New South Wales v Doherty - [2011] NSWCA 225

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: State of New South Wales v Doherty [2011] NSWCA 225
Hearing dates: 12 April 2011
Decision date: 05 August 2011
Before: Hodgson JA at 1; Whealy JA at 121; Handley AJA at 122
Decision:
(1) Appeal allowed in part.
(2) Verdict and judgment for Mr Doherty for $676,486.91 substituted for the verdict and judgment below, to take effect from 20 May 2010.
(3) Appeal otherwise dismissed.
(4) Cross-appeal dismissed.
(5) Each party to pay its own costs of the appeal and cross-appeal, Mr Doherty to have a certificate under the Suitors' Fund Act 1951 in respect of his own costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORT - Negligence - Breach of statutory duty - Post-traumatic stress disorder (PTSD) - Police officer exposed to traumatic crime scenes over many years - Whether his PTSD caused by employer's negligence - Concealment by police officer of symptoms - Contributory negligence - Whether damages should be discounted because of chance that PTSD could have become entrenched in any event.
Legislation Cited: Civil Liability Act 2002 s 5D
Occupational Health and Safety Act 2000
Occupational Health and Safety Regulation 2001
Cases Cited: Doherty v State of New South Wales [2010] NSWSC 450
Malec v JC Hutton Pty Limited (1990) 169 CLR 638
Purkess v Crittenden (1965) 114 CLR 164
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
Watts v Rake (1960) 108 CLR 158
Category: Principal judgment
Parties: appellant/
cross-respondent: STATE OF NEW SOUTH WALES
respondent/cross-appellant: Barry DOHERTY
Representation: appellant/
cross-respondent: P Menzies QC/ Ms J Chapman
respondent/
cross-appellant: P J Doherty SC/ M McAuley/ D Morgan
appellant/ cross-respondent: McCabe Terrill
respondent/ cross-appellant: Walter Madden Jenkins

File Number(s): 2008/289267
Decision under appeal

Citation:

Doherty v State of New South Wales [2010] NSWSC 450

Date of Decision:

2010-05-20 00:00:00

Before:

Price J

File Number(s):

SC 2008/20078

Judgment

HODGSON JA: By proceedings brought in the Supreme Court, the respondent (Mr Doherty) sued the appellant State of New South Wales (SNSW) for damages for post-traumatic stress disorder (PTSD) alleged to have been caused by negligence and/or breach of statutory duty by SNSW, which had employed him as a police officer.

On 20 May 2010, Price J gave a verdict and judgment for Mr Doherty in the sum of $753,676.85, arrived at after he had reduced the damages by 35 per cent by reason of Mr Doherty's contributory negligence: Doherty v State of New South Wales [2010] NSWSC 450.

SNSW appeals from that decision. Mr Doherty has put on a cross-appeal, challenging the primary judge's decision as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWCA 225
Decision Date: 05 August 2011

CaseChat Overview and Summary

The New South Wales Court of Appeal considered an appeal by the State of New South Wales against a judgment awarded to a police officer, Mr Doherty, who suffered from post-traumatic stress disorder (PTSD). Mr Doherty alleged that his PTSD was caused by his prolonged exposure to traumatic crime scenes during his service, and that the State, as his employer, had breached its duty of care. The State also appealed against the quantum of damages awarded.

The central legal issues before the Court of Appeal were whether the State had breached its duty of care to Mr Doherty by failing to take reasonable steps to prevent him from developing PTSD, whether Mr Doherty's own conduct, including the concealment of his symptoms, constituted contributory negligence, and whether the damages awarded should be reduced due to the possibility that his PTSD might have become entrenched regardless of the State's actions.

The Court of Appeal found that the State had breached its duty of care to Mr Doherty. It reasoned that the employer had a responsibility to take reasonable steps to protect its employees from foreseeable psychiatric injury, particularly given the nature of police work. While acknowledging that Mr Doherty had concealed some of his symptoms, the Court determined that this did not entirely absolve the employer of its duty. The Court also considered the possibility of future entrenchment of the PTSD, but ultimately upheld the finding of liability.

The Court of Appeal allowed the appeal in part, substituting the original verdict and judgment for Mr Doherty with a revised sum of $676,486.91, to take effect from 20 May 2010. The appeal was otherwise dismissed, as was Mr Doherty's cross-appeal. The Court ordered that each party bear its own costs of the appeal and cross-appeal, with Mr Doherty to receive a certificate under the Suitors' Fund Act 1951 in respect of his own costs of the appeal.

Orders

Orders of the court

(1) Appeal allowed in part.

(2) Verdict and judgment for Mr Doherty for $676,486.91 substituted for the verdict and judgment below, to take effect from 20 May 2010.

(3) Appeal otherwise dismissed.

(4) Cross-appeal dismissed.

(5) Each party to pay its own costs of the appeal and cross-appeal, Mr Doherty to have a certificate under the Suitors' Fund Act 1951 in respect of his own costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	State of New South Wales v Doherty [2011] NSWCA 225
Hearing dates:	12 April 2011
Decision date:	05 August 2011
Before:	Hodgson JA at 1; Whealy JA at 121; Handley AJA at 122
Decision:	(1) Appeal allowed in part. (2) Verdict and judgment for Mr Doherty for $676,486.91 substituted for the verdict and judgment below, to take effect from 20 May 2010. (3) Appeal otherwise dismissed. (4) Cross-appeal dismissed. (5) Each party to pay its own costs of the appeal and cross-appeal, Mr Doherty to have a certificate under the Suitors' Fund Act 1951 in respect of his own costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	TORT - Negligence - Breach of statutory duty - Post-traumatic stress disorder (PTSD) - Police officer exposed to traumatic crime scenes over many years - Whether his PTSD caused by employer's negligence - Concealment by police officer of symptoms - Contributory negligence - Whether damages should be discounted because of chance that PTSD could have become entrenched in any event.
Legislation Cited:	Civil Liability Act 2002 s 5D Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001
Cases Cited:	Doherty v State of New South Wales [2010] NSWSC 450 Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Purkess v Crittenden (1965) 114 CLR 164 Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 Watts v Rake (1960) 108 CLR 158
Category:	Principal judgment
Parties:	appellant/ cross-respondent: STATE OF NEW SOUTH WALES respondent/cross-appellant: Barry DOHERTY
Representation:	appellant/ cross-respondent: P Menzies QC/ Ms J Chapman respondent/ cross-appellant: P J Doherty SC/ M McAuley/ D Morgan appellant/ cross-respondent: McCabe Terrill respondent/ cross-appellant: Walter Madden Jenkins
File Number(s):	2008/289267
Decision under appeal	Citation: Doherty v State of New South Wales [2010] NSWSC 450 Date of Decision: 2010-05-20 00:00:00 Before: Price J File Number(s): SC 2008/20078