friend. Based at the Water Police until May 2004, and then transferred to CTCC and assigned to provide close personal protection for Mr Iemma.
Macfarlane	Glen MacFarlane, Senior Sergeant	Staff officer to the Commander of the CTCC.
Magdapoulos	Dennis Magdapoulos, Chief Inspector	Formerly part of the Special Branch (predecessor of the CTCC), but transferred to general duties before Benic entered the unit. Retired in 2006.
Murchie	Joel Murchie, Acting Inspector	Duty Officer at Maroubra Police Station in December 2003.
Reeves	Christopher Ronald Reeves, Detective Sergeant	Member of the CTCC. Acting Commander of the CTCC in December 2003.
Scarcella	Royce Angelo Scarcella, Constable	Based at Maroubra Police Station. Took initial statement from Benic on 25 December 2003.
Slattery	Andrew Peter Slattery, Detective Inspector	Head of the Dignitary Protection Unit, within the CTCC. Benic’s immediate superior.
Smith	Carolyn Joy Smith, Detective Chief Superintendent	Operations Commander of the Counter Terrorism Coordination Command (CTCC). Benic’s ultimate superior.
Walsh	Peter Walsh, Senior Assistant Commissioner	Retired on 5 September 2003. Has known Benic for 15 years.

Duty of Care: Statutory Framework of the NSW Police Force

14 In State of NSW v Fahy (2007) 232 CLR 486 at [18], Gummow and Hayne JJ emphasised the necessity for any inquiry, such as exists in this case, dealing with the liability of the State, to begin by consideration of the statute which governs the plaintiff’s service as a police officer and the statute which regulates claims against the State.

15 Regrettably, the plaintiff in this case did not turn his attention to this analysis. However, it is necessary that this Court does so. I will commence by considering the statute which governs service as a police officer.

16 The NSW Police Force is established by s 4 of the Police Act 1990. This Act was formerly known as the Police Service Act 1990.

17 Section 6 of the Police Act provides that the mission of the NSW Police Force is “… to work with the community to reduce violence, crime and fear”. One of the services which is provided by the police (s 6(3)(b) of the Police Act) is:

“The protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way”.

18 Section 8 of the Police Act is in these terms:

Commissioner to Manage and Control NSW Police Force

(1) The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the NSW Police Force.

(2) The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the NSW Police Force.

(3) The Commissioner may classify the various duties that members of the NSW Police Force are required to perform and allocate the duties to be carried out by each such member.

(4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force.

…”

19 Section 64 of the Police Act, subject to one exception irrelevant to this case, gives to the Commissioner the power to appoint all police officers “… whether by way of transfer or promotion or otherwise …”.

20 Under the Police Act, the Commissioner, in addition to his powers in s 8, has the following specific powers:

(a) appoint, promote or transfer any member of the NSW Police Force (ss 64, 69, 80, 82A, 82E and 90);

(b) discipline, including dismissal of any member of the NSW Police Force (ss 173, 181D and 207A);

(c) give a direction to any member of the NSW Police Force with respect to their conduct, functions or actions, including putting them in harms way, with which the member cannot lawfully refuse to comply without committing an offence (s 201);

(d) delegate any of his functions to any other member of the NSW Police Force he chooses (s 31);

(e) create or abolish any position in the NSW Police Force, including classifying and grading any such position (s 10(2));

(f) establish, abolish or change the name of any branch or part of the NSW Police Force (s 10(6)); and

21 In Fahy at [21], the purpose of the legislation was described in these terms:

“Read as a whole, … the evident purpose of the legislation was, as may be expected, to create an hierarchical and disciplined force. Chief among the statutory provisions giving effect to that purpose was s 201 which made it a criminal offence for a police officer to neglect or refuse either to obey any lawful order or to carry out any lawful duty as a police officer.”

Duty of Care: Nature & Content

22 It is necessary then to distil this statutory picture to understand the nature and content of the duty of care which it is claimed arises in this case.

23 These are the features which seem to me to be important:

(a) All police officers are in the service of the Crown but they are not servants of the Crown;

(b) All police officers are members of the NSW Police Force which is not an incorporated entity nor a statutory corporation;

(c) The NSW Police Force and all members of it have the functions and purposes fixed by the Police Act ;

(d) The Commissioner has the obligation to manage and control the NSW Police Force so that it discharges its statutory mission and functions; and

Police Act

24 Subject only to the direction of the Minister, in every practical respect the Commissioner is entirely able to, and does control all aspects of the constitution, make up and undertaking of the functions of the NSW Police Force. Whilst there is some restriction upon the Commissioner with respect to some aspects of the NSW Police Force Senior Executive Service, those restrictions do not in my view, affect this conclusion. As well, they are not directly relevant to this case.

25 Interestingly, but not directly determinative of the issue in these proceedings, s 134 of the Occupational Health & Safety Act 2000 provides that, for the purposes of that Act, a police officer is an employee of the Crown. That section is specifically limited to, and does not travel outside of, that Act and accordingly is not of any influence in the determination of the appropriate common law duty. The provisions of s 32 of the Occupational Health & Safety Act puts that issue beyond doubt.

26 As I have indicated earlier, the Commissioner is at the top of a hierarchical and disciplined police force.

27 Having regard to the nature and functions of the NSW Police Force, it is clear that many of his powers, particularly those related to the day to day functioning of routine matters are delegated by him to various officers in the hierarchy or chain of command. Each of those officers is a member of the NSW Police Force and each has obligations which may involve the management of officers inferior in rank to them who form part of their particular unit, branch, squad or division. In carrying out their role, each of those officers is obliged to comply with the orders and instructions of the Commissioner. In so acting, each of these officers is the delegate of the Commissioner.

28 The next step in understanding the nature and content of the duty relevant to this case, is to examine the pleadings.

29 It must be said that the pleading by the plaintiff of the nature and content of the duty of care is sparse. It is therefore appropriate to notice each of the paragraphs of the amended statement of claim filed on 5 July 2010 which relate, whether directly or indirectly, to the issue of the nature and content of the duty of care owed. They are as follows:

“1. The Plaintiff brings his claim against the Defendant pursuant to the provisions of the Crown Proceedings Act 1988 (NSW) in respect of the acts, omissions and conduct of the Crown in whose service the Plaintiff was engaged.

2. The Defendant is sued as the entity responsible in law for the negligent acts and omissions of the Police Officers of the New South Wales Police Service in the course of their duties.

3. At all material times, the Plaintiff was engaged by the Defendant as a serving police officer on secondment from the NSW Police to the Premier's Department and providing close personal protection to the then New South Wales Premier.

…

18. The said injuries loss and damage were caused or contributed to by negligence on the part of the Defendant, its servants and/or agents.

Particulars of Negligence

30 Although paragraph 19 of the amended statement of claim does not directly address the question of duty of care, the particulars of negligence by their terms, seem to provide a clue to the nature and content of the duty which is alleged.

31 It is to be observed that the amended statement of claim included two subparagraphs identified by the letter (g). The second of those subparagraphs asserts as a particular of negligence: “failure to maintain a safe system of work”. I do not regard this as anything more than a statement of a breach of a duty of care said to have arisen on the pleaded facts. It does not particularise the breach of duty, it merely states it. In further analysis, I will ignore this subparagraph and refer to particular (g) as being the first mentioned subparagraph.

32 The particulars articulate allegations which suggest that the plaintiff was entitled to be provided with a “safe system of work” and that he was entitled to have measures taken to protect him from psychological harm caused by his work as a police officer. Such allegations are apt to describe the obligation of an employer to an employee.

33 At the conclusion of hearing, the plaintiff’s submission was that the State owed him a non-delegable duty of care to prevent him from suffering harm. Again, the use of the term non-delegable duty is commonly used to describe the obligation of an employer to an employee.

34 That the plaintiff was entitled to the benefit of a duty of care was not put in issue by the defendant. However, the defendant did put in issue the nature and content of the duty owed to the plaintiff which, it submitted, was “informed by, inter alia, its statutory obligations under the Police Act 1990”. Again, this statement relating to this issue is characterised by imprecision. No doubt that reflects the vagueness of the commencing point of the plaintiff’s claim, namely the amended statement of claim.

35 In light of these submissions, the nature and content of the duty is something which the Court is obliged to resolve.

36 As I have pointed out, the Commissioner sits at the head of and is in charge of the mission, function and operation of the NSW Police Force. The NSW Police Force is an ordered and disciplined one. Although the relationship of employer and employee, and hence the strict obligations of master and servant, does not exist, the issue is whether the Commissioner rather than the State of NSW would owe like obligations to all members of the NSW Police Force.

37 The genesis of the common law duty of care owed by an employer to an employee is the exclusive responsibility which the employer has for the safety of the system of work, the place of work, and the equipment used for the work which his employees carry out. In respect of these matters, an employee has no practical choice but to accept and rely upon the employer’s provision and judgment: Kondis v State Transport Authority (1984) 154 CLR 672 at 687-688 per Mason J.

38 In Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 345, Dawson J identified the principle in this way:

the employer has the sole control over the system to which he subjects the employee and the employee must put up with it

39 Where in such circumstances, an employee effectively entrusts his safety into the hands of his employer, then the employee is entitled, reasonably, to expect that reasonable skill and care will be taken: Kondis, per Mason J at 688.

40 In this area of discourse, the central element in determining the existence of a duty of care is the right to control and the exercise of actual control: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 24 per Mason J; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 98 [277] per Hayne J, and at 116 [357] per Callinan J.

41 In the Law of Torts (9^th ed), Professor Fleming describes “managerial control” as the basis for an employer being obliged to provide a safe system of work in this way:

“Managerial control over organisation exacts a corresponding responsibility for such matters as the coordination of activities, layout of equipment, method of using machines and carrying out particular processes, safety instruction of personnel, provision of safety devices and encouragement of their use; in addition to the residual task of planning and supervising the general conditions under which the work is carried out. It requires protection not only against physical injury from accidents, but also against impairment of health …” (p 563).

42 The classic description of the content of a duty owed to an employee is that the employer must take reasonable care for the safety of the employee to avoid exposing the employee to unnecessary risk of injury: Hamilton v Nuroof(WA) Pty Ltd (1956) 96 CLR 18 at 25 per Dixon CJ and Kitto J. The reasonable care which an employer is obliged to take may require devising a system of work or method of operation which eliminates the risk, or else which provides adequate safeguards against the risk: Czatyrko v Edith Cowan University (2005) 214 ALR 349 at [12].

43 The duty of an employer to an employee is one within the recognised categories of non-delegable duty: Kondis at 679-680 per Mason J. A non-delegable duty has also been described as being “more stringent” than the usual duty because its content is one to ensure that reasonable care is taken: Kondis at [686] per Mason J; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 at [6] per Gleeson CJ, Crennan J agreeing.

44 As I have indicated earlier, the allegation in this case centres upon the managerial and organisational response to the very serious threat made to the plaintiff in the course of, and arising out of, his ordinary duties as a police officer.

45 The Commissioner was determined by the Police Act to be the person responsible for the management and control of the NSW Police Force. The Commissioner has exclusive responsibility for this. Particularly in the area of an organisational system of work, I would hold that a member of the NSW Police Force would be entitled to expect that the Commissioner would take reasonable care and skill for their safety.

46 Although the Commissioner, in fact, delegates to other police officers within the hierarchical structure, and is permitted so to do by the Police Act, the daily tasks of management and control, that is no reason to hold that the Commissioner does not owe to each member of the NSW Police Force a duty. On the contrary, it suggests strongly that the duty exists and ought be considered to be a non-delegable one, so that even if an officer lower in the hierarchy is careless in discharge of their duties, the Commissioner will still, at common law, be liable for that conduct.

47 The analogy with the duty which an employer owes to an employee is a good one. I would hold the Commissioner owes to the plaintiff an obligation which is the same as that at common law which an employer owes to an employee.

48 In all practical respects, there is no real difference between the role of the Commissioner and that of the ordinary employer. Although a police officer will have and may exercise the common law powers of a sworn constable, that is no reason to deny the existence of the duty owed by the Commissioner. Those powers affect the manner and extent to which police officers go about their task as members of the NSW Police Force.

49 The position of a police officer, having regard to the statutory regime, has been described as an employee: NSW v Williamson [2005] NSWCA 352 at [7] per Basten JA; Police Service of NSW v Honeysett (2001) 53 NSWLR 592 at [22] and [30] per Priestley JA.

50 This result is consistent with the result reached, although sometimes without argument and sometimes by different paths, by the Court of Appeal and by other Judges of this Court in recent times:

(a) State of NSW v Seedsman [2000] NSWCA 119 at [60] and [62] per Spigelman CJ and [154], [162]-[167] per Mason P.

(b) McDonald v State of NSW [2001] NSWCA 303 at [46]-[48] per Stein JA (Meagher JA and Davies AJA agreeing);

(c) S v State of NSW [2008] NSWSC 933 at [139]-[144] per Harrison J;

(d) Patrech v State of NSW [2009] NSWCA 118;

(e) S v State of NSW [2009] NSWCA 164 at [58]-[60] per Macfarlan JA (Beazley and Giles JJA agreeing);

(f) Doherty v State of NSW [2010] NSWSC 450 at [150]-[158] per Price J;

Reeves v State of NSW

51 I note that this result is not, at least on its face, consistent with the decision of Lee J in Griffiths v Haines [1984] 3 NSWLR 653. That decision was one in which the action was brought by the plaintiff, a police officer, directly against the Crown alleging that a common law relationship of employer and employee existed between the police officer and the government of NSW. The case involved examining, substantially, the authorities touching upon the relationship between a sworn constable and the Crown.

52 As his Honour carefully explains at 662 C-E, he was not intending his decision to take account of the entirety of the relationship between a police officer and the government. He said that for the purpose of his decision, it was unnecessary to examine all of the circumstances of the relationship outside of when a police officer was “exercising original authority”. This was an expression used by his Honour to describe the conduct of a constable in the exercise of his duties as such, ie, to keep the peace and undertake other common law duties.

53 There may be some cases, having regard to the particular activities upon which the police officer was engaged at the time the cause of action arose, which pose some difficulty in an analysis such as the one upon which I am presently engaged. I do not pretend to address all such factual situations. However, the allegations in this case concern the failures by the plaintiff’s superiors to provide various measures which were aimed at alleviating any risk that he would sustain psychological injury in light of the events which occurred. There is no reason, referable to the exercise by a police officer of his duties as a sworn constable, or any police operation, or other like circumstance, which would suggest, in the facts and circumstances of this case, that the ordinary obligations of employer and employee should not be imposed.

54 In all of those circumstances, it seems to me, that the proper characterisation of the duty owed by the Commissioner to the plaintiff in this case is that of an employer.

55 What this means is that, in this case, the Commissioner owed to the plaintiff a non-delegable duty to take reasonable care to avoid exposing the plaintiff to an unnecessary risk of harm from his activities as a police officer.

56 It is well established that the duty of care in a case such as this was capable of including the avoidance of psychiatric injury: Fahy at 489-490 (per Gleeson CJ), 507 (per Gummow and Hayne JJ); Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at 53; S v State of NSW at [59] per Macfarlan JA.

The State of NSW as the Defendant

57 As I am satisfied that the Commissioner owes to the plaintiff a non-delegable duty to avoid exposing the plaintiff to unnecessary risk of harm, the question arises as to who ought be sued and what shape the proceedings ought take. In order to understand this question it is necessary to examine two other relevant statutes.

58 The first is the Law Reform (Vicarious Liability) Act 1983. Section 6 of that Act provides that a police officer is deemed to be “… a person in the service of the Crown and not a servant of the Crown”.

59 This provision means that the following section, s 7 which refers to the vicarious liability of the Crown for employees, is irrelevant. However, s 8 is relevant and important. It is in the following terms:

“ 8. Further vicarious liability of the Crown

…”

60 Whilst s 213 of the Police Act provides for an exemption from liability for any member of the NSW Police Force (including the Commissioner) acting in the course of their duties providing that the exercise of a function is undertaken in good faith, the provisions of s 10 of Vicarious Liability Act have the consequence that the Crown may nevertheless be vicariously liable in respect of a tort committed by a member of the NSW Police Force even though that member, whilst acting in good faith, is exempt from any personal liability.

61 For completeness, I should note that there is no suggestion that any of the conduct by the Commissioner, his subordinate officers or any member of the NSW Police Force in this case was not in good faith. Accordingly, each of them would be personally exempt, to the extent that they were exposed to liability, but the Crown would remain exposed to a finding of liability because of its vicarious liability.

62 By reason of the provisions of the Vicarious Liability Act, the Crown is vicariously liable for the conduct of the Commissioner. That is because where a defective system of work is alleged, as is the case here, then the liability of the Commissioner arises out of his performance in the discharge of his statutory function which necessarily means that the Commissioner is acting in the course of his service with the Crown and that his conduct is directed to the carrying on of an activity of the Crown. Accordingly, s 8 of the Vicarious Liability Act has the consequence that the Crown is vicariously liable for the conduct of the Commissioner.

63 But the question then is how does the plaintiff bring proceedings against the Crown.

64 The answer to this question lies in the second statute, namely, the Crown Proceedings Act 1988.

65 This is a permissive Act which enables a person who has a lawful entitlement to bring proceedings against the Crown by suing as the named defendant, the State of New South Wales.

66 Section 5(1) is in the following terms:

“ 5. Crown may be sued
(1) Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown … may bring civil proceedings against the Crown under the title ‘State of New South Wales’ in any competent Court.”

67 The section also provides that where proceedings are against the Crown they shall be commenced and, as nearly as possible, prosecuted so that the parties are in the same position as if the litigation was between private parties.

68 The plaintiff’s claim is against the State of NSW because the Crown is vicariously liable for the conduct of the Commissioner, in the discharge of his duties in the circumstances which have occurred. Accordingly, a suit against the State of NSW as the named defendant is in proper form and appropriately brought.

69 In the course of this judgment, it may be convenient to describe the allegations of duty or breach of duty in terms attributing the liability directly to the defendant, the State. This expression, when used, is a shorthand or convenient way to describe the construct of a duty of care to which I have just referred. It is not to be understood as suggesting or adopting with approval, any claim that the State was the relevant employer, or else had some form of direct liability to the plaintiff.

Breach of Duty – Outline of Legal Requirements

70 An analysis of the legal requirements for a plaintiff to establish the breach of a duty of care must, in NSW, commence with the Civil Liability Act 2002.

71 The Civil Liability Act, introduced in two tranches in 2002, was intended to and did significantly reform the law of negligence in NSW. The second tranche of reforms, Civil Liability Amendment (Personal Responsibility) Act 2002 was described in this way by the Premier of NSW in his Second Reading Speech on 23 October 2002:

“The introduction of this Bill today is a triumph for common sense. Personal responsibility will rightly assume a much higher profile in our law thanks to these reforms … But, regardless of the common sense of these reforms, we recognise that Parliament will be debating some of the most fundamental changes to the law of negligence ever made.”

72 The Civil Liability Act was introduced after, and reflects many of the recommendations of the Final Report of the Review of the Law of Negligence (“the Ipp Report”) which was published in September 2002.

73 The Civil Liability Act was not intended to be a complete code. It is recognised that it exists in the context of the tort of negligence and the common law which has developed.

74 It is appropriate to start with some particular provisions of the Civil Liability Act which are relevant to the present case. They include:

“ 5B General principles

5C Other principles

In proceedings relating to liability for negligence:

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

75 Although both sections in the Civil Liability Act appear beneath the heading “Duty of Care”, they are evidently directed to questions of breach of duty: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [13].

76 Because the State is sued for the negligence of the Commissioner, the principles referred to in s 42 of the Civil Liability Act are also relevant because, by virtue of s 41 of the Civil Liability Act, the Commissioner is a public authority. Section 42 is in the following terms:

“ 42. Principles concerning resources, responsibilities etc of public or other authorities

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.”

77 The common law test for a breach of duty of care is firmly established. The classic statement of a common law breach of duty is to be found in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 per Mason J (Stephen and Aickin JJ agreeing):

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.”

78 The High Court of Australia recently determined that Shirt’s case ought not be reconsidered as the appropriate common law test: Fahy at [7] per Gleeson CJ, [78] and [133] per Kirby J, [213] per Callinan and Heydon JJ, [241] per Crennan J.

79 The question remains whether the provisions of the Civil Liability Act have introduced a different test for breach of duty and whether Shirt’s case has any remaining work to do.

80 An analysis of the Civil Liability Act commences with an acknowledgement that there are a number of separate steps which must be taken to establish a breach of duty under the Civil Liability Act.

81 The first step is that a plaintiff must identify “a risk of harm” against which he (or she) alleges a defendant would be negligent for failing to take precautions. Section 5 of the Civil Liability Act defines “harm” as meaning “harm of any kind, including … personal injury or death, damage to property and economic loss”.

82 It is essential in considering the first step to carefully identify the particular risk of harm to which the later steps will be applied. As the judgment of Gummow J clearly demonstrates in RTA v Dederer (2007) 234 CLR 330 at [59]-[61], it is only through the correct identification of the risk that an assessment of the reasonable response can be made.

83 At this stage of the inquiry, and before any consideration of causation as provided for in s 5D of the Civil Liability Act, it is sufficient if the risk of harm is described as a class of injury, as distinct from the particular injury actually suffered by the plaintiff. This approach accords with the traditional common law approach: Chapman v Hearse (1961) 106 CLR 112 at 115; Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 390 per Barwick CJ, at 403 per Windeyer J, at 414 per Walsh J.

84 Although the plaintiff’s pleadings and submissions did not address this question with the precision which is required, I would regard the risk of harm in this case as properly to be described in this way: the risk of the plaintiff without appropriate early intervention suffering psychiatric injury as a result of receiving a serious death threat.

85 In this case, the plaintiff identified, and the parties proceeded on the basis that the actual harm which was suffered by the plaintiff was PTSD. That harm was suffered as a consequence of receiving a threat from Hussein. But it was said that it could have been prevented by early intervention.

86 The next step is to address the three elements in s 5B(1) of the Civil Liability Act.

87 Section 5B presupposes the existence of the law of negligence and operates against its background: RTA v Refrigerated Roadways Pty Limited [2009] NSWCA 263 at [173] per Campbell JA (McColl JA agreeing). However, the statute requires that a trial judge must be satisfied that each of the elements in s 5B(1) are satisfied before a finding of a breach of duty can be made. Refrigerated Roadways at [442]-[444] per Sackville JA.

88 The three separate elements in s 5B(1) represent the concepts of foreseeability, probability and reasonableness of precautions: see the Ipp Report, para 7.11. These concepts are each represented in the common law, and are often conflated in the term “reasonable foreseeability” but the statute now makes it clear that each must be separately addressed.

89 I do not read the caution of Basten JA in Drinkwater & Ors v Howarth [2006] NSWCA 222 at [21] as contradicting this approach of addressing these provisions of the Civil Liability Act separately.

90 The first element is that a plaintiff must establish that the risk of harm was foreseeable to the defendant. Foreseeability is described in the statute differently from the common law description. In the Civil Liability Act, s 5B(1)(a) describes a foreseeable risk as a risk of which the defendant knew or ought to have known. A plaintiff must establish either actual knowledge in the defendant of the risk of harm, or else constructive knowledge (ie. the defendant ought to have known) in the defendant of the risk of harm.

91 The Ipp Report was the source of the provision of the Civil Liability Act under discussion. In para 7.10, the following remarks were made:

“Whereas probability is a scientific concept, foreseeability is a matter of knowledge and inference. For instance, no matter how likely it is that something will occur, it is foreseeable by a person only if that person knows or ought to know that it might occur. (Knowledge must be judged as at the date of the alleged negligence and not at a later date; that is, without the benefit of hindsight and ignoring subsequent increases in knowledge about the risk and its consequences.”

92 In my opinion, the plaintiff must satisfy the Court that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the common knowledge and experience of others in the similar position of the defendant, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant’s position and the obviousness or the likelihood of the event happening when using common sense.

93 The second element, which is cumulative on the first, is whether the alleged risk of harm was “… not insignificant”. This must also be judged from the perspective of a reasonable person in the defendant’s position, and in prospect not retrospect: Stojan v Kenway [2009] NSWCA 364 at [136] per McColl JA.

94 There have been a number of decisions of the Court of Appeal which have considered this phrase. It is fair to say that the phrase “not insignificant” has not yet been the subject of any comprehensive detailed analysis. In Waverley Council v Ferreira [2005] NSWCA 418 at [69], Ipp JA (with whom Spigelman CJ and Tobias JA agreed) held that the particular risk was not insignificant but there was no discussion of why that was so. Similar findings, without discussion, were made in Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 at [92]ff per Beazley JA, and in Rhodes v Lake Macquarie City Council [2010] NSWCA 235 at [42] per Hodgson JA (with whom Macfarlan JA and Handley AJA agreed).

95 In Refrigerated Roadways, Campbell JA (with whom McColl JA agreed) at [186] raised, but did not decide, a question of whether there was any difference in substance between the common law test of a risk coming to fruition as being “… not far-fetched or fanciful” and the statutory test “… not insignificant”.

96 In Shaw v Thomas [2010] NSWCA 169, Macfarlan JA (with whom Beazley and Tobias JJA agreed) said at [44] that the statutory test was more demanding than the common law test, “but … not by very much”.

97 Kirby J in Harriton v Stephens (2006) 226 CLR 52 at 94 [136]-[138], noted that the Civil Liability Act made “… substantial alterations to the [common law] principles of reasonable foreseeability …”. His Honour also noted that the Civil Liability Act was fundamentally restrictive and that “… obstacles for plaintiffs seeking damages in tort, especially where the damages are sought in respect of personal injury, have been considerably increased”.

98 The Ipp Report at para 7.15 described the recommended change in this way:

“The Panel favours the phrase ‘not insignificant’. The effect of this change would be that a person could be held liable for failure to take precautions against a risk only if the risk was ‘not insignificant’. The phrase ‘not insignificant’ is intended to indicate a risk that is of a higher probability than is indicated by the phrase ‘not far fetched and fanciful’, but not so high as might be indicated by a phrase such as ‘a substantial risk’. The choice of double negative is deliberate. We do not intend the phrase to be a synonym for ‘significant’. ‘Significant’ is apt to indicate a higher degree of probability than we intend”.

99 On this aspect of the Act, the Premier of NSW said in his Second Reading Speech when debating the Bill:

“We have adopted the approach in the Ipp Report to the duty of care and causation. A risk has to be not insignificant before a court can find that it was reasonably foreseeable. This will send a clear message to the courts that, under the current common law, liability for insignificant risk is too easily imposed. Our new formulation will emphasise the community’s reasonable expectation that people should have to guard only against risks that are a real possibility.”

100 Spigelman CJ speaking extra judicially at Lincoln’s Inn, London on 16 June 2004, said of the phrase “not insignificant” this:

“The not ‘far fetched or fanciful’ test for foreseeability has been replaced by a test that a risk be ‘not insignificant’ which, despite the double negative, is of a higher order of possibility.”

101 I will now attempt to draw together this variety of sources to state what approach, in my opinion, is the appropriate one to interpreting the phrase “not insignificant”:

(a) The assessment of the risk of harm is one made in prospect and not retrospect. Hindsight has no part to play;

(b) The phrase is of a higher order than the common law test, and this was intended to limit liability being imposed too easily;

(c) The phrase “not insignificant” is intended to refer to the probability of the occurrence of the risk;

(d) In the realm of tort law, the probability of an occurrence is both a quantitative measurement, which may, but does not necessarily reflect a statistical and numerical assessment, and also an evaluative measurement. The statutory phrase is a protean one which depends upon the context of facts, matters and circumstances for its meaning;

102 The third element of s 5B(1) which requires attention is the conduct of a reasonable person. This element is perhaps the one which most closely reflects the common law: Refrigerated Roadways at [177] per Campbell JA. Any consideration of this element also requires attention to the provisions in s 5B(2) of the Civil Liability Act.

103 Section 5B(2) provides a non-exhaustive list of factors which a court is required to take into account in deciding if this step is made out: Refrigerated Roadways at [173] per Campbell JA; [445] per Sackville AJA; Erwin v Iveco Trucks Australia (2010) 267 ALR 752 at [81] per Sackville AJA (Basten and Campbell JJA agreeing).

104 Section 5C, in part, casts light upon the non-exhaustive list of factors in s 5B(2). In particular, s 5C(a) notes that the burden of precautions is not to be narrowly construed but must have regard to the burden of taking precautions against other similar risks of harm. This reflects the remarks of Bryson J in Waverley Council v Lodge [2001] NSWCA 439 at [35]-[36].

105 Section 5C(b) seems also to reflect the remarks of Handley JA in Ainsworth v Levi (Court of Appeal, 30 August 1995, unreported). His Honour there held that the mere fact that there was an alternative method of undertaking the relevant conduct did not furnish any evidence of negligence let alone demonstrate that it was, thereby, established for a failure to take the alternative course.

106 Although s 42 applies to the Commissioner, in light of the way in which these proceedings were conducted, and the nature of the particular allegations of breach of duty, the issues to which s 42 directs attention are not relevant.

107 I should also note, having concluded a review of the legal principles applicable to a duty of care and breach of that duty, that there are specific statutory provisions in the Civil Liability Act dealing with mental harm.

108 In particular, s 31 limits liability to only those conditions recognised as psychiatric illnesses. Section 32 also provides that no duty of care is owed unless a person of normal fortitude might suffer a recognised psychiatric illness without reasonable care being taken.

109 In this case, the particular harm was PTSD, which is a recognised psychiatric illness.

110 In this case, the defendant did not submit that a person of normal fortitude would not have suffered PTSD in the circumstances before the Court.

111 Accordingly, no issue falls for consideration in this judgment about the application of these sections.

The Central Undisputed Facts

112 In November 2003, the plaintiff arrived at the Premier’s home at Maroubra and observed a Chubb security guard sleeping in the driver’s seat of his Chubb security vehicle.

113 A conversation ensued, a little later outside the Premier’s home, in which the plaintiff confronted the security guard Hassan Hussein (“Hussein”) about his sleeping on duty. Hussein denied it.

114 The plaintiff then proceeded with the Premier to drive to the city so that the Premier could attend his daily appointments. About five minutes after leaving the Premier’s house the plaintiff received a call on his private mobile telephone from Hussein. The following exchange occurred:

Hussein: “Are you going to report me?

Plaintiff: You know that you are not allowed to sleep while you are on duty.

Hussein: I was not sleeping.”

115 Shortly prior to Christmas, the plaintiff reported this matter and also a further incident of Hussein being asleep, which had relayed to him by Sergeant Donohue of Maroubra Police Station, to the relevant officers of the Premier’s Department.

116 At about 1.30pm on Christmas Day, the plaintiff received a call on his private mobile phone (which was the same mobile phone upon which he had been contacted in November 2003). He recognised the caller’s voice as that of Hussein. In the plaintiff’s statement of evidence for these proceedings (Ex E) at para 12, the following conversation is recorded as having occurred:

Hussein: “Peter this is Hassan”

(He was yelling and his tone was immediately aggressive and abusive).

Plaintiff: Is everything okay?

…

Hussein: What have you done you son of a bitch. I will get you. I will put a bullet in the back of your head you cunt. You made me lose my job, you son of a bitch. You watch your back cause I will put three bullets to the back of your head, you son of a bitch. You don’t know what you’re talking about. I wasn’t sleeping on the job. You made me lose my job. I will kill you, you copper cunt.”

117 Immediately, after the conversation finished, the plaintiff made some handwritten notes of what was said. The handwritten notes were later handed to Mr Scarcella of the Maroubra Police Station and were attached (by way of photocopy) to the statement which Mr Scarcella made for the purpose of these proceedings which became Ex 16. Those handwritten notes which were finished being written at 1.39pm on 25 December 2003 record this as being said:

.

118 After making the notes, the plaintiff telephoned Maroubra Police Station and reported the threat. At about 3pm on that day the plaintiff attended at the Maroubra Police Station and made a statement in relation to the phone call from Hussein.

119 According to the NSW Police Force COPS record, Event Reference: E19303464 (“the COPS record”), which is part of Ex U, the plaintiff told the officers at the Maroubra Police Station that:

“… he found the phone call offensive, intimidating and threatening. He also expressed concerns regarding his safety as he believes that given the opportunity the defendant would attempt to assault him ...

The defendant is a personal security guard with the NSW police and as a result of this work has contact with Chubb security guards. The defendant was working with Chubb Security and had his employment terminated due to misconduct. He was seen by the victim asleep, when his duties required him to be constantly observant. As a result of this misconduct his employment was terminated.”

120 A little later, in the same COPS record, is the following entry:

^th

The defendant said, ‘Peter, this is Hassam’. The victim states that the defendant was yelling and that his tone was immediately aggressive. The victim said, ‘Is everything OK?’ The defendant said, ‘What have you done you son of a bitch. I will get you. I will put a bullet in the back of your head you cunt. You made me lose my job you son of a bitch. You watch your back cause I will put three bullets to the back of your head, you son of a bitch. You don’t know what you’re talking about. I wasn’t sleeping on the job. You made me lose my job. I will kill you, you copper cunt’.

Before the victim could say anything, the defendant terminated the call.

The victim immediately made notes of the conversation and contacted Maroubra Police Station.”

121 Clearly the sequence of events, supported by the COPS Record, was that at about 1.30pm on Christmas Day, Hussein telephoned the plaintiff and made the threats which are recorded. The call was terminated before the plaintiff could respond to the threats. The plaintiff immediately made handwritten notes. He then telephoned the Maroubra Police Station and reported the event and within a relatively short time thereafter attended the Maroubra Police Station in person, provided a comprehensive report, and made a formal statement.

122 In a duty book entry (Ex 3), which was probably completed on the evening of 25 December 2003 or, at the latest, the next day, the plaintiff records the following with respect to the events of 25 December 2003:

“Receive threatening call from Hassan Hussein. 1.30pm TD. Received call from Hassan Hussein on private mobile … and said, I am going to kill you you cunt. You made me lose my job. Why did you lie about me that I was sleeping on the job. I wasn’t sleeping and you got me sacked. I am going to fucking kill you, you cunt. I will put three bullets to the back of your head and I will cut your throat off. I have the Lebanese gang working with me and you’re dead.”

123 The whole of the entry up to the words “… and said” is written in black ink as is the entry for the previous page of Monday, 20 December 2003 and the following six pages up to and including Wednesday, 31 December 2003. The words following “and said” in the 25 December 2003 entry are written in entirely different pen, and in a blue ink, rather than black ink.

124 There are some differences between these accounts which the defendant submitted were significant and it will be necessary in due course to resolve those differences. It is sufficient, at this stage, to note that a very serious threat was made by Hussein to the plaintiff. The defendant did not suggest otherwise.

125 On 26 December 2003, according to the police COPS record, officers from Maroubra Police Station attended at Hussein’s address where he was arrested and taken to Maroubra Police Station. He was charged and bail was refused.

126 Two features of what occurred during that arrest are important. They are both recorded in the COPS record which is part of Ex U. Those entries are as follows:

“While retrieving some clothing the defendant spoke to attending police. The defendant said, ‘Those threats were not a joke. They were real. He is going to get it. He fucken lost me my job. I am going to fucken stab him in the neck. You’re from Maroubra? You’re all corrupt’.”

127 After he had been taken to Maroubra Police Station and introduced to the custody manager, Hussein was asked if he wished to make any further comment. According to the COPS record, he said:

“Yes I do. The call I made still stands. He lost me my job. He will not get away with it.”

128 Again, according to the COPS record, the plaintiff was notified by Mr Scarcella of the fact of Hussein’s arrest and the fact that he had been refused bail. There is no record of the plaintiff being informed of what Hussein had told the arresting police or else the custody manager.

129 Hussein was charged with two offences. The first was an offence contrary to s 60(1) of the Crimes Act 1900 alleging that he had intimidated a police officer whilst the officer was executing his duty. The second was an offence contrary to the now repealed s 85ZK(1)(b) of the Crimes Act 1914 (Cth) alleging that he had used equipment connected to a telecommunications network in relation to the commission of an offence against the law of the State, namely to intimidate police.

130 On 30 December 2003, Hussein’s application for bail came before the Parramatta Local Court. Bail was refused by that court and the matter was adjourned to the Waverley Local Court on 6 January 2004.

131 According to the evidence of Mr Reeves who attended at the Parramatta Local Court on 30 December 2003, he telephoned the plaintiff after the bail application had been dealt with and had a conversation with him in which he said words to the following effect:

“Bail was refused. He doesn’t know where you live. I have just listened to the family as they left court and they have not made any threats. You don’t need to worry.”

132 The plaintiff challenged the accuracy of part of the contents of this conversation. It was his evidence that at no time was he told by Mr Reeves about the fact he didn’t have any need to worry. This difference will need to be resolved.

133 The matter next came before the Waverley Local Court on 6 January 2004. On that day, although Hussein was in custody, an Apprehended Violence Order was sought by Mr Scarcella in order to protect the plaintiff. It is not entirely clear what happened on 6 January 2004. However, the records of the Waverley Local Court indicate that on 13 January 2004, it made an Interim AVO for the protection of the plaintiff against Hussein. The orders, which were in their usual form, restrained Hussein from engaging in conduct which intimidated the plaintiff or any other person having a domestic relationship with the plaintiff, restrained him from stalking the plaintiff, restrained him from going within a kilometre of the plaintiff’s place of residence or place of work, and restrained him from making contact with the plaintiff.

134 Ultimately, on 18 February 2004, when Hussein was sentenced an AVO was made for a period of two years which restrained Hussein from engaging in conduct of the kind described above. It added a further condition which was that Hussein was not to go within 100 metres of the Maroubra Police Station.

135 Hussein made an application for bail to the Supreme Court of NSW. That application was heard on 21 January 2004. The Court granted bail on quite strict conditions including twice daily reporting, residing at a designated residence, and not leaving that residence between 5.30pm and 8.30am except in an emergency. As well, it was a condition of his bail that he (Ex Z):

“(f) … not contact in any way whatsoever or cause to be so contacted Acting Inspector Peter Benic of the NSW Police or any member of his family;

(g) … not be at any time at any place within a radius of two miles of the Maroubra Post Office or the Coogee Local Court (except to attend Waverley Local Court) or upon any part of the Governor Macquarie Tower in Elizabeth Street, Sydney or the NSW State Parliament House.”

136 It appears that Hussein was released on the following day, 22 January 2004. After an appearance at the Waverley Local Court on 28 January 2004, Hussein appeared before the Waverley Local Court on 18 February 2004, where he pleaded guilty to the charges. The presiding magistrate sentenced him to six months imprisonment but suspended that sentence upon him entering into a recognizance to be of good behaviour for a period of six months.

137 The presiding magistrate had before her a Probation and Parole Service Report dated 18 February 2004 (part of Ex 27) which included the following:

“Mr Hussein acknowledges that he made the phone call when he was angry at what he saw as an unfair dismissal from a much valued job. He felt the police did not care about his predicament and has stated that he had no intention of carrying out any threat but that he had simply ‘spat the dummy’. He expressed his remorse, stating that he knows ‘that it was wrong’ and that he ‘should not have done it’.”

138 The presiding magistrate was also provided with a report from a clinical psychologist, Mr Tom Jones dated 17 February 2004 (part of Ex 27). This report included the following about Hussein:

“As an adult, he has characteristics of gambling disorder and a problem of anger control.

Recommendations

I do not consider him to be likely to actually carry out an act of physical aggression.

I recommend that he undergo psychological treatment aimed at helping him to control anger and gambling. I recommend that he refrain completely from consumption of alcohol.”

139 The presiding magistrate also had a letter written to her by Hussein (part of Ex 27). That letter included the following:

“Words cannot express as to how remorseful I am for what I have done and if I could turn back time I would have expressed my feelings in a way that would not have been in a threatening manner when I spoke to Inspector Peter Benic

…

The day I phoned Inspector Peter Benic I was very angry as I felt I was unfairly dismissed. I consumed some alcohol that day as it was Christmas Day and as I have not drank alcohol before as my family do not drink and of course I could not tell them, I feel the drink had made matters worse and it all got out of hand.

I have never been physically aggressive towards anyone in my life, even towards for my family except for abuse when I was angry but I do not want to be like this and I do not do it intentionally but I am misunderstood many a time because of this.

…

I am not a dangerous person and after consulting the psychologist Tom Jones, he feels that I need psychological treatment for my anger management and gambling which I am very eager to do and at the same time I do need to work to help with my family and I hope, that in the light of the above, you will give it your full consideration before sentencing me.”

140 The evidence is not precise as to when the plaintiff was told about the sentence which Hussein received. The evidence does not suggest that the plaintiff received copies of the material to which I have just referred and which was before the sentencing magistrate.

141 Except for a coincidental meeting on 8 April 2006 to which it will be necessary to refer later, the plaintiff has not seen or had any contact with Hussein again.

Disputed Issues of Fact: The Approach

142 There are a number of disputed issues of fact which require determination. It is appropriate to make some general observations about the approach which I have taken to some common matters which arise from the way in which the trial was conducted.

143 It is most convenient to address these issues together and then not to repeat these observations about my approach when dealing with each disputed issue of fact.

144 The issues which arise are:

(a) the lack of cross-examination of many witnesses from whom comprehensive statements were tendered; and

(b) the existence and use of contemporaneous notes, and in particular, the plaintiff’s Duty Book (Ex 3).

Lack of Cross-Examination: The Principles

145 The trial was fixed for hearing for a period of over ten days. It in fact occupied seven. The parties conducted the trial with commendable efficiency. However, as is plain from what follows, on a number of disputed issues, witnesses were not cross-examined, or else if they were, their attention was not specifically directed to particular information contained in documents which were later tendered and which might have cast light on their recollections or else the reliability of their evidence.

146 As well, counsel were content to tender, for the court to read, some quite voluminous material to which little if any detailed reference was made in the course of submissions.

147 I do not intend, by these remarks, to be critical of counsel involved in the presentation of their respective cases. However, this method of proceeding has meant that these reasons are perhaps longer than they otherwise might have been, have taken longer to prepare than is desirable, and it has been necessary to approach some of the disputed issues of fact without the benefit of full submissions from counsel.

148 As I have said, in this matter both parties tendered statements of witnesses who were not cross-examined. As well, although some witnesses were called to give oral evidence in chief in addition to their statements, they were not cross-examined on some important parts of their evidence.

149 Because some of the witnesses were not cross-examined, or even directly challenged about their evidence, what, if anything, the Court can conclude from the lack of cross-examination or direct challenge is a matter which will apply to the evidence of quite a number of the witnesses who were called, or whose statements were tendered.

150 Although Harrison J has cogently analysed this issue recently: Hamod v State of NSW (No.12) [2009] NSWSC 242 at [176], it is convenient if I set out my understanding of the authorities which bind me on this issue.

151 It is not a principle of law that a witness’s evidence must be taken to be true if it is not the subject of cross-examination: Fabre v Arenales (1992) 27 NSWLR 437 at 451D per Mahoney JA (Priestley and Sheller JJA agreeing); Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 587C-588A per Samuels JA (Meagher JA agreeing). However, where a witness, whether expert or not, is not cross-examined, then, prima facie, the court ought to accept the unchallenged evidence: Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [112] per Tobias and McColl JJA.

152 However, such evidence is not necessarily to be accepted where:

(a) there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence ( Ali at [112]; HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302 at [87] per Tobias JA (Mason P and Hodgson JA agreeing); Bulstrode v Trimble [1970] VR 840 at 849 per Newton J;

(b) the evidence is, on its face, illogical or inherently inconsistent: M & EM Holt Pty Ltd v Thompson [2001] NSWCA 359 at [21] per Rolfe AJA (Sheller JA and Davies AJA agreeing);

(c) in the case of an expert, where the evidence is based on history that is incomplete or incorrect, or else where its assumptions are not made out: Holt at [21]; or

Fabre

153 Even though it is not necessarily so that evidence must be accepted, if not cross-examined upon, the absence of cross-examination or challenge enables that evidence to be regarded by a court with a greater degree of assurance than might otherwise have been the case: Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 507G per Samuels JA (Hutley and Priestley JJA agreeing).

154 I will bear these principles in mind when analysing the factual issues in this judgment.

Contemporaneous Documents: The Principles

155 In attempting to resolve disputed issues of fact, or conflicting evidence, one traditional method has been to examine the demeanour of the witness, and the manner of the witness giving evidence both in chief and when being cross-examined. In this case, many of the witnesses who gave oral evidence were serving or retired police officers. Each of them was very experienced at giving evidence. It was a part of their experience to be able to give evidence without allowing their true feelings, and hence their demeanour, to be an obvious factor which might influence the Court on the issue of the acceptability of their evidence.

156 Gleeson CJ in Fox v Percy (2003) 214 CLR 118 noted the caution that the trial judge should take in relying solely or principally on demeanour as a method of rational decision making. At [31] he said:

“Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”

157 Thirty-five years earlier, Lord Pearce, in his speech in the House of Lords in Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Law Rep 403, said at 431:

“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”

158 However, it remains the position that in resolving factual conflict between witnesses, one cannot ignore or overlook the subtle influence of demeanour, even if not expressly acknowledged: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179 per McHugh J.

159 In this judgment, I will proceed upon the basis that to give priority to contemporaneous documents, and to make comparison of evidence with known facts is the preferred method of proceeding: see Atkin LJ in Sociètè d’Avances Commerciales (Sociètè Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The ‘Palitana’) (1924) 20 Lloyds Law Rep 140 at 152; Fox v Percy at [30] per Gleeson J.

Duty Book

160 One of the principal contemporaneous records which featured in the proceedings was the plaintiff’s duty book for the period from October 2002 to February 2004. It became Ex 3.

161 The plaintiff, whilst giving his evidence, used it as a reminder of when he had spoken to various people, and on occasions, of what he had said or what he had been told. Upon careful examination, the entries, or the detail which accompanied them, were idiosyncratic, and did not follow any identified guidelines. Some entries were routine and banal. Other entries were of significance. It was not possible to tell why some of the entries were included.

162 Initially, the plaintiff in his evidence in chief said that the duty book entries contained a complete record of everything which occurred on any given day. He said that the entries were accurate and were generally made at about the time they occurred.

163 In cross-examination, he agreed he was not required to maintain a duty book once he was promoted to the rank of Acting Inspector. He said that, nevertheless, he (T106.45):

“… recorded everything that I thought was necessary to go into my duty book.”

164 The plaintiff gave evidence (T108.24ff) that in late 2003 and 2004 there were no guidelines which laid out what he was, or ought to, record in his duty book. He said that the only instruction he received was one relating to the recording of some details about the movements of the Premier. I had the impression that this was an instruction given to him by the Premier’s Department rather than the Commissioner for Police, or his delegate.

165 At another time in his cross-examination (T109.12ff), the plaintiff said that no-one had told him what to record in his duty book, but that he recorded “… anything which was relevant to [my] work or [myself]”. This he said would include major or minor injuries, and I would infer and their effects on him.

166 Still later, he said that in so far as Hussein’s threats were concerned (T129.12) “… I was writing down what I was experiencing and the symptoms I was having due to the threat by Hussein …”. He did that so there was a record of it (T129.22). I would infer that the necessity for a record was against the possibility of a later claim of some kind for compensation.

601 The psychiatrists were all of the opinion that early intervention which addressed the symptoms of the other comorbid disorder spectrums was likely to have had some beneficial effect on the plaintiff’s psychological wellbeing.

602 However, the disagreement amongst the psychiatrists arose in the area of the likelihood of early intervention having a beneficial effect on the plaintiff’s suffering from symptoms reflective of PTSD.

603 It is necessary to note at this point in the analysis a fundamental difficulty in the interaction of the NICE guidelines, the expressed opinions of the experts and the manner in which the plaintiff’s case was presented.

604 The short context to be recalled in considering this issue, is that Hussein’s threat occurred on 25 December 2003. The plaintiff experienced a variety of symptoms leading up to his consultation one month later with Dr Placanica when he received medications. Thereafter, he neither sought nor received further medical assistance.

605 In the manner in which the plaintiff’s case was presented, there was no formulation of precisely when, or at what stage in the plaintiff’s reaction to Hussein’s threat, it was said that early intervention should have occurred. It was not clear whether it was said that the plaintiff should have been seen by a mental health professional before or after the consultation with Dr Placanica. If before, should it have been in the first, second or third week after the threat was received? If after the consultation, then should it have been after the course of medication finished or before then?

606 The expert opinions similarly did not descend to the detail of when the early intervention ought to have been provided.

607 Since the issue to be determined here involves a comparison between what the plaintiff’s course was, with what, hypothetically, his course would have been had early intervention occurred, the plaintiff’s case would have been significantly advanced by attention to a greater precision in identification of when, or else the circumstances which were appropriate for, the commencement of early intervention.

608 However, it is necessary, in the absence of any such precision, to take the view that the plaintiff’s case encompassed all possibilities for early intervention from immediately after the threat was received until at least six months had passed.

609 I very much doubt that intervention after six months would fall within the contemplation of the experts who gave evidence, or the NICE guidelines, as amounting to “early” for the purposes of assessing effectiveness.

610 Dr Mayne, of all of the practitioners, was perhaps the best placed to make an assessment of the likelihood of the plaintiff benefiting from getting treatment. That is because he had seen the plaintiff on many more occasions than had either Dr Phillips or Dr Brown who had each seen the plaintiff on only one occasion. He had therefore had a much better opportunity to come to know and appreciate the plaintiff’s personality.

611 As well, Dr Mayne had attempted to provide the plaintiff with some treatment and was able to observe what effect if any that treatment had.

612 Dr Mayne noted the difficulty which the plaintiff had had in attending to treatment which he recommended, and then said this (T399.39):

“I don't think we would have had that sort of difficulty had this treatment been available to Mr Benic at a much earlier stage in the treatment. Obviously the other aspects of treatment, the antidepressant medications and so forth, would have been offered at an earlier stage too. Mr Benic has had, I would have to say, a limited response to the combined treatment that I have been able to offer him at this stage.”

613 Dr Phillips expressed the view that the plaintiff would have benefited from earlier treatment. At T400.11 he said:

614 Dr Brown was not so certain. Although she accepted that there was a possibility that earlier intervention would have given rise to a better outcome, she was not prepared to express a categorical opinion that in the plaintiff’s case the symptoms would have been alleviated.

615 The difference between the three experts was effectively where along the spectrum of possibilities they expressed their view.

616 Both Dr Phillips and Dr Mayne expressed their view that it was more than 50% likely, or else more probable than not, that early intervention would have made a difference in this case. Neither of these doctors was able to articulate their basis for that conclusion. I was left with the clear impression that their opinions were really their best guess, rather than scientifically based, or assessed by reference to research and experience.

617 Dr Brown accepted that medication may have assisted with the depression and anxiety symptoms but did not accept that cognitive behavioural therapy would have had any reasonable prospect of success. She said this (T400.43):

“The clinical psychologist who sits down with someone in this situation would try to talk to them about where their fears are excessive, and to encourage them to go out into more normal situations and confront the fears. I believe Mr Benic would have had a great deal of difficulty in doing this, because at no stage has he been able to accept that his fears are unrealistic, despite the passage of time and despite nothing having eventuated. So it would be very hard to make use of the type of therapy that is a fundamental part of treatment of obsessive post traumatic stress. Medication may have assisted with the depression, but until the avoidance behaviour and the hypervigilance was addressed, Mr Benic was unlikely to make significant improvement.”

618 In cross-examination Dr Mayne expressed some reason for concern as to whether early intervention would have been successful in the case of the plaintiff. But he concluded by expressing this opinion (T408.30)

“I would take you back to the issues we discussed earlier of the comorbidity with depression and generalised anxiety. I do think that that symptom complex could have been dealt with by medication at an early stage, and that that would have prevented the PTSD from becoming as entrenched as it has become.”

619 This is an area in which it is hard to be dogmatic or certain. There needs to be a degree of professional judgment and experience exercised.

620 I tend to the view with this plaintiff that, had he been treated earlier, it is likely that some of his symptoms, particularly any on the anxiety spectrum, would have been ameliorated. However, that is a very different question to the one which the plaintiff must address which is whether he has proved that but for the failure to provide early intervention he would not have suffered PTSD.

621 The factors which favour the view that early intervention would have been successful include (but are not limited to) the known effectiveness of medication for addressing the plaintiff’s symptoms which fell on the anxiety/depression spectrum, and the long experience of Dr Mayne and Dr Phillips that axiomatically it is better to treat psychiatric illness early.

622 The factors which tell against the view that early intervention include (but are not limited to) the absence of any clear pattern emerging from the research that demonstrate a clear beneficial effect, and also the plaintiff’s lack of benefit from the cognitive behavioural therapy provided by Dr Kearney.

623 I do not find this question easy of resolution. But the onus falls on the plaintiff to demonstrate, not that early intervention might have been successful, but that, on the balance of probabilities it would have been successful. I cannot be so satisfied. The plaintiff has not provided causation as required by s 5D of the Civil Liability Act.

Contributory Negligence

624 The defendant pleads that, if the plaintiff’s harm was as a consequence of its negligence, then the plaintiff was guilty of contributory negligence.

625 Section 5R of the Civil Liability Act is the relevant statutory provision to be considered. It provides:

“ 5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”

626 It is difficult in this judgment to make a determination on the apportionment of negligence, and whether the plaintiff was guilty of contributory negligence, because of my conclusion that the defendant has not been shown to have been negligent.

627 However, if I be incorrect in my finding that the Commissioner, through the plaintiff’s superior officer, did not act in a less than reasonable fashion, and that there had been no failure to provide a safe system of work, then there is no doubt that the plaintiff’s conduct of failing to provide accurate answers to questions asked of him by his superior officers, and his failure to inform them of the adverse affects of Hussein’s threat on his psychological and psychiatric wellbeing, was conduct which was less than reasonable in the circumstances. The fact that he did not foresee that he would develop PTSD does not affect this conclusion.

628 Doing the best I can, I would hold that the plaintiff and the Commissioner shared equally in the responsibility for the plaintiff’s PTSD. Accordingly, if it were necessary, and it is not, I would find the plaintiff guilty of contributory negligence to the extent of 50%.

Damages

629 It is also appropriate that I deal with the issues raised on damages, even though I have found that the plaintiff will not succeed on liability. In considering what my assessment of damages is, I will have regard to the request by both parties that, in so far as economic loss is concerned, the most efficient course is for me to state my findings and then allow the parties to engage in the relevant calculation which would flow from those findings.

630 The plaintiff’s claim for damages is for post traumatic stress disorder and associated psychiatric conditions.

631 Part 3 of the Civil Liability Act which relates to Mental Harm is therefore relevant. In accordance with the definitions in s 27 of the Civil Liability Act, the plaintiff’s claim is that he suffered “pure mental harm”.

632 Section 31 is of relevance as it is in the following terms:

31. Pure Mental Harm – Liability Only for Recognised Psychiatric Illness

There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.”

633 The terms of s 32, which relates to the nature of a duty of care which may be owed “… not to cause the plaintiff mental harm …”, calls up for consideration the issue of what a person of normal fortitude might in particular circumstances suffer by way of recognised psychiatric illness of reasonable care were not taken.

634 Neither party submitted to me that the provisions of s 32 were relevant or applicable in this case. No doubt this was because the parties did not regard this as a case in which it was claimed that the defendant had caused the plaintiff mental harm. Rather the case was put upon the basis that a failure to provide appropriate early intervention did not prevent the harm caused to the plaintiff by the threats of Hussein.

635 Accordingly, before awarding any damages I need to be satisfied that the plaintiff has suffered an injury which consists of a recognised psychiatric illness. As indicated earlier, I am satisfied that the plaintiff’s condition is a recognised psychiatric illness and that he suffers from the consequence of it.

636 Part 2 of the Civil Liability Act also applies to the plaintiff’s claim for damages. Section 11A(3) forbids a court to award damages contrary to Part 2.

637 Section 16 of the Civil Liability Act provides that there are certain restrictions on the award of damages for non-economic loss. The first (s 16(1)) requires that the severity of the non-economic loss be at least 15 per cent of a most extreme case. The second obligation imposed by s 16 is to have regard to a table therein, which provides for a graduated award of damages depending upon a determination of the severity of the non-economic loss.

Plaintiff’s Medical History

638 As recorded earlier in this judgment, on 23 January 2004 the plaintiff attended Dr Placanica’s surgery where he told his general practitioner that he felt anxious, hypervigilent, and unable to sleep at night. Dr Placanica diagnosed anxiety and prescribed a sleeping tablet for short term use.

639 Although there were a number of other occasions over the next two years when the plaintiff sought advice and treatment from Dr Placanica, he made no further complaint of a kind which could be associated with stress or anxiety, until 13 April 2006. On that day he presented to Dr Placanica’s surgery with trouble sleeping. Dr Placanica’s notes (Ex 4) record:

“Says he can’t sleep as he bumped into a chap who threatened to kill him years ago. He remained hypervigilant and anxious, irritable, and again was given some Stilnox, for the short term, to help sleep.”

640 He returned to see Dr Placanica on 4 May 2006. Dr Placanica noted as follows:

“His hypervigilance continues. There is an increase in his agitation and he worries a lot about this ‘person’ who had previously threatened to kill him. Peter says he carries a gun around most of the time, has had his mailbox vandalised twice recently and is worried this ‘person’ may attack him. He feels he can’t relax, is very worried, can’t sleep, feels helpless, and he has reported to supervisors. He was diagnosed with post traumatic stress disorder and advised to get some psychological counselling”.

641 About two months later on 7 July 2006, the plaintiff returned to consult with Dr Placanica. Dr Placanica’s notes record on this occasion:

“Peter says he is off work on stress leave. He is now taking Lexapro at 10milligrams in the morning, and Normison 10milligrams at night. He reports rightsided abdominal pain, no specific relationship to movement or food or meals, and an ultrasound of his abdomen was unremarkable.”

642 Lexapro is an antidepressant medication which falls within a group known as Selective Serotonin Reuptake Inhibitors (SSRIs). Normison is medication designed to assist with sleep.

643 Prior to the last visit Dr Placanica, to which I have just referred to, the plaintiff had been referred to Dr Keith Mayne, a consultant psychiatrist, by Dr Placanica on 4 May 2006. He first attended a consultation with Dr Mayne on 8 May 2006. He has continued to see Dr Mayne from time to time for treatment since that date.

644 At that time, Dr Mayne commenced psychiatric treatment with counselling, cognitive behavioural therapy and antidepressant medication. In his report of 23 August 2006 (part of Ex TT), Dr Mayne expresses this opinion:

“Mr Benic suffers from Post Traumatic Stress Disorder. He is severely disabled by his condition and is making little progress with treatment. He is not fit for operational police duties. On the balance of probabilities he is unlikely to become fit in the future to perform these duties. His psychiatric condition is directly related to his work as a Police Officer.”

645 As I have earlier indicated, I accept, certainly at this time, the diagnosis of Dr Mayne that Mr Benic suffered from a post traumatic stress disorder. This is a recognised psychiatric illness and therefore the relevant threshold has been crossed.

646 In a report of 13 April 2007 (part of Ex TT), Dr Mayne expressed these views about the plaintiff:

“Mr Benic has improved to some extent with treatment but is by no means well. Treatment is continuing and further adjustment and changes to his medication and treatment are occurring. His prognosis is uncertain.”

647 Dr Mayne expressed the opinion at that point in time that the plaintiff was then unfit for work.

648 In a further report of 3 June 2008 (part of Ex TT), Dr Mayne noted that he had recommended to the plaintiff that he should have a formal course of cognitive behavioural psychotherapy. Of the attempts of the plaintiff to engage with such therapy, Dr Mayne said this:

“Such was the severity of Mr Benic’s illness, together with his fearfulness and paranoia that he did not feel able to engage with any other therapist either on an individual basis or as part of a group therapy programme”.

649 Further on in that report, Dr Mayne noted that Mr Benic had been unable to engage in further therapies which could be of assistance to him but then said that he had referred the plaintiff to see Dr John Kearney, clinical psychologist, in May 2008 for assessment. Of this process he said:

“He attended on one occasion with Dr Kearney. Dr Kearney reported to me that ‘he was very disturbed by the consultation and may not return’. Hopefully, individual expert help will be of assistance, but I remain very doubtful that Mr Benic will be able to engage in a group therapy program at any stage.”

650 I note that no report from Dr Kearney was tendered in evidence before me.

651 It appears from the evidence in the proceedings that the plaintiff has continued to consult with Dr Mayne who informed the court that he had seen the plaintiff on over 50 occasions.

Prognosis

652 In broad terms the doctors were again agreed on the plaintiff’s prognosis, namely that he would require treatment into the future. They thought he would improve with therapy and recommend that he have some.

653 Clearly, the plaintiff has not been able to cope with effective cognitive behavioural therapy. Dr Mayne’s evidence and reports make it plain that an attempt was made for the plaintiff to undergo this form of therapy but it was unsuccessful. He has not attempted to revisit the issue because of the difficulties which it created in the past.

654 All experts are agreed that one stressor presently affecting the plaintiff’s likelihood of recovery is the existence of this litigation.

655 All doctors were agreed that the plaintiff was unfit, permanently, to go back to work as a police officer, or to do work associated with police work such as security work and other like employment. I accept this assessment.

656 Dr Phillips expressed the view that whilst the plaintiff would be permanently unsuited for any form of work with the NSW Police Force, he thought it possible that he would be suitable for retraining and for some form of relatively non-stressful work in the future.

657 Dr Mayne and Dr Brown thought that the plaintiff was capable of going back to work in the field in which he had been working in addition to his police work, namely organising for and assisting with the carrying out of house renovations or property renovations. All doctors thought that a good outcome, or a sensible suggestion which ought be pursued, was to explore the capacity of the plaintiff to work in a gymnasium either as a trainer or other form of instructor or worker at a gymnasium.

658 On that question, Dr Mayne said “I think it is a very reasonable suggestion and one that ought be pursued”. Dr Brown said “I think this would be a good outcome and I think it could have some therapeutic benefits in reducing some of the avoidance behaviours”. Dr Phillips said “I like the idea very much, but I am pretty cautious about it” (T417.10-417.24).

659 I have formed the opinion that the evidence satisfies me that once the additional stressor of this litigation is removed by the delivery of judgment, and the plaintiff continues with such treatment as Dr Mayne provides, then it is likely that he will resume a capacity to work fulltime, in a role such as being an instructor in a gymnasium or taking other work associated with the fitness industry. As well, he would be fit to resume undertaking income producing work by means of organising for and assisting with the renovations of domestic properties as he has done in the past.

660 I would provide a period of three years after the conclusion of this litigation before the plaintiff’s capacity would be entirely restored to that of exercising his earning capacity as an instructor in a gymnasium.

661 As I have indicated earlier, the diagnosis of the plaintiff with post traumatic stress disorder was, at least after April 2006, agreed to by all of the specialist psychiatrists who gave evidence before me.

662 In evidence, the plaintiff gave very little description about his ordinary activities in the course of a day. It is clear that he now has a stable relationship with his partner, Ms Jackson, and that they have two children. Ms Jackson described the plaintiff as a good father. There is no evidence that the plaintiff’s day to day functioning, such as attending to the ordinary things of life, was significantly impeded. The extent of his current hypervigilance was not explored in detail and I was left with the impression that the plaintiff’s state was improving albeit gradually.

663 In assessing non-economic loss, it is necessary that I have regard to all of the matters to which I have earlier referred about the plaintiff’s depression and anxiety, his fear, the need for him to be medicated and to attend at a psychiatrist regularly for consultation and therapeutic assistance. I also need to bear in mind that his fears (whether they be presently regarded as rational or not) lead him to behave in ways which would be regarded as unusual.

664 Equally, I need to bear in mind that since the time of the threats the plaintiff has continued to undertake some of his real estate activities, he has continued to attend regularly at the gymnasium and undertake exercise, he has managed to travel oversees on at least two occasions, and he has met and developed a stable domestic relationship with his partner which has been productive of two children.

665 Whilst there does seem to be some disruption of the plaintiff’s social life, in the sense that he has not gone out perhaps as much as he once did, the evidence does suggest however that he is still able to engage in social activities, he continues to provide support and friendship to his parents and sister and their families respectively, and his social life continues to exist, albeit in a lesser form.

666 As well, whilst his PTSD is likely to continue, as I have earlier said, I think that the condition will improve over time and become less troublesome. In short, based on the medical evidence which I have heard I think that the plaintiff’s worst days are likely to be behind him.

667 The plaintiff is now 47 years of age. On the basis of the life expectancy tables, the plaintiff’s life expectancy is about 38 further years.

668 I take all of those matters into account and I assess the severity of the claimant’s non economic loss as being one-third of a most extreme case.

669 The appropriate sum in accordance with s 16 of the Civil Liability Act for such an assessment is 33% of a most extreme case which amounts to $165,000.

Lost Earning Capacity

670 The plaintiff has not worked since April 2006. It is relevant to record that on 14 February 2007 the plaintiff was assessed for the purposes of the Police Regulation (Superannuation) Act 1906. It was determined by the Commissioner’s delegate that the plaintiff had suffered the infirmity:

“… of chronic post traumatic stress disorder; major depressive disorder; generalised anxiety disorder; and panic disorder … [and that] … was caused by the member being hurt on duty”.

671 The consequence of this was that the plaintiff was retired in the category of hurt on duty and qualified for various superannuation benefits, including weekly superannuation benefits.

672 Both parties agree that I should entirely disregard the receipt of weekly superannuation benefits when coming to assess damages.

673 In coming to assess the plaintiff’s lost earning capacity it is necessary that I have regard to the plaintiff’s state, in terms of his employment and rank at the time he went off duty, and make a determination as to what the plaintiff’s pathway in the NSW Police Force would have been.

674 When looking at the future with respect to any claim for economic loss, I am obliged to proceed in accordance with s 13 of the Civil Liability Act. That section is in the following terms:

“ 13. Future economic loss—claimant’s prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

675 In order to make an award of damages for future economic loss, it is necessary for the plaintiff to satisfy me of his most likely future circumstances but for the injury.

676 It is appropriate to sketch the background of the plaintiff.

677 He completed high school in 1980 and then undertook and completed two years of a four year apprenticeship in electronic engineering.

678 He became a member of the NSW Police Force on 5 January 1987. The evidence does not reveal what the plaintiff did in the whole of the time between leaving school and becoming a police officer, with the exception of the years he spent as I have described above.

679 From 1987 through to 1992 the plaintiff spent his time doing general duties and detective work, essentially in the Maroubra and Mascot areas. In 1992, the plaintiff joined the NSW Police Special Branch and following disbandment of that unit in 1995, joined the group which became the CTCC.

680 According to the evidence of Kylie Cannock (Ex 11) the plaintiff was promoted to the rank of senior constable on 10 April 1995. He remained at that rank until he was discharged from the NSW Police Force. He held that rank when took up his position as a close personal protection officer for the Premier, he was a senior constable.

681 On 27 October 2002, the plaintiff qualified with an assessment score of 98% for promotion to sergeant. On 3 September 2004, the plaintiff qualified with an assessment total of 90% for promotion to inspector.

682 Between 1989 and 2002 the plaintiff attended and completed a variety of courses relevant to his occupation. The detail of those can be found in Ex R.

683 However, whilst he was on secondment to the Premier’s Department, the plaintiff was appointed temporarily to the rank of inspector pursuant to s 66 of the Police Act. Accordingly, at all relevant times the plaintiff was paid as though he were an inspector with the ordinary incremental progressions available within that rank up to level 4.

684 The details of the police promotion system are fully set out in Ms Cannock’s statement and I do not need to describe them here. Ms Cannock was not cross-examined and there is no reason for me to reject any of her evidence. I do not.

685 It is apparent from her evidence that the plaintiff was eligible to be included on a promotion list for substantive promotion up to and including the rank of inspector. He was adequately qualified for that and had received good marks.

686 Whilst ever the plaintiff remained working for Mr Carr, he did not apply for any promotion although there were many advertised positions for promotion to the position carrying a substantive rank of sergeant or inspector.

687 In 2006, when the slightly amended 2002 promotion process was in place, there were about five times the number of applications received than vacancies existed for promotion to sergeant. There were about nine times the number of applications received than vacancies existed for promotion to a substantive position of inspector.

688 In 2007 the position was approximately the same.

689 In 2008, as a consequence of a complete rewriting of the 2002 promotion process during 2007, that position changed drastically. In 2008, there were 77 inspector vacancies filled from 102 candidates on the promotions list for inspectors. There were 176 sergeant vacancies filled from the 251 candidates on the promotions list for sergeant. In 2009, under that process, there were 51 inspector vacancies filled from the 104 candidates on the inspector promotions list and 97 sergeant vacancies filled from the 323 candidates on the sergeant promotion list.

690 What this demonstrated was that under this new promotion system, it was far more likely that an applicant for promotion would succeed, than it was under the 2002 scheme.

691 Mr Peter Walsh, who was a retired senior assistant commissioner, gave evidence (Ex MM) in which he said that he knew the plaintiff for 15 years prior to 2003 when he retired. He said that he had considerable experience in appraising personnel under his command to determine their suitability and potential for advancement and that he had served upon various promotion panels from which position he had to assess candidates and choose the appropriate person for the position being advertised. Of the plaintiff he said this:

“… I feel he had the necessary potential and ability to progress to a commissioned rank within the NSW Police”.

692 Mr Madgapoulos gave evidence (Ex NN) in which he reasoned that the plaintiff had the potential necessary to succeed in any endeavour which he undertook. He went on to say that his observation of the plaintiff was that he wished to emulate Mr Magdapoulos’s career path which involved retiring as a chief superintendent. He also included this statement:

“I consider that these various roles give me the experience to make competent assessments and comparisons between different officers to determine an individual’s potential for advancement and their likely promotional prospects. Obviously the accuracy of such prediction can only be speculative and it will be influenced by the ambition and determination of the person being assessed. Some officers reach a rank or position in which they feel comfortable and perform well and prefer not to seek promotion or transfer beyond that level.”

693 The defendant tendered evidence (Ex 25) which detailed the average age of police officers at the time of retirement, where they had not retired as a result of any medical condition. In the period from 2006 to 2009, the average age varied between 56.45 years and 59.30 years. Across the ten year period from 2000 to 2009, it suggests that the average age of retirement is 57.347 years.

694 Ms Jackson said in her statement (Ex GG) that when she took up a relationship with the plaintiff she anticipated that he would be a career police officer.

695 Although the plaintiff gave no specific evidence on this matter, it seems to me to be likely that his partner’s view was influenced by what he had told her. I think it likely that, assuming he had been uninjured, the plaintiff would have remained in the police force until he retired at the current average age of 58.

696 The real debate between the parties centred upon the likely rank at which the plaintiff would have continued to be employed whilst ever he was in the police service. As I have indicated earlier, the plaintiff’s substantive rank was that of senior constable. When he commenced working in close protection, he maintained that rank. In addition to his ordinary pay as a senior constable the plaintiff was entitled to be paid overtime for all the work which he did in addition to his standard hours. Having regard to the nature of the job which he was doing, the plaintiff would commonly be entitled to overtime on most, if not all, of the days upon which he worked.

697 During the course of this period, the plaintiff was appointed an acting inspector pursuant to the provisions of s 66 of the Police Act. This appointment meant that his base rate of pay increased significantly above that which he was being paid as a senior constable. However, as an acting inspector, the plaintiff was no longer entitled to overtime and hence received the standard rate of inspector’s pay.

698 In re-examination the plaintiff was asked about this issue. This is the evidence he gave (T240.48ff):

699 It seemed to me that the nature of the task of close personal protection, whether of the Premier of NSW or any other person entitled to protection, necessarily meant that whoever was involved in undertaking those duties would work a good deal of overtime. That is because, the person whom they are protecting would usually engage in a full day’s work with protection starting at the first time during the course of the day, when the protected person ventured out of their home, and concluding with the return to home of that person in the evening.

700 It seems to me that the likely unfolding of the plaintiff’s police career was that, whilst ever he remained in close personal protection, he would have received an income equivalent to the income of an inspector. That is because either he would have been an acting inspector, such as he was when deployed to work for the Premier’s department, or else because he would have undertaken duties as a senior constable and received overtime in respect of those duties. An appropriate level of income which reflects the plaintiff’s lost earning capacity between the date of his retirement and the date of this judgment is that which would be earned by an inspector.

701 As has earlier been indicated, the plaintiff undertook his promotional exams and returned very good results. Such evidence as there is about the plaintiff’s suitability for promotion to a substantive rank of inspector suggests that it is likely at some point in his career he would have reached that rank.

702 The evidence is not sufficient for me to be satisfied that on the probabilities the plaintiff would have proceeded past that rank, at any time prior to his retirement, although there was a possibility that he might do so.

703 However, s 13 of the Civil Liability Act requires me to be satisfied about the claimant’s most likely future circumstances but for the injury.

704 In my opinion, the plaintiff was likely at some point to seek promotion to inspector. He was entitled to do so directly because he held the rank of acting inspector. He was a highly regarded individual and I think it likely that he would have reached that rank substantively by the time the proceedings were heard. Accordingly, for the future his most likely future circumstance was that he would have continued to work in the police force to age 58 in the rank of inspector. I would be prepared to make an award of damages for future economic loss based upon that likelihood.

705 I am also required to determine an adjustment to the future economic loss that would have been sustained by reference to the:

“… percentage possibility that the events might have occurred but for the injury”.

706 At the time of trial the plaintiff was 46 years old. Accordingly, his future period represented about 12 years from the time of this judgment. I need to have regard to the percentage possibility as to the likelihood of the future events, ie, his becoming and remaining an inspector until the age of retirement and of the likelihood of those events occurring had the injury not happened.

707 Conventionally, when addressing future economic loss prior to the introduction of the Civil Liability Act, courts made allowances for 15 per cent for adverse contingencies and vicissitudes of life. Since the introduction of the Civil Liability Act, the appropriate place to make an allowance against future economic loss for such adverse contingencies and vicissitudes is in determining this percentage pursuant to s 13(2) of the Civil Liability Act.

708 It seems to me that an allowance in the order of the conventional sum of 15 per cent would be the appropriate figure in the circumstances of this case.

709 Accordingly, I regard the likelihood of the plaintiff having a full working career, and suffering future economic loss of the kind to which I have referred, had he not been injured, as 85 per cent.

710 The parties have requested that once these findings have been made, that I allow the parties to calculate what sum of money would be reflected by such a loss.

711 I have indicated that it would be appropriate in due course for the parties to bring in short minutes of order reflecting this figure.

Other Claims for Damages

712 The plaintiff makes no other claim by way of past or future out of pocket expenses or else for any other head of damage and accordingly it is not necessary for the court to engage in any further analysis on the question of damages.

Conclusion

713 The plaintiff has failed to prove that his condition is as a result of the negligence of the Commissioner of Police in failing to institute and maintain a safe system of work. He also failed to prove but for the negligence of the Commissioner he would not have suffered a psychiatric illness, namely PTSD.

714 In those circumstances, the defendant is entitled to the entry of judgment in its favour.

715 The ordinary rule is that costs should follow the event. I would propose to order that the plaintiff pay the defendant’s costs of the proceedings. However, against the possibility that a different order for costs is sought, I will allow the parties the opportunity of making submissions about costs.

Orders

(1) Judgment for the defendant.

(2) The parties are to file and serve the short minutes of order, upon which they are agreed, on or before 8 December 2010. If the parties cannot agree on the orders which are appropriate, then the short minutes contended for by each party should be provided to my Associate on or before 4pm on 10 December 2010 together with any submissions in writing supporting the orders contended.

(3) Proceedings listed for mention at 9.15am on Tuesday, 14 December 2010.

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Citations

Benic v State of New South Wales [2010] NSWSC 1039

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CITATION:	Peter Steven Benic v State of New South Wales [2010] NSWSC 1039
HEARING DATE(S):	5-14 July 2010
JUDGMENT DATE :	30 November 2010
JUDGMENT OF:	Garling J
DECISION:	Judgment for the defendant.
CATCHWORDS:	NEGLIGENCE — Duty of care — Police service — Statutory framework of the NSW Police Force –Commissioner of Police owes non-delegable duty to members of NSW Police Force – Duty owed by Commissioner of Police is in the nature of an employer’s duty in common law – Duty to provide safe system of work for members of the NSW Police Force – The Crown is liable for conduct of the Commissioner of Police and his delegates – The State of NSW as defendant in proceedings against the Crown. - NEGLIGENCE – Breach of duty – Where the plaintiff was a police officer assigned to providing protection to the Premier of NSW – Where the plaintiff received serious death threats in the course of his duties – Where the superior officers made inquiries of the plaintiff’s wellbeing – Where the plaintiff informed his superior officers that he was fine – Where the superior officers did not refer the plaintiff to psychiatric or psychological assessment – Where the plaintiff later developed post traumatic stress disorder (PTSD) – The test under s 5B of the Civil Liability Act 2002 – Whether the superior officers knew or ought to have known of the risk of the plaintiff suffering psychiatric injury – Whether the risk was non insignificant – Whether in the circumstances the superior officers acted in a manner less than was reasonable in failing to refer the plaintiff to psychiatric or psychological assessment. - NEGLIGENCE – Causation – The test under s 5D of the Civil Liability Act 2002 – Whether the plaintiff would have developed PTSD but for the failure of his superior officers to refer him for psychiatric or psychological assessment – Whether the evidence establishes that early intervention in the treatment for PTSD in the plaintiff would, on the balance of probabilities, have prevented his present injury. - DAMAGES – Assessment of damages for personal injury – Where there is evidence that the plaintiff would have continued in the NSW Police Force at the rank of an inspector – Whether the plaintiff is fit for other forms of employment outside of personal protection – Assessment of non-economic loss – Assessment of future economic loss under s 13 of the Civil Liability Act 2002. - EVIDENCE – Applicable principles where there has been a lack of cross-examination on disputed facts – Importance of contemporaneous documents and records.
LEGISLATION CITED:	Civil Liability Act 2002 Civil Liability Amendment (Personal Responsibility) Act 2002 Crimes Act 1900 Crimes Act 1914 (Cth) Crown Proceedings Act 1988 Law Reform (Vicarious Liability) Act 1983 Occupational Health & Safety Act 2000 Police Regulation (Superannuation) Act 1906 Police Act 1990
CATEGORY:	Principal judgment
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Ainsworth v Levi (Court of Appeal, 30 August 1995, unreported) Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 Bostik Australia Pty Ltd v Liddiard & Anor [2009] NSWCA 167 Bulstrode v Trimble [1970] VR 840 Chapman v Hearse (1961) 106 CLR 112 Chappel v Hart (1998) 195 CLR 232 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Czatyrko v Edith Cowan University (2005) 214 ALR 349 Doherty v State of NSW [2010] NSWSC 450 Drinkwater & Ors v Howarth [2006] NSWCA 222 Duysellshaff v Cathcart & Ritchie Ltd (1973) 47 ALJR 410 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Erwin v Iveco Trucks Australia (2010) 267 ALR 752 Fabre v Arenales (1992) 27 NSWLR 437 Fox v Percy (2003) 214 CLR 118 Griffiths v Haines [1984] 3 NSWLR 653 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Hamod v State of NSW (No.12) [2009] NSWSC 242 Harriton v Stephens (2006) 226 CLR 52 HSH Hotels (Australia) Ltd v Multiplex Constructions Pty Ltd [2004] NSWCA 302 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 Kondis v State Transport Authority (1984) 154 CLR 672 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 M & EM Holt Pty Ltd v Thompson [2001] NSWCA 359 McDonald v State of NSW [2001] NSWCA 303 Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 NSW v Williamson [2005] NSWCA 352 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyds Law Rep 403 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Patrech v State of NSW [2009] NSWCA 118 Pearce v The State of NSW Police Service of NSW v Honeysett (2001) 53 NSWLR 592 Reeves v State of NSW [2010] NSWSC 611 Rhodes v Lake Macquarie City Council [2010] NSWCA 235 RTA v Dederer (2007) 234 CLR 330 RTA v Refrigerated Roadways Pty Limited [2009] NSWCA 263 S v State of NSW [2008] NSWSC 933 S v State of NSW [2009] NSWCA 164 Scott v Davis (2000) 204 CLR 333 Shaw v Thomas [2010] NSWCA Sociètè d’Avances Commerciales (Sociètè Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The ‘Palitana’) (1924) 20 Lloyds Law Rep 140 State of New South Wales v Fahy (2007) 81 ALJR 1021 State of NSW v Fahy (2007) 232 CLR 486 State of NSW v Seedsman [2000] NSWCA 119 State of NSW v Seedsman [2000] NSWCA 119; (2000) 217 ALR 583 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 Stojan v Kenway [2009] NSWCA 364 Swain v Waverley Municipal Council (2005) 220 CLR 517 Waverley Council v Ferreira [2005] NSWCA 418 Waverley Council v Lodge [2001] NSWCA 439 Woolworths Ltd v Strong [2010] NSWCA 282 Wyong Shire Council v Shirt (1980) 146 CLR 40
TEXTS CITED:	Final Report of the Review of the Law of Negligence Law of Torts (9th ed), Fleming, Law Book, 1998 The Management of PTSD in Adults and Children in Primary and Secondary Care March 2005 National Collaborating Centre for Medical Health
PARTIES:	Peter Steven Benic (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	SC 2007/265221
COUNSEL:	A.G. Melick SC with K. Earl (Plaintiff) P. Menzies QC with P. Mallon (Defendant)
SOLICITORS:	Baker & Edmunds Solicitors Pty Ltd (Plaintiff) Henry Davis York (Defendant)