Caller v State of New South Wales (No 2)

[2025] NSWDC 468

District Court

New South Wales

Medium Neutral Citation:

Caller v State of New South Wales (No 2) [2025] NSWDC 468

Hearing dates:

Hearing 31 March 2025 – 7 April 2025, 9 April 2025 – 10 April 2025

Directions 5 September 2025

Written submissions considered in chambers 22 September 2025, further evidence admitted

Final written submissions 30 October 2025

Judgment reserved 30 October 2025

Date of orders:

14 November 2025

Decision date:

14 November 2025

Jurisdiction:

Civil

Before:

Newlinds SC DCJ

Decision:

(1)   The Plaintiff’s claim is dismissed.

(2)   The Plaintiff is to pay the Defendant’s costs.

Catchwords:

WORKERS COMPENSATION — s 151D Workers Compensation Act 1987 (NSW) — Extension of time — Undesirability of application for leave being heard at the same time as final hearing — Such an approach to be discouraged

NEGLIGENCE — Duty of care — Vicarious liability — Employment health and safety — Claim by former NSW Police officer against NSW Police Force for psychiatric injury being PTSD caused by repeated exposure to traumatic incidents — Scope and context of duty of care — One breach established — Finding that breach did not cause injury

Legislation Cited:

Civil Liability Act 2002 (NSW) s 3B(1)

Limitation Act 1969 (NSW)

Police Act 1990 (NSW)

Workers Compensation Act 1987 (NSW) s 151D, s 151DA

Cases Cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Caller v State of New South Wales (No 1) [2025] NSWDC 379

DC v State of New South Wales [2016] NSWCA 198

D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1

Gower v State of New South Wales [2018] NSWCA 132

Hegarty v Queensland Ambulance Service [2007] Aust Torts Reports 81-919; [2007] QCA 366

Hill v Van Erp (1997) 188 CLR 159

Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128

Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447

Itex Graphics Pty Ltd v Elliott [2003] 54 NSWLR 207

Masic v Western Sydney Local Health District (trading as) Westmead Hospital [2023] NSWDC 239

New South Wales v Fahy (2007) 232 CLR 486

Perre v Apand Pty Ltd (1999) 198 CLR 180

Prince Alfred College Incorporated v ADC [2016] 258 CLR 134

Sills v State of New South Wales [2019] NSWCA 4

Skinner v The State of New South Wales (No 2) [2021] NSWDC 49

SM v State of New South Wales [2025] NSWDC 295

State of New South Wales v Briggs [2016] 95 NSWLR 467

State of New South Wales v Donnelley [2004] NSWCA 133

State of New South Wales v Skinner [2022] NSWCA 9

Tabet v Gett (2010) 240 CLR 537

The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347

Category:

Principal judgment

Parties:

Lee Kevin Caller (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J Morris SC / M Hammond (Plaintiff)
D Stanton / N Hogan (Defendant)

Solicitors:
Bourke Legal (Plaintiff)
HWL Ebsworth (Defendant)

File Number(s):

2023/323841

Publication restriction:

Nil

JUDGMENT

Overview

1. In recent decades, it has become more and more apparent to the scientific and medical community that a significant proportion of people, if exposed to repeated traumatic events, will ultimately succumb to the recognised psychiatric disorder known as post-traumatic stress disorder (“PTSD”).

2. It follows that those most susceptible to PTSD are people who are regularly exposed to witnessing, or being involved in, traumatic events over an extended period of time. Thankfully in 21st century Australia, most of us are exposed to very few serious traumatic events throughout the course of our lives. However, those involved in front-line emergency services, including the Police Force, Ambulance, Fire Brigade, and the like are not so fortunate.

3. As part and parcel of their duties, these “first responders” will be exposed to serious traumatic incidents on many occasions. The very nature of their duties makes this inevitable. Their job includes to try and rescue and assist people in dire predicaments. Thus, they are inherently at risk, by virtue of their duties, of suffering PTSD, which is a recognised psychiatric injury. The wider community is now well aware of this.

4. As a society, it is essential that people involved in these front-line occupations exist and carry out their duty. When any one of us is in need of urgent help, we expect them to come. Yet we know it is inevitable that some of them will suffer psychiatric injury as a result. Who then ought bear the economic cost of that injury?

5. The law is settled; notwithstanding the likely consequences, without more, there are no common law remedies available to first responders if they succumb to PTSD just because of exposure to traumatic events. Rather, that situation is dealt with by whatever pension arrangements are put in place by the Government, the Worker’s Compensation Regime determined by Parliament, together with whatever insurance a particular officer may have in place from time to time.

6. There will be a claim, compensable by common law damages, available in negligence against the employer of a first responder, if it can be shown that reasonable care was not taken to protect a particular officer by failing to take reasonable steps to identify the particular officer was at risk, over and above what might be ordinarily expected. The circumstance may include knowledge that the officer is suffering, psychiatric or psychological harm, or showing signs that they are, or might, succumb to PTSD, and then failing to take reasonable steps to ensure that officer receives appropriate treatment and support to alleviate or lessen the effect of his or her injury, or potential injury.

7. In such a claim, legal and factual questions going to breach of duty, causation, and damages are notoriously difficult and interrelated. This case is an example of some of those complexities.

8. The Plaintiff, who is still a young man, served as a New South Wales Police officer from 2001 to 2019. There is no doubt he suffers from PTSD as a direct consequence of his work, which condition has had a profoundly adverse impact in his and his family’s life.

9. The issues in this case boil down to whether it has been proved that injury is a consequence of breach of duty of care by the New South Wales Police Force (“Police Force”), if there was such a breach, did it caused the injury, and, if so, what damages have resulted from that injury. Each issue involves complex legal and factual analysis.

10. I consider the Plaintiff to be a thoroughly honest and decent person who served the people of NSW for many years as a frontline police officer out of a sense of duty. Generally, I accept his evidence. As far as dates and order of events are concerned, his memory is slightly unreliable for perfectly understandable reasons. There are many contemporaneous records which allow the chronology of events to be identified with some precision, and I prefer that type of evidence over the Plaintiff's recollection as to date and order of events. I also found the Plaintiff’s wife, Mrs Caller, to be an extremely impressive witness, and other than dates and order of events, accept her evidence unreservedly.

11. I have a great deal of sympathy for the Plaintiff and his family. He has undoubtedly suffered a devastating psychiatric injury at a young age which has, for all intents and purposes, significantly, if not entirely, destroyed his ability to earn an income so as to support himself and his family. Prior to his injury, he was a hard worker who no doubt would have continued to have been motivated to contribute to society in any way that he could. Our society needs people to be prepared to serve as front line emergency workers, notwithstanding that it is clearly understood that, in doing so, they put themselves at considerable risk of psychiatric injury. In a perfect world, every one of them that suffers such an injury would be compensated, but the world is not perfect and the law in this area is calibrated as it must be.

12. Notwithstanding the sympathy I have for the Plaintiff, my duty is to apply the law to the facts as I find them. For reasons I will now explain, I have determined that the Plaintiff's claim must be dismissed.

Introduction

13. The Plaintiff was born on 19 December 1973 and is presently 51 years of age. He attested as a probationary constable of police in the Police Force on 5 May 2001.

14. The Plaintiff sustained a work-related psychiatric injury which caused him to cease work with the Police Force on or about 4 January 2019, and from that date has caused him to have significantly reduced capacity for any type of employment.

15. During the period he served, the Plaintiff was exposed to a series of extremely traumatic incidents which had an accumulating effect, so as to ultimately cause him to suffer PTSD, rendering him unable to work. He contends that psychiatric injury was caused by the Police Force breaching its duty of care to him.

16. Before I continue to describe the Plaintiff's case and to identify the real issues in dispute, there is a threshold issue concerning an application for leave, pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) (“WCA”).

The application for leave

17. The Plaintiff filed a Motion seeking such leave on 12 February 2024, he having filed these proceedings on 12 October 2023.

18. On 9 May 2024, the court ordered that Motion be determined by the trial judge at the hearing of the matter.

19. The apparent practice within this Court of such applications not being dealt with well prior to a final hearing of the matter is to be discouraged.

20. So much was made clear by Abadee DCJ in Skinner v The State of New South Wales (No 2) [2021] NSWDC 49 (“Skinner No 2”) at [5]-[11].

21. The short, and I would have thought obvious, point is that by the time the matter comes on for final hearing, the parties will have been put to the considerable expense of preparing the matter upon the basis of a final hearing. True it is that some cases are simple and the extra added cost, over and above the hearing of a notice of motion for leave to proceed with the hearing at all, might be minimal. Such cases will be rare, and this case was never one of those cases. It was set down with an estimate of 7 to 9 days’ hearing time.

22. As Dicker SC DCJ explained it recently in SM v State of New South Wales [2025] NSWDC 295 at [12]-[14], when endorsing what Abadee DCJ had said in Skinner No 2, as a general rule, these applications ought be heard prior to the final hearing. An exception may be if a plaintiff with alleged psychiatric injuries is to be cross-examined on the application, thus exposing him or her to adverse medical consequences of being cross-examined on two occasions. Such cases will be rare, and this was not one of those cases. Indeed, in my experience it is very unusual for a plaintiff to be cross-examined at all on applications to extend time, and if they are, the topics would almost always be very limited. It is very hard to imagine a circumstance where cross examination going directly to liability or damages would be allowed on an extension of time application.

23. Parties should never ask for such applications to be deferred until final hearing unless the circumstances are very unusual. If this approach is suggested by the Court for administrative reasons, it should be resisted for reasons which I consider are axiomatic.

24. That is not to say that I am suggesting some sort of inflexible rule. Both Abadee DCJ and Dicker SC DCJ rejected such a notion. The matter needs to be decided by sensible and practical case management. Each case must be considered on its own facts. The point is that I consider it ought only be in very rare, exceptional cases where the application is dealt with at the final hearing.

25. I took evidence and heard submissions on the leave application on the first day of the hearing, being 31 March 2025. At the conclusion of those submissions, I made an order under s 151D granting the Plaintiff leave retrospectively to bring the proceedings and indicated that I would deliver my reasons at the same time as my final judgment.

26. These are my reasons for that order.

The statutory context

27. Section 151D(2) of the WCA provides that a person to whom compensation is payable under that Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay the compensation more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

28. More specifically, the legal framework is as follows.

29. Section 151D provides the following:

“151D Time limit for commencement of court proceedings against employer for damages

(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.

(4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999.”

30. The application of s 151D is subject to the operation of s 151DA of the WCA. Section 151DA provides an elasticity to the calculation of time under s 151D in that the running of time is stopped in specific circumstances.

When was the injury received?

31. Because of the way the Plaintiff's case is framed, and the type of case it is, there is a question here as to “when the injury was received" for the purpose of s 151D(2).

32. This is because the Plaintiff's case is that the psychiatric injury about which he complained is the cumulative consequence of a series of events which occurred over the period from 2002 through to 2019, which was the Plaintiff's last day of work.

33. The Plaintiff does not plead and the Plaintiff's expert, Dr Diamond, cannot say at what precise time the Plaintiff suffered a diagnosable clinical state of PTSD.

34. It is that disorder, which is the injury, the subject of the claim, not each individual event wherein the Plaintiff was exposed to trauma. Indeed, the breach of duty of care relied on by the Plaintiff is not exposure to the traumatic events themselves, rather it is the alleged failure of the Defendant to identify that the consequence of repeated exposure would be that he was liable to develop PTSD, and the Defendant either knew or ought to have known that and yet failed to take appropriate steps to minimise that prospect.

35. The Plaintiff's counsel, Mr Morris SC and Mr Hammond, submit that the relevant dates for calculation of time to start and stop running pursuant to s 151DA(1)(b) are January 2019 (being the Plaintiff's last day of work) and 7 June 2023, when the Plaintiff served the relevant pre-filing statement for the purpose of s 151DA(1)(b).

36. The Defendant takes issue with this analysis and Mr Stanton, who appeared with Mr Hogan for the Defendant, submits that, on the state of the Plaintiff's pleading and evidence, it is not possible to identify when the particular injury occurred, but it must have been well prior to 4 January 2019.

37. Both counsel agreed that the debate was somewhat arid because it was only on 10 February 2021 that the parties agreed, following an assessment by the Workers Compensation Commission, that the Plaintiff was assessed as having a 17% whole person impairment (“WPI”) due to psychiatric injury.

38. In Masic v Western Sydney Local Health District (trading as) Westmead Hospital [2023] NSWDC 239, I tried, without success, to resolve the apparent tension between s 280(a) of the WCA, which stands as a complete bar to a person making a claim for a workplace injury under s 151H unless at the time a claim is made for permanent impairment compensation under s 66(g) of the WCA there is an accepted impairment of at least 15%, the injured person is not capable, as a matter of law, of serving a pre-filing statement and the limitation period created by s 151D (as was explained in Gower v State of New South Wales [2018] NSWCA 132 (“Gower”) at [229] and [233]).

39. On the Plaintiff's case, the three-year time period commenced on 4 January 2019 and yet the Plaintiff was unable to commence any claim at all until 10 February 2021. On the Defendant's case the time starts running sometime long before 2019, which, if correct, means the limitation period came and went before the Plaintiff had a cause of action that he was legally entitled to commence (being 7 June 2023).

40. It continues to strike me as more than anomalous that Parliament intended there to be a statute of limitation running for a period of time prior to the person with a claim, the subject of that limitation, being entitled to bring that very claim.

41. In light of the fact that the claim by the Plaintiff is for economic loss only, I consider the better starting point for the three-year limitation period to run to be 4 January 2019, which is when the Plaintiff actually started to incur economic loss. However, if I am wrong in that regard, I do not think it really matters because when I come to consider a reasonable explanation for any delay, it would be illogical to suggest that there was in fact any delay in bringing the proceedings until reasonable steps had been taken to work out and obtain consent as to a more than 15% WPI due to psychiatric injury.

Relevant discretionary factors

42. There is now a substantial body of decisions regarding the discretion to grant leave under s 151D.

43. McHugh J’s observations in Brisbane South Regional Health Authority v Taylor 168 CLR 541 at [551]-[552] and [554]-[555] (“Taylor”) remain fundamental. They were applied with approval by the High Court in Prince Alfred College Incorporated v ADC [2016] 258 CLR 134 at[99] and [100] and the Court of Appeal in Itex Graphics Pty Ltd v Elliott [2003] 54 NSWLR 207 where lpp AJA said in relation to s 151D(2) when referring to what Justice McHugh J said in Taylor at [87]:

“In my opinion in limitation legislation such as 151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after the expiration of a limitation period, the general question that has to be asked is what is fair and what is just. In answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that had barred the action including the four rationales to which McHugh J referred.”

44. The judgment of McColl JA in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 emphasised the following overarching principle:

“[44] Section 151D(2) does not spell out specific criteria to be taken into account by the court when exercising the discretion to extend the time to commence court proceedings sought to be commenced more than 3 years after the injury was received: cf s 58(2), 600(2) Limitation Act 1969 (NSW); s 109 Motor Accidents Compensation Act 1 999 (NSW).

[45] Rather, as lpp AJA (Spigelman CJ and Sheller JA agreeing) explained in ltek [sic] Graphix (at [87]), in the passage to which the primary judge referred, s 1510 confers a broad discretion to grant leave to sue after expiry of the limitation period, in which context "the general question that has to be asked is what is fair and just ... [or] what does the justice of the case require?"; see also Sheller JA (at [2]).”

45. The question of prejudice lies at the heart of any consideration of the matters relevant to an application to extend time. As noted by the Court of Appeal in Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 at [119], per Sheller JA (Meagher and Handley JJA and Brownie AJA agreeing), the question is whether or not significant prejudice has been caused by the late filing of proceedings.

46. The concept of significant prejudice was explained by the Court of Appeal in The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 (“Rundle”) at [96]:

“Significant prejudice means such prejudice as would make the chances of a fair trial unlikely.”

47. In Gower, Basten JA identified three matters that ordinarily a court should be satisfied of when considering granting leave.

48. The first is whether the cause of action has reasonable prospects of success, the second being whether there has been a reasonable explanation for the delay, and the third being what is usually described as prejudice to the Defendant, but properly understood, as explained in cases like Rundle, means significant prejudice as would make the chances of a fair trial unlikely.

Consideration

49. Mr Stanton has conceded that there is, on the face of the material be, a reasonable cause of action available to the Plaintiff.

50. As to explanation for delay, Mr Stanton focuses on a 12-month period, which he characterises as unreasonable delay, being the approximate one year prior to 11 April 2023, when Dr Diamond's report was obtained.

51. The explanation for that report taking so long from when it was requested, was the fact that Dr Diamond could not allocate a date for a consultation without a wait of a little more than a year.

52. Ms Watt, solicitor for the Plaintiff, gave evidence that she made the decision to wait for Dr Diamond's availability, because she considered Dr Diamond to be the most appropriate expert to give an opinion as to the question of liability that she was aware of.

53. Mr Stanton has submitted that there is no evidence that there were not other appropriately qualified people available who could have provided an opinion. I am prepared to infer that there were choices open to Ms Watt. However, the question before me is whether the explanation for the time lost in waiting for Dr Diamond is a reasonable explanation. I do not think posing the question of whether other lawyers in the same position might have formed a different opinion than Ms Watt answers that question. In my opinion, Ms Watt’s decision to retain Dr Diamond in a medico-legal capacity was reasonable and so the explanation for the period of delay identified by Mr Stanton is in my opinion reasonable.

54. I turn then to the final question, being whether the delay is such as to make it is to make the chances of a fair trial unlikely.

55. To determine that question, It is first necessary to connect the delay in commencing the proceedings with the chances of a fair trial being unlikely.

56. Mr Stanton relied on the Court of Appeal's decision in State of New South Wales v Donnelley [2004] NSWCA 133 (“Donnelley”), which case does bear a remarkable similarity factually to the case before me.

57. Mr Stanton, despite his team having prepared the matter fully for the final hearing, chose not to put any evidence or submissions of particular prejudice to his client before me.

58. Rather, he relied on what is often referred to as ‘presumed’ or ‘inferred’ prejudice, as explained in cases such as Taylor, per McHugh J.

59. He relies on the fact that over the period the Plaintiff served as a police officer, he had very many, probably counted in the scores, of other officers supervising him, whose conduct is brought into question by the way the Plaintiff frames his case. This is because the Plaintiff asserts that, whilst it should have been clear to those supervising him following the various traumatic incidents and as they commenced to accumulate, that he needed support and referral to some form of early intervention treatment, which would have prevented the development of the PTSD, effectively, nothing was done. The submission is that I ought infer that the delay has made it more difficult than it would have otherwise been to locate those witnesses and, even on them being spoken to, their memory would have faded.

60. Mr Stanton’s submission, based on the Court of Appeal’s analysis in Donnelley, is that the Plaintiff has not proved that the delay has not made the chances of a fair trial to be less likely than they would have been if the matter was bought in time. This raises squarely a question of onus.

61. In my opinion, again referring to what McHugh J said in Taylor at [87] regarding the discretion conferred by s 151D(2) of the WCA, the fundamental question that has to be asked is what is fair and what is just. So much is made clear from the way Basten JA describes this question in Gower.

62. Moreover, it needs to be born steadily in mind that a fair trial does not equate with a perfect trial.

63. In my opinion, whenever the relevant three-year period commenced to run, the Defendant was always going to encounter difficulties in obtaining direct evidence from people involved in the supervision of the Plaintiff at relevant times in the past. The fact that the Defendant would inevitably have encountered such problems would have made it more difficult for it to defend the matter than if it did not have such problems, but that does not mean that any trial will be unfair. True it is that the longer the period of delay, those difficulties become more pronounced, but I do not think the circumstances are such that the chances of a fair trial are unlikely, and therefore, by reference to cases such as Rundle, do not see the level of prejudice requisite to make out relevant prejudice for the purpose of s 151D.

64. Whilst the Court of Appeal in Donnelley was critical of the trial judge for assuming there was no presumptive prejudice because the claimant had all the opponent’s personnel records and other records “pertaining to" the opponent. This was said to be inadequate reasoning. The Court concluded at [52]:

“The burden of establishing fairness and justice being on the plaintiff, if doubt remains it will weigh against a grant of leave”.

65. However, Rundle postdates Donnelley by four years, and as I have said, the Court of Appeal in that case identified that relevant prejudice means significant prejudice which means such prejudice as would make the chances of a fair trial unlikely. I think there is a very different, almost seismic shift, between the approach that commended itself to the court in Donnelley and the analysis in Rundle, so as to have made the test for what is fair and just in this context a much less onerous one for a Plaintiff to satisfy.

Resolution of leave application

66. Having taken all those matters into account, I am not satisfied that the chances of a fair trial have been rendered unlikely as a result of the delay in the Plaintiff bringing its his claim. There is a reasonable explanation for the delay, and the claim is a viable one. In my judgement, it is just and fair to grant leave to bring the case, notwithstanding that it is, prima facie, out of time.

67. It was for those reasons I made orders in accordance with the Plaintiff's Notice of Motion filed 12 February 2024 on 31 March 2025. I also ordered that costs of that Motion ought be costs in the cause.

68. Returning then to the case itself.

The real issues in dispute

69. By reference to the Plaintiff’s Statement of Claim filed 12 October 2023, the Defendant’s Defence dated 8 November 2023, which was informally amended during the course of the hearing, together with the respective statements prepared by counsel for both the Plaintiff and the Defendant as to their perception of the issues, and having heard the parties submissions, it seems to me that the case can be decided by reference to the following questions:

1. What is the nature and extent of the Defendant's duty of care to the Plaintiff?

2. Were the Plaintiff's alleged injuries foreseeable in the circumstances?

3. By reference to the duty of care, has a breach of that duty been established?

4. If there has been a breach of any duty of care, what is the extent to which any of the Plaintiff's injuries were caused by any breach of duty?

5. Has the plea of contributory negligence been made out?

6. What damages has the Plaintiff suffered as a consequence of any breach of duty?

70. Dealing with those issues in that order.

Duty of care

71. By virtue of s 3B(1) of the Civil Liability Act 2002 (NSW), it is the common law, and not the provisions of that Act, which applies.

72. As pleaded, the Plaintiff puts forward a duty of care in the following terms:

“The Defendant owed the Plaintiff a non-delegable duty of care to take reasonable care to ensure that the Plaintiff was not exposed to unnecessary risk of injury"

73. There is no dispute that the Police Force owed to the Plaintiff a duty to take reasonable care to avoid foreseeable risks of injury arising from the Plaintiff's service as a police officer. Yet, to pose the duty at such a high level of abstraction is, in my opinion, not useful, as it masks real complexity.

74. As was explained by Gleeson CJ in New South Wales v Fahy (2007) 232 CLR 486 (“Fahy”), it is unwarranted to single out any occupation and treat it as intrinsically dangerous. However, the nature of any occupation must be considered when defining the duty of care owed by any employer to an employee. It is because of the very nature of the duties of a general duties police officer and the nature of PTSD, that concepts of risk and safety require close analysis. Police officers commonly are exposed to danger and extremely stressful situations and individuals' ability to cope with those situations vary widely.

75. Gummow and Hayne JJ in the same case, pointed out at [27] that, because what police officers regularly are exposed to is traumatic, systems ought to be devised to try and deal with the consequences of that trauma which systems ought not detract from the application of the statutory powers and functions of police. If I may say so, this is easy to say but is a very difficult balance to achieve in practice.

76. What is clear is that the mere exposure of police officers to traumatic events on a repeated basis will not, on its own, amount to a breach of duty of care, notwithstanding that the risk of developing PTSD from such exposure exists and is well understood and is foreseeable. To impose such a duty would be unreasonable or unrealistic and would mean police could not perform their important role in society.

77. Since State of New South Wales v Briggs [2016] 95 NSWLR 467 (“Briggs”), it has been established that the content of the duty of care owed by the Police Force to a serving officer must:

1. Accommodate the relevant statutory context including provisions of the Police Act 1990 (NSW) and the special nature of service rendered by police officers to the Crown; and

2. Take into account some of the incidents of the usual employer – employee relationship (adjusted to take into account the fact that the relationship is between the State and a serving police officer).

78. As formulated prospectively in Sills v State of New South Wales [2019] NSWCA 4 (“Sills”) at [9] and State of New South Wales v Skinner [2022] NSWCA 9 (“Skinner on Appeal”), the duty of care in the context of this sort of case requires the Police Force to take reasonable steps to:

1. Identify officers who, through the performance of their duties, were at particular risk of suffering or were suffering psychiatric or psychological harm;

2. Take (reasonable) steps to ensure that any officer so identified received appropriate treatment and support to alleviate or lessen the effect of his or her injury; and

3. Consult with appropriate persons in the workplace to identify hazards associated with the work environment and systems of work if and when the injured officer returned to duty, including the assessment of the risk of injury or further injury.

79. In my opinion, the duty of care can be articulated at the high level of taking reasonable care to avoid risks of foreseeable injury arising from the Plaintiff’s service as a police officer, with the particular content being the three matters identified in Sills and Skinner.

80. Mr Stanton relies on cases such as Fahy to the effect that the Police Force is entitled to expect a general duties officer of being capable to perform the duties they agree to undertake, unless there are signs to identify the Plaintiff is at some sort of risk. So much may be accepted in part, but I do not think that relieves the Police Force from a duty to take reasonable steps to seek to identify if such signs are present and, if so, to take reasonable steps to try and reduce the risk at that point. Fahy is also authority for the proposition that the Police Force does owe a duty of care to reduce the risk of psychiatric or other injuries to officers, so long as that duty of care is carefully calibrated so as to ensure that it does not cut across the fundamental duties of police officers, which will inevitably involve individual officers being exposed to repeated trauma.

81. I consider the various propositions to be found in cases like Briggs and Fahy to be consistent with the content of the duty of care that I have articulated above.

Foreseeability

82. Reasonable foreseeability of physical harm and, for the purpose of this case, “economic loss," is generally enough to impose a duty of care on a person who knows or ought to reasonably foresee that harm is a likely result of his or her conduct. Liability will arise when the duty is breached and where there is a causal relationship between the breach and the harm: D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 37 [101] per McHugh J; Hill v Van Erp (1997) 188 CLR 159; Perre v Apand Pty Ltd (1999) 198 CLR 180.

83. In Fahy at [60], the High Court recognised as long ago as 2007 that the risk of a police officer suffering recognisable psychiatric injury through encountering traumatic events is foreseeable in the legal sense.

84. Since then, the level of discussion in academic literature, the community generally, and many decided cases in relation to the risk of front-line emergency service workers and military personnel being susceptible to recognisable psychiatric injury, and in particular PTSD, has become even more pronounced.

85. It is of course foreseeable that a serving police officer will almost inevitably be exposed to and involved in traumatic and distressing events. This is, not just foreseeable, it is to be expected. However, that is part of the job for which there is no legal recourse for the very reason that exposure to such events, and the risk of adverse medical consequences, such as acquiring PTSD, is so notorious and so obviously part and parcel of the role of a serving police officer.

86. The Plaintiff is not claiming damages for being exposed to those events per se, albeit the first step in his argument is that the psychiatric injury – PTSD, and the consequent economic loss – that he seeks to be compensated for is a direct consequence of that exposure.

87. Rather, he is seeking compensation because he claims that the Defendant failed to educate him properly, failed to take reasonable steps to identify that he was a person who was exhibiting signs that he was at particular risk of suffering, or indeed was suffering, an onset of PTSD, and failed to take reasonable steps to ensure that he received appropriate treatment and support to alleviate or lessen the effect of that state of affairs.

88. Not only is the risk of a police officer suffering recognisable psychiatric injury through encountering traumatic events foreseeable, it is also foreseeable that, if a police officer is exposed to repeated traumatic events, the likelihood of that police officer suffering a recognisable psychiatric injury being exacerbated with each exposure is foreseeable in circumstances where the Police Force fails to take reasonable steps to identify that the particular officer is showing signs of being at elevated risk of developing a psychiatric injury and then fails to take reasonable steps to ensure that the Plaintiff receives appropriate treatment, et cetera.

89. I am satisfied that the risk of harm, against which the relevant duty of care is to be judged, was foreseeable in the legal sense.

Breach of duty

Does the Plaintiff have PTSD as a result of his being exposed to trauma in the course of his duties?

90. This is a threshold and necessary finding for the Plaintiff but is by no means determinative of liability.

91. There is a vast body of evidence, including a large amount from various treating doctors and doctors retained for medico-legal purposes. I do not propose to summarise all of that material. That evidence starts with a report of Dr Gabb, the Plaintiff's treating general practitioner in 2011, for the purpose of a worker’s compensation claim, arising out of what I will describe as the “PolAir episode,” where Dr Gabb recorded that, as at 14 July 2011, he had seen the Plaintiff who had described a history of “issues at work, anxiety, depression, and loss of motivation.” On 1 December 2011, Dr Nazir Sumar, another general practitioner at Woy Woy, expressed the opinion that the Plaintiff was “on permanently restricted duties due to work-related adjustment issues" and in February 2012, Dr Gabb recorded his opinion that the Plaintiff showed “symptoms of anxiety and depression, demotivation, and loss of interest in leisure time activities.” There is also comprehensive reports of Mr Russell Gibbs, psychologist, and Dr Parsonage, a psychiatrist. They all are consistent with a diagnosis that the Plaintiff is now suffering from PTSD as a consequence of his police work.

92. The medical evidence concludes with two medico-legal reports of Dr Michael Diamond prepared for the case. He is a highly qualified and very experienced consultant psychiatrist retained by the Plaintiff. His first report is dated April 2023 and the second December 2023. Dr Diamond diagnoses the Plaintiff with PTSD, combined with major depressive disorder, which he considered to be directly related to various traumatic incidents the Plaintiff encountered during his time as a police officer, which have manifested into a psychiatric illness – PTSD – and that this occurred progressively as a result of the cumulative effects of exposure to trauma as he encountered that trauma in the course of his police career.

93. Not only is the medical evidence consistent, Dr Diamond's evidence on this point was not challenged or contradicted. I have no doubt that the Plaintiff is suffering from PTSD directly caused by him being exposed to a series of incidents at his work. All but one of those incidents involved exposure to horrible and obviously traumatic events involving violent death or injury to members of the public. The exception is what I am calling the PolAir episode.

Findings as to traumatic incidents

94. Dr Diamond records some of the incidents in his first report, having interviewed the Plaintiff and reviewed various statements of the Plaintiff, together with the then existing and available contemporaneous medical evidence.

95. The Plaintiff has given evidence consistent with the history recorded by Dr Diamond, albeit perhaps not covering the field. I find Dr Diamond's history to be accurate, and sufficient for the purpose of this judgment. I put to one side, for the purpose of that finding, the PolAir episode, which I will deal with separately. I leave in Dr Diamond’s narrative history of the PolAir episode as the Plaintiff’s subjective view of what occurred and to show where it fits chronologically. I have edited Dr Diamond's narrative to take out various matters of fact he recorded of which there is no evidence, together with some of his editorial commentary.

“Walgett April 2002 to May 2004

I asked Mr Caller about his experiences when stationed at Walgett Police Station.

He confirmed the incident involving a decayed corpse in a motor vehicle, a result of a suicide by gassing. I noted the description of the severity of the decomposition including the grotesque state of the body as is described in the documentation.

Mr Caller spoke of the man who had hanged himself in a public payphone. The details of what occurred were confirmed especially Mr Caller's sense of helplessness and distress about being unable to do anything effective to deal with the psychiatrically unwell man who was known to be suicidal and whose family had tried to elicit help from the local health services.

The sense of helplessness was emphasised in Mr Caller's description, as was the extent to which he was involved with the family of the deceased man in those circumstances.

Mr Caller spoke more generally about the exposure to trauma that occurred when he was stationed at Walgett. He said eighty percent of the population were Indigenous people. There was severe physical and domestic violence on a regular basis where offenders used weapons and caused serious injuries. He said there was a great deal of mental health disturbance and substance abuse problems. He said the policing was not so much to do with motor vehicle accidents and suicides but the day to day violence was significant. Mostly he said the Indigenous population tended to leave the police alone but there were altercations where he was compelled to engage during incidents.

…

Mid North Coast LAC at Kempsey from May 2004 until September 2010

Mr Caller confirmed some of the trauma that he experienced when working at the Mid North Coast LAC at Kempsey from 2004 until 2010.

He confirmed attendance at a motor vehicle accident where a child was thrown out of a four-wheel drive vehicle that then rolled over the child. Other children were trapped in the vehicle and the father of the children, who had also been thrown out of the vehicle, required attention for his injuries.

The trauma of that incident was complicated further when Mr Caller's fellow officer investigating the accident suicided as a result of Post Traumatic Stress Disorder. For Mr Caller, the job was additionally traumatic because his own children were of similar ages to the child victims of that motor vehicle accident.

Another extremely violent incident during his service at Kempsey involved a pursuit of a vehicle where the driver eventually died in a crash. The nature of the violence was extreme. The offender tried to run head on into the police vehicle on two occasions, necessitating the police driver to take evasive action in terrifying circumstances. The speed of the offending driver was sufficient for the vehicle to be torn in two when it finally collided with a stationary object. There was a passenger in the offending vehicle who survived within a grotesque setting where parts of the crashed vehicle were spread out over a hundred metres from the site of the fatal crash.

…

He said he developed "a persona of arrogance". I asked him what that meant. He said it was expressed as increased anger and aggression expressed towards figures of authority such as more senior officers who made decisions about his work.

…

Similarly, he said "I was taking it out on crooks". He felt driven in his policework. He described it as "I had my ear to the ground ... I had informants locally."

…

Police Aviation Support Branch -PolAir between September 2010 and February 2012

Mr Caller spoke about the workplace conflict that he encountered between September 2010 and February 2012 when he served at the Police Aviation Support Branch.

I was aware of the considerable amount of documentation relevant to that conflicted state. Mr Caller said that his experiences in that environment functioned as a key issue in the exacerbation of overt psychiatric symptoms within the workplace while he was at the PASB.

He explained that the work environment was dysfunctional from the time he began there in 2010. He referred to witnessing an altercation between older/senior and younger/junior pilots where he was coerced to provide a witness statement in an internal complaint about a scenario he had witnessed.

His statement was not to the liking of his more senior officers whom he named as Sergeant Grant Waddups and Inspector Tim Calman. In effect he believed their intent was to support a particular version of events that was not consistent with what he had observed. When he was coerced to change his statement, he declined to do so. Despite being intimidated, he did not change his statement.

What followed, was described by Mr Caller as a series of unfounded complaints about him contending that he was lazy and not making sufficient effort in his duties overall to be able to complete his probationary period. The basis to delay this process was unfounded. Mr Caller believes that there was a fabricated excuse to delay his probationary period. He said the decision was based on reporting of emails about his allegedly suboptimal performance. He said that these emails could never be produced. He said it was likely that they never existed.

…

no dispute that the Plaintiff, as perhaps must be sadly expected of serving police officers, was exposed to a series of extremely traumatic events over his time as a serving police officer, which, on the medical evidence, has had the cumulative effect of now manifesting in a clinical diagnosis of PTSD.

…

Mr Caller agreed that he was placed in a situation where he was powerless and helpless. It was overwhelming for him. His probation was extended for six months. When he became psychologically affected by the workplace stressors his reporting of workplace injury was rejected. It was not based on any justifiable reason (as was determined at later hearings before the Worker's Compensation Commission in 2013 and a further hearing before the Personal Injury Commission in October 2022).

Mr Caller confirmed the psychiatric symptoms he experienced at the time where his anxiety symptoms and depressed state became overwhelming for him at that time. He noted away from that environment those symptoms settled significantly.

…

Mr Caller spoke further about the effects of the lack of support in the workplace. He spoke of the extent of the targeting and bullying behaviour that he had been exposed to at PASB and the negative effects that this had on his ability to cope and reinstate his previous coping mechanisms. He described the presence of underlying psychological vulnerability when faced with further exposure to trauma.

The long-drawn-out nature of the conflicted state and the failure to resolve it during the second half of 2011, with additional distress because of the rejection of his claim for a work related injury by the insurers, was discussed and understood to have exacerbated his existing psychological vulnerabilities.

The workplace experience was further significant because up to this point, Mr Caller had not been thwarted and bullied in his career. His workplace experience previously was that hardship was tackled and problems were resolved. The experience at PASB was different. It acted to intensify feelings of defeat and helplessness. His report of bullying and harassment at work was investigated and rejected at the time.

Mr Caller spoke about the period he was overwhelmed by his psychiatric symptoms and was off work and was unable to return to the PASB.

When Mr Caller returned to work after a period, he worked in restricted duties at a different LAC.

…

He accepted the return to work plan based at Brisbane Waters. It was signed off by the Police Medical Officer and he carried out station duties for a period.

Later the Police Medical Officer signed off his fitness to return to full operational duties. Mr Caller commented that it was clear to the Police Medical Officer that he was keen to return to work and that it was not a case of him looking to exit the NSW Police Force. He said there was no remedial shoot ordered before he returned to full operational duties. He understood this to be a sign of support from the Police Medical Officer. His return to work however was not without difficulties.

He was then able to return to full operational duties and was stationed in General Duties at Hornsby Police Station.

Ku-Ring-Gal Local Area Command - Hornsby Police Station February 2012 to July 2015

Mr Caller said he was exposed to ongoing trauma when he worked at Hornsby. There were multiple motor vehicle accidents involving fatalities. The Area covered three major highways. There was a significant amount of drug work. There were frequent suicides and sexual assaults that he struggled to deal with.

Mr Caller described many incidents of exposure to trauma in the course of his duties at Hornsby Police Station. He spoke about the death by hanging of a thirteen year old female child in the family home. He was in the home assisting with paramedics trying to resuscitate the child and having to deal with family members in the home as well.

He described a particularly harrowing consequence on that day when he turned up to coach his thirteen year old daughter's soccer team where his existing emotional state was triggered. He spoke of feelings of helplessness and futility at that time.

There were other attendances when Mr Caller had to deliver a death message in the course of these duties. These experiences were accompanied by confronting emergence of his own emotions, feelings of futility and sadness and having to confront the emotional state of family members of the deceased at these times.

He described the distress at the traumatic site of a motorcycle accident where a man was fatally injured. A medical helicopter was at the scene that added an additional evocative component to the traumatic scenario. Mr Caller was involved with covering the body of the deceased when the helicopter departed.

…

He spoke of three years of struggling to get back up to the Mid North Coast and his repeated failed applications for a transfer to Kempsey or Wauchope. He again spoke of being thwarted and undermined by the Local Area Manager at the Mid North Coast Local Area Command, that he had told me about earlier.

He persevered with making applications until finally when an opportunity arose for a transfer to Manning/Great Lakes Local Area Command at Taree came up, he took it.

Manning/Great Lakes Local Area Command LAC) at Taree from 2015 to 2019

With transfer to Taree Police Station, Mr Caller was exposed to very confronting incidents involving severe child abuse. One of these was a boy who had been locked in a shipping container by his father as a form of punishment. The environment was extremely hot. There was no sanitation. The mattress was a filthy foam slab. The traumatic experience compounded the feeling of defeat and futility of previous jobs.

Another case of child abuse involved a girl who had been assaulted. The notification came via the school. Investigation disclosed that the child was being abused together with her sister and living in a non-habitable environment where they had been for the past three years. The experience was overwhelming for Mr Caller. He felt helpless and defeated to encounter this type of abuse of young girls. He seriously contemplated having the child move into his family home.

There were other attendances involving deceased persons, violence and situations in which Mr Caller repeatedly experienced the futility of his work, the inability to be effective and overall, the struggle to deal with his worsening psychiatric symptoms in the face of feeling overwhelmed and helpless. Subjectively he said he was becoming severely and overtly psychiatrically impaired. He said it was apparent to everyone.

Mr Caller said he struggled on but the cumulative effects of regular exposure to death, trauma and distressed families built up over time.

Ending of ability to keep functioning as a police officer

Matters came to a head in late December 2018. The initial callout was through other emergency services at the fire and the body was reported as being a dead animal.

Mr Caller confirmed his presence at a crime scene where a body was obviously mutilated, burnt and had a leg and both hands cut off.

It was an extremely brutal and gory image to confront. The trauma of the incident was increased because Mr Caller had to set up the crime scene and was then tasked with guarding it whilst further investigations took place.

Mr Caller confirmed that these were not all of the incidents of trauma that affected him but that he was unable to function as of 1 January 2019.

He presented to a general practitioner, Dr Nicholas Hirst, on 4 January 2019 where Post Traumatic Stress Disorder was diagnosed as consistent with his presenting symptoms.

The appropriate medical certificate was issued. Mr Caller never returned to work.”

96. I have no doubt the Plaintiff was exposed to many other less dramatic traumatic incidents that he cannot recall. Dr Diamond did not record all of the specific events about which the Plaintiff gave evidence before me. The specific traumatic incidents that I accept the Plaintiff was exposed to are, in roughly chronological order:

1. An incident in between 2001 and 2004, whilst the Plaintiff was stationed at Walgett, involving the discovery of a dead body in a car which had been there for a number of days during the heat of summer;

2. A public suicide of a male whilst the Plaintiff was stationed at Walgett, again between 2001 and 2004;

3. A motor vehicle accident involving a deceased child between 2004 and 2010 whilst the Plaintiff was stationed at Kempsey;

4. A horrific car crash following a police pursuit, whilst the Plaintiff was stationed at Kempsey/Port Macquarie;

5. A helicopter crash, including witnessing the helicopter burst into flames with a male victim jumping from the wreckage, when stationed at PolAir between 2010 and 2012;

6. Attending a particularly distressing suicide of a 13-year-old girl, and trying unsuccessfully to save her life by administering CPR in the presence of her parents, whilst stationed at Hornsby Police Station sometime between 2012 and 2015;

7. Whilst at Hornsby, being exposed to a fatal motorcycle accident; and

8. Being involved in the delivery of many “death messages."

97. In September 2010, the Plaintiff transferred to PolAir, and it was while stationed there between 2011 and 2014 that he alleges he suffered bullying and harassment. In 2014, he spent a period of about six months off work on worker’s compensation, having been diagnosed with an acute adjustment disorder with mixed anxiety and depressed mood. He reported symptoms of stress, anxiety, and depression at the time. He then made an application to transfer out of PolAir but became embroiled in a battle with the Police Force as to that transfer application. Ultimately, having been cleared as fit for work by a number of medical practitioners, including his general practitioner, a psychologist, and the Police Medical Officer, he resumed general duties. None of those practitioners identified him as being at any greater risk than might be expected of PTSD. The symptoms were taken as signs of a transient adjustment disorder caused by the PolAir episode, which was expected to resolve and was considered to have resolved once the PolAir episode passed.

98. Between 2015 and January 2019, the Plaintiff was stationed at Taree Police Station in the Manning Great Lakes Regional Command. The traumatic events he witnessed and was involved in during that period included:

1. On 21 April 2016, he was exposed to a serious motor vehicle accident involving seriously injured children;

2. Between 2015 and 2019, he was exposed to children who had been rescued from a child abuse imprisonment situation, having been locked in shipping containers and mistreated;

3. A hanging suicide of a male; and

4. Finally, on 27 December 2018, the identification and recovery of a mutilated and burnt body of a murder victim discovered in the bush near Taree.

99. That final incident, which I can only describe as beyond horrible, triggered what appears to have been a complete psychiatric breakdown and the Plaintiff has not returned to work as a police officer, or at all, since.

100. I will not in this judgment set out in detail the horrifying and gruesome details of some of the incidents the Plaintiff was exposed to, Dr Diamond’s descriptions are enough for present purposes. Suffice to say at least three or four of them appear to me to be at the highest end of any scale one could imagine when imagining traumatic incidents.

101. I find each and every one of them and more occurred and that the Plaintiff was exposed to them and others and that the cumulative effect of that exposure is the root cause of the Plaintiff's PTSD.

The PolAir episode

102. As I have said, there is one incident, more accurately described as an ‘episode’, being the Plaintiff’s experience in PolAir, that falls into its own category and requires separate consideration and analysis.

103. I heard significant and contested evidence from the Plaintiff as to what happened. I am satisfied that the Plaintiff was on a training flight in a helicopter with two pilots. One of the pilots subsequently alleged that the other had flown too close to the Sydney Harbour Bridge and in so doing had breached certain safety protocols. The other pilot denied that had occurred. The Plaintiff was directed by a senior officer to provide a statement as to what had happened. He did so and he was then asked by officers more senior to him to change his statement and, in the course of that process, was told that he was being untruthful. He refused to change his statement. He felt he was being treated unfairly.

104. This, of itself, caused the Plaintiff significant stress and anxiety.

105. Not long after, officers supervising the Plaintiff determined that his probation period In the PolAir squad ought be continued for a further three months, because it was asserted that various reports had been received to the effect that the Plaintiff was “lazy." He was told that these complaints were to be found in a series of emails, which he was never shown, and still has not seen, despite there being a worker’s compensation claim hearing, which concluded as follows:

'I do not consider the meeting of 5 May 2011 as representing reasonable actions of the employer in this context. It occurred some five weeks after the Applicant's initial probation period ended and did not result in any measures being put into place to remedy the alleged failings of the Applicant, and also did not result in any formal notice being given to the Applicant concerning the extension or reasons for it. The process lacks transparency. It is reasonable that reasons be given, that procedures be in place to allow for all parties to be able to examine allegations which directly affect a worker's employment, that procedures should be put in place to remedy any alleged problems in performance, and that actions and decisions be documented. I am not satisfied, on the basis of the submissions made by the Respondent at the teleconference and documentation referred to, that this occurred in the present matter.'

106. The Plaintiff believes his probation period was extended, not because he was considered lazy, but because his supervisor unfairly and wrongly considered his response to the directive to provide a statement as to the Harbour Bridge incident was not full and frank and/or was dissatisfied with his refusal to change his statement.

107. As a direct result of the entire episode, the Plaintiff had six months off work suffering from what was diagnosed at the time as stress, anxiety, and mood disorder. All of this was known to the Police Force. His claim for worker’s compensation initially failed because there was a finding that the conduct of the Police Force, albeit not reasonable, was not compensable under the WCA. Ultimately, it was successful for the reasons I have set out above. The final stage of the episode was a prolonged, antagonistic, but ultimately successful, application by the Plaintiff for transfer back to the North Coast.

108. The PolAir episode falls into its own category. It is probably wrong to categorise it as a traumatic incident at all, rather, it was a very stressful episode. Dr Diamond describes it as traumatic and a triggering event. Like any employee, it is a necessary component of a job to have a relationship with an employer and, from time to time in the course of that relationship, uncomfortable things might be said or done. For example, an employee who was told that they are not doing their job up to an expected standard will find it very difficult to successfully brand such conduct as bullying or harassment or give it some other label which might be a breach of duty of care. This is so, notwithstanding the fact that often being told such things will cause anxiety and distress.

2. The Defendant contends the Plaintiff is not totally incapacitated for all forms of employment and retains earning capacity.

3. If injury due to a breach of duty is established, the Plaintiff’s incapacity is due to tortious and non-tortious events. In that event, the damages are to be apportioned between the two in accordance with DC v State of NSW [2016] NSWCA 198 and State of NSW v Skinner [2022] NSWCA 9.”

219. By reference to that document, I identify the areas of dispute between the parties.

The second seizure

220. For reasons I have explained above, I propose to reduce the Plaintiff's past economic loss by 12 months (52 weeks) as an acknowledgement of the effect that the second seizure would have had on his ability to work during that period in any event.

221. Accordingly, this reduces the past economic climate loss claim from 332 weeks to 280 weeks.

222. It would also reduce the past superannuation claim slightly.

223. As I have taken the full 12 months into account for the past, it does not reduce the future economic loss claim.

Contributory negligence

224. There is an issue of contributory negligence.

225. This is a topic about which I do not think my consideration will be useful. The allegation by the Defendant is that the Plaintiff failed to take reasonable care for his own medical well-being by failing to report symptoms to various medical practitioners or to his superiors.

226. I have already concluded that the Plaintiff did have adequate education and, in any event, understood the need to bring such matters to people's attention and yet did not do so. On the other hand, I have concluded that, at no particular time and in particular at 2014, was the Plaintiff actually suffering particularly serious symptoms.

227. Mr Morris's answer to this is that the Defendant cannot rely on its own breach of duty if it is the cause of the alleged contributory negligence. So much may be accepted. However, I have found no breach in failing to educate. I have also found it made no difference. Upon that hypothesis, I think that the Plaintiff needs to take some responsibility for the injury. I understand that he was always keen to get back to work and that he was working in an organisation that probably does have some sort of culture where people who bring attention to this sort of matter are criticised. If I am wrong as to failure to educate and its lack of causative effect, the result may well be different.

228. In all circumstances, I consider that any award for damages ought be reduced by 20% to give effect to that contribution, but as I say, if others come to a different view as to breach and causation, undoubtedly this finding will need to be adjusted.

Other causes

229. The next point made by the Defendant, based on cases like DC v State of New South Wales [2016] NSWCA 198, is that I have to take into account prior non-tortious exposure to trauma and the trauma involved in the PolAir episode, which I do not think of itself amounts to any wrongdoing by the Defendant, and then the Plaintiff's current physical restrictions.

230. As to those, I think if the matter is looked at from the Plaintiff's perspective and liability is found, it is likely that finding would not involve any criticism of the Defendant for any exposure to trauma by the Plaintiff prior to the PolAir episode. Nor do I think the Defendant is responsible for any causative effect of the PolAir episode itself. What level of contribution that exposure has to his ultimate condition can of course never be known.

231. However, those exposures are some of the cumulative matters which are the cause of his injury, for which the Defendant cannot be held liable.

232. Dr Diamond also considers that the PolAir episode itself was a traumatic incident that needs to be factored in as one of the cumulative factors. I am not satisfied that it was tortious, and this should be taken into account for the purpose of assessing damages.

233. Next, there is a considerable body of medical evidence to the effect that the Plaintiff has significant physical injuries which would, at least by now, have probably caused him to not be able to work as an active police officer and, if he had left the Police Force, would be a considerable impediment and restriction on his earning capacity. The Police Force is not liable for this loss of capacity to earn.

234. Finally, the seizures are themselves not the consequence of any wrongdoing by the Defendant but seem to have caused the Plaintiff to lose his driver’s licence which self-evidently would have hampered his career as a police officer.

235. As to the seizures, I have dealt with them by reducing the economic loss claim by 52 weeks. There is no need to adjust vicissitudes over and above that finding.

236. Taking into account the other non-tortious injuries and disabilities the Plaintiff is dealing with. I consider it appropriate for damages to be calculated as follows. This is not scientific and is difficult to explain over and above I am doing my best to evaluate all of the relevant factors:

1. Past economic loss should be based on a figure of $1,000 per week, as opposed to his uninjured capacity of $1,726 per week.

2. Past economic loss ought be calculated by $1,000 x 280 weeks to take into account the 52 weeks following the second seizure.

3. Future economic loss again should be awarded upon the basis of $1,000 per week for the period identified in the Defendant’s Schedule.

4. Instead of the usual 15% reduction for vicissitudes, I consider there should be a 20% reduction to take into account the other matters I have identified as various non-tortious contributors to the Plaintiff's claim.

5. From that figure there should then be deducted 20% to take into account my finding as to contributory negligence.

6. I will leave the “Fox v Wood component” and any worker’s compensation payback to be agreed by the parties.

7. I will leave it to the parties to perform the appropriate calculations to arrive at a total figure.

Conclusion/Orders

237. For these reasons, my orders are:

1. The Plaintiff’s claim is dismissed.

2. The Plaintiff is to pay the Defendant’s costs.

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Decision last updated: 14 November 2025