State of New South Wales v Burton

The Court of Appeal of New South Wales heard an appeal concerning a claim for damages for psychiatric injury. The appellant, the State of New South Wales, appealed against a District Court decision that found it liable for negligence towards the respondent, a police officer. The respondent had developed post-traumatic stress disorder (PTSD) after being shot at during a siege. The core of the dispute was whether the State had breached its duty of care to the officer by failing to provide adequate psychiatric and psychological treatment and counselling, and whether this breach caused or materially contributed to the severity and duration of his PTSD.

The legal issues before the Court of Appeal included whether the risk of psychiatric harm to the officer was reasonably foreseeable, whether the State breached its duty of care in its provision of treatment, and crucially, whether any such breach caused the respondent's loss. This involved determining whether the breach had materially contributed to the severity and duration of the PTSD, or alternatively, whether it had caused a loss of a chance to reduce the severity and duration of the condition. The court also considered the issue of contributory negligence.

The Court of Appeal allowed the appeal in part, setting aside the District Court's original orders. The court reasoned that while the State may have breached its duty of care, the causal link between that breach and the full extent of the respondent's loss was not sufficiently established on the evidence presented at trial. Instead, the court found that the respondent had lost a chance of a better medical outcome due to the State's alleged failings. Consequently, the matter was remitted to the District Court for an assessment of damages specifically relating to this loss of a chance. The court ordered that the appellant pay 25% of the respondent's costs of the appeal, with the costs of the trial to abide the outcome of the further assessment of damages.