New South Wales v Rogerson - [2007] NSWCA 346

New South Wales

Court of Appeal

CITATION: State of New South Wales v Rogerson [2007] NSWCA 346

HEARING DATE(S): 16/08/2007

JUDGMENT DATE:
18 December 2007

JUDGMENT OF: McColl JA at 1; Handley JA at 2; Hoeben J at 44

DECISION: 1. Leave to appeal granted.; 2. The notice of appeal to be filed within 7 days. ; 3. Appeal allowed with costs.; 4. Judgment of the District Court in favour of the plaintiff set aside. ; 5. In lieu thereof judgment for the defendant in the action with costs.; 6. The respondent is to have a certificate under the Suitors' Fund Act 1951.

CATCHWORDS: NEGLIGENCE - duty to provide safe system of work - promotion procedures in Police Force - no duty of care to prevent psychiatric injury - NEGLIGENCE - statutory powers of Commissioner in management of Police Force - exercise of powers not justiciable - POLICE - powers of Commissioner in management of Force - exercise of powers not justiciable

LEGISLATION CITED: Casino Control Act 1992
Police Act 1990

CASES CITED: Anns v Merton LBC [1978] AC 728
Barrett v Enfield LBC [2001] 2 AC 550
Crimmins v Stevedoring Committee [1999] HCA 59; (1999) 200 CLR 1
Goldman Sachs JB Were Services Pty Ltd v Nikolic [2007] FCAFC 120
Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549
Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44
Naidu v Group 4 Securities Pty Ltd [2005] NSWSC 618; (2005) EOC 93-408
New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021
Priest v State of New South Wales [2006] NSWSC 12
State of New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424

PARTIES: State of New South Wales (Claimant)
Owen John Rogerson (Opponent)

FILE NUMBER(S): CA 40790/06

COUNSEL: Mr J Maconachie with D Mallon (Claimant)
Mr A Moses with K Edwards (Opponent)

SOLICITORS: Crown Solicitor (Claimant)
Slater & Elias (Opponent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 2968/04

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

LOWER COURT DATE OF DECISION: 27/11/2006

- 1 -

CA 40790/06
DC 2968/04

McCOLL JA
HANDLEY AJA
HOEBEN J
Tuesday 18 December 2007

STATE OF NEW SOUTH WALES V OWEN JOHN ROGERSON

NEGLIGENCE - duty to provide safe system of work - promotion procedures in Police Force - no duty of care to prevent psychiatric injury

NEGLIGENCE - statutory powers of Commissioner in management of Police Force - exercise of powers not justiciable

POLICE - powers of Commissioner in management of Force - exercise of powers not justiciable

The plaintiff, a former Police Officer, sued the State for breaches of the duty of care owed by the Police Service to safeguard him from foreseeable risks of psychiatric injury. The trial judge found that several breaches of duty had been established and awarded damages…

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: [2007] NSWCA 346
Decision Date: 18 December 2007

CaseChat Overview and Summary

The New South Wales Court of Appeal considered an appeal by the Commissioner of Police against a District Court judgment that found the Commissioner liable in negligence to the respondent, a police officer. The dispute concerned the procedures for promotion within the Police Force and whether the Commissioner owed a duty of care to prevent psychiatric injury to officers who were not promoted.

The central legal issues before the Court of Appeal were whether the Commissioner owed a duty of care to prevent psychiatric injury to officers in relation to promotion decisions, and whether the exercise of the Commissioner's statutory powers in managing the Police Force was justiciable, meaning it could be subject to judicial review.

The Court of Appeal held that the Commissioner did not owe a duty of care to prevent psychiatric injury arising from promotion decisions. It reasoned that the exercise of statutory powers by the Commissioner in managing the Police Force, including decisions about promotions, was not justiciable. This meant that the court would not interfere with the Commissioner's discretion in these matters. The Court allowed the appeal, setting aside the District Court's judgment in favour of the respondent and entering judgment for the defendant, the Commissioner of Police.

Orders

Orders of the court

1. Leave to appeal granted.; 2. The notice of appeal to be filed within 7 days. ; 3. Appeal allowed with costs.; 4. Judgment of the District Court in favour of the plaintiff set aside. ; 5. In lieu thereof judgment for the defendant in the action with costs.; 6. The respondent is to have a certificate under the Suitors' Fund Act 1951.

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.

CITATION:	State of New South Wales v Rogerson [2007] NSWCA 346
HEARING DATE(S):	16/08/2007
JUDGMENT DATE:	18 December 2007
JUDGMENT OF:	McColl JA at 1; Handley JA at 2; Hoeben J at 44
DECISION:	1. Leave to appeal granted.; 2. The notice of appeal to be filed within 7 days. ; 3. Appeal allowed with costs.; 4. Judgment of the District Court in favour of the plaintiff set aside. ; 5. In lieu thereof judgment for the defendant in the action with costs.; 6. The respondent is to have a certificate under the Suitors' Fund Act 1951.
CATCHWORDS:	NEGLIGENCE - duty to provide safe system of work - promotion procedures in Police Force - no duty of care to prevent psychiatric injury - NEGLIGENCE - statutory powers of Commissioner in management of Police Force - exercise of powers not justiciable - POLICE - powers of Commissioner in management of Force - exercise of powers not justiciable
LEGISLATION CITED:	Casino Control Act 1992 Police Act 1990
CASES CITED:	Anns v Merton LBC [1978] AC 728 Barrett v Enfield LBC [2001] 2 AC 550 Crimmins v Stevedoring Committee [1999] HCA 59; (1999) 200 CLR 1 Goldman Sachs JB Were Services Pty Ltd v Nikolic [2007] FCAFC 120 Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 Koehler v Cerebos (Aust) Ltd [2005] HCA 15; (2005) 222 CLR 44 Naidu v Group 4 Securities Pty Ltd [2005] NSWSC 618; (2005) EOC 93-408 New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021 Priest v State of New South Wales [2006] NSWSC 12 State of New South Wales v Paige [2002] NSWCA 235; (2004) 60 NSWLR 371 Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424
PARTIES:	State of New South Wales (Claimant) Owen John Rogerson (Opponent)
FILE NUMBER(S):	CA 40790/06
COUNSEL:	Mr J Maconachie with D Mallon (Claimant) Mr A Moses with K Edwards (Opponent)
SOLICITORS:	Crown Solicitor (Claimant) Slater & Elias (Opponent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 2968/04
LOWER COURT JUDICIAL OFFICER:	Coorey DCJ
LOWER COURT DATE OF DECISION:	27/11/2006