State of New South Wales v Briggs

[2016] NSWCA 344

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	State of New South Wales v Briggs [2016] NSWCA 344
Hearing dates:	23 August 2016
Decision date:	09 December 2016
Before:	McColl JA at [1]; Ward JA at [31]; Leeming JA at [32]
Decision:	1. Appeal allowed. 2. Set aside orders 1-3 made on 23 October 2015 and orders 1-7 made on 16 December 2015 and in lieu thereof, there be judgment for the defendant. 3. Within 7 days, or such longer time as may be granted by a single Judge of Appeal on application by either party, the parties are to file and serve agreed minutes of any further orders, or, in the absence of agreement, the orders which they propose and short submissions in support of those orders, with a view to all remaining issues being dealt with on the papers.
Catchwords:	NEGLIGENCE – psychological injury – police officer exposed to traumatic events – officer ultimately diagnosed with PTSD and discharged – primary judge found negligence in failing earlier to diagnose and treat officer’s psychological injury – challenge to findings of duty, breach and causation – nature of duty owed – effect of statutes upon scope or content of duty – requirement of prospective formulation – need to identify a system or general instruction which would probably have prevented psychological injury   POLICE – nature and incidents of service of police officers – vicarious liability of State for tortious conduct of police officers
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), s 53 Civil Liability Act 2002 (NSW), s 3B Crown Proceedings Act 1988 (NSW), s 5 District Court Act 1973 (NSW), s 44 Employees Liability Act 1991 (NSW) Evidence Act 1995 (NSW), s 144 Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8, 10; Part 4 Occupational Health and Safety Act 2000 (NSW), s 134 Police Act 1990 (NSW), ss 4, 6, 8, 13, 14, 145, 201, 211AA, 213 Police Legislation Amendment (Civil Liability) Act 2003 (NSW) Police Regulation (Superannuation) Act 1906 (NSW) Police Regulation 2008 (NSW), reg 8, Divs 4 and 5 Police Regulation 2015 (NSW), Part 5 Police Service Regulation 1990 (NSW), regs 12, 13 Police Service Regulation 2000 (NSW), regs 9, 11 Uniform Civil Procedure Rules 2005 (NSW), r 14.14 Work Health and Safety Act 2011 (NSW), s 7 Workers Compensation Act 1987 (NSW), ss 2A, 3; Part 5, ss 151A, 151D Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 4
Cases Cited:	Attorney‑General for New South Wales v Perpetual Trustee Company (Ltd) (1952) 85 CLR 237 Attorney-General for New South Wales v Perpetual Trustee Company (Ltd) (1955) 92 CLR 113 Badenach v Calbert [2016] HCA 18; 90 ALJR 610 Barber v Somerset County Council [2004] UKHL 13; [2004] 1 WLR 1089 Benic v State of New South Wales [2010] NSWSC 1039 Benn v State of New South Wales [2016] NSWCA 314 Box Hill Institute of TAFE v Johnson [2015] VSCA 245 Briggs v State of New South Wales (No 2) [2015] NSWDC 299 Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47 Chester v Council of Municipality of Waverley (1939) 62 CLR 1; [1939] HCA 25 Chilton v Corporation of London (1878) 7 Ch D 735 Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232; [2002] NSWCA 272 Commonwealth v Quince (1944) 68 CLR 227 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 Enever v The King (1906) 3 CLR 969 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Hegarty v Queensland Ambulance Service [2007] QCA 366; [2007] Aust Torts Reports 81-919 Hoffmann v Boland [2013] NSWCA 158; [2013] Aust Torts Reports 82-134 Hull v Thompson [2001] NSWCA 359 Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 Kable v State of New South Wales [2012] NSWCA 243; 293 ALR 719 King v Philcox (2015) 255 CLR 304; [2015] HCA 19 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Little v Commonwealth (1947) 75 CLR 94 McDonald v National Grid Electricity Transmission plc [2014] UKSC 53; [2014] 3 WLR 1197 McDonald v State of New South Wales [2001] NSWCA 303; [2001] Aust Torts Reports 81-620 Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Morris v KLM Royal Dutch Airlines [2002] 2 AC 628; [2002] UKHL 7 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 New South Wales v Williamson [2005] NSWCA 352 O’Connor v S P Bray Ltd (1937) 56 CLR 464 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 Perre v Apand (1999) 198 CLR 180; [1999] HCA 36 Police Service (NSW) v Honeysett (2001) 53 NSWLR 592; [2001] NSWCA 452 S v State of New South Wales [2008] NSWSC 933 S v State of New South Wales [2009] NSWCA 164 Schultz v McCormack [2015] NSWCA 330 Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637 Shoalhaven City Council v Pender [2013] NSWCA 210 State of New South Wales v Ball (2007) 69 NSWLR 463; [2007] NSWCA 71 State of New South Wales v Burton [2006] NSWCA 12; [2006] Aust Torts Reports 81-826 State of New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 Universal Film Manufacturing Company (Australasia) Ltd v New South Wales (1927) 40 CLR 333 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Veljanovska v Verduci (2014) 42 VR 222; [2014] VSCA 15 Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR; [2004] HCA 16 Woolworths Ltd v Perrins [2015] QCA 207 WorkPac Pty Ltd v Thearle [2016] NSWCA 303 Wyong Shire Council v Shirt (1980) 146 CLR 40
Texts Cited:	J Carabetta, “Employment Status of the Police in Australia” (2003) 27(1) Melbourne University Law Review 1 Z Cowen, ‘Crown Service: The Action per quod servitium amisit and the Police’ (1953) 69 Law Quarterly Review 177 N Foster and A Apps “The neglected tort – Breach of statutory duty and workplace injuries under the Model Work Health and Safety Law” (2015) 28 Australian Journal of Labour Law 57 R Guthrie, “Sick leave and workers’ compensation for police officers in Australia” (2010) 17 Journal of Law and Medicine 816 P Handford, Tort Liability for Psychiatric Damage (2nd ed, 2006, Lawbook Co) New South Wales Ombudsman, Special Report to Parliament, Officers Under Stress (June 1999) W Wade and C Forsyth, Administrative Law (11th ed, 2014, Oxford University Press)
Category:	Principal judgment
Parties:	State of New South Wales (Appellant) Ryan Briggs (Respondent)
Representation:	Counsel: TGR Parker SC / S Flett (Appellant) I Roberts SC / T Ower (Respondent)   Solicitors: HWL Ebsworth Lawyers (Appellant) Harris Wheeler Lawyers (Respondent)
File Number(s):	2015/333276
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2015] NSWDC 235 Date of Decision: 23 October 2015 Before: Levy SC DCJ File Number(s): 2015/84738

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Ryan Briggs is a former police officer who suffered a psychological injury caused by his exposure to traumatic events in the course of his duties. Mr Briggs claimed his injury was a result of tortious acts of the Commissioner and his officers, for which the State was vicariously liable.

Mr Briggs’ claim was at all times treated as a “work injury damages claim” for an award of “modified common law damages” under Part 5 of the Workers Compensation Act 1987 (NSW), and the parties (correctly) proceeded on the basis that the provisions of the Workers Compensation Act applied. Consequently, the Civil Liability Act 2002 (NSW) did not apply: s 3B(1)(f)).

The primary judge found in favour of Mr Briggs, accepting that the defendant had breached its duty of care owed to the plaintiff to take reasonable care to avoid exposing police officers to the foreseeable risk of psychological injury, thereby causing, aggravating and entrenching his injury. His Honour found that the defendant breached its duty of care (a) over the period of July 2003 to July 2011, given the plaintiff’s exposure to “traumatic and gruesome events” in the course of his general duties, and (b), more specifically, after Mr Briggs told his supervisor he was “struggling” and applied for a theoretical demotion in July 2011.

The State of New South Wales appealed, alleging errors of law in how the primary judge formulated the content of the duty of care, breach, causation and damages, as well as failures in the primary judge’s findings of fact.

Held, allowing the appeal:

1. Per curiam: In relation to the numerically large body of police officers, breach of a duty of care must be assessed in light of a postulated system that should have been devised, or a general instruction which should have been given, and which would probably have prevented the psychological injury: at [8], [31], [64]-[68], [96], [138]-[139], [151]-[153].

New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20, applied

S v State of New South Wales [2009] NSWCA 164, considered

2. By Leeming JA, Ward JA agreeing: When considering the relationship between the parties, the scope or content of the duty of care must be moulded having regard to statutes which apply peculiarly to the NSW Police Force: at [31], [46]-[49], [61]-[62], [64], [186]-[188].

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15; Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59; New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20; Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44, applied

3. A defendant is not negligent merely by failing to take a course of conduct which would have eliminated the risk of harm. Unless it be shown that the defendant was acting unreasonably in failing to take that course, negligence is not established: at [31], [166].

Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51; Shoalhaven City Council v Pender [2013] NSWCA 210; applied

4. The scope of a duty of care must be formulated prospectively, not by engaging in a “hindsight” analysis of whether the risk of injury could have been reduced or eliminated: at [31], [64]-[71], [140]-[141], [151]-[153], [170].

Vairy v Wyong Shire Council (2005) 223 CLR 422; New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11; Badenach v Calbert [2016] HCA 18; 90 ALJR 610; Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377; Hoffmann v Boland [2013] NSWCA 158; [2013] Aust Torts Reports 82-134; Schultz v McCormack [2015] NSWCA 330, applied

5. Consideration of the assessment of breach and duty in cases of undiagnosed psychiatric injury and the role of courts: at [10]-[30] (McColl JA) and [117]-[131], [225]-[227] (Leeming JA).

New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20; Hegarty v Queensland Ambulance Service [2007] QCA 366; [2007] Aust Torts Reports 81‑919; Woolworths Ltd v Perrins [2015] QCA 207; Barber v Somerset County Council [2004] UKHL 13; [2004] 1 WLR 1089, Benic v State of New South Wales [2010] NSWSC 1039; Box Hill Institute of TAFE v Johnson [2015] VSCA 245, considered and applied

6. Consideration of the nature of (a) the service of a police officer in the NSW Police Force, and (b) the liability of the State: at [50]-[61] (Leeming JA).

Enever v The King (1906) 3 CLR 969; Commonwealth v Quince (1944) 68 CLR 227; Little v Commonwealth (1947) 75 CLR 94; Attorney‑General for New South Wales v Perpetual Trustee Company (Ltd) (1952) 85 CLR 237; Attorney‑General for New South Wales v Perpetual Trustee Company (Ltd) (1955) 92 CLR 113; Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; Police Service (NSW) v Honeysett (2001) 53 NSWLR 592; [2001] NSWCA 452; Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232; [2002] NSWCA 272; Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637; J Carabetta, “Employment Status of the Police in Australia” (2003) 27(1) Melbourne University Law Review 1, considered

Judgment

McColl JA:	[1]
Ward JA:	[31]
Leeming JA: judgment	[32]
The applicability and operation of the Workers Compensation Act 1987 (NSW)	[33]
Issues on appeal	[40]
The need to identify the content or scope of a duty of care	[44]
The importance of statutory context	[46]
The statutory context relevant to this appeal	[50]
Duty must be formulated prospectively	[64]
Factual background	[73]
The SIDS incident	[74]
July 2003 – July 2011	[78]
July 2011 - the “struggling disclosure”	[86]
July – November 2011	[90]
November 2011 – the “road rage incident”	[92]
The findings of breach and causation made by the primary judge	[95]
Systems for dealing with traumatic events in the NSW Police Force	[110]
Hegarty v Queensland Ambulance Service	[117]
Breach – second period (July 2003 until July 2011)	[132]
Uncertainty as to the findings made by the primary judge	[133]
Failure to identify a general instruction	[138]
What would Mr Briggs’ response have been?	[143]
Impermissible hindsight	[151]
Breach – third period (the “struggling disclosure”)	[154]
Summary	[170]
Notice of contention – PSC investigation	[172]
Reasoning of the primary judge	[173]
Four alleged breaches in the notice of contention	[176]
First alleged breach	[182]
Second alleged breach	[185]
Third alleged breach	[189]
Fourth alleged breach	[198]
Further issues arising on notice of contention	[202]
Causation and damages	[209]
Causation	[210]
Damages	[216]
Orders	[222]

1. McCOLL JA: I have had the benefit of reading Leeming JA’s reasons in draft. I agree with the orders his Honour proposes and, subject to the observations I make below, with his Honour’s conclusion that the primary judged erred in finding that there was a breach of duty in relation to Mr Briggs’ undiagnosed psychological injury and with his Honour’s disposition of the notice of contention, causation and damages.

2. I do not join in his Honour’s reasons concerning duty of care on which, as his Honour says (at [62]), the outcome of the appeal does not turn and which issue was not the subject of detailed argument. [1]

   1. I would note that in Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 (Tame) (at [276]) Hayne J observed that “the order in which the constituent elements of the tort of negligence are considered at the level of theoretical analysis (first duty, then breach, and only then, damage) is often better inverted when considering a particular claim.” His Honour cited cases of psychiatric injury as ones which fell within his statement (with which Gaudron J agreed) in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 (Modbury) (at [105]) that:

3. As Leeming JA has pointed out (at [42]), it was not in issue that there was an obligation to take reasonable care to avoid foreseeable risks of injury arising from Mr Briggs’ service in the NSW Police Force. It was also conceded that the risk of a police officer sustaining recognisable psychological injury through encountering traumatic events was foreseeable. [2]

   2. Cf State of New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 (Fahy) (at [60]) per Gummow and Hayne JJ.

4. As much was also acknowledged at trial. The primary judge held that the case was within a category where there could be no issue “that the NSW Police Force, as the plaintiff’s employer, owed the plaintiff a duty of care”. [3] The appellant, the State of New South Wales (SNSW), “did not contend that it did not owe the plaintiff a non-delegable duty of care, nor did the defendant contend that the scope of the employer’s duty of care in this case did not extend to the need to consider the avoidance of psychological injury occurring in the course of the plaintiff’s employment as a police officer”. [4] The SNSW does not challenge these findings nor, as in S v State of NSW, [5] does it contend “that any particular aspect of the contractual arrangement between [it] and the respondent, or the statutory framework in which those contractual arrangements existed” bears any particular significance in the context of the issues arising upon this appeal.

   3. Briggs v State of New South Wales [2015] NSWDC 235 (at [428]), referring to Modbury (at [13]) per Gleeson CJ. In a context analogous to the present case (cf Leeming JA (at [50] – [57]), Hayne J expressed the view (Tame at [281]) that “[w]here there is a relationship between plaintiff and defendant, such as that of employee and employer, and psychiatric injury is suffered in consequence of that relationship, it may readily be concluded that the relationship is such that the duties of care owed one to the other include a duty to take reasonable care to avoid inflicting psychiatric injury”, while recognising (at [283]) that “[i]n any particular case, there may be real and lively debate about whether an employer ought reasonably to have been aware of the particular fragility of an employee”.

   4. Primary judgment (at [429]), referring to S v State of NSW [2009] NSWCA 164 (at [59]), which, in turn, applied Koehler and Fahy.

   5.    See [59] per Macfarlan JA (Beazley and Giles JJA agreeing).

5. It is also, with respect, unnecessary to consider differences in professional opinion concerning critical incident stress debriefing. [6] The primary judge held that the SNSW had not breached its duty of care in relation to the Employees Assistance Program (EAP) debriefing session the respondent attended after the SIDS episode in July 2003. There was no challenge to that finding. The fact that such a debriefing was proffered was accordingly not in controversy on appeal.

   6.    Cf Leeming JA (at [121]).

6. What was in issue, was whether the psychological health of a general duties police officer such as Mr Briggs should, in effect, be constantly monitored by the NSW Police Force. [7]

   7.    See Leeming JA (at [95] – [97]).

7. I agree with Leeming JA [8] that it is difficult in this context to understand paragraph [454] of the primary judgment concerning the events between July 2003 and July 2011. The primary judge accepted that during this period “the psychological difficulties the plaintiff described he was experiencing … may not have been obviously evident to his supervisors from their interactions with him”, but nevertheless concluded “the described circumstances mandated the convening of EAP sessions on multiple individual occasions in response to specific events occurring in that period.” [9] It appears the primary judge devised the steps he concluded the SNSW should have taken to discharge its duty of care to Mr Briggs absent any expert evidence directed to that class of police officers into which Mr Briggs fell.

   8.    (at [132] – [137]).

   9.    Primary judgment (at [452], [454]).

8. As Leeming JA observes and as was the case in Fahy, [10] no evidence was led at trial that suggested with any focus on the particular circumstances of general duties officers such as Mr Briggs, what steps his managers and supervisors should have taken in response to any of the many events to which he was exposed other than the SIDS incident, in which respect the SNSW was found not to have breached its duty of care. As Leeming JA concludes, [11] the primary judge did not identify the system of work which should have been prescribed in response to the risk of psychiatric injury.

   10.    See Fahy (at [69]) per Gummow and Hayne JJ, referred to by Leeming JA (at [137]).

   11.    (see [138] – [142]).

1. I would make the following general observations.

2. The law of torts exists both “to provide means of redress and compensation for those who suffer actionable civil wrongs caused by others” and, too, to state “the community’s standards including standards of accident prevention that have their clearest application in the employment context”. [12] A fundamental objective of the law of negligence is the promotion of reasonable conduct that averts foreseeable harm. [13] It is now recognised that “[p]rotection of mental integrity from the unreasonable infliction of serious harm, unlike protection from transient distress, answers the ‘general public sentiment’ underlying the tort of negligence that, in the particular case, there has been a wrongdoing for which, in justice, the offender must pay”. [14]

   12.    Fahy (at [169]) per Kirby J (footnotes omitted).

   13.    Tame (at [185]) per Gummow and Kirby JJ.

   14.    Ibid.

3. Such recognition was not always the case. This is not the occasion to undertake a comprehensive review of the common law’s approach to claims for damages for psychiatric injury. As Gummow and Kirby JJ explained in Tame, “[t]he authorities respecting recovery for ‘nervous shock’ disclose a series of adjustments in the accommodation of conflicting interests which have struggled for legal protection.”[15]

   15. Ibid (at [170]); see also White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (White) (at 503) per Lord Hoffmann, speaking of “the ebb and flow of tort liability for psychiatric injury”.

4. As is well understood, in the nineteenth century, there was a lack of sympathy in the common law in the United Kingdom and in Australia towards recovery for nervous shock, which was treated as “too remote” and outside the scope of the relevant duty of care. [16]

   16. King v Philcox (2015) 255 CLR 304; [2015] HCA 19 (at [15]) per French CJ, Kiefel and Gageler JJ, referring to Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 (nervous shock “too remote”) and Chester v Council of Municipality of Waverley (1939) 62 CLR 1; [1939] HCA 25 (nervous shock outside the scope of the relevant duty of care).

5. However, by 1970, Windeyer J was able to say that nervous shock cases were “not a new tort [but] … turn[ed] simply on the circumstances in which damages are recoverable for a particular kind of harm caused by a tort.” His Honour added that “[l]aw, marching with medicine but in the rear and limping a little, has today come a long way since the decision in Victorian Railways Commissioners v Coultas”. [17]

   17. Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 (at 395); [1970] HCA 60 (Mount Isa Mines).

6. That recognition did not mean the common law embraced, or embraces, claims for damages for psychiatric injury to the same extent as it does claims for damages for personal injury. Historically, various control mechanisms were formulated to restrict liability in negligence for psychiatric illness not consequent upon physical harm. [18] They reflected a perceived need to keep such liability within practicable bounds and were founded on “a perceived distinction between psychiatric and physical harm”. [19]

   18.    Tame (at [186]) per Gummow and Kirby JJ.

   19.    Ibid (at [186], [192]); such mechanisms were also seen to reflect a judicial approach of “cautious pragmatism”, being “more or less arbitrary conditions which a plaintiff had to satisfy and which were intended to keep liability within what was regarded as acceptable bounds”: White (at 502) per Lord Hoffmann.

7. In Tame, the majority in the High Court rejected control mechanisms such as that liability for psychiatric harm be assessed by reference to a hypothetical person of “normal fortitude”, that the psychiatric injury be caused by a “sudden shock”, and that a plaintiff “directly perceive” a distressing phenomenon or its “immediate aftermath” as definitive tests of liability. [20] They were seen to operate “in an arbitrary and capricious manner” and were described as “[u]nprincipled distinctions and artificial mechanisms … [which] bring the law into disrepute.” [21]

   20.    Ibid (at [18]) per Gleeson CJ, (at [51]) per Gaudron J, (at [189] – [191] and [196]) per Gummow and Kirby JJ.

   21.    Ibid (at [190]).

8. The “control mechanisms” were also rejected in the context of “[a]dvances in the capacity of medicine objectively to distinguish the genuine from the spurious, and renewed attention to the need to establish breach, causation and a recognisable psychiatric illness that is not too remote”. [22] As is readily apparent, and as Windeyer J had effectively earlier observed, legal developments depended, at least to some extent, upon medical advances. In such matters, lawyers (and judges) need the assistance of expert evidence. [23]

   22. See Tame (at [183]) per Gummow and Kirby JJ, (at [14]) per Gleeson CJ; see also Morris v KLM Royal Dutch Airlines [2002] 2 AC 628; [2002] UKHL 7 (Morris) (at [47]) per Lord Hope of Craighead (Lord Mackay of Clashfern agreeing) recognising that “the distinction between mental shock and bodily injury was never a scientific one.” In Morris (at [49]), Lord Hope accepted that the “branch of medical science … concerned with psychiatric disorders and disturbances is still in the process of development [and] is not yet fully understood”; see also (at [152] – [154]) per Lord Hobhouse of Woodborough (Lord Nicholls of Birkenhead agreeing).

   23.    See Morris (at [157]) per Lord Hobhouse of Woodborough. No sensible suggestion could be advanced that Lord Hobhouse’s observation is not applicable in this country.

9. That is not to say, that experts in the area of psychiatric harm will speak with one voice.

10. In Benic v State of New South Wales,[24] to which Leeming JA refers, [25] Garling J discussed the competing views among psychiatrists on the “the matter of preventability”. That was a reference to the question whether early intervention by way of psychological counselling and/or psychiatric treatment would have been effective in that case to prevent the plaintiff developing the PTSD from which he suffered, and continued to suffer. His Honour concluded that it was not possible to be categoric in the making of a general finding that, on the then current state of knowledge, early intervention by way of treatment would succeed in preventing or alleviating PTSD in a person exposed to a traumatic event. Nor was it possible to make a general finding that a failure to provide any treatment by way of early intervention would result in the symptoms of PTSD occurring or becoming entrenched. Rather, the extent of current research demonstrated that it was a matter of individual analysis to establish the likelihood in any one person of early intervention being successful in alleviating that person’s symptoms of PTSD, in the light of the nature of the trauma which they had experienced and the nature of their own personality. [26]

    24. [2010] NSWSC 1039 (at [576] – [597]) (Benic).

    25.    (at [122]).

    26.    Benic (at [596] – [597]).

11. In this case, as Leeming JA has explained, the issue of breach had to be considered in the context that the inevitable consequence of the kinds of work police officers are required to perform is that their duties can often be very psychologically stressful.

12. It is apparent that since at least 1991, the Police Service has recognised that police officers may suffer psychiatric injury as a result of their work and has taken steps to avoid, or at least ameliorate, the consequences of the stresses to which they are exposed. Some of the details of those steps were set out by Gummow and Hayne JJ in Fahy. [27]

    27.    Fahy (at [61]).

13. In its 1999 Special Report to the New South Wales Parliament, Officers Under Stress, [28] the Ombudsman identified “the need for the NSW Police Service to identify and support police officers whose psychological well-being has been affected by stress.” The Ombudsman pointed out that exposure to traumatic incidents affected the ability of some police officers to carry out their duties, yet many supervisors within the Police Service had no way of knowing that some of their officers were struggling to cope. In the Ombudsman’s view, this jeopardised the interests of the affected officers, the Police Service and the community. This was because failure to identify an officer who was not coping could result in the officer making an error of judgement that caused serious harm to the officer or a member of the public. [29] The Ombudsman’s Report recognised the sensitive issues associated with police managers seeking professional assessments of their officers, but pointed out that both police officers and the community would suffer if adequate guidelines were not developed to address this issue. Notwithstanding those sensitivities, the Ombudsman’s Report emphasised that police who were suffering stress might be placed in situations requiring them to make decisions with potential life and death consequences. [30] It pointed out that the general requirement of confidentiality which attended to debriefings after critical incidents did not apply in the event of “… harm to self; … potential harm to others; and … an overwhelming social obligation to do so.” [31]

    28.    New South Wales Ombudsman, Special Report to Parliament, Officers Under Stress (June 1999) (Ombudsman’s Report), referred to in Fahy (at [61]), in the primary judgment (at [383]) and by Leeming JA (at [113] – [115]).

    29.    Ombudsman’s Report (at 7).

    30.    Ibid (at 8).

    31.    Ibid (at 13 – 14).

14. Other material illustrates the responses of those in the position of employers in workplaces where there is a high risk of psychiatric illness due to constant and repeated exposure to traumatic events.

15. In Hegarty v Queensland Ambulance Service, [32] there was a body of evidence to the effect that systems can be, and are, available to train supervisors to identify signs of dysfunction in personnel regularly exposed to traumatic events. That included evidence of the recommendations of the Queensland Parliamentary Select Committee of Inquiry into Ambulance Services, which reported in December 1990. One of those recommendations was that there be an education program aimed at promoting a better understanding of the causes and consequences of stress in ambulance work, directed to existing operational staff, senior management staff, and spouses/partners of ambulance officers. In response to that Report, it would appear a system known as Priority One was developed in Queensland in the early 1990s, intended to provide a framework within which individuals might seek assistance through self-referral, or alternatively, Peer Support Officers or supervisors might recommend assistance based on perceived problems. [33]

    32. [2007] QCA 366; [2007] Aust Torts Reports ¶81-919 (Hegarty).

    33. Hegarty (at [20]) per Jerrard JA. One of the allegations in Hegarty was that during the time Mr Hegarty worked for the Queensland Ambulance Service, his supervisors and senior officers did not receive the requisite training and that a properly trained supervisor of him would have recognised his complaints as possible signs of stress, and would have suggested to Mr Hegarty that he approach Priority One or otherwise be assessed professionally: Ibid (at [21]). Like Mr Briggs, however, Mr Hegarty did not communicate critical information which would have revealed unequivocal signs of dysfunction to such properly trained personnel: Ibid (at [26]); see also per Keane JA (at [62], [78]), the latter reference quoting the trial judge. Douglas J described the Priority One system as “a serious attempt to discharge the obligations placed on the defendant as an employer [to exercise reasonable care]”: Ibid (at [109]).

16. In addition, in Hegarty, Professor Richard Bryant, a clinical psychologist, the principal expert witness called by the plaintiff, gave evidence of a training program developed by the Royal Ulster Constabulary “during the troubles in Northern Ireland, and in the mid-80s”:

“… so that operational commanders, the people directly overseeing the police officers, they were trained to identify a number of areas that would raise a flag about, and those areas included whether somebody was exposed to particularly significant trauma or whether there was problems in the person's operational functioning such as whether there was absenteeism, increased sickness leave, et cetera. If those factors were there, they were trained to raise a flag to identify that those people needed closer looking at.”[34]

34. Ibid (at [58]) per Keane JA. Professor Bryant’s evidence that the Queensland Ambulance Service should have trained its supervisors to identify individuals who were displaying signs of dysfunction, such as avoidance, concentration difficulties, or irritability, was not challenged by the State, which argued, however, that Mr Hegarty had not demonstrated those identifiable signs to his fellow officers or superior officers: Hegarty (at [28]) per Jerrard JA; see also (at [60] – [61]) per Keane JA. Keane JA did say (at [88]) that the State also submitted that no sufficient basis was established to support the conclusion that there was a system, recognised as efficacious, which a reasonable employer would have adopted to train its supervisors. However his Honour determined it was not necessary to resolve that subsidiary argument. The State’s appeal was upheld because Keane JA (Jerrard JA and Douglas J agreeing) held that even if the relevant staff had been trained as had been recommended, the plaintiff did not exhibit the “observable and salient indicators” which should have alerted them to intervene: see Hegarty (at [56], [94], [102]).

25. One would infer that the systems developed by the Queensland Ambulance Service and the Royal Ulster Constabulary and that recommended by the Ombudsman to assist personnel exposed to traumatic events to deal with the risk of psychiatric damage were informed by expert evidence.

26. In both Fahy [35] and Hegarty, [36] reference has been made to what I accept is a delicate question of when a colleague or a supervisor might step in if an employee is manifesting signs of psychiatric problems. However in the context of services such as the Police (and, it might be thought, those in emergency areas such as the Ambulance Service), it is hard to believe it is beyond the wit of an “employer” in the position of the State, informed by the sort of expert assistance I infer was available in Queensland and Northern Ireland, to devise a system of work which can take such matters into account.

    35.    (at [69]).

    36.    (at [44] – [46]).

27. The matters to which Leeming JA refers concerning intrusions into an employee’s private affairs are undoubtedly valid in some contexts. [37] But, with respect, they cannot assist in the resolution of this case.

    37.    Leeming JA (at [124] – [128]).

28. In an area where “employees” are constantly exposed to traumatising incidents and the foreseeable risk of suffering recognisable psychological injury, the courts cannot, in my view, be timid about the need to ameliorate that risk. In particular, while issues such as “[t]he dignity of employees, and their entitlement to be free of harassment and intimidation” [38] are important, so, too is the proper discharge of the “employer’s” duty of care in the context of employing people in a traumatising workplace. In such areas, the solicitude the “employer” must exhibit concerns an actual, or potential, workplace injury. The fact that it entails a worker’s mental health does not immunise it from the employer’s responsibility to discharge the relevant duty of care. Nor, with respect, should it be characterised as an intrusion into an employee’s private life. [39]

    38.    Hegarty (at [43]).

    39. Cf Hegarty (at [44]). The remark Gageler J made in Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 (at [151]) concerning the “contemporary understanding of the employment relationship, which respects the privacy and autonomy of an employee as consistent with continuation of employment” was made in a workers’ compensation case in which the question was whether injuries an employee sustained when struck by a falling light fitting while engaged in sexual intercourse during an interlude in an overall work period arose out of, or in course of, the employee’s employment. It was expressed at a high level of generality and cannot, in my respectful view, cast light on the discharge of the NSW Police Force’s duty of care to police officers.

29. In this context, it should be noted that the legislature in this State has recognised police officers among others in what may be described as emergency services, and those in the coal mining industry, who face a significantly higher than average risk of injury or death,[40] as those who should have their rights to damages for psychological or psychiatric injury preserved and not subject to the operation of the limiting provisions of s 151AD of the Workers Compensation Act 1987 (NSW) inserted into that Act in 2012. [41]

    40. Second Reading Speech to the Workers Compensation Amendment Bill which became the Workers Compensation Amendment Act 1997 (NSW), New South Wales Legislative Council, Parliamentary Debates (Hansard), 3 December 1996.

    41. See Workers Compensation Act 1987 (NSW), Sch 6 (Savings, transitional and other provisions), Pt 19H (Provisions consequent on enactment of Workers Compensation Legislation Amendment Act 2012), cl 25 and cl 26; see generally WorkPac Pty Ltd v Thearle [2016] NSWCA 303.

30. Courts should, in my respectful view, be cautious about making personal observations concerning the manner employers should formulate systems of work to deal with risks of psychiatric injury. In this vexed area, it is not for an individual judge to determine the policy of the law according to his or her own view of what social interests dictate, [42] nor should the law in this area be developed by reference to “idiosyncratic judicial perception”. [43] Rather, it is best, to reprise Windeyer J, that the law, march with medicine (and I would add those expert in fields of occupational work and safety) “but in the rear and limping a little.” In that way, the law may best give effect to, and recognise, community concerns that employees’ mental integrity should be protected from unreasonable infliction of serious harm to which their workplaces expose them.

    42.    Mount Isa Mines (at 396).

    43.    Tame (at [194]) per Gummow and Kirby JJ.

31. WARD JA: I have had the opportunity of reading in advance the comprehensive reasons of Leeming JA, with which I agree. I also agree with the orders his Honour has proposed.

32. LEEMING JA: Mr Ryan Briggs is a former police officer who claimed to have suffered work-related psychological injury as a result of tortious acts of the Commissioner and his officers, for which the State was vicariously liable. The State of New South Wales appeals from a judgment in favour of Mr Briggs in the amount of $1,115,541, following a five day trial in the District Court: Briggs v State of New South Wales [2015] NSWDC 235. For the reasons which follow, I have concluded that the appeal should be allowed, principally because the primary judged erred in finding that there was a breach of duty in relation to Mr Briggs’ undiagnosed psychological injury.

The applicability and operation of the Workers Compensation Act 1987 (NSW)

33. Section 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW) deemed Mr Briggs and other police officers to be persons in the service of the Crown. Section 8 of the same Act rendered the Crown vicariously liable in respect of torts committed by other officers in the service of the Crown in the course of their service or as an incident of their service (which is unaffected by the provisions of ss 9-9G in Part 4 of that Act which deal specifically with tortious claims against police officers: see s 9E(a)). That deemed liability of the Crown was reflected in proceedings being commenced against the State of New South Wales, in accordance with s 5(1) of the Crown Proceedings Act 1988 (NSW).

33. It was common ground, no later than the conclusion of the trial, that Mr Briggs had suffered a psychological injury caused by his exposure to traumatic events in the course of his duties. Although the liability of the State turned upon Mr Briggs having been a police officer in the service of the Crown, his claim was at all times treated as a “work injury damages claim” for an award of “modified common law damages” under Part 5 of the Workers Compensation Act 1987 (NSW), and the parties proceeded on the basis that the provisions of the Workers Compensation Act applied. That appears to have been correct, although for reasons which are somewhat complex:

1. subsection 3(5) of the Workers Compensation Act provided that “[t]he Crown shall, for the purposes of this Act, be treated as the employer of members of the Police Force”;

2. the Workers Compensation Act provided in s 2A that it “is to be construed with, and as if it formed part of, the 1998 Act” (being a reference to the Workplace Injury Management and Workers Compensation Act 1998 (NSW));

3. the definition of “worker” in s 4 of the 1998 Act included a person who worked under a “contract of service” with an “employer”, and

4. a Constable, Senior Constable or Sergeant in the NSW Police Force must answer the description of a person who worked under a “contract of service”, because the same definition had a specific exclusion for members of the NSW Police Force who were contributories to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906 (NSW) (a fund which was closed to Mr Briggs because he became a member of the NSW Police Force after 1 April 1988).

35. It will be seen that those deeming provisions are necessary, because Mr Briggs was not an employee, a matter to which I shall return below. It is convenient to note at the outset the following four consequences of the Workers Compensation Act applying to Mr Briggs’ claim.

36. The first was that Mr Briggs’ claim was not subject to the ordinary jurisdictional limit for most actions in the District Court of $750,000: District Court Act 1973 (NSW), s 44(d1).

37. The second was that the Civil Liability Act 2002 (NSW) did not apply: Civil Liability Act, s 3B(1)(f), and see State of New South Wales v Ball (2007) 69 NSWLR 463; [2007] NSWCA 71. Questions of breach of duty and causation fell to be determined by reference to the common law, rather than ss 5B-5E of the Civil Liability Act, and the duty to take care not to cause mental harm was provided by the common law as stated in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 and Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, rather than by reference to s 32; cf Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22.

38. The third was that by the time he commenced proceedings, in March 2015, Mr Briggs required leave pursuant to s 151D of the Workers Compensation Act because more than three years had passed since the injury. Leave was obtained from the primary judge, and no challenge was made on appeal to that grant of leave.

39. The fourth was that, in addition to such benefits as Mr Briggs received upon his medical discharge from the NSW Police Force, Mr Briggs also received workers’ compensation payments, totalling $241,620.58. The latter sum is required to be repaid in the event that he is entitled to damages for his employer’s negligence: Workers Compensation Act, s 151A. The orders made by the primary judge, in a subsequent judgment, reflected this: Briggs v State of New South Wales (No 2) [2015] NSWDC 299.

Issues on appeal

40. The issues on appeal were simplified by reason of the following matters. First, the primary judge found Mr Briggs to be “an impressive, satisfactory and truthful witness” (at [32]) and no challenge was made to that assessment on appeal.

41. Secondly, the State had permitted the opinion evidence from Mr Briggs’ treating practitioners into evidence without objection and did not require them for cross examination. The primary judge accepted that evidence, finding that the expert psychiatric evidence adduced by the State carried “very little probative value” because it was based on a file review and on assumptions which had not been established in the evidence (at [10]-[12] and [358]). Consequently, the primary judge found that Mr Briggs was suffering from a mental illness brought about by his duties as a police officer. No challenge was made to those findings on appeal.

42. Thirdly, it was not in issue that there was an obligation to take reasonable care to avoid foreseeable risks of injury arising from Mr Briggs’ service in the NSW Police Force. Further, it was conceded that the risk of a police officer sustaining recognisable psychological injury through encountering traumatic events was a foreseeable risk.

43. In issue on appeal was the formulation by the primary judge of the content of that duty of care (ground 2), and his Honour’s findings of breach (ground 3), causation (ground 1) and damages (ground 4). There were two challenges to the primary judge’s findings of primary fact. The State contended that the “struggling disclosure” made by Mr Briggs in July 2011 did not reasonably convey that he was suffering from a psychological disorder, and, by his notice of contention, Mr Briggs sought to overturn one aspect of the primary judge’s findings of no breach in relation to the conduct of a Professional Standards Command investigation in 2012 and 2013.

The need to identify the content or scope of a duty of care

44. It has been said that the duty of care owed by the State to police officers is in no way distinguishable from that owed by any other employer to its employees: McDonald v State of New South Wales [2001] NSWCA 303; [2001] Aust Torts Reports 81-620 at [48]. As much may be accepted, but subject to two qualifications. The first is that the State is not an employer and a police officer such as Mr Briggs was not an employee; instead the State is made vicariously liable by statute for tortious conduct by police officers in its service. The second is that the proposition is to be understood as addressing the identicality of duty as framed at a high level of generality: to take reasonable care to avoid exposing police officers to foreseeable risks of injury. However, expressed at such a level of abstraction, the formulation may be of little assistance in any particular case.

45. It is necessary to identify the scope or content of the duty in any particular case, and obviously that will turn on the relationship between the parties. The scope or content of the duty of care in this particular case must be moulded having regard to statutes which apply peculiarly to the NSW Police Force.

The importance of statutory context

46. Only slight attention was given in either the reasons for judgment or the submissions on appeal to the statutory context against which content of the duty of care for breach of which the State was vicariously liable. But statute must be considered at the outset. McHugh, Gummow, Hayne and Heydon JJ said in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 at [19] and [21]-[22]:

“The proper starting point

Because the appellant’s claim was framed in negligence, and because her claim was brought against her employer, it may be thought necessary to have regard only to the well-established proposition that an employer owes an employee a duty to take all reasonable steps to provide a safe system of work. From there it may be thought appropriate to proceed by discarding any asserted distinction between psychiatric and physical injury, and then focus only upon questions of breach of duty. Questions of breach of duty require examination of the foreseeability of the risk of injury and the reasonable response to that risk in the manner described in Wyong Shire Council v Shirt. But to begin the inquiry by focusing only upon questions of breach of duty invites error. It invites error because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account.

...

The content of an employer’s duty of care

The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions.

...

[Q]uestions of the content of the duty of care, and what satisfaction of that duty may require, are not to be examined without considering the other obligations which exist between the parties.”

47. The same point was made, this time in relation to a claim of psychiatric injury suffered by a New South Wales police officer, by Gummow and Hayne JJ in State of New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 at [18]:

“Because [the plaintiff] claimed damages from the State on account of events occurring during her service as a police officer, any inquiry about the liability of the State must begin by considering the statutes that governed [the plaintiff’s] service as a police officer, the statutes that regulated claims against the State, and the statutes that regulated claims brought by an employee against his or her employer.”

48. The other members of the majority, Callinan and Heydon JJ, observed at [204] that (what was then known as) the Police Service Act 1990 (NSW) and the “common knowledge of what the work of law enforcement may require” provided the context for a consideration of the respective rights and obligations of the parties. Although dissenting in the result, Kirby J agreed in terms with the passage at [18] of the reasons of Gummow and Hayne JJ reproduced above (at [93]), as did Crennan J (at [234], as I read her Honour’s reasons).

49. More recently, a unanimous High Court in Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 at [20] and [22] stated that identifying whether a duty of care exists and, if so, its nature and scope, required consideration of the applicable legislation, and in particular whether the duty would be consistent with the legislation.

The statutory context relevant to this appeal

50. First, s 4 of the Police Act 1990 (NSW) creates the NSW Police Force, in which Mr Briggs served. Mr Briggs was not an employee, although the parties and the primary judge referred to him as such. Nor was the NSW Police Force his employer, despite the repeated references by the primary judge (in fact, the “NSW Police Force” is not itself a legal person).

51. In truth, Mr Briggs was an officer in an hierarchical, disciplined force, who was required to take an oath or affirmation of office (s 13), and whose functions were those of a constable at common law as well as those conferred by statute (s 14). Mr Briggs was a public officer charged with discretions and responsibilities in the execution of an independent legal duty. The State is not (statute aside) vicariously liable for tortious conduct of such officers. As much has consistently been held by the highest authority, commencing with Enever v The King (1906) 3 CLR 969, and summarised by Dixon J in Little v Commonwealth (1947) 75 CLR 94 at 114. Gibbs CJ observed in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 537 that the principle has been criticised by some textwriters, to which may be added a note by Z Cowen in (1953) 69 Law Quarterly Review 177. Academic criticism has continued, including by J Carabetta, “Employment Status of the Police in Australia” (2003) 27(1) Melbourne University Law Review 1, urging a re-examination by the High Court. However, at least for the purposes of courts below the High Court of Australia, it must be regarded, in Gibbs CJ’s words, as “firmly established as part of the common law of Australia”. It is not without constitutional significance, at least in the United Kingdom, where the separation of police officers from the executive government has been said to be “an important facet of the constitution, and a prime safeguard against the evils of a police state”: W Wade and C Forsyth, Administrative Law (11th ed, 2014, Oxford University Press) at 102.

52. The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the NSW Police Force: s 8(1). I pass over the Minister’s power of direction because it is not presently relevant, not because it is unimportant. The Commissioner has power to classify the various duties that members of the NSW Police Force are required to perform and allocate the duties to be carried out by each such member: s 8(3), and to issue instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force: s 8(4).

53. Secondly, the necessary focus was upon the negligent acts or omissions of the Commissioner of Police and other officers, all of whom were in the service of the Crown. The relations of employment and service are distinct, and there may be differences in other legal relations based upon them, including tort. For example, the difference between being in the service of the Crown and being a servant of the Crown was dispositive in the actions for loss of services in Commonwealth v Quince (1944) 68 CLR 227 (member of Royal Australian Air Force) and Attorney‑General for New South Wales v Perpetual Trustee Company (Ltd) (1952) 85 CLR 237 (member of New South Wales Police Force). When advising that the further appeal in the latter case should be dismissed, Viscount Simonds analysed the historical position in some detail (at 118-122) and concluded that there was a “fundamental difference” between the service of a constable and the domestic relation of master and servant: Attorney-General for New South Wales v Perpetual Trustee Company (Ltd) (1955) 92 CLR 113 at 122 and 129. The fact that police officers are not employed in the usual legal sense was said to be “trite law” in Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637 at 643, and Mr Carabetta’s article to which I have referred commences, “It is a well-established rule of the common law that members of the police force are not ‘employees’.”

54. That said, there may be powerful reasons for some or most of the incidents of an employment relationship to apply in particular contexts. There are many similarities between police officers and employees in a large organisation or government department. For that reason, various statutes applicable to “employees” and “employers” applied to Mr Briggs and the NSW Police Force. The workers compensation legislation applicable to officers who became members of the NSW Police Force after 1 April 1988 referred to at the commencement of these reasons is one example. Another may be seen in this Court’s decision in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232; [2002] NSWCA 272, holding that the word “employee” in s 53 of the Anti-Discrimination Act 1977 (NSW) should not, as Spigelman CJ put it, “be confined to situations in which there is a contract of employment, but extend to the situation of a police officer” (at [94]). A third is seen in Police Service (NSW) v Honeysett (2001) 53 NSWLR 592; [2001] NSWCA 452, in relation to liability under the Employees Liability Act 1991 (NSW). (The “Police Service (NSW)” was the name formerly given to the NSW Police Force, and s 2A, which declares a police officer to be an employee of the Crown for the purposes of the Act, was inserted by the Police Legislation Amendment (Civil Liability) Act 2003 (NSW) to put the result in Honeysett beyond doubt.) These are examples of one aspect of the “symbiotic relationship” between legislation and the common law to which Gleeson CJ referred in Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [31].

55. More generally, there are statements pre-dating the High Court’s decisions in Koehler v Cerebos (Australia) Ltd and New South Wales v Fahy to the effect that police officers are largely treated as employees. In particular, Priestley JA’s analysis in Honeysett at [30] concluded that “in many ways the conditions of service of police officers had been substantially assimilated to those of ordinary employees” and “in virtually every way police officers are treated statutorily as employees”. See also New South Wales v Williamson [2005] NSWCA 352 at [7]. As a general matter, I do not disagree with those statements, noting that they are qualified, rather than universal, and that they describe the effect of statute, rather than some change in the general law.

56. However, those statements now fall to be considered in light of what was said in Koehler v Cerebos (Australia) Ltd. It has been suggested, under the provocative heading “Revolution: Koehler v Cerebos (Australia) Ltd”, that “the High Court of Australia adopted a wholly new approach to work stress claims, one which placed much more emphasis on the duty element and its relationship with the employee’s contract of employment ...”: P Handford, Tort Liability for Psychiatric Damage (2nd ed, 2006, Lawbook Co) at 559-560. Whether or not that development is as revolutionary as has been suggested may be open to doubt. In Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 at [63] the joint judgment said:

“the idea that, in determining the content of a duty of care, primacy must be given to identifying the relationship between the parties is a principle of long standing in the law of Australia, stemming as it does from the dissenting reasons of Dixon J in Insurance Commissioner v Joyce.”

57. But in any event, in the passage at [21]-[22] of Koehler reproduced above, the High Court insisted that regard be had to both the legal and equitable obligations arising out of the contract of employment “and, of course, any applicable statutory provisions”. Save for the special cases of the Commissioner and the NSW Police Force Executive Service, there is no contract of employment to which a police officer is a party. Instead, the relation of service is constituted by a police officer taking the oath, in accordance with s 13 of the Act, in the form prescribed by (former) reg 12 of the Police Service Regulation 1990 (which was applicable to Mr Briggs when sworn in in December 1999). It has been said, of the position in the United Kingdom, that attestation “has always been the moment at which [constables] assume their powers and privileges”: Sheikh v Chief Constable of Greater Manchester Police at 647. Thereafter, until his discharge, he was required “to serve wherever the officer [was] duly directed” and “to perform such police duty as may be duly directed, whether or not during the officer’s rostered hours of duty”: reg 13 of the Police Service Regulation 1990, reg 9(2) of the Police Service Regulation 2000 and reg 8(2) of the Police Regulation 2008. In short, Mr Briggs’ obligations were principally determined by the police duties which had been classified by the Commissioner (and the Commissioner’s delegates), and the lawful orders and directions given to him to perform such duties, rather than by contract.

58. Because the obligations owed by and to a police officer such as Mr Briggs are principally sourced in primary and delegated legislation, as opposed to contract, adherence to what was held in Koehler v Cerebos (Australia) Ltd seems to me to require close attention to those provisions.

59. Take by way of example one of the matters identified by Mr Briggs in his particulars of negligence – a failure to ensure that his psychological health was regularly reviewed. Statute provided that Mr Briggs was to be medically examined during his year on probation in accordance with the regulations under the Public Sector Management Act 1988 (NSW) (Police Service Regulation 2000, reg 11), but that examination did not (at least so far as the evidence in this appeal discloses) include any psychological testing. In contrast, there is reference in S v State of New South Wales [2009] NSWCA 164 at [81] to “the practice of regular psychological assessment for officers in the Undercover Unit” (see also at [203] in the reasons at first instance S v State of New South Wales [2008] NSWSC 933). That difference ultimately reflects the way in which the Commissioner has classified various police duties. It is clear that the formulation of the content or scope of the duty of care on which Mr Briggs relies will be informed by such matters.

57. Thirdly, the functions of the NSW Police Force included “the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way” and “the provision of essential services in emergencies”: s 6. The duties of a police officer, and the matters he or she could be ordered to perform, extended to those functions. Police officers were to comply strictly with the Act and the regulation and promptly comply with all lawful orders from those in authority over them: Police Service Regulation 2000, reg 9(1); Police Regulation 2008, reg 8(1). And it was an offence for an officer to neglect or refuse to obey any lawful order or to carry out any lawful duty: s 201. It is this latter matter which most directly distinguishes the service of a police officer from the duties owed by an employee.

58. The answer to any issue as to the scope of a duty of care or breach must accommodate those statutory provisions: Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [60]. In particular, it is not only obvious but also mandated by statute that police officers will be exposed to traumatic events, and indeed that they may be commanded to perform duties which expose them to traumatic events. Further, some police duties are especially risky, and it would seem that special attention is given to the psychological assessment of officers who are required to perform such duties. Plainly enough, police officers are subject to “conflicting responsibilities” which, as Mason J stated in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, must be considered in determining whether a breach of duty has been made out.

59. That said, the outcome of this appeal will not, ultimately, turn upon the matters identified above, which were not the subject of detailed argument. Were that not so, I would have favoured inviting the parties to make further submissions on these matters. I have mentioned them because the simplified approach taken by the parties to these issues does not displace this Court’s obligation to analyse the matter correctly. “The Court is bound to give judgment according to law”, as Jessel MR said in Chilton v Corporation of London (1878) 7 Ch D 735 at 740, a proposition applied by a majority of the High Court in Universal Film Manufacturing Company (Australasia) Ltd v New South Wales (1927) 40 CLR 333 at 342 and 351. However, similar issues were raised on the notice of contention, and were the subject of submissions raised by the parties.

60. Finally, there is no occasion in this appeal to consider whether a claim based on breach of statutory duty, in accordance with a line of decisions often associated with Dixon J’s statement in O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 478, might have been made out, noting that there can be cases where a plaintiff fails at negligence but succeeds for breach of statutory duty (see for example McDonald v National Grid Electricity Transmission plc [2014] UKSC 53; [2014] 3 WLR 1197 and Veljanovska v Verduci (2014) 42 VR 222; [2014] VSCA 15 and see N Foster and A Apps “The neglected tort – Breach of statutory duty and workplace injuries under the Model Work Health and Safety Law” (2015) 28 Australian Journal of Labour Law 57). In particular, no reliance was placed upon the Occupational Health and Safety Act 2000 (NSW), which deemed police officers to be employees of the Crown and at work at any time the officer was on duty (s 134; a similar provision is now found in s 7(2) of the Work Health and Safety Act 2011 (NSW)). This may be a matter of some significance for the analysis in some future case. While it is plain that duties imposed by common law must be subject to statutes such as the Police Act, a different analysis will be necessary where statute is the source of both the exposure of an officer to traumatic situations and an obligation of a (deemed) employer to minimise a (deemed) employee’s risk to health and safety.

Duty must be formulated prospectively

64. The fact that Mr Briggs’ case was wholly founded in negligence meant that the strictures from the High Court concerning the need to formulate scope of duty with requisite precision, and to do so prospectively, applied. Most employees will only rarely face the traumatic situations which are part and parcel of the duties of a police officer, and most employees do not commit an offence if they neglect to obey lawful orders or fail to carry out any lawful duty. Senior counsel appearing for the State, who had not appeared at trial, emphasised the passages from Fahy reproduced below, which insisted on breach being assessed in light of the postulated system that should, on the plaintiff’s case, have been devised or the general instruction which should have been given. First, Gummow and Hayne JJ said in Fahy at [27]:

“Police officers are required to undertake tasks of a kind that few, if any, commercial employers could ask of their employees. Police officers must confront death, injury and destruction. It is they who must waken the sleeping household to tell them of the sudden death or serious injury of another. Ms Fahy herself spoke of incidents she had attended in three years of police service: a fatal plane crash, a fatal industrial accident, numerous fatal car accidents, overdoses and hangings. And as well as confronting the consequences of folly and accident, police officers must confront the wrongdoer bent upon harm to both the police and members of the public. It is tasks of these kinds that are encapsulated (s 6(2)(a), (3)(b)) by the anodyne description of a function of the Police Service as being ‘the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way’. And it is tasks of these kinds that constitute the duties of a police officer and may be the subject of lawful orders to a police officer. To neglect or refuse either to obey those orders or to carry out those duties was a criminal offence. … But the [safe system of work] that was devised had to be one which did not detract from the effectuation of the statutory purposes and functions of the Police Service. Examination of the facts and arguments in this case will reveal that too little attention has hitherto been given to these considerations.”

65. Gummow and Hayne JJ returned to the point flagged in the final sentence reproduced above at [71]-[72]:

“It is the nature of that work that entails that the risk of psychiatric injury, occasioned by traumatic incidents, cannot be eliminated. It cannot be eliminated because police officers must confront traumatic incidents in the course of their duties. ... To perform the tasks that society expects of police, as those tasks were expressed in the Police Service Act, police officers must obey the lawful orders given by their superiors and must carry out their lawful duties. That is why to neglect or refuse either to obey a lawful order or to carry out any lawful duty is a criminal offence (s 201).

Once the content of the postulated general instruction [namely, for officers to work in pairs and remain together where possible] is identified and set against the requirements of the Police Service Act it is evident that not to give and enforce compliance with such an instruction was not a breach of duty. That is not because the risks of psychiatric injury to police officers were and are not reasonably foreseeable. They are. The response that Shirt requires a court to identify when considering breach of duty is a response which must have regard, in this case, to the responsibilities cast on the Police Service and on individual police officers. They are the ‘other conflicting responsibilities’ of which Mason J spoke in Shirt and which were to be taken into account in identifying the reasonable response to the risk. In particular, obedience to lawful orders, and the carrying out of lawful duties, is of primary and determinative significance. Why that is so is illustrated by the facts of this case.” [Citations omitted, original emphasis.]

66. The need to identify a general instruction which should have been given was put even more clearly by Gummow and Hayne JJ at [62]:

“The State submitted that the relevant risk to consider in determining whether Ms Fahy had established that there had been a breach of duty to provide a safe system of work was whether ‘a police officer might suffer a psychiatric injury if that officer's partner did not remain to provide support whilst the officer was exposed to trauma whilst assisting a doctor’. For the reasons given earlier, that formulates the relevant risk from the wrong perspective. It seeks to ask, in effect, whether the particular mechanism which led to the injury of which the plaintiff complained was a foreseeable risk. But breach of duty requires consideration of whether the defendant’s conduct (which it is to be assumed is identified in this case as the formulation of systems of work for police officers) involved a risk of injury to the plaintiff. And here, there could be no doubt that police work involved a risk of psychiatric injury to police officers. The inquiry that was then to be undertaken was “what a reasonable man would do by way of response to the risk”. The focus must fall upon how police officers should have been instructed to perform their work, not upon what steps the Police Service should have taken to provide support for officers who had been exposed to traumatic incidents. It is necessary, therefore, to identify the system of work that should have been prescribed in response to the risk of psychiatric injury.” [Emphasis added.]

67. The other members of the majority, Callinan and Heydon JJ, likewise rejected the postulated requirement to provide and maintain a system of work requiring the presence of two police officers except when as a matter of need that was not possible: at [208]-[212]. Their Honours relied on the inevitability that police officers would encounter traumatic events in the course of their duties (“Exposure to danger and stress are almost as necessary concomitants of civil law enforcement as they are of military service”) and pointed to the practical difficulties of the postulated instruction, including the possibility that the officers disliked one another, the fact that police resources are finite and that deployment is a matter for decision and adaptability at the time and in the circumstances prevailing.

68. True it is that the reasons of Callinan and Heydon JJ are less emphatic than those of Gummow and Hayne JJ in their insistence on the necessity to postulate a general instruction. But even if this Court is not bound by that element of the reasoning, I would nevertheless apply it. It is a consequence of the need to assess questions of breach prospectively, in relation to a numerically large body of police officers.

69. Further, it is not correct to reason that because a step could reasonably have been taken which would reduce the risk of injury to an employee, it was therefore in breach of duty not to take that step. This was the erroneous mode of reasoning criticised by French CJ and Gummow J in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [20]:

“Her Honour considered a number of possible actions WOMA could have taken and how effective each would have been to avoid the injury suffered by Mr Kuhl. She concluded that a break box on the hose would have been the most appropriate, that it would have reduced the risk of injury and that, therefore, WOMA owed Mr Kuhl a duty to have installed a break box. Such an approach runs the risk of predetermining the outcome before considering the first important step; whether WOMA owed Mr Kuhl a duty of care to begin with and, if so, what was the scope and content of that duty. Those questions are determined by considering reasonable foreseeability and the ‘salient features’ of the relationship between the plaintiff and defendant. Even if it can be said that there was some reasonable course of conduct the defendant could have engaged in that would have avoided the injury suffered by the plaintiff, the defendant will not be liable unless there can first be established the existence of a duty of care with the relevant scope and content.” [Citations omitted.]

70. Their Honours were dissenting, but in this respect their reasoning is consistent with the law applied by the majority, and, more recently, by Gordon J in Badenach v Calbert [2016] HCA 18; 90 ALJR 610 at [79]. In the same appeal, in which a solicitor was alleged to have been negligent, French CJ, Kiefel and Keane JJ observed at [32] that “[i]t cannot be reasoned from the fact that the daughter later brought a claim that the solicitor should have appreciated that this was likely to occur”. Moreover, the principles stated by French CJ and Gummow J in Kuhl have been applied at the intermediate appellate court level, including by McColl JA, with the agreement of Macfarlan JA and Beech-Jones J, in Schultz v McCormack [2015] NSWCA 330 at [71], in an occupier’s liability case where the duty of care owed was uncontroversial:

“... to begin the inquiry by focusing only upon questions of breach of duty invites error because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account. Rather, it was appropriate to identify and define the scope of the duty of care the respondents owed the appellant, and then proceed to the issue of breach.” [Citations omitted.]

71. Sackville AJA made the same point in Hoffmann v Boland [2013] NSWCA 158; [2013] Aust Torts Reports 82-134 at [113]: “It is a mistake to consider first what measures could have been taken to prevent the injury and to take those measures as the basis for determining the relevant duty, its scope and content.”

72. It will be seen below that I have concluded that the reasoning of the primary judge discloses substantially the same errors identified above.

Factual background

73. The reasons of the primary judge occupy 605 paragraphs over 155 pages and have been published on Caselaw. They contain a very detailed account of the evidence. The facts are addressed at [37]-[369]. For the purposes of resolving this appeal, and in the near absence of any challenge to findings of primary fact, I can adopt a much more concise approach.

The SIDS incident

74. Mr Briggs was sworn in as a Probationary Constable in December 1999, and confirmed the following year. He became a Senior Constable in December 2004, a Detective Senior Constable in July 2005 and a Sergeant in 2010. His rank from time to time over the years considered in these reasons is a distraction, and without conveying any disrespect for his promotions, I have referred for simplicity throughout these reasons to Mr Briggs.

75. Mr Briggs married in October 2001 and the couple had a son who was born on 3 June 2003. Some two months later, Mr Briggs attended upon the death of an infant by SIDS in July 2003 in the course of his duties. This was described by the primary judge and the parties as the “SIDS incident”. I will, without intending to belittle what occurred, use the same language. Mr Briggs was required to attend at around the same time as ambulance personnel, when he saw the unsuccessful attempts at resuscitation, and he had to interact with the deceased child’s distressed mother for an extended period of time. As a new father himself, he was upset by those events.

76. Several days later, Mr Briggs attended a debriefing session conducted by an external counsellor. The session was described in the evidence as a meeting or debriefing attended by about half a dozen police officers a few days after the event, conducted by a counsellor as part of the police Employee Assistance Program, or EAP. The debriefing lasted for 15 or 20 minutes. Mr Briggs said that no one said they had any problems, that he did not think at the time that he was having any problems, and that he had said, “I had a son the same age and how lucky I am”. Mr Briggs gave evidence that that was the only occasion he attended any such session.

77. The primary judge found that:

“the traumatic exposure of the plaintiff to the SIDS incident was an event that created a predisposition in him developing further psychological reactions in the face of other events, even where such other events may have been relatively commonplace, or seemingly innocuous”: at [517].

As much was common ground by the end of the trial. Counsel then appearing for the State accepted that the psychological injury in 2011 was a “recrudescence” which related back to 2003 and accepted that it was a workplace injury. However, the State maintained that “the defendant could not at any circumstance have known, given what occurred between 2003 and 2011 that there was likely to be this recrudescence in 2011”.

July 2003 – July 2011

78. Mr Briggs attended detective training at Gosford from November 2002 and became a Detective Senior Constable in July 2005. He was stationed at Gosford in the Central Coast until 2006, on general duties, and said that almost all the time he was on vehicle patrols. This was described colloquially as being “on the trucks” – an expression which was broader than one might think, and included not only working in a “paddy wagon” but also working in a sedan. He encountered a large range of traumatic incidents, summarised by the primary judge at [72]:

“During the plaintiff’s time as a detective at Gosford, his work involved him being exposed to some gruesome events, including horrific murders, an instance of self-mutilation by a mentally ill person who had self-amputated his penis, suicides, the need to attend autopsies, as well as dealing with assaults and armed robberies.”

79. Mr Briggs gave evidence that he started to feel a “little sort of dejected” and “more numb” and less pro-active, but kept those feelings to himself. The primary judge accepted Mr Briggs’ evidence that the prevailing culture in the police force included “a recognised reticence on the part of police officers to volunteer to disclose such matters” (at [459]) and “not volunteering the existence of psychological issues” (at [460]).

80. Mr Briggs (together with others working with him at Gosford) was commended for his work, and was unaware that he had any psychological problems.

81. Mr Briggs separated from his wife in July 2005. From August 2006 until February 2010, Mr Briggs was stationed with the State Crime Command Gang Squad at Parramatta, and throughout that time he acknowledged that he did not encounter the same level of traumatic incidents. He was made bankrupt in around 2007 but was discharged after three years; it was not suggested that this impacted upon Mr Briggs’ claim for damages. Aside from his evidence that he had “a lot of personal debt”, the reasons for Mr Briggs’ bankruptcy were unexplored in the evidence.

82. In February 2010, Mr Briggs was promoted to Sergeant and stationed at Rose Bay in Sydney, although he continued to live at Bateau Bay on the NSW Central Coast. He gave evidence that his commute (by car) could take around 2 hours. He said he had understood that Rose Bay would be a quiet posting with administrative duties and would not require him having to “go out on the trucks”.

83. In April 2010, Mr Briggs remarried. His second wife had two young sons, aged 6 and 8 at the time. He also had shared custody of the child of his first marriage.

84. Mr Briggs gave evidence that, on returning after taking six weeks leave for a honeymoon, his work duties had become more onerous because of staff shortages. The result was that although he was a sergeant, he was required to go back “on the trucks”. In performing those duties, he encountered a series of traumatic events, including attending the Gap on average twice a week in connection with suicides and attempted suicides. On one occasion in particular, he was personally involved in winching a deceased woman to the top of the cliff.

Third alleged breach

189. The third aspect of the notice of contention was the requirement, notified on Christmas Eve 2012, that Mr Briggs attend an interview while he was on sick leave. The interview itself took place in early 2013. The matter of which Mr Briggs complains is being told, on 24 December 2012, that he was required to submit to an internal affairs interview notwithstanding that he was still on sick leave. His evidence was that he asked whether it was a criminal or a departmental matter (in the latter, but not the former, the officer could be directed to answer questions), and was told:

“We need to interview you criminally. However, if you don’t wish to be interviewed criminally, you will be interviewed under direction departmentally.”

190. Mr Briggs indicated that he would not proceed under a criminal interview, and was told that “Then we will proceed under direction and interview you departmentally”.

191. Mr Briggs asked, and was told, that the interview would be about four matters: inappropriate association, unlawful access and disclosure, use of anabolic steroids and unauthorised secondary employment. Mr Briggs was aware of his right to have a support person at the interview, but declined to have one (“Yeah, I’m sure they told me about it, but I just – I went down for the interview”).

192. Once again, it seems clear that in carrying out an investigation, there can be no duty to avoid all mental harm. The nature of an investigation, and in particular a directed interview, is that it may cause stress. Moreover, it is clear from the Guidelines alone that directed interviews may need to take place while a person is on sick leave. This subject is dealt with in terms at pages 59-61 of the Guidelines under the heading “Interviewing officers on sick leave and suspended from duty”.

193. Mr Briggs did not give any particulars of the portions of the Guidelines alleged to have been breached; instead, his submissions identified the entirety of those pages which deal with the undoubted power to conduct a directed interview while an officer is on sick leave. The gravamen of his complaint was that “it could not possibly be contended that the topics about which he was interviewed were such that great urgency attached to the need, if any, to interview him” (written submissions dated 26 August 2016, par 4). But it is clear that the investigation had, by then, been proceeding for some months, it was clear that the opportunities to interview Mr Briggs at work throughout that time had been limited, and Mr Briggs did not return to work after 12 December 2012, and it was not clear when, if at all, he would do so. There was an obligation (albeit one that was qualified) in the Act for the investigation to be conducted in a timely manner. The Guidelines themselves provide (p 46):

“Section 145 of the Police Act requires an officer conducting an investigation to conduct the investigation in a timely and effective manner having regard for the circumstances of the complaint. The NSW Police Force has set a time frame of 90 days for the completion of all CMT managed investigations.”

194. I do not consider that it is shown that there was a breach of the Guidelines, still less a breach of duty, in notifying Mr Briggs that a directed interview would occur while he was on sick leave.

195. The primary judge was critical of the failure by the State to show that advice had been sought from the Police Medical Officer, in light of the following provision in the Guidelines:

“If the officer to be interviewed produces a medical certificate, advice should be sought from the Police Medical Officer”

196. Contrary to the reasons of the primary judge at [405], that provision appears not to have applied. It applies to “criminal interviews”, at which an officer will not be directed to answer questions, and Mr Briggs elected not to subject himself to such an interview. However, similar provision, albeit in less mandatory terms, is made for liaising with an officer’s treating doctors in the case of non-criminal interviews.

197. But in any event, it is for Mr Briggs to make out his case of breach of duty. Insofar as it is alleged that there was noncompliance with the Guidelines by failing to seek advice from the Police Medical Officer, the onus lies with him to demonstrate that. There is no reason to think that a single subpoena would not have sufficed to demonstrate that no such advice was sought. Mr Briggs adduced no evidence to that effect.

Fourth alleged breach

198. The final aspect of the notice of contention is a failure to inform Mr Briggs of the results of the targeted testing and the investigation.

199. Mr Briggs gave evidence that he was told the testing was negative. His evidence was that he asked, “What [were] my results? Did I test positive for anabolic steroids?”, and that he was told, “No”. The primary judge found as much at [234]. The first half of this aspect of the notice of contention is inconsistent with Mr Briggs’ own evidence, as well as particular (p) of his pleaded case.

200. Mr Briggs was discharged on medical grounds in April 2013. His unchallenged evidence was that he had never formally been notified of the outcome of the investigation. But the State’s evidence was that if a departmental (non-criminal) investigation was underway, and the officer was retired on medical grounds, the investigation “would just be filed”. That makes sense. There is little point in spending time and resources completing a non-criminal investigation of an officer who is no longer a member of the NSW Police Force, and who can no longer be required to attend interviews. I do not consider that there is shown to have been a breach of duty in circumstances where Mr Briggs was discharged on medical grounds, and it is not even clear that the investigation was ever completed.

201. For all those reasons, no error is shown in the primary judge’s conclusion at [510] that “it is not possible to form a concluded view as to whether the particular actions of the Professional Standards Command amounted to a breach of the duty of care owed to the plaintiff.”

Further issues arising on notice of contention

202. Had I been of a different view, there would be at least two further matters which confront the notice of contention, as well as the difficulty determining what damages flowed from it.

203. The first arises from the State’s reliance on s 213 of the Police Act, which is in the following terms:

“213 Protection from personal liability

A member of the NSW Police Force is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law (whether written or unwritten).”

204. The State did not rely on that section in its defence, as it should have: UCPR r 14.14 and see Benn v State of New South Wales [2016] NSWCA 314 at [60]-[62]. There was therefore no occasion for Mr Briggs to make the serious allegation that there was an absence of good faith. There is no suggestion that there was a want of good faith, in following up the suggestion by a psychologist that an officer who suffered an episode of road rage and who was physically fit might have been misusing anabolic steroids.

205. In his written submissions in reply, Mr Briggs did not complain of the failure of the State to plead the section. He submitted that the section “does not absolve the defendant from liability for the negligent acts of its servants or agents, whether such acts were performed in good faith or not”. My present view is that that is right, but not for the reasons given in Mr Briggs’ submissions. I think it is right because of s 10(2) of the Law Reform (Vicarious Liability) Act 1983 (NSW), which provides that “For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded:” see Kable v State of New South Wales [2012] NSWCA 243; 293 ALR 719 at [52]‑[54]. In light of the fact that neither party referred to what I presently regard would have been the critical provision, had this point been dispositive, I would have invited further submissions from the parties.

206. Secondly, even if I be wrong as to breach, the onus then lay upon Mr Briggs to demonstrate that he suffered harm by reason of the way in which the PSC investigation was conducted which would not have been suffered had it been conducted in accordance with duty. That is to say, it would be necessary for him to establish additional harm, over and above the existing mental illness (from which he suffered prior to the PSC investigation), which was caused not by the fact of the PSC investigation, but by the way in which it was conducted in breach of duty (it will be noted that the notice of contention is narrower than the case as particularised). I am doubtful that such a finding is open on the evidence.

207. The evidence to which the written submissions refer illustrates the difficulty. The passage relied on by the primary judge at [545] (reproduced above) is an opinion that the PSC investigation caused harm. The only evidence to which Mr Briggs points is a slightly later paragraph in Dr Diamond’s report, which focusses on the nine hour interview in January 2013. Neither of those matters pick up the breaches alleged in the notice of contention (in particular, no complaint is particularised in the notice of contention as to the length of the interview; instead it is the notification of the interview on Christmas Eve which is criticised), and neither is directed to identifying how the way in which the PSC investigation was conducted, as opposed to the fact that it was conducted, caused injury to Mr Briggs.

208. Because nothing turns on this, and because these issues were barely addressed in oral submissions, I do not express a concluded view on this question of causation. For the reasons already given, I do not consider that any aspect of the damages awarded in favour of Mr Briggs can be sustained on the basis of the notice of contention.

Causation and damages

209. It follows that questions of causation and damages in grounds 1 and 4 of the appeal do not arise. Nevertheless, I will deal with them briefly.

Causation

210. First, as noted in relation to the grounds dealing with the findings of breach, there was material error in the finding that, had a suggestion been made for him to undertake psychological counselling – either at some unspecified period between 2003 and 2011, or at the time he made the “struggling disclosure”, Mr Briggs would have availed himself of that opportunity. The finding was based on a misreading of Mr Briggs’ testimonial evidence, and failed sufficiently to have regard to the contemporaneous evidence best seen in the letter accompanying Mr Briggs’ transfer application later in 2011.

211. Secondly, the whole of the reasoning of the primary judge in relation to causation for the period from 2003 until July 2011 was at [525]-[527] as follows:

“After the plaintiff’s exposure to the SIDS incident, between mid-2003 and mid-2011, he also attended upon numerous other work-related stressful events in the ordinary course of policing. Those attendances would have triggered the need for critical incident and EAP interventions of the kind contemplated by the applicable policies in force, and according to knowledge reposed within the management hierarchies of the NSW Police Force: Exhibits ‘K’ and ‘M’.

The successive failures of the responsible police management hierarchies to invoke and apply those policies to address the plaintiff’s exposure to work-related stressful events over a period of 8 years meant that the plaintiff was not provided with the available means by which to obtain appropriate de-briefing, assessment, counselling or monitoring to cushion him against the potentially damaging effects that could foreseeably and cumulatively arise from the individual stressful circumstances to which he had been exposed over time.

In those circumstances, the effect of those stresses continued to accumulate and impact on the plaintiff unabated so as to cause him to become jaded and impaired in his ability to control his emotional reactions. In those circumstances, I find that the changed and jaded behaviours in the plaintiff as were described by him were materially contributed to, and therefore in the legal sense, relevantly caused by those accumulated and unaddressed circumstances that arose from the identified breaches of the duty of care owed to the plaintiff in that period.”

212. In oral submissions, the State emphasised the absence in the expert evidence of opinions as to what outcome would have occurred had intervention taken place earlier. There was said to be no evidence at all of what would have happened had steps been taken in the period between 2003 and 2011. Of course, were there to have been such evidence, it would have been necessary to identify, with some precision, what those steps would have been. There is force in the criticism.

213. Thirdly, the evidentiary position was different in relation to the “struggling disclosure”. There was evidence squarely on point in Dr Diamond’s report, which referred to the “struggling disclosure” in terms:

“For a Sergeant of Police to choose to alter his role to that extent, one could expect a senior officer to make inquiries about the motivation for such a change. This did not occur according to Mr Briggs. At that stage the history is that Mr Briggs was significantly affected by his underlying psychiatric illness. Nothing was done about it at that point. Failure to act at that point, in my opinion, did materially contribute to his current psychiatric condition.”

214. The primary judge relied on that evidence. The State submitted that that opinion, although unobjected to and uncontroverted, should have been given no weight. I would reject that submission. The opinion was admitted without objection and without cross-examination and where no submission was made to the contrary to the primary judge. It is not illogical or inherently inconsistent; cf Hull v Thompson [2001] NSWCA 359 at [21]. I am also conscious of the need for caution where medical evidence uses the language of causation: State of New South Wales v Burton [2006] NSWCA 12; [2006] Aust Torts Reports 81-826 at [89]-[91]. Even so, I would not accept the State’s submission that there was error in relying on this evidence.

215. However, there is a further problem that arises by reason of the timing of the “struggling disclosure”. Suppose a suggestion had been made in July 2011 following the “struggling disclosure”, to commence counselling, and Mr Briggs had been amenable to that request. Would he have taken any steps before the birth of his twins? Would he have taken any steps while on family leave? If no to both of those questions, would any steps taken thereafter have had any impact at all, given the facts that Mr Briggs returned to work on 19 October 2011 and the “road rage” incident occurred four weeks later on 16 November 2011? It is not necessary for me to express a concluded view, but the difficulties are obvious.

Damages

216. The State made essentially three submissions on damages. First, it criticised the reasoning to the effect that significant aspects of the loss of earning capacity were attributable to the PSC investigation, which was not found to have been a breach of duty. For example, the primary judge had said at [546] that:

“[T]he plaintiff’s circumstances changed from being on sick leave, and in receipt of workers compensation payments in circumstances where there was reason to hope that the police return-to-work and rehabilitation policies could be employed to assist the plaintiff in a return to work, to circumstances where instead, the police force felt it had no further use for his services, and had no place for him, despite its rehabilitation policies. In my view, this latter predicament would not have arisen but for the described intervention of the Professional Standards Command without due sensitivity to the plaintiff’s illness, and apparently without regard to Police Complaint Handling Guidelines.”

217. Secondly, the State criticised the finding of the sudden conversion in earning capacity from a 100% loss to 50% earning capacity precisely one year after judgment (“it is hard to understand how that conversion in earning capacity could have occurred overnight”).

218. Thirdly, the State said that the findings of future earning capacity were unsupported by evidence, and inconsistent with evidence that Mr Briggs had been employed in his wife’s business East Coast Surfboards (ECS). For example, it was put that:

“There was evidence that Mr Briggs was representing ECS by regularly travelling to visit its manufacturers, and also by demonstrating at trade shows. This travel was intrastate, interstate and even overseas – he went to China (“many times”), Florida (“twice”), Bali (“a few times”) and Thailand. ... In early 2013 Mr Briggs had joined with two others to form a syndicate to purchase a hotel. He was a keen surfer and continued to play rugby league while he was off work.”

219. I would reject the State’s first submission. Let it be assumed that Mr Briggs’ psychological condition was caused by tortious conduct for which the State is vicariously liable, and worsened by subsequent non-tortious conduct. It has not been shown that there was a new intervening event, or that the whole of the damage suffered by the time Mr Briggs was discharged was too remote.

220. The short answer to the balance of this submission is that the State chose not to cross-examine the expert evidence tendered by Mr Briggs. For example, Dr Robinson rated his employability as “5” for the purposes of Chapter 11 of the Permanent Impairment Guidelines and concluded “In my opinion he is not employable”. Dr Peters’ opinion was “I don’t think Ryan will, in fact, be employable in the foreseeable future”. In the light of that evidence, Mr Briggs conceded at trial that he would accept a finding of 50% loss of earning capacity. It was amply open to the primary judge to accept that concession. True it is that there is a measure of arbitrariness in the finding of an initial total loss of earning capacity for one year, but once again I see no appellable error in the primary judge assessing future economic loss on this basis, in light of the concession coupled with the unchallenged opinion evidence of total incapacity referred to above.

221. These grounds do not arise, but if they did, I would allow the appeal in part based on ground 1 (causation), but dismiss ground 4 (damages). I acknowledge that I have not reached a conclusion on all aspects of the challenge to the findings of causation. However, it is clear that it would be difficult to do so, and having considered the matter in accordance with Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12], I think it is undesirable to attempt to do so without the benefit of submissions on the point.

Orders

222. I am conscious that the conclusion I have reached is that a man who was found to have been seriously injured at work through something entirely foreseeable – sustained exposure to traumatic events – is unable to obtain damages. But that merely exposes the difference between Mr Briggs’ undoubted entitlement to workers compensation, and the additional hurdles which must be surmounted in order to render the State liable for damages for negligence. In Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 318, Windeyer J (with the agreement of all other members of the High Court) said of injury caused in employment that:

“The vigorous assertion of [the obligations to ‘maintain a safe system of work’ and ‘not to subject him to unnecessary risk’] may sometimes obscure for juries the essential simplicity of the issue in a common law action for negligence. It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. That is not so.”

That proposition – which is both trite and binding – has particular application to psychological illness, which is difficult to detect, difficult to attribute causally to the workplace, and gives rise to serious issues relating to the individuals’ autonomy, dignity and privacy of the individual.

223. Mr Briggs himself was ignorant of the psychological illness which he has been found to have. Of course, with the benefit of hindsight one wishes that he and his colleagues had been more perceptive. But if the question of breach is to be addressed prospectively, as it must, and in relation to the thousands of police officers on general duties in the NSW Police Force such as Mr Briggs, then the answer must be given by reference to (a) a specific system of work or general instruction which should have been put in place in order to address the risk of psychological injury which is inherent and unavoidable in policing and (b) demonstrating that Mr Briggs’ undiagnosed injury would more likely than not have been detected had such a system of work or instruction been in place. No such system was formulated by the primary judge, and any such system would have to have had regard to important values of police officers’ autonomy, dignity and privacy. That is the essence of my conclusion that the primary judge erred in finding a breach of duty for which the State was liable.

224. Since writing the above, I have read the judgment of McColl JA. I respectfully disagree with footnote 39. Human dignity, privacy and autonomy are central values in the legal system, and are reflected in many areas of law; Gageler J’s observation is a reflection of one aspect in which an employment relationship is informed by an employee’s privacy and autonomy.

225. I do however substantially agree with the concluding paragraph of her Honour’s judgment. Personal observations, unsupported by evidence, concerning the manner in which employers should formulate systems of work, are ordinarily unhelpful. But I do not agree with what may be implicit in that paragraph, namely, that the way in which I have concluded that privacy and autonomy inform questions of duty and breach in this case is merely my own personal observation. Those are enduring values within the legal system, manifested in a range of areas of judge-made and statutory law (equitable protection of confidential information and privacy legislation are obvious examples). These values necessarily extend to negligence. As much is obvious from the fact that the law permits licensed clubs to sell alcohol and tobacco and provide poker machines, and is confirmed by parts of the Civil Liability Act 2002 (NSW) (notably, Division 5 of Part 1A concerning recreational activities). As McHugh J said in Perre v Apand (1999) 198 CLR 180; [1999] HCA 36 at [114]:

One of the central tenets of the common law is that a person is legally responsible for his or her choices. It is a corollary of that responsibility that a person is entitled to make those choices for him or her self without unjustifiable interference from others. In other words, the common law regards individuals as autonomous beings entitled to make, but responsible for, their own choices.”

226. One way in which these values manifest themselves in the law of torts was explained by McHugh J in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR; [2004] HCA 16 at [78], in relation to the general immunity from liability for foreseeable purely economic loss in circumstances where a person is legitimately protecting his or her social or business interests. McHugh J said, “This particular immunity from liability reflects the common law’s concern for the autonomy of the individual and its desire to give effect to the choices of the individual by not burdening his or her freedom of action.”

227. The values of autonomy and privacy are squarely relevant to the working out of the questions of duty and breach in a case such as the present. Here the plaintiff’s claim directly intrudes upon those values, but is unaccompanied by anything grounded in evidence to suggest that the intrusion is warranted, let alone to sustain the conclusion that a failure by the plaintiff’s superior officers to intrude is unreasonable. My reasoning is not based merely on personal observation. Nor is my reasoning merely based on an application of the reasoning of the Queensland Court of Appeal in Hegarty, although that decision is entitled to the deference stated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135]. My reasons also reflect the fact that the Sisyphean task of achieving coherence in the law requires regard constantly to be had to its central tenets and enduring values, in the same way as may be seen in the judgments of Gageler J and McHugh J to which I have referred.

228. I propose that the appeal be allowed, orders 1-3 made on 23 October 2015 and 1-7 made on 16 December 2015 be set aside, and in lieu thereof there be a judgment for the defendant. It would appear from order 5 made on 16 December that part of the judgment sum has been paid to Mr Briggs, so there will be a need for repayment. Prima facie, costs should follow the event, although there may be scope for submissions about special costs orders, as well as the possibility of a certificate under the Suitor’s Fund Act. The orders I propose will permit the parties to be heard about these matters, and include a facility to apply for further time if that is necessary having regard to the end of term.

229. The orders I propose are:

1. Appeal allowed.

2. Set aside orders 1-3 made on 23 October 2015 and orders 1-7 made on 16 December 2015 and in lieu thereof, there be judgment for the defendant.

3. Within 7 days, or such longer time as may be granted by a single Judge of Appeal on application by either party, the parties are to file and serve agreed minutes of any further orders, or, in the absence of agreement, the orders which they propose and short submissions in support of those orders, with a view to all remaining issues being dealt with on the papers.

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Endnotes

“[105] In cases … where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend.”

His Honour appears to have moved away from that view when he joined in the plurality’s reasons in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 (Koehler), a claim by an employee to recover damages for psychiatric injury (see (at [19] – [21])).