Briggs v State of New South Wales

[2017] HCATrans 109

[2017] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S14 of 2017

B e t w e e n -

RYAN BRIGGS

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

GAGELER J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MAY 2017, AT 9.34 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR I.D.M. ROBERTS, SC and MR T.M. OWER, for the applicant.  (instructed by Cardillo Gray Partners)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR S.L.C. FLETT for the respondent.   (instructed by HWL Ebsworth Lawyers)

GAGELER J:   Mr Jackson.

MR JACKSON:   Your Honour, we seek an order that the time for making the application be extended to 13 January 2017.  I do not think that is opposed.

GAGELER J:   No, it is not opposed, Mr Walker?

MR WALKER:   No.

GAGELER J:   Yes, you have that order.

MR JACKSON:   Thank you, your Honour.  Your Honours, this, in our submission, is a case meriting a grant of special leave for two reasons.  One is the issue which is referred to at page 271 in paragraphs 10 and 13 of our submissions in‑chief - application, namely, the reliance by the Court of Appeal on notions of privacy and autonomy in circumstances where the police officer was himself seeking to bring his situation to the attention of his superiors.

At page 271, your Honours will see the reference in paragraph 10 - the second sentence - and then in paragraph 13 on the next page you will see about line 15 that no action was taken in response to the complaint made by the particular officer and it goes on, your Honours, for a few more lines from there.

GAGELER J:   Yes.

MR JACKSON:   The second, your Honours, is that we would submit that overall it is a case where the interests of justice would merit the grant of special leave.  Your Honours, may I take just a moment to go to the basic nature of the case as presented in the application and the way in which it gives rise to the matters to which I have already referred. 

The starting point, your Honours, was that the applicant, a police officer, sustained a serious psychological condition by reason of his work as such and in particular by his sustained exposure to traumatic events.  That this might happen was reasonably foreseeable.  Your Honours can see the references to that in the reasons for judgment in the Court of Appeal.  I will not take your Honours to the passages; may I indicate where they are - Justice McColl in paragraph 3, page 191; her Honour again in paragraphs 19 to 22 at page 196 and Justice Leeming at paragraph 42, page 203.

Your Honours, a case that the State was legally liable for that condition in respect of the period 2003 to 2011 failed in the Court of Appeal.  As appears from paragraph 1 of our reply at page 284, that claim is not pursued in this Court.

GAGELER J:   You start with the struggling disclosure, do you?

MR JACKSON:   Precisely, your Honour.

EDELMAN J:   Do you say anything more in terms of breach for the struggling disclosure than what is said by or was submitted in the Court of Appeal that all that was required was for Detective Inspector Sipos to say, “Mate, is something up?” and that, without even that minimal question, that amounted to a breach of duty?

MR JACKSON:   Your Honour puts what I was about to say very shortly.  If I could perhaps abbreviate it a little by saying this, what you had was a police officer who said to his superior, the person found to be in charge of man management, that he was struggling and wanted to get off the truck.  “Off the truck” meant – and I can give your Honours the references to this - being on the patrols going to traumatic events and being exposed to them.  He complained about that to the person who was a police officer, Inspector Sipos, and Inspector Sipos did nothing about it.  He did not ask him why that was a problem.  It was a circumstance, in our submission, where, in his role as that, he should have done more and asked the simple question or questions why and taken it from there.

GAGELER J:   Mr Jackson, at what level do you put the error of the Court of Appeal.  Is it a failure to engage with the reality of the situation?  How do you say the court erred?

MR JACKSON:   Yes, your Honour, we say a number of things.  I have to put it that way because the Court of Appeal had a number of reasons ‑ ‑ ‑

GAGELER J:   Yes.

MR JACKSON:   ‑ ‑ ‑ for what they did.  Could I say that the first thing was that the Court of Appeal took the view that it was not established any breach in relation to the conduct of Inspector Sipos and those above him, to put it shortly.  It did that for a number of reasons.  There were four reasons in the first place.  You see them in paragraphs 155, page 243 and following.  If I could invite your Honours to keep page 243 on, if I can put it this way, the one hand but in the other hand, page 285, our submissions in reply.

The first reason is that at paragraph 155 - but the position was, in our submission, that if there was a documentary record, the State would have it, not the applicant.  The second reason you will see in paragraph 156, it was said there were significant difficulties in his private life but, your Honours, that leaves out of account, as we say at paragraph 6(c) in reply, that he was not speaking about “struggling” but talking about getting “off the truck” and similarly, your Honours, the third point at paragraph 157 on page 244.

Your Honours, what was said - in the first place it is very difficult to say that the judge had not made specific findings, precise findings about what was said because, your Honours, if one goes to the judge’s reasons at page 143, paragraph 481, you will see that he speaks of what took place in the conversation, what was said - and paragraph 482, the same thing.  Now, your Honours, I appreciate in saying that, that part of this is the interest of justice aspect of the matter but that is, with respect, a misapprehension of the findings made by the primary judge.

GAGELER J:   Yes.

MR JACKSON:   Your Honours, if one goes to the fourth reason at paragraphs 159, page 244 through to 161, the answer to which reference is made there, the answer by Inspector Sipos, was one which was given in oral evidence.  The judge saw and heard the witness giving evidence and he was perfectly entitled, in our submission, to arrive at the view of what was said that he did.

Your Honours, if one goes then to paragraphs in the primary judge’s reasons, at paragraphs 484 to 485 at page 144, your Honours will see, in our submission, that what was said by the judge – I think this is the matter your Honour Justice Edelman was alluding to earlier – seems entirely reasonable and, in a sense, exactly the sort of thing – it seems elementary, really, in our submission, if one is looking at the position of an officer responsible for man management of a disciplined force.  Yet, your Honours, one sees also the Court of Appeal saying there were issues of causation that arose.  Your Honours will see that dealt with by the Court of Appeal at page 261, commencing in paragraphs 210 to 215.

Your Honours, insofar as the struggling and “off the trucks” disclosure was concerned, that was dealt with in paragraphs 213 to 215.  It is said in paragraph 215 what would have been done but, your Honours, that seems, with respect, to disregard the views adopted by the primary judge

who did deal with this issue, and dealt with it in the way in which we referred in paragraphs 8 and 9 of our reply at page 286.  If I could take your Honours very briefly to the passages of the primary judge’s ‑ ‑ ‑

EDELMAN J:   The short point is that it is the subsequent letter.  The reason he did not disclose everything was because he had already been rebuffed at the earlier meeting.

MR JACKSON:   Yes, your Honour.  If I could just say one thing, your Honours, if one goes to the passages of the primary judge’s reasons at page 154, paragraphs 528 to 530, and then 531 to 535, they do, if I may say so, with respect, seem a perfectly sensible approach to undoubtedly a difficult issue and one where, to restate what I said before, the judge heard the evidence.  It was not in dispute he had the condition.  There was very strong medical evidence in favour of the fact that if the right steps had been taken it would have improved his condition.

Your Honours, could I conclude our submissions by saying that this is a case, in our submission, where you had a rare police officer who was dedicated to the service.  He suffered an entirely foreseeable injury.  He sought to bring it to the attention of the responsible superior.  Nothing happened and the condition worsened.  In any event, we would say it is a case where the interests of justice merit the grant of special leave.

GAGELER J:   Thank you, Mr Jackson.  Yes, Mr Walker.

MR WALKER:   Your Honours, at the heart of what is in reality truly a visitation application lies the issue that one sees described in Justice Leeming’s reasons at application book 243, paragraph 155, last sentence; namely, what was to be taken from what the plaintiff said to Detective Inspector Sipos. 

What was said by him to Detective Inspector Sipos is the subject of the observation made by Justice Leeming at page 219, paragraph 87, first sentence, to which my learned friend has gone.  That is a mistake, I think, that sentence, although it is separated by hundreds of paragraphs in the trial judge’s reasons.  There are findings, we accept, whereby his Honour did not merely set out the evidence, which he did do, but he also in terms made a finding that ‑ ‑ ‑

GAGELER J:   I am sorry, which sentence are you referring to there?

MR WALKER:   The first sentence of paragraph 87. 

GAGELER J:   Yes, thank you.

MR WALKER:   Page 219.  I think Justice Leeming, with great respect, has erred there.  But it goes nowhere as an error.  It certainly does not give rise to a visitation question because his Honour then dealt fully with the matter as if the conversation as set out from the evidence had taken place.

EDELMAN J:   Mr Walker, is this really just a visitation question?  If the Court of Appeal’s approach were accepted, does it not draw something of a sharp line between the approach that needs to be taken by a party that owes a duty to a person for whom that party is responsible in relation to physical injuries and duties that arose in relation to mental or psychiatric injuries?

MR WALKER:   I think, with respect, yes.  I cannot avoid drawing to the Court’s attention what you do not need me to tell you, namely, that the history of the tort necessarily shows that there may be a degree – some may say perfect convergence now, but they have been quite different paths.

EDELMAN J:   If Mr Briggs had walked into the detective inspector’s office with a gaping bullet wound and blood dripping on the floor, it would undoubtedly be a breach of duty if the detective inspector did not say, “What is up?”

MR WALKER:   Quite so, and quite impossible to imagine a corresponding treatment, either at first instance or in the Court of Appeal, about the question of what should be done and what might be called the countervailing pressures, the competing responsibilities, et cetera.  We do not hide at all - the decisions in Tame and Annetts make it crystal clear that that is a point of doctrinal importance. 

This is a visitation case in truth, though, because this case does not raise the question of whether there is exhibited in these reasons some undesirable or plainly wrong approach to questions of mental wellbeing when compared to what might be called the elementary response that would have been called for had a man complained about a persistent cough, for example.

EDELMAN J:   Why is that question not raised by the privacy issues to which Mr Jackson has referred and which are implicit and explicit in the Court of Appeal’s reasons?

MR WALKER:   Because on the facts of this case there is really no doubt that the parties have at least this common ground.  The plaintiff did not put his case on the basis that, as it were, there was nothing in the nature of privacy or personal life that could possibly have been a reason for questioning not to be pressed about what he told his superior.  In other words, the plaintiff is not saying privacy and personal life considerations can play no part in the calculus of reasonableness which a superior is required to carry out in such a case.

Could I remind your Honours that, as I say, the first question factually, which is purely factual, is what was to be taken from what had been said?  Several times, not only in writing, the applicant has referred in shorthand, conveniently no doubt, but has omitted that which is perhaps very important as an explanation of how the Court of Appeal reached its decision. 

Could I show you in several places – page 219 is convenient, in paragraph 87 – where that testimony is set out.  You see in the first answer, third line, about line 51 on the page:

because I was struggling and I wanted to get off the truck –

that might be “trucks” –

and I needed a break.

As Justice Leeming points out, this is in a context where there had been domestic – there were ongoing travel pressures of a kind, which wholly justifies the factual conclusion that he would not have taken from that a mental health problem.

EDELMAN J:   The primary judge made findings, did he not, that a number of those domestic matters would not have been known to Detective Inspector Sipos – at least all the matters did not occur at Rose Bay?

MR WALKER:   Yes, but there had been leave taken.  There was the pregnancy with twins and there is, on any view of it, the travel.  All of that was known of.  In our submission, it is in that context that one first has to address the question of what error and what prospect of detecting error really is there in the conclusion recorded at page 244, paragraph 158.  This is not, in our submission, the kind of disclosure – again, it is conveniently dubbed a “struggling disclosure”.  It might as well have been called a request for a break.

GAGELER J:   That is the conclusion of the reasoning that begins at paragraph 155, is it not?

MR WALKER:   Yes, it does.

GAGELER J:   It is the culmination of those three points.

MR WALKER:   Yes - this is in answer to the suggestion that these are facts that throw up something that travels beyond the interests of these particular parties in their particular facts.  In our submission, come what may, it will all depend upon what was to be taken from that disclosure.

GAGELER J:   It is difficult to see, though, that the conclusion is not the product of a particular attitude towards the disclosure of a potential psychiatric condition.

MR WALKER:   Your Honour, with respect, that is an understatement.  The reasons are permeated with what might be called ‑ your Honour calls it an attitude – an approach which his Honour has spelled out.  It starts, of course, with the important premise that, to the benefit of all of us, these are people who take on the job that exposes them to these risks.  I am sorry, your Honour?

GAGELER J:   No, Mr Walker.  Is there something more you want to say?

MR WALKER:   That, in our submission, is why this will always be, notwithstanding the obvious social significance of injured police claims, notwithstanding the obvious social contribution of people who undertake to, under command, expose themselves to these risks, but nonetheless there is no error in principle shown by a decision which always has to come down to a question of fact.  This is a case which, in our submission, clearly pivots simply on a so‑called struggling disclosure exchange, and insufficient prospect is held out of that being, in an appellate setting, the subject of a reversal in this Court. 

GAGELER J:   Thank you. 

MR WALKER:   May it please the Court. 

GAGELER J:   There will be a grant of special leave to appeal in this matter.  This would be a half‑day case, Mr Jackson, or a one‑day case?

MR JACKSON:   Your Honour, could I say perhaps a little more than that because the primary judge’s reasons are very, very extensive.  I think the case should finish in half a day but there is a slight caveat that it may not.

GAGELER J:   We will say a day.  Very well.

MR JACKSON:   Thank you, your Honour.

GAGELER J:   Thank you.

AT 9.56 AM THE MATTER WAS CONCLUDED