State of New South Wales v Fahy - [2006] NSWCA 64

No judgment structure available for this case.

Reported Decision: 155 IR 54
(2006) Aust Torts Reports 81-865

Court of Appeal

CITATION: State of New South Wales v Fahy [2006] NSWCA 64
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 December 2005

JUDGMENT DATE:
4 April 2006

JUDGMENT OF: Spigelman CJ at 1; Basten JA at 28; Campbell AJA at 154

DECISION: 1 Appeal allowed and Order 1 set aside; 2 Remit the matter to the District Court for determination of the allowance to be made for the Respondent’s failure to mitigate; 3 Order the Appellant to pay three-quarters of the Respondent’s costs of the appeal

CATCHWORDS: NEGLIGENCE – duty of care - duty of affirmative action between employees – failure to provide safe system of work – police officer leaving other police officer alone during traumatic event – posttraumatic stress disorder - breach of duty of care – past exposure to traumatic events does not prohibit finding of reasonable foreseeability - CAUSATION – tortious conduct a material contribution – whether multiple causes – whether loss divisible - whether injury would have occurred absent the tortious conduct - DAMAGES – assessment of damages for non-economic loss under s151G(2) of the Workers Compensation Act 1987 – refusal to use antidepressant medication prescribed by psychiatrist – failure to mitigate damages

LEGISLATION CITED: Anti-Discrimination Act 1977 (NSW), s4B
Crown Proceedings Act 1988 (NSW)
Law Reform (Vicarious Liability) Act 1983 (NSW), s6, s8, s9B
Police Act 1990, s4, s41, s84
Police Legislation Amendment (Civil Liability) Act 2003 (NSW)
Workers Compensation Act 1987, s151L, s151G
Workers Compensation Legislation Further Amendment Act 2001 (NSW)

CASES CITED: Chapel v Hart (1998) 195 CLR 232
Chapman v Hearse (1961) 106 CLR 112
Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232
Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345
Koehler v Cerebos (Australia) Limited [2005] HCA 15, 79 ALJR 845
Konrad v Victoria (1999) 91 FCR 95
March v E & M.H. Stramare Pty Ltd (1990-91) 171 CLR 506
Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638
Middelton v Melbourne Tramway and Omnibus Co Ltd (1913) 16 CLR 572
New South Wales v Burton [2006] NSWCA 12
Purkess v Crittenden (1965) 114 CLR 164
Watts v Rake (1960) 108 CLR 158
Wyong Shire Council v MCC Energy Pty Ltd (No. 2) [2005] NSWCA 196

PARTIES: State of New South Wales (Appellant)
Gemma Fahy (Respondent)

FILE NUMBER(S): CA 40132/05

COUNSEL: Mr P. Menzies QC/Mr P. Sternberg - Appellant
Ms S. Norton SC/Ms E. Welch - Respondent

SOLICITORS: I V Knight, Crown Solicitor - Appellant
L J Sharpe & Co, Rockdale - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 11701 of 2001

LOWER COURT JUDICIAL OFFICER: Graham DCJ

LOWER COURT DATE OF DECISION: 14/12/2005

CA 40132/05
DC 11701 of 2001

SPIGELMAN CJ
BASTEN JA
CAMPBELL AJA
4 April 2006

STATE OF NEW SOUTH WALES v GEMMA FAHY

Ms Fahy suffered posttraumatic stress disorder following her attendance, in the course of her duties as a police officer, at the aftermath of an armed robbery in which she assisted a doctor to treat a person suffering serious injuries, while also attending to other operational tasks.

The trial judge held that the Senior Constable who arrived at the scene with Ms Fahy was negligent in failing to assist or stay with Ms Fahy as she rendered assistance to the victim and that an Inspector, who arrived shortly after, was also negligent, in the insensitive way in which he dealt with Ms Fahy. In addition, the trial judge held that the State was negligent in failing to provide appropriate counselling and support following the event. The trial judge held that those negligent acts and omissions materially contributed to the onset of PTSD and the State was therefore liable.

The issues for the Court of Appeal included:

(i) whether the Senior Constable, the Inspector or the State were negligent and whether their negligence materially contributed to the onset of PTSD;

(ii) whether the State was liable for the whole of her loss; and

(iii) whether the damages payable to Ms Fahy should be reduced on account of her failure to mitigate her loss.

Held in relation to duty of care

Per Spigelman CJ (Campbell AJA agreeing) and Basten JA:

1. The employment relationship is one of those special relationships which gives rise to a duty of affirmative action. In a context where exposure to risk is an integral part of the system of work, such as the police force, the law recognises a duty of affirmative action on the part of one employee to another: at [2] and [4].

2. (Campbell AJA contra) The conduct of Inspector Whitten in telling Ms Fahy to put on her hat, then directing her to return to the scene and later telling her to return to the station because he would not approve overtime, did not breach any duty of care to avoid the risk of psychiatric injury and in any event, did not make a material contribution to the subsequent injury: at [9] and [92]–[93].

3. The fact that a person may not have reacted adversely to exposure on a prior occasion of this general kind does not, indicate that further exposure particularly of the intense character which occurred in the present case, would not lead, on a reasonable foreseeability test, to psychiatric injury: at [13].

4. While the Court should be slow to require the police generally to have a second officer supporting another in the course of exposure to the trauma of victims of crime in the circumstances the failure of Constable Evans to provide support in the course of the traumatic incident involved a breach of duty: at [17]–[18], [90] and [98].

Held in relation to causation

Per Spigelman CJ (Campbell AJA agreeing):

The primary causal factor was Ms Fahy’s exposure to the trauma of the victim in the doctor’s surgery. However, the fact that Ms Fahy was left alone was part of the incident itself. The onus shifted to the State to establish that the injury would have occurred in any event, even if there had been no breach of duty on the part of the State. The evidence did not discharge that burden: at [14] – [16].

Purkess v Crittenden (1965) 114 CLR 164 applied. New South Wales v Burton (2006) NSWCA 12 distinguished.

Per Basten JA:

1. On the medical evidence, it was probable that the plaintiff’s experience of tending the severely wounded victim would have caused a psychological condition in any event. However, it was also likely that that condition would have been less severe, or not lasted so long absent the breach of duty to provide reasonably safe conditions of employment: at [124].

2. Where there are multiple causes and the injuries are not divisible, any level of apportionment of damages for multiple causes takes place not at the causation stage, but in the assessment of damages, in reducing the defendant’s liability to take account of the possibility that the harm would have flowed to some extent, or for some period, absent the tortious conduct: at [128].

Held in relation to damages

Per Spigelman CJ (Campbell AJA agreeing):

1. The State is liable for the whole of the loss which flowed from the injury to which its conduct had made a material contribution: at [24]

2. Accordingly, it is not appropriate to assess damages for non-economic loss under s151G(2) of the Workers Compensation Act 1987 on the basis of that part of the non-economic loss attributable to the defendant: at [24].

Per Basten JA (dissenting):

The trial judge should have sought to identify a proportion of the harm suffered by the plaintiff which was properly attributable, on the medical and psychological evidence, to the breach of the duty of care for which the defendant was responsible, or if that exercise was not available, to reduce the damages to take account of the possibility that some level of disability would have occurred, absent the tortious conduct for which the defendant was responsible: at [128]–[129].

Purkess v Crittenden (1965) 114 CLR 164 referred to. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 applied.

Held in relation to mitigation

Per Basten JA (Spigelman CJ and Campbell AJA agreeing):

The failure of the plaintiff to take anti-depressant medication prescribed by her psychiatrist meant the plaintiff did not take all reasonable steps to mitigate her damages and the loss attributable to the defendant must be reduced in accordance with the medical evidence as to the likely effect of the medication: at [142].

Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 referred to.

CA 40132/05
DC 11701 of 2001

SPIGELMAN CJ
BASTEN JA
CAMPBELL AJA
4 April 2006

STATE OF NEW SOUTH WALES v GEMMA FAHY

Judgment

1 SPIGELMAN CJ: The facts and issues appear in the judgment of Basten JA which I have read in draft.

2 There is no issue that the Appellant owed a duty to the Respondent to provide a safe system of work. Nor was there any issue that, if either Constable Evans or Inspector Whitten were in breach of a duty of care, then the Appellant was vicariously liable for that breach. Nothing turns, on the facts of the case, on the two different ways of approaching the duty.

3 The grounds of appeal address issues of scope of duty, breach and causation. As is often the case, although analytically distinct, these matters overlap in the factual circumstances before the Court.

4 The employment relationship is one of those special relationships which gives rise to a duty of affirmative action. In a context where exposure to risk is an integral part of the system of work, such as the police force, the law should, in my opinion, recognise a duty of affirmative action on the part of one employee to another. In the normal case, this duty would be assumed vicariously by the employer. However, on the facts of the present case, it is sufficient to focus on the employer’s direct obligation.

5 The relevant duty can be stated in terms of a duty to take reasonable steps to avoid unnecessary risk of personal injury, relevantly psychiatric injury. This is a duty owed by an employer, acting by its servants or agents, to each employee. The duty is owed to the particular employee and, therefore, takes into account the personal characteristics of the Respondent. (See Koehler v Cerebos (Australia) Limited [2005] HCA 15; 79 ALJR 845 at [35] and [36].) The duty is to protect against risks which are reasonably foreseeable. In the Australian common law, reasonable foreseeability involves the application of a not far-fetched and fanciful test. Furthermore, breach must make a material contribution to the injury.

6 The relevant conduct of the Appellant and of its officers can be seen to have fallen into three phases:

(i) A period of some 13 minutes when Constable Fahy was present in the surgery exposed to the trauma of the victim;

(ii) The immediate aftermath of the incident when she continued to perform her duties, including being dispatched to inform the victim’s wife and recalled before accompanying her to the hospital;

7 It is possible, and in the present circumstances reasonable, to combine the first and second of these periods into one course of events. The third, however, appears to me to be a distinct period.

8 The first issue that needs to be addressed is whether or not the Appellant has made good any of its grounds for challenging his Honour’s finding that there was a breach of duty, which made a material contribution to the psychiatric injury, by the conduct of officers of the Appellant, particularly Constable Evans and/or Inspector Whitten. His Honour did not separately consider the three phases. His conclusion was based on the cumulative effect of the acts and omissions in all three. Nevertheless, if the Respondent has made out its case on a narrower basis, this appeal should be dismissed.

9 In what I have described as phase two the focus of attention was on the conduct of Inspector Whitten, who told Constable Fahy to put on her hat, directed her to return to the scene and later told her to return to the station because he would not approve overtime. This conduct was collectively described by the Respondent as insensitive. Be that as it may, in a disciplined force I do not see that this conduct could constitute breach of any duty of care to avoid the risk of psychiatric injury. I doubt if it would even pass the far-fetched and fanciful test. In any event, there is no evidence that this conduct made a material contribution to the subsequent injury. His Honour, in my opinion, erred in relying on these matters save insofar as they were considered when treating phase one and phase two as a single course of events when they were entitled to minimal, if any, weight.

10 The position of phase one, with respect to the traumatic incident itself, requires further attention. Constable Evans’ departure from the doctor’s surgery and his failure to return, left Constable Fahy in the room for the entire period of the traumatic incident. Inspector Whitten looked in during the period but took no steps to change the situation. The critical issue for present purposes is whether leaving Constable Fahy alone during this period satisfied the various elements of the tort including duty, breach and causation.

11 On the issue of reasonable foreseeability, whether with respect to duty or breach, the Appellant placed significant reliance on the High Court judgment in Koehler v Cerebos supra. The Appellant stressed the fact that the Respondent had been exposed to a wide range of situations of considerable stress on other occasions during her period of service. She had never manifested any inability to cope. Accordingly, it was submitted, it was not reasonably foreseeable that she would suffer from a psychiatric injury.

12 In my opinion, the kind of traumatic incident involved in the present case is not comparable to the circumstances considered by the High Court in Koehler v Cerebos. There the issue was whether or not it was reasonably foreseeable that the plaintiff would suffer psychiatric illness by reason of an excessive workload. Exposure to human suffering of the character involved in the present case is of a completely different order.

13 The fact that a person may not have reacted adversely to exposure on a prior occasion of this general kind does not, in my opinion, indicate that further exposure, particularly of the intense character which occurred in the present case, would not lead, on a reasonable foreseeability test, to psychiatric injury. That the duty is owed to the particular employee does not detract from the conclusion that it was not far-fetched or fanciful to foresee that, even a person who had been able to cope in the past, may not be able always to do so.

14 Furthermore, there was medical evidence accepted by the trial judge which indicated that the failure to provide support to the Respondent made a material contribution to the psychiatric injury she suffered. In particular, I refer to the evidence of Dr Robertson, set out by Basten JA, who referred to “the absence of her buddy” as “the decisive factor”. Similarly, in cross-examination Professor Bryant, the Appellant’s expert, in a passage also set out by Basten JA, said: “The departure of her partner was very stressful and if the partner had remained I have no doubt that the experience would have been somewhat alleviated”.

15 There is no doubt, as the Appellant emphasised, that the primary causal factor was the Respondent’s exposure to the trauma of the victim in the doctor’s surgery. However, the fact that the Respondent was left alone was part of the incident itself. Professor Bryant described it as part of “the core incident”. (Red AB 69) His Honour held that “the whole of the actual incident” extended to the fact she was left alone. (Red AB 47, 71)

16 This was not a case, like New South Wales v Burton (2006) NSWCA 12 at [10], in which the exposure to the incident would inevitably have led to the psychiatric injury suffered. This is a case like Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164 in which the onus shifted to the Appellant to establish that the injury would have occurred in any event, even if there had been no breach of duty on the part of the Appellant. The evidence did not discharge that burden.

17 The critical issue in the present case was whether or not the failure on the part of the officers of the Appellant to provide support in the course of the traumatic incident was a breach of duty. It can readily be accepted, as the Appellant submitted, that the Court should be slow to require the police to generally have a second officer supporting another in the course of exposure to the trauma of victims of crime. Pressure and stress are part of the system of work which police officers must be prepared to carry out. There are numerous occasions on which one of two officers operating under the buddy system would reasonably leave the other to perform functions on his or her own. Indeed, it must often be the case that it is necessary to do so. In the usual case it would not take much in the way of evidence to satisfy a court that the performance by a police officer of his or her primary duties was such that any failure to offer support for another police officer did not constitute a breach of duty.

18 However, in the present case the plaintiff established a proper basis for an inference that there was no such call of other duties which made it reasonable not to take steps to support the Respondent. In particular the presence of other police officers on the scene was such as to support a conclusion that the attendance of Constable Evans to other tasks was not such as to render reasonable, in all of the circumstances, his failure to support the Respondent. The Appellant acquired an evidentiary burden to prove that performance of the other tasks by Constable Evans was consistent with his duty of care to Constable Fahy. It did not discharge that onus.

19 His Honour held that Constable Fahy had to perform two quite distinct tasks in the surgery: support the doctor in stemming the flow of blood on the one hand and attend to operational tasks on the other, calling the ambulance and circulating the victim’s descriptions of his assailants. His Honour held:

“There was, in other words, a significant job to be done, and which a second officer in the room might well have done, that is, to relieve the plaintiff of the obligation of having to do two jobs at once while, at the same time, providing not only that measure of practical support but also a measure of emotional support in having the buddy present.”

20 Constable Evans explained that he performed operational tasks when he left the surgery in securing the crime scene, searching for a weapon, viewing a CTV video from the shop and making inquiries of witnesses about description of the assailants. However, two other officers had arrived at the scene at the same time as Constables Evans and Fahy. Others, including Inspector Whitten, arrived soon after. His Honour was correct to conclude that they could have attended to the tasks performed by Constable Evans and to reject his explanation as “quite unconvincing.” (Red AB 43)

21 The above analysis leads me to the conclusion that Grounds 1, 2, 5, 6, 7, 8 and 9 should be rejected.

22 Grounds 3 and 4 refer to the failure to provide counselling in the aftermath of the event, being the period to which I have referred above as phase 3. On the basis of my analysis in Burton supra, I would have concluded that this aspect of the matter should have been assessed on a loss of a chance basis as breach of a distinct duty, rather than on the basis that the failure to take the relevant steps made a material contribution to the psychiatric injury. However, the case was not run on a loss of a chance basis. My findings with respect to the other grounds of appeal are such that it is unnecessary to further consider these grounds of appeal.

23 Subject to one matter, I agree with Basten JA with respect to the grounds relating to damages. Accordingly, it is necessary to reassess the damages awarded. On my analysis this would involve computation of a reduction for a failure to mitigate. It is regrettable that his Honour, despite his finding that the Respondent did take all reasonable steps to mitigate damage within s151L(3) of the Workers Compensation Act 1987, did not compute the deduction if a different view were taken on appeal. Any further hearing should be avoided. I urge the parties to settle this one outstanding matter.

24 Basten JA also concludes that damages for non-economic loss under s151G(2) of the Workers Compensation Act 1987 should be assessed on the basis of the non-economic loss attributable to the defendant. On my analysis no such apportionment is appropriate. The Appellant is liable for the whole of the loss which flowed from the injury to which its conduct had made a material contribution. His Honour’s assessment of 45 percent was within the range. This Court should not interfere.

25 The Respondent has been substantially successful. I would not disturb the trial judge’s order for costs. The Respondent is entitled to a proportion of her costs on appeal.

26 Since writing the above, I have read the judgment of M W Campbell AJA in draft. I agree with his Honour’s additional observations.

27 The orders I propose are:

1 Appeal allowed and Order 1 set aside.

2 Remit the matter to the District Court for determination of the allowance to be made for the Respondent’s failure to mitigate.

28 BASTEN JA: Ms Fahy is a police officer, who has suffered significant and psychiatrically identifiable harm, as a result of operational duties with the Police Service. At trial, the District Court awarded damages against the State of New South Wales (the defendant in that Court), consequent upon a finding that it was liable in negligence for the plaintiff’s condition.

Issues

29 The State seeks to challenge the judgment below on the basis that it was not in breach of any duty of care owed to the plaintiff, that if there were a breach, it did not cause the loss suffered and, in the alternative, the State is not liable for the whole of the damages awarded. The grounds of appeal may be grouped as involving alleged errors with:

(a) factual findings and characterisation of the conduct of relevant police officers other than the plaintiff;

(b) findings that officers were negligent and that the conditions of her employment breached a duty of care;

(c) findings that such conduct materially contributed to the psychiatric condition suffered by the plaintiff;

(d) failing to find that the plaintiff’s refusal to take anti-depressant medication contributed to the severity of her condition, and

30 The defendant in the District Court was the State of New South Wales, which was vicariously liable in respect of any tort committed by a person in the service of the Crown, a concept which includes a police officer: see Law Reform (Vicarious Liability) Act 1983 (NSW) (“the Vicarious Liability Act”), ss 6 and 8(1). From 1 January 2004, with the commencement of the Police Legislation Amendment (Civil Liability) Act 2003 (NSW), a plaintiff is prohibited, in proceedings such as these, from making a claim against the individual police officer, and is limited to making a claim against the Crown: see Vicarious Liability Act, s 9B(2). It had been commonplace before the commencement of that provision, to bring proceedings against the Crown alone. However, it is important to recall that the liability of the Crown under that provision is vicarious and that, pursuant to the Crown Proceedings Act 1988 (NSW), the State of New South Wales is sued in relation to that vicarious liability. Accordingly, it is necessary to identify tortious conduct on the part of particular officers in order to establish liability.

31 There was a tendency in the present case to consider the liability of the defendant in a global sense, with the result that specific findings were not made in relation to the separate conduct of individual officers. Such an approach is understandable where the complaint is one against the employer based on the conditions of employment. Failure to monitor the condition of the plaintiff after the traumatic incident in the present case, and the failure to provide counselling, may fall into this latter category. However, the complaints made with respect to Senior Constable Evans and Inspector Whitten appeared to be based on breaches of a duty owed by them, as fellow police officers, to the plaintiff. It will be necessary to consider whether, properly understood, their conduct should be addressed as part of a conditions of employment claim.

32 Despite the way the matter was dealt with below, the pleading alleged that the Police Service “for which the defendant is liable was under a duty of care to the plaintiff and was in breach thereof and was negligent”: Statement of Claim, par 6. Paragraph 1 of the statement of claim stated that the State was sued pursuant to the Crown Proceedings Act 1988 (NSW) “in respect of New South Wales Police (hereinafter called ‘the Service’)”. That allegation was inapt, but was admitted and its tenor was not considered. The entity described by the Police Act 1990 as “NSW Police” (s 4) is a body comprised of the Commissioner, the Senior Executive Service, all other police officers and administrative officers employed under the Act and temporary employees: s 5. It is not a legal entity. Whether it falls within the definition of “Crown” in s 3 of the Civil Proceedings Act was not discussed.

33 Attention might have been directed to whether the Crown was the employer for the purposes of determining the safety of conditions of employment. Section 6 of the Vicarious Liability Act expressly states that a police officer shall be deemed to be a person in the service of the Crown “and not a servant of the Crown”. For other statutory purposes the Commissioner is deemed to be the employer: see Anti-Discrimination Act 1977 (NSW), s 4B referred to in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at [90]-[94], Spigelman CJ (Stein JA and Davies AJA agreeing). However, there is no equivalent provision in the Police Act 1990, previously known as the Police Service Act 1990. (Compare s 41, dealing with executive officers; and s 84, treating the Commissioner as the employer of non-executive officers, but only for the purposes of proceedings before a tribunal dealing with industrial matters.) In Konrad v Victoria (1999) 91 FCR 95 at [104] Finkelstein J treated a police constable as an employee of the Crown. Adopting that view, a failure to provide safe conditions of work would constitute a breach of duty by the State, not merely a breach of duty by officers for which the State was vicariously liable.

34 Despite the form of the pleading, the focus of the evidence was on the conduct of individual officers. Of the police whose conduct was the subject of complaint by the plaintiff, Senior Constable Evans gave evidence, but his Honour declined to accept his evidence to the extent that it conflicted with that of the plaintiff. Inspector Whitten was not called, nor were other officers who might have given evidence favourable to the defendant.

35 Bearing in mind the nature of the liability alleged against the State, it is convenient to refer to it as “the defendant” and to refer to Ms Fahy as “the plaintiff”.

Background

36 On 25 August 1999, at about 9pm, the plaintiff, in company with Senior Constable Steven Evans, attended at the scene of an armed robbery (or attempted robbery) of a video store at Edensor Park, a suburb in the south-west of Sydney. The crime had been undertaken by two men, one armed with a knife. There was a violent confrontation with the manager of the video store, who was stabbed, and suffered serious injuries including a wound in the chest which resulted in severe arterial bleeding. After the offenders fled the scene, the victim was able to make his way from the shop to a nearby doctor’s surgery, where there was a doctor in attendance.

37 At 9.03pm a police vehicle with Senior Constable Evans and the plaintiff in it arrived at the shopping centre. She and Senior Constable Evans saw the trail of blood between the shop and the surgery and immediately entered the surgery. For a period of some 10 minutes, prior to the arrival of the ambulance at 9.14pm, the plaintiff assisted the doctor in the surgery. However, Senior Constable Evans left the surgery almost immediately and did not return. The trial judge summarised the scene in the following terms (Judgment, p 10), having identified the period during which she was in the presence of the victim as between 9 and 13 minutes:

“Those minutes were hectic and emotionally fraught minutes. The plaintiff was confronted with the victim, with blood flowing and with serious wounds. The doctor was seeking to attend to the victim but, in order for the doctor to go about his work, the plaintiff needed to effectively hold the victim’s body together with a view to trying to staunch the flow of blood. His body was gaping open to her sight.

She was concerned about delays in the ambulance arriving and made contact with the ambulance. She was also able to obtain some description of the offenders from the victim and communicated by radio those descriptions. The victim himself feared that he was about to die and asked the plaintiff to convey to his wife and family what were effectively his, potentially, last thoughts and words for them.”

38 After the ambulance arrived and conveyed the victim to hospital, the plaintiff sought permission from the senior officer on duty, Inspector Whitten, to go to the victim’s home, tell his wife what had happened and convey her to the hospital. The victim’s home was only about two minutes drive from the shopping centre. Whilst collecting the victim’s wife, she was contacted by Inspector Whitten who directed her to return to the crime scene, rather than drive to Liverpool Hospital. She then remained at the crime scene until about 11.30pm. Some 30 minutes before she was due to go off duty, she expressed a wish to continue duties, but was advised to leave because Inspector Whitten was not prepared to authorise overtime. The importance to her of remaining at the crime scene, and for what period, was not explored in the judgment.

39 Neither the seriousness of the medical emergency with the wounded victim of the assault, nor the emotional stress suffered by the plaintiff in the doctor’s surgery were in dispute. Each party, for its own reasons, was content to accept the seriousness and significance of that incident. The case for the defendant was that the post-traumatic stress disorder which the plaintiff undoubtedly suffered (and continues to suffer) was caused by that incident, for which it was not responsible. The plaintiff’s case was that given the obvious traumatic nature of her time in the surgery, the conduct of Senior Constable Evans and Inspector Whitten involved a failure of each to fulfil his duty of care towards her: not only did they fail to provide appropriate support, were insensitive to and dismissive of her situation. Further, it was unreasonable for the defendant, through its officers in the Police Service, not to provide immediate and appropriate support in the aftermath. The plaintiff argued that such conduct involved a breach of duty on the part of her employer which materially contributed to her post-traumatic stress disorder. Once that contribution was established, the defendant became liable, she contended, for the whole of her injury and loss. The trial judge accepted her claims in respect of each of these disputed propositions.

Breaches of duty at time of incident

40 Before noting the factual elements said to involve insensitive or dismissive conduct, and lack of support, it is convenient to note one aspect of the plaintiff’s own history with the Police Service. At the time of the incident, the plaintiff was 25 years of age. After completing her training, she had some three years operational experience prior to August 1999. According to the trial judge (Judgment, p 8):

“During her experience as a police officer she had, on a number of occasions, perhaps a dozen or more, been exposed to quite distressing and perhaps gruesome sights as part of the ordinary discharge of her duties as a police officer. She was apparently, by bad luck, often in that position, or at least perceived to be more often in that position than a number of other officers at Green Valley; the result of her experience being that she had acquired the nickname ‘Dr Death’.

It appears, on the evidence, that she had, by and large, been able to deal with those distressing circumstances by a combination of professional cool-headedness and the assistance and support of various officers with whom she was paired at the particular times when these events occurred.

By the time these events occurred she was an officer with three years operational experience in general duties and had acquired, by then, a reasonable level of experience of traumatic incidents.”

41 There were five specific actions which were said to constitute unsupportive, insensitive or dismissive behaviour on the part of more senior officers. First, her “buddy”, Senior Constable Evans, left the surgery almost immediately after they had entered, stating that he was going outside. There was some question as to whether he gave a reason at that time, namely that he needed to attend to the crime scene, but his Honour accepted that he did not. This ‘abandonment’ of the plaintiff by her senior partner was said to be in direct contravention of the principles underlying the buddy system, which required officers to be paired whilst on operational duties, not only to share the activities involved, and to provide physical protection for each other, but also to be supportive in stressful situations. Thus the plaintiff gave evidence that, although Senior Constable Evans had been a close colleague prior to the incident, her feeling of abandonment and the fact that he had not been there to share the trauma, meant that she was unable to discuss her reactions with him after the incident.

42 The other four actions each comprised insensitive or unsupportive behaviour on the part of Inspector Whitten. Thus, the second action involved Inspector Whitten putting his head inside the surgery door, whilst the victim was being treated, surveying the scene and then leaving without inquiring whether the plaintiff needed assistance or asking how she was coping.

43 The third action occurred after the ambulance arrived and the plaintiff came out of the surgery with the victim, without her hat on. Inspector Whitten told her “in a peremptory way” to put her hat on because there were media present. It was at about that time that she sought and obtained permission from the Inspector to take a vehicle and pass on messages to the victim’s wife and convey her to the hospital to which her husband had been taken.

44 The fourth action was the direction received from Inspector Whitten, whilst she was breaking the news to the victim’s wife and arranging to transport her to the hospital, to return directly to the crime scene. The reason for countermanding the earlier permission was not explained, as Inspector Whitten did not give evidence. Part of the reason may have been that the plaintiff went with another, more junior officer, and not with her partner on the shift, Senior Constable Evans.

45 Fifthly, she complained of Inspector Whitten’s refusal to permit her to stay at the crime scene after the completion of her shift. In the words of the trial judge (p 13) “she was summarily or peremptorily dismissed for the evening, with a curt reminder that the Inspector was not prepared to authorised any overtime for her simply to remain at the crime scene”.

46 Although Senior Constable Evans was called and gave evidence, Inspector Whitten did not. In relation to the Inspector’s behaviour, the trial judge concluded (p 65):

“The steps taken, for example, by Inspector Whitten, as I have indicated, are conceivably explicable for proper operational reasons, but his absence from the witness box leads more firmly to the conclusion that his manner was simply grossly insensitive and verging on a deliberate degrading of the situation of the plaintiff who, to his knowledge, had been engaged in what can be described, without hyperbole, as a life and death situation.”

47 Similarly, in relation to the conduct of Senior Constable Evans, his Honour concluded that there was no sufficient operational demand which justified him abandoning his junior officer in the surgery. In that regard, his Honour assessed the circumstances relevant to that period of the evening, and concluded (p 36):

“There was, in other words, a significant job to be done [in the surgery], and which a second officer in the room might well have done, that is, to relieve the plaintiff of the obligation of having to do two jobs at once while, at the same time, providing not only that measure of practical support but also a measure of emotional support in having the buddy present.”

48 Further, his Honour concluded that it would have been open to Senior Constable Evans to return at any time within the 7 to 9 minutes that he was absent in order to inquire how the plaintiff was progressing or to indicate why it was that he needed to remain away from the surgery. The consequence of his ‘abandonment’ of the plaintiff was, his Honour held, “compounded” by the fact that Inspector Whitten looked into the room observed what was occurring “and left without a word or without seeking any indication from the plaintiff as to whether she was able to deal with the matter on her own”: p 37.

49 Given the material available to the trial judge, his Honour’s conclusions on the basis of that evidence could not, in my view, be seriously challenged. The real question was to identify the scope of the duty owed by the police officers to the plaintiff and, if that duty had been breached in these circumstances, to determine the effect of the breach on the plaintiff’s mental health.

50 Before addressing those questions, it is necessary, however, to identify a further breach of duty relied on by the plaintiff, namely the failure to provide proper and adequate support and counselling in the days immediately succeeding the incident.

Provision of support after incident

51 The second element of the plaintiff’s case was that the Police Service had, by 1999, expressly recognised that stress problems could rise from traumatic incidents and had made specific provision for what should be done in the case of “critical incidents”. There was a dispute as to whether the events of 25 August 1999 fell within that description, as used in Police Service directions, but his Honour did not treat the scope of the duty as so limited, an approach which was well open to him. His Honour held (at p 39) that “in this case there was a complete or utter failure to implement those procedures”.

52 As his Honour later concluded that “the negligent act and omissions of the defendant materially contributed to the on-set of the post-traumatic stress disorder” it is important to identify which acts or omissions were found to be negligent. At pp 61-62, his Honour held:

“Thus, the plaintiff was left without support, both during and after what was, on any view of it, a very traumatic event. It is, in my view, clearly foreseeable that such a course of treatment could materially contribute to the on-set of, or the severity of, post-traumatic stress disorder, … .

Given the buddy system, and the existence of programs recognising the risk of the development of post-traumatic stress disorder for police officers engaged in traumatic events or incidents, it amounts to a lack of reasonable care on the part of the defendant, both at the scene of the incident on 25 August 1999 and, secondly, in the aftermath, especially in the period between 25 August and early September when the plaintiff went on leave.

During the latter time the defendant either knew, or ought to have known, that the plaintiff was expressing an adverse reaction to her experiences on the evening of 25 August 1999, and the absence of any inquiry, information or support during that period, served to exacerbate her perception of a lack of support from her colleagues and superiors engendered by her experiences, both in the surgery itself and around the crime scene, on the evening of 25 August 1999. The defendant through its officers, was negligent in failing to observe and/or act upon the observations, such observations as were made and/or failed to inform her of forms of help available to her in the circumstances.”

53 The term “it” in the second paragraph quoted above may reasonably be understood to refer to the lack of support discussed in the previous and subsequent paragraphs. So far as the “aftermath” is concerned, the findings can be divided into two parts: first there was a complaint that assistance which should have been given routinely following a critical incident was not given and, secondly, to the extent that assistance depended on knowledge of the plaintiff’s state of health, there was a finding that relevant officers knew or should have been aware of her adverse reaction to the incident. These matters should be dealt with separately.

54 What precisely should have been done immediately following the incident was not identified by his Honour in terms. The evidence contained a report of the Ombudsman of May 1998 which had recommended:

“The Police Service should take immediate steps to ensure that Critical Incident Stress Debriefing teams are always used following critical incidents and that the commanders of police involved in critical incidents are appropriately involved in this process.”

55 Given that the Ombudsman’s inquiry into welfare arrangements was conducted during 1998 and her report published in June 1999, whereas the medical evidence relied on at trial was given in June 2004 and February 2005, an issue arises as to what steps should reasonably have been required of the Police Service in August 1999 as necessary in fulfilment of a duty to take reasonable care of officers exposed to traumatic incidents, absent specific indications of adverse reactions. His Honour accepted the weight of the medical evidence, that psychological debriefing was now thought generally to be of limited value and potentially harmful in some cases. Other evidence which his Honour accepted involved the provision of more informal “social support” after the event.

56 A second issue concerned the finding that the Police Service was, or should have been, aware of adverse reactions of the plaintiff. As to actual awareness, the plaintiff’s roster indicated that she undertook normal duties the following day, then had two days leave and then two further rostered days of normal duties. There followed a rest day and a leave day, then two days of station duties. She then had two rest days and went on annual leave on 2 September 1999. Accordingly, she was only on duty for five days between the date of the incident and her annual leave. At some stage, described in her evidence as “two weeks after the incident”, the plaintiff said that she knew she was not coping and went to see two education officers. She stated:

“Because I am of Catholic faith, I asked them for the police chaplain’s numbers so I could have someone to talk to.”

57 In cross-examination the plaintiff was asked:

58 There was some discussion as to whether and when she had spoken to the police chaplain whose number she had obtained, probably on 2 or 3 September. She said that the police chaplain came to her house once and she went to her house once: there were two or three discussions, which appear to have occurred after her annual leave commenced on 6 September. However, she telephoned the chaplain before she went away on leave and “had a bit of a chat over the phone”.

59 Her parents lived in the Tamworth area and she had a friend in the Police Service at Pilliga. She and her husband visited the friend whilst she was on annual leave. She described the visit in the following terms:

“I’ve walked into his front room, and his dog had run up and jumped up, and had managed to catch me on the chin or my nose or something, and I’ve started crying and I couldn’t stop; I just kept crying. Then he said ‘What’s wrong? What happened?’ I don’t know whether I told him or [my husband] told him, but somehow he found out what happened and he rang police welfare. [My husband] and I left Pilliga, and police welfare from in the City rang my mother’s house when I was there and said, ‘Look, Tamworth, that’s a bit far. When you come back to Sydney you get in contact with us and we’ll get you some counselling’.”

60 That counselling was arranged promptly upon her return to Sydney. She visited a psychologist with the Police Service on 17 September, who referred her to another psychologist, Ms Blows, whom she started seeing on 29 September.

61 The plaintiff was cross-examined about her knowledge of “peer support” officers within the Police Service. She said that she knew of their existence and generally of their function, but did not believe there were any stationed at Green Valley in 1999.

62 There was also a submission that had one of the education officers asked whether her referral to the chaplain was for personal reasons or work-related reasons, the truth might have come out then. On the other hand, a judgment that it was best not to ask, could hardly be described as unreasonable, or a breach of duty.

63 In effect, the plaintiff’s case so far as it concerned the “aftermath” depended on a failure to provide counselling services or arrange for contact with a peer support officer, within the eight days immediately after the incident and before her visit to Pilliga, whilst on annual leave. Accordingly, assuming that those failures constituted a breach of a duty of care, the next question to be addressed was the causal connection, if any, between that breach, combined with the lack of supportive conduct on the evening of the incident, and the on-set or severity or duration of the plaintiff’s psychiatric condition.

Medical evidence

64 That the plaintiff suffered a severe traumatic experience on 29 August 1999 was not in contention. Nor was the fact that a major cause of the resultant post-traumatic stress disorder and depression was the witnessing of the seriously injured victim and the assistance she gave to the doctor in the surgery. Rather, the two questions discussed in the medical evidence were why, given that she had witnessed a number of serious accidents and fatalities in the past, she developed a serious psychiatric condition as a result of the present incident and, secondly, whether the behaviour of colleagues in the Police Service contributed to that reaction.

65 A separate issue arising from the medical evidence concerned the failure of the plaintiff to take anti-depressant medicine, as prescribed by her treating doctors. That decision on her part led to a separate question as to whether she had taken reasonably available steps to mitigate her injury.

66 The plaintiff tendered reports prepared by Ms Johanna Blows, the clinical psychologist to whom she was referred in September 1999. In her oral evidence, she was questioned by both parties on causation issues. In her evidence in chief she said that the presence of a supportive partner in the surgery “would have prevented an enormous amount of anger and bitterness”: Tcpt, 1 June 2004, p 90. She further indicated that the feeling of being betrayed was “a major proportion of” the issues addressed at counselling. She further said (p 92):

“I am quite certain that illness wouldn’t have been nearly so severe or as long-lasting as what it was. I can’t guarantee that there wouldn’t have been some traumatic repercussions, such as nightmares and so on, which is quite normal from such input. I just don’t think it would have been as profoundly affecting as it has been.”

67 The trial judge does not appear to have relied upon Ms Blows’ views in relation to questions of causation.

68 The plaintiff obtained a report from a consulting psychiatrist, Dr Andrew Robertson. He first saw the plaintiff on 12 December 2002. In a report following that consultation, he noted:

“She has been involved in other frightening events in the course of her work in the Police. However, in every instance before this, she had been prepared for the nature of the event which would confront her. In addition, she felt that the total lack of support or concern, firstly when she was working on the victim, and then subsequently, had had a highly detrimental effect.”

69 In evidence in chief, Dr Robertson was invited to expand upon this statement and identify the factors which he believed had contributed to the development of the disorder. He stated (Tcpt, 4 June 2004, p 233):

“I think there are a number of factors. The fact that she was unprepared for the severity of the wound of the victim; the fact that she perceived herself to be abandoned by her partner or buddy and was left to deal with it essentially on her own, because although the doctor was there in body, he was saying nothing and not offering her any practical, well, any moral support; and subsequently, I think that these feelings of abandonment were reinforced by the fact that … nothing else was said to her, either by way of comfort or commendation, and that all that was said to her was to ‘put your hat on, because the media is here’ or words to that effect.”

“I think – it’s very difficult to be dogmatic on this – but I think that it would be significantly less likely that she would have developed a post-traumatic stress disorder, or had she done so, it would have been a disorder of considerably less severity.”

70 This topic was reagitated in cross-examination (Tcpt, 15 June 2004, p 4):

71 The plaintiff was also seen by a general and forensic psychiatrist, Dr Julian Parmegiani, on behalf of the defendant, on 8 April 2002. In his first report of 10 April 2002, Dr Parmegiani said, in relation to causality:

“It is difficult to explain why Ms Fahy was affected by the incident to such a degree. She attended similar situations in the course of her employment as a police officer. Her only explanation was that she was not psychologically prepared for the event, expecting to find a man with minor injuries.

Secondly, she perceived her employers not to have been supportive in the immediate aftermath. Nevertheless, the temporal relationship between the incident and the development of her symptoms indicated it was a substantial factor.”

72 After seeing her again on 27 February 2003, he expressed the opinion that her symptoms had increased since she had ceased seeing Dr Blows (who had retired) and due to her job insecurity, and that the symptoms “were also exacerbated by frequent medico-legal assessments, which acted as a reminder of the traumatic event of 25 August 1999”.

73 In cross-examination, Dr Parmegiani was asked whether the fact that her senior partner left the surgery had affected the plaintiff. He expressed the view that he did not see it as “a major contributor to her distress at the time of the incident”, but agreed that it probably made “a minor contribution” in the overall incident, including her subsequent feelings of “no support”.

74 His Honour made findings in the following terms (at pp 44-45):

“In terms of the causation issue, he indicated that the fact that her senior partner had left in the course of dealing with the injured man was not something that he saw as a major contributor to her distress at the time of the incident but he thought it probably made a minor contribution in the overall incident.”

75 In addition, his Honour identified Dr Parmegiani as suggesting that psychological intervention in less than three to four weeks after the incident “would be counter-productive and potentially dangerous because that response can medicalize a normal human emotional response”: pp 45-46.

76 The defendant also obtained evidence from Professor Richard Bryant, a clinical psychologist at the University of New South Wales, who was the director of the post-traumatic stress disorder clinic at Westmead Hospital. His Honour described Professor Bryant as “an eminent psychologist, certainly in the area of research into post-traumatic stress disorder, but who also has clinical experience”. He saw the plaintiff on 10 February 2003. In relation to causality, he stated in his report:

“There seems little doubt that the stabbing incident was the cause of her psychological injury. I would add, however, that provision of earlier treatment than what was offered would probably not have altered the course of her condition.”

77 In cross-examination, Professor Bryant adhered to the view that what happened at the time of the incident was “far more important” than what happened afterwards (Tcpt, 23 February 2005, p 40). He was then asked (p 42):

78 Professor Bryant agreed that she was treated insensitively in the immediate aftermath, which would have reinforced her feeling of abandonment at the surgery. The trial judge concluded (at p 59):

“In summary, the expert evidence … is that, whilst the confronting experience of having to deal with the severely wounded man was a principal, or the core, factor in the development of post-traumatic stress disorder in this plaintiff, the other factors relied upon by the plaintiff are themselves significant. In Professor Bryant’s concession he would accept that the fact that the episode of the partner leaving could be treated as part of the core incident, upon which he relied, and that the social support issues, as he described them, would themselves have made a minor contribution.”

79 Doctor Robertson and Dr Parmegiani, his Honour held, regarded the conduct of the partner and the absence of social support afterwards as “significant”. His Honour found that both the departure of Senior Constable Evans, the insensitive conduct of Inspector Whitten and the failure to identify the plaintiff as a person in need of counselling, within the two weeks after the event, constituted a failure to take reasonable care for her safety and hence negligence. His Honour held (p 63):

“Thus, the negligent acts or omissions of the defendants [sic] here materially contributed to the on-set of post-traumatic stress disorder and depression or anxiety conditions in the plaintiff.”

80 These conclusions invite attention to what was meant by saying that “other factors” were “significant” and what Professor Bryant intended by referring to “social support issues” other than the absence of Senior Constable Evans from the surgery, as making a “minor contribution”. Did the contribution of Senior Constable Evans’ behaviour constitute a “significant” factor absent the other social support issues? Did all of these issues involve breaches of a duty of care and did all or only some of them, contribute materially to the loss suffered?

Breach of duty of care

81 In relation to the conduct of Senior Constable Evans, the plaintiff’s case seems to have been that he, as the senior officer on duty with the plaintiff, owed her a duty of care with respect to her welfare, which was breached by his abandonment of her in the doctor’s surgery. Of this the trial judge said (at p 35):

“It follows then, that, as was submitted, the plaintiff was, during this episode, albeit for only a few minutes left without her buddy, her senior partner, whose responsibility was essentially to look after her welfare.”

82 This statement is not to be taken literally: the trial judge was well aware that Senior Constable Evans and the plaintiff shared responsibilities as police officers attending a crime scene. His Honour expressly paid attention to other policing responsibilities placed on Senior Constable Evans, as constituting competing demands on his attention.

83 There is no doubt that the plaintiff was extremely distressed by the events of the evening and, at least in her own mind, attributed her response in a significant degree to her feeling of abandonment by her “buddy”. That, however, would not by itself demonstrate a breach of duty of care on his part. The plaintiff called evidence from a Mr O’Connell, who was asked a number of questions concerning the role of Senior Constable Evans. (Although the evidence was called on a voir dire, following objection to the expertise of Mr O’Connell, the evidence was subsequently admitted: Tcpt, 15 June 2004, p 26.)

84 Mr O’Connell gave further evidence (at p 205):

…

85 The trial judge, apparently referring to this part of the transcript, described Mr O’Connell’s evidence as a concession that the conduct of Senior Constable Evans was “justifiable”, but said it was “a very qualified” concession and involved a number of assumptions. He then referred to the following evidence of Mr O’Connell:

86 His Honour summarised this evidence as supporting the following conclusion:

“There were, in other words, in this instance, a number of imperatives which would strongly point to a need for the senior officer of the pair to maintain a measure of contact with the officer working inside in the surgery, even in that relatively short period of time, in order to make it clear that there was support.”

87 His Honour then discussed at some length the medical evidence and found (p 60) in relation to Senior Constable Evans:

“In this case, I am satisfied, on the balance of probabilities, that Senior Constable Evans left the room without giving any reason to the plaintiff.”

“Given the buddy system, and the existence of programs recognising the risk of the development of post-traumatic stress disorder for police officers engaged in traumatic events or incidents, it [sic] amount to a lack of reasonable care on the part of the defendant, both at the scene of the incident, on 25 August 1999 and, secondly, in the aftermath … .”

88 Some pages later (p 65) his Honour returned to the conduct of Senior Constable Evans in the following passage:

“No operational or economic factors stand in the way of the conclusion that to have dealt properly with the plaintiff, in accordance with the buddy system and in accordance with the recognised risks of stress-related disorders, would have required no more effort, no more resources, on the part of the police, than were available to them on that evening.”

89 Putting to one side the evidence of Mr O’Connell, which did not assist the plaintiff on this issue, the trial judge needed to make the following findings:

(1) Senior Constable Evans had a duty to the plaintiff, which included an obligation to provide both physical protection and psychological support, as required by the circumstances;

(2) the circumstances of the horrendous injury suffered by the victim gave rise to the foreseeable risk of psychological harm suffered by a police officer required to staunch the flow of blood in a potentially fatally wounded person;

(3) absent an identified need for Senior Constable Evans to be elsewhere through the period the plaintiff was in the surgery, there was a breach of his duty to stay with her and provide support, in absenting himself from the surgery without explanation and in not returning; and

Vicarious Liability Act

90 Findings were not made in those terms. The extent to which her colleague, Senior Constable Evans, owed the plaintiff a duty of care with respect to her welfare was not in terms addressed in the judgment. Thus, if Senior Constable Evans were the officer for whose negligence the State was said to be liable, it would have been necessary to establish on the evidence that he was, or should reasonably have been, aware of the risk of psychiatric injury, according to the test identified in Koehler v Cerebos (Aust) Ltd (2005) 79 ALJR 845. The case was not expressly presented in that way, no doubt because it was not pleaded in that way. Rather, the real complaint being made by the plaintiff was that her employer had failed to provide an adequate system of work, so as to give her sufficient support both during and in the immediate aftermath of a potentially highly distressing event. On that approach, it was not sufficient simply to put two officers on duty together and tell them to work together in a manner vaguely described as “the buddy system”. In the absence of any evidence as to relevant instructions, one would be inclined to infer that “the buddy system” was intended to provide physical protection and backup, which would not have been available if officers patrolled alone. Further, to the extent that the officers witnessed matters which needed to be recorded for the purposes of an investigation and possible criminal proceedings, a second officer would obviously provide a source of corroboration and a check on the accuracy of the observations of the other. On the other hand, if the colleague was expected to provide psychological support in a distressing situation, then each officer would need to have understood that that was part of the particular role envisaged under “the buddy system”. There was no evidence to suggest whether or not that was so understood, but the gist of the plaintiff’s case in relation to Senior Constable Evans appears to have been that such support was reasonably necessary and was not provided. That appears to be a complaint against the employer directly and the system of work which it put in place, rather than a complaint of breach of duty of care on the part of Senior Constable Evans.

91 The second basis on which the plaintiff presented her case was that there was a breach of duty on the part of Inspector Whitten in respect of the conduct referred to at [42]-[45] above, undertaken in a manner which was insensitive to the traumatic experience which the plaintiff had undergone in the surgery and which tended to exacerbate her feelings of abandonment.

92 Taken in isolation, it was not, in my view, open to the trial judge to find that there was breach of a personal legal duty of care in such conduct. No doubt his Honour was entitled to find that Inspector Whitten’s manner was brusque and insensitive, but directing an officer to put her hat on because of the presence of media and the public, directing her to return to the crime scene and thus preventing her taking the victim’s wife to the hospital and refusing to authorise overtime, do not, individually or cumulatively, bear any sufficient relationship to a legal duty of care. Nor would such conduct involve any reasonably foreseeable risk of psychological damage.

93 In my view the appropriate complaint against Inspector Whitten was properly viewed as a part of a broader ‘conditions of employment’ claim, which alleged that the Police Service had an obligation to provide appropriate support to an officer in the circumstances of the plaintiff, and monitor the effects of a potentially traumatic episode. The latter aspect required that she was made aware of appropriate counselling services and given an opportunity for informal debriefing with respect to the events of the evening of 25 August.

94 I accept that there was a duty, so described, owed by the State, as the employer of the plaintiff, in relation to the events in question. I also accept that the risk which materialised was a foreseeable risk of a breach of that duty. The question is whether the conduct of the Police Service was in breach of that duty in the particular circumstances of the case.

95 A troubling aspect of the manner in which his Honour dealt with the evidence was that specific findings were not made before dealing with the medical evidence. There is at least a suggestion that, in this way, questions of causation in relation to harm came to overwhelm consideration of possible breaches of duty. The question of causation was described by his Honour (at p 38) in the following terms, namely:

“That the way in which the plaintiff was subsequently treated itself made a material contribution to the on-set of the condition or its seriousness or its severity”.

96 Following that discussion, his Honour referred (at p 62) to the knowledge, or constructive knowledge of the State that she had experienced an adverse reaction to the events of the evening of 25 August, combined with “the absence of any inquiry, information or support” noting that that had “served to exacerbate her perception of a lack of support”. His Honour then concluded:

“The defendant, through its officers, was negligent in failing to observe and/or act upon the observations, such observations as were made, and/or failed to inform her of forms of help available to her in the circumstances.”

97 As noted above, it was important to distinguish the plaintiff’s feelings of abandonment from a finding of breach of a legal duty of care. Secondly, the evidence did not support the view that senior officers in the Police Service knew that she was not coping in the period between 25 August and 6 September. Thirdly, his Honour did not at any stage explain why senior officers ought to have known that she was not coping well. Nor is it clear that, if help should have been offered on a routine basis, that should have occurred prior to the time at which she managed, independently, to attend for counselling. Fourthly, there was no finding that an earlier offer of assistance would have made a difference to the outcome.

98 The findings of the trial judge were that Senior Constable Evans was aware of the circumstances in which the plaintiff had been assisting the doctor to stem the victim’s bleeding; Inspector Whitten knew that there was a real risk that the victim would die; he further knew that the plaintiff had had contact with the victim’s wife and was in the process of taking her to the hospital when she was called back to the crime scene, and if he did not know from his own observation, should have known from Senior Constable Evans, of the circumstances inside the surgery. Those findings support the conclusion that there was a breach of the duty to provide reasonably safe conditions of employment.

99 The lengthy debates before the trial judge as to whether Senior Constable Evans should have stayed with the plaintiff and as to whether Inspector Whitten was justified in behaving in an “insensitive” manner during the course of the evening, miss the point, to a significant extent, although the psychiatric evidence focussed on them. As noted above, the plaintiff should have succeeded in establishing a breach of duty based on unsafe conditions of work. Whether, given her own steps in seeking assistance from a police chaplain and, with the assistance of her friend in the Police Service, contacting the counselling service, that breach caused any loss is a separate question.

Assessment of loss caused by breach

100 The difficulties faced by psychiatrists and psychologists in separating causative influences with respect to a particular psychiatric condition can readily be understood. Each of those who gave evidence was at pains to avoid dogmatic answers and to identify the limits of certainty in which such matters could be expressed. Further, as Professor Bryant pointed out, it may be important to distinguish between matters about which a patient complains and the likely causes of her condition. In such circumstances, it is inevitable that responsible medical opinion will be expressed in terms of possibilities and uncertainty. As the Chief Justice explained in State of New South Wales v Burton [2006] NSWCA 12 at [11]-[23] such evidence may be insufficient to demonstrate on the balance of probabilities that the incidental acts or omissions of police at a crime scene, or shortly thereafter, have materially contributed, in a legal sense, to the traumatic experience of a particular officer. Furthermore, as noted by Hunt AJA in the same case (otherwise agreeing with the Chief Justice) care must be taken in drawing from medical evidence which uses the terms ‘caused’, ‘contributed to’ or ‘exacerbated’, an inference that the legal test was satisfied: at [88]-[91]. Where medical practitioners use terminology which reflects the relevant legal test, it will often be necessary to explore whether they intend their opinions to reflect the relevant legal requirement, and, if so, their understanding of that requirement.

101 This situation is complicated by the fact that, although the State is vicariously liable and is therefore the only defendant, there may be separate acts which are potentially tortious, and which make separate contributions to the injury suffered. If each officer is in fact negligent, and those acts can be seen to have made a material contribution to the injury suffered, the failure to distinguish between them will not matter. In other circumstances, each should be assessed separately.

102 Dealing first with the plaintiff’s medical evidence, there was limited assistance which can be gained in terms of causation, from the evidence of Ms Blows and his Honour placed no express reliance upon it. Secondly, there was the evidence of Dr Robertson. His written reports were primarily directed to the plaintiff’s prognosis, and hence the extent of her loss. Causation was only addressed in his oral evidence. As noted in the passage set out above, his view was that the absence of Senior Constable Evans “was the decisive factor” in the post-traumatic stress disorder. He explained that, absent such ‘abandonment’ the on-set of the condition would have been “significantly less likely”. In cross-examination, he was pressed on that terminology. It would, he said, have “lessened the risk substantially” of her developing PTSD, a risk which had by that time, of course, eventuated. He was asked then to quantify the lessening of the risk in terms of probabilities and whether, had the partner stayed, he was able to say “on the balance of probabilities” the plaintiff would not have suffered PTSD. He concluded (Tcpt, 15 June 2004, p 5):

“I don’t think I’m able to answer it with that degree of precision.”

103 Dr Robertson’s view that if Senior Constable Evans had stayed and been supportive, the disorder would have been of considerably lesser severity was not challenged in cross-examination: Tcpt, 4 June 2004, p 234.

104 Dr Parmegiani was asked about causation in his evidence in chief and stated (Tcpt, 22 February 2005, p 3):

Q. Do you still subscribe to the opinion that you expressed in your first report as to the diagnosis and to the cause of the plaintiff’s condition?

105 As already noted, Professor Bryant was of the opinion that the conduct of Senior Constable Evans in leaving the surgery was simply one aspect of the exposure to trauma, which could not be separated in causal terms: Tcpt, 23 February 2005, p 44. He treated the absence of another officer as part of the demands placed on the plaintiff in the surgery, but declined to agree that this made it “more difficult for her to cope with what was required of her”: p 42. He saw the subsequent conduct of senior officers as no more than a “minor contribution”.

106 So far as the events on the evening of 25 August were concerned, none of the experts was prepared to ascribe more than a “minor contribution” to the conduct of Inspector Whitten, after she had left the surgery. The high point for her case was the view expressed by Dr Robertson: however, once pressed on the question of probabilities, he was not prepared to say that the departure of Senior Constable Evans had, more probably than not, given rise to the disorder.

107 The third area of conduct relied upon by the plaintiff was the failure of senior officers either to make further inquiries as to her need for counselling in the period following the incident, or to make sure that counselling was available to her.

108 The findings made by the trial judge in this respect are unclear. Thus, at p 62, in summarising his findings, his Honour stated, in relation to the period between 25 August and early September when the plaintiff went on leave:

“During the latter time the defendant knew, or ought to have known, that the plaintiff was expressing an adverse reaction to her experiences on the evening of 25 August 1999 … . The defendant, through its officers, was negligent in failing to observe and/or act upon the observations, such observations as were made and/or failed to inform her of forms of help available to her in the circumstances.”

109 This passage is, with respect, vague as to whether any relevant officer was aware of an adverse reaction, and failed to act upon it, or whether particular officers should have been so aware, but were not.

110 Evidence of actual awareness came from two sources. First, there was evidence from the plaintiff that an officer from Fairfield Police Station, who had heard her on the radio during the incident, had commented later that she sounded distressed. Indeed, so far as the night in question was concerned, it would be reasonable to infer that several of the officers at the incident, including Senior Constable Evans and Inspector Whitten would have been aware of the assistance she gave in the medical room, the state of the victim and the likelihood that she would have been distressed. It was common ground between the parties that the plaintiff had attended a number of serious accidents over the previous three years, was a caring and responsible person, and had no doubt been distressed on each of those occasions. The question was rather whether a normal and expected human reaction failed to diminish over the coming days and became, or was threatening to become, a psychological condition.

111 The other officer who might have been made aware expressly of her distress was Sergeant McEvoy, an education officer, from whom she obtained the name of a chaplain about 10 days later. She did not reveal to him the reason for her request, nor did he ask. However, in a letter dated 13 January 2000, written some four and a half months after the incident, to the Local Area Commander, whilst expressing deep disappointment with the support she had had from other police stated:

“The only officer to keep in contact with me throughout this ordeal has been Sgt McEvoy. He has truly been fantastic. I believe that he should be thanked in some way by the Service.”

112 The plaintiff’s own evidence, that in the two weeks after the incident she was manifesting significant symptoms, not sleeping and spending much time at home sitting on the floor crying, was complemented by the clear impression that she was maintaining a “brave face” at work. His Honour, however, noted that no other police officers were called by the defendant. At p 25, he stated:

“Whilst the plaintiff may not have been keen to display those symptoms, she had certainly communicated to [the education officers] information indicating that there might be something observable about her upon closer inspection. The absence of those officers from the witness box, which remains unexplained, is, for that reason, one such that … the court would draw the inference that, if called, they would not have assisted the defendant’s case.

In addition, of course, there are the named officers who were partners on car duties on the three days before she went on leave and, indeed, presumably, a number of officers who had worked with her on station duties on the two days when she performed those duties before going on leave.”

113 The difficulty, from the point of view of the plaintiff, is that she called no evidence to suggest that she had expressed her distress to anyone at Green Valley Police Station, nor that she had behaved in a way which might reasonably have been expected to suggest that she was distressed in a pathological sense. In these circumstances, to criticise the State for not calling witnesses, in 2004, to describe how she had appeared in September 1999, is beside the point. It would seem that the plaintiff’s case was, in any event, run on the basis that she should have been actively monitored, given the nature of the incident, and routinely provided with some level of informal counselling or the names of peer support officers, to whom she could turn if she wished. There was, perhaps understandably, a tension in the plaintiff’s case between acknowledgement that she had survived a number of traumatic incidents without apparent ill-effects, that over-intrusive inquiries might be neither medically beneficial, nor an appropriate response by an employer operating a disciplined force and, on the other hand, the asserted obligation to “monitor” and offer services routinely, albeit in the knowledge that officers might not readily reveal, or wish to reveal, perceived weakness. These tensions needed to be resolved in order for the plaintiff to demonstrate treatment involving a breach of the duty of care owed by the Police Service to her as an individual officer.

114 In addition, the plaintiff needed to establish that a relevant breach of duty, occurring between 26 August and 6 September, materially contributed, in a legal sense, to her undoubted psychiatric condition. For example, she needed to establish, to the satisfaction of the trial judge, that had she been approached by a peer support officer and offered the opportunity for counselling, she would have done more than she did in relation to the chaplain, prior to going on leave on 6 September. There was no finding to that effect and this Court was not directed to evidence which would have supported such a finding. Further, she needed to establish that such an approach would have materially affected her psychological condition.

115 In this context, it is necessary to bear in mind the evidence of Dr Parmegiani that psychological treatment would be indicated in a case where symptoms continued for longer than three to four weeks. Within four weeks of the incident, the plaintiff had attended the police psychologist and been referred to Ms Blows, whom she first met on 29 September. There was no finding of fact that an earlier referral would have led to a different outcome: nor did the medical evidence expressly support such a finding.

116 This Court did not, of course, have the benefit of hearing the plaintiff’s evidence: nevertheless, a reading of the transcript, particularly of her evidence in chief, suggests a level of embitterment with the Police Service, which may have been triggered by the conduct of Senior Constable Evans and Inspector Whitten, on 25 August 1999, but which was overtaken by other events. In his report of 1 December 2003, Dr Parmegiani noted, in relation to a report prepared by a Mr Terry O’Connell, a former police officer who provided services as a consultant in areas of police complaints, discipline and grievances:

“The incidents raised by Mr O’Connell identify the causes of Ms Fahy’s PTSD. The incident per se could not be considered unusual in the course of police work. Her experiences following the incident however were a source of significant distress to Ms Fahy. Her PTSD became a conduit for expressing her dissatisfaction with management practices within the NSW Police Service.

Under the circumstances described by her, intervention by the NSW Police Service by way of debriefing, counselling or other psychological treatment would have been of little use. A medical approach would not have addressed the systemic problems that Ms Fahy and Mr O’Connell identified within the NSW Police Service. I would consider these issues to be industrial matters, not medical ones.”

117 An example of this concern may be found in the letter of 13 January 2000, written by the plaintiff to the Local Area Commander, Superintendent Hofer, apparently in response to a call made by him to the plaintiff’s mother, about a month earlier. The letter, which covered six handwritten pages, provided a moving account of her experience of abandonment and lack of support from colleagues in the Service generally (with the exception of one or two named officers). On 21 January, Superintendent Hofer replied by way of a letter which was entirely sympathetic in tone, although it did not seek to deal with the specific complaints she had raised. Later, however, whilst working in the exhibits room at Green Valley, she discovered the victim’s clothing from the 25 August incident and broke down at work. Some weeks later, she had an interview with the Local Area Commander, at which she said she “felt really intimidated” as he and two other officers “were into me about unexplained periods of absence of more than five minutes”. In her words, she “stormed out” at the end of the meeting, refusing an offer of a ride home.

118 When she gave evidence in June 2004, she said of the letter which she had received from the Commander that she did not believe a word of it, it had not been an adequate response to her letter and she asserted, perhaps with some hyperbole, that she had expected him to come round to her house: Tcpt, 1 June 2004, pp 73-74.

Conclusions – assessment of loss

119 At trial the defendant argued that if the condition of post-traumatic stress disorder, or its severity, was multi-factorial in its causation, then the defendant would only be liable to the extent that the on-set of the disorder was made worse by any conduct or omissions on the part of the defendant. His Honour held (p 62-63):

March v Stramare

State of New South Wales v Burton

120 The concept of “material contribution” is sometimes confused with the separate concept of causation, which is to be approached, not on the basis of abstract logic, but as a pragmatic judgment which takes account of policy considerations. The concept of “material contribution” reflects the related, but different, principle that, in the usual case of multiple causal elements, the law recognises liability for harm of which one cause is tortious, though it is not the sole, or even the dominant, cause.

121 The way in which the legal effect is assessed reflects the purpose of recognising a particular causal relationship. For example, where the particular harm which materialised was that against the risk of which the law imposed a duty to warn, the law may readily accept a causal connection, even though other contributing factors can be identified: see, eg, Chappel v Hart (1998) 195 CLR 232. Similarly, where a tortfeasor creates a situation which injures one person and places a potential rescuer at risk, even of negligent conduct by a subsequent tortfeasor, the law may impose liability for the whole of the rescuer’s injury on both tortfeasors: see, eg, Chapman v Hearse (1961) 106 CLR 112.

122 Some categories of case can be put to one side for present purposes. First, this is not a case of independent tortfeasors causing the one injury, as with a passenger in a car which collides with another, both drivers being negligent and responsible for the collision. Nor is it similar to that where two defendants each have a duty (unfulfilled) to clean up an oil spill, in which the plaintiff slipped.

123 The present is one of a class of cases which involve sequential conduct, but these also fall into several subclasses or categories. One such category involves a single defendant whose original conduct causes harm, but not tortiously, but which continues and becomes tortious, causing additional harm: see Middleton v Melbourne Tramway and Omnibus Co Ltd (1913) 16 CLR 572 and Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323. A second similar category encompasses cases involving a pre-existing medical condition which would be likely to have resulted in the same or some part of the injury caused by the defendant’s negligence, in any event, absent the conduct of the tortfeasor. In these cases the law requires that, as far as possible, the compensable harm be differentiated from that which is not compensable. My understanding of the relevant principles established on these authorities was set out in State of New South Wales v Burton [2006] NSWCA 12 at [67]-[80].

124 The present case is one where, on the medical evidence, it is probable that the plaintiff’s experience of tending the severely wounded victim would have caused a psychological condition in any event. However, it was also likely that that condition would have been less severe, or not lasted so long, if Senior Constable Evans had stayed in the surgery and if the Police Service had routinely offered support and counselling in the aftermath.

125 Two policy considerations arise in this context. First, if it were established that the additional loss caused by the breach of the employer’s duty of care accounted for, say, only 20% of the injury suffered by the plaintiff, it is difficult to identify an underlying policy supporting the imposition on the employer of liability for the whole of the harm suffered. It is true that the harm which materialised was that against which the duty to protect arose, but there is no legal policy which requires an employer to bear responsibility for that which would have eventuated absent its negligence.

126 The more difficult question arises where the effect of the employer’s breach cannot readily be calculated. But in that case, according to the principle identified in Purkess v Crittenden (1965) 114 CLR 164 at 168-9, once the likelihood of some level of identifiable harm, avoidance of which was not the responsibility of the defendant, is established by the defendant “with some reasonable measure of precision”, the plaintiff bears the burden of showing what additional harm the defendant has caused. This exercise need not involve precise quantification on the plaintiff’s part: as with other forms of speculation as to contingencies which are now hypothetical, a broad-brush assessment is justifiable. And because the wrongful conduct of the defendant has been established, the assessment may properly resolve doubt in favour of the injured plaintiff.

127 There is, however, a further distinction which may need to be drawn on the facts. Where injuries are truly divisible, the correct analysis may depend upon findings of causation, with the result that the defendant’s negligence may be the cause of one injury, but not the other. It may be that, in days before apportionment legislation, there was a greater inclination to treat harm as divisible: c.f. McHugh J in March v E & M.H. Stramare Pty Ltd (1990-91) 171 CLR 506 at 533-534, in relation to the test of causation. On the other hand, where the injury is not divisible, it is sufficient that the conduct of the defendant materially contributed to the injury taken as a whole. Any level of apportionment takes place not at the causation stage, but in the assessment of damages. It is at that point that the principles established in Malec v J. C. Hutton Pty Ltd (1990) 169 CLR 638 operate, so that the defendant’s liability is reduced “to take account of future or hypothetical events” including the possibility that harm would have flowed to some extent, or for some period, absent the tortious conduct.

128 Adopting this approach, the trial judge should have sought to identify a proportion of the harm suffered by the plaintiff which was properly attributable, on the medical and psychological evidence, to the breach or breaches of care for which the defendant was responsible, or if that exercise was not available, to reduce the damages to take account of the possibility that some level of disability would have occurred, absent the tortious conduct for which the defendant was responsible.

Mitigation of loss

129 The defendant raised a number of issues on the appeal, challenging aspects of the assessment of damages at trial. The first was the failure of the plaintiff to take anti-depressant medication prescribed by her psychiatrist. The expert medical evidence was unanimous that the medication would have been beneficial, in the sense that it would have diminished the symptoms of her condition and improved her prognosis. Medication was originally prescribed by Dr Attia-Soliman, who saw the plaintiff on a number of occasions. She was unavailable to give evidence, but a report prepared by her which included reference to the prescription of anti-depressants, was admitted. The doctor noted the plaintiff’s resistance but reported that she “finally was able to persuade this stubborn lady to commence anti-depressants after she could not tolerate her deterioration”. In fact, as it appeared from the evidence of the plaintiff, Dr Attia-Soliman was misled as to her success in that respect.

130 In her evidence, the plaintiff was asked in chief whether she had been prescribed any medication for her moods and emotions: Tcpt, 31 May 2004, p 22. She replied:

“A. The doctor wanted to – Solomon [sic] her surname was – a psychiatrist – she just wouldn’t get off it. Every time I went to see her, she was just adamant I had to swallow pills, and my Dad is a pharmacist – been a pharmacist for 45 years – and I valued his opinion over a doctor I met for an hour or two. So I didn’t take medication. In the end I said to her that I was taking it, just to shut her up.”

131 The matter was briefly confirmed in cross-examination: Tcpt, 1 June 2004, pp 79-80.

132 Doctor Parmegiani gave the following explanation and assessment of the effect of anti-depressant medication: Tcpt, 22 February 2005, pp 17-18.

133 Dr Robertson gave evidence that anti-depressant medication “would have been most effective”, if given earlier, rather than later. He also gave the following evidence (Tcpt, 15 June 2004, p 2):

134 The trial judge referred to the evidence given by the plaintiff, noted above and concluded (p 72):

“The question is what information the plaintiff had, and, other than an apparently deliberate and fairly forceful effort on the part of Dr Soliman to get her to take medication, the plaintiff does not appear to have had any significant grasp of why it would be that medication of that type might be of particular use to her. …

Having regard to her lack of confidence in the treating doctor, and the faith which she reposed in the experienced view of her father, in my view it cannot be said that she has acted unreasonably in declining to take medication.”

135 However, his Honour continued (p 73):

“She had been actively seeking to live her life with the least restriction, and she took a choice which was not objectively sustainable but which was, in the light of her circumstances and knowledge at the time, a reasonable choice to make, based upon reasonable grounds, albeit the balance of objective medical opinion would be in favour of her having accepted Dr Soliman’s opinion, but that is to look at the matter in the light of hindsight which is inappropriate in the application of the relevant principles.”

136 The relevant principles were, as his Honour noted, to be found in s 151L of the Workers Compensation Act 1987 (NSW). That provision, so far as relevant, stated:

151L Mitigation of damages

(a) whether the injured worker has undergone appropriate medical treatment … .

137 His Honour’s conclusion that the plaintiff had taken “all reasonable steps to mitigate her damages” involved the implicit conclusion that taking anti-depressant medication, would have been an unreasonable step. The logic of that conclusion was that she did not know why she was being prescribed such medication, but believed that it would merely mask her symptoms and “turn you into a zombie”.

138 In considering whether her decision not to take the medication was reasonable, his Honour noted (p 72):

“There is no evidence to indicate that she was informed as to precisely what effects that medication might have.”

139 This was a matter on which she bore the onus of proof. As his Honour accepted, objectively speaking, Dr Attia-Soliman was correct in prescribing anti-depressant medication, in the sense that it would probably have been beneficial to her condition and accordingly would have lessened her injury.

140 The trial judge relied in part on the principles enunciated in Fazlicv Milingimbi Community Inc (1982) 150 CLR 345. That authority, as his Honour correctly noted, stands for the proposition that the reasonableness of a person’s decision to refuse treatment must be judged on the basis of information known to him or her at the time of the decision. However, there are two matters which distinguish the present case from Fazlic and other authorities referred to therein. First, a different conclusion may be drawn in relation to a single event, such as proposed major surgery, as compared with the taking of anti-depressant drugs, which can commence and stop at any time, depending upon the effects of the patient, and where the only suggested adverse effects are temporary and reversible by ceasing to take the medication. Secondly, the common law principle placed the burden of proving a failure to mitigate on the defendant, whereas the statutory provision places the burden on the plaintiff. Even under the general law, the Court noted in Fazlic, at p 350:

“No doubt it will be but rarely that an employer does not succeed in establishing that a worker’s refusal is unreasonable when the worker has allowed baseless fear to decide his choice, outweighing his knowledge of cogent factors favouring his undergoing an operation.”

141 Applying this principle in the statutory context, it was a matter for the plaintiff to prove, by evidence, that she did not have knowledge of cogent factors favouring use of the medication. She gave no evidence to that effect, nor did any other witness. Secondly, given that any fears she held could readily be assessed by commencing a course of medication, she gave no evidence to justify her refusal to commence the medication.

142 In these circumstances, I do not accept that the plaintiff has proved that she took all reasonable steps to mitigate her damages and, accordingly, the loss attributable to the defendant must be reduced in accordance with the medical evidence as to the likely effect of the medication.

Damages: non-economic loss

143 For the purposes of calculating non-economic loss, his Honour assessed the plaintiff’s disability at 45% of a most extreme case. The defendant challenged that assessment on the basis that the plaintiff remained fit for a wide variety of employment, other than operational police duties. At trial, the defendant asserted, as his Honour noted in the judgment, that the proper assessment “would not exceed about 35% of such a case”: Judgment, p 76. His Honour’s conclusion was that a proper assessment was above the range proposed by the defendant, but to a relatively limited extent. His Honour had the benefit of assessing the condition of the plaintiff, which is inevitably to some extent a subjective matter which may be affected by an assessment of the plaintiff in giving evidence. There is no reason to interfere on this basis with the figure adopted by the trial judge.

144 However, the defendant also put its case on a different basis, namely that “the assessment of non-economic loss ought to be based on the difference between the condition that she would have had, if there had been no negligence on the part of the defendant, and the condition which she has as a result of such assumed negligence”: pp 76-77. For reasons noted above, that argument should be accepted. Furthermore, and consistently with that approach, the condition to be assessed should be the condition which would have eventuated had she mitigated her loss by taking anti-depressant medication.

145 To determine if this argument is made out, it is necessary to consider the operation of the Workers Compensation Act 1987. That Act was significantly amended by the Workers Compensation Legislation Further Amendment Act 2001 (NSW) (“the 2001 Amendment Act”), Schedule 1. Those amendments applied to injuries received before the commencement of the Act, but not in respect of the recovery of damages if proceedings for their recovery were commenced before the commencement of the amendment: Schedule 4, [14], inserting a new clause 9 in Schedule 6, Part 18C of the principal Act. The amendments introduced by the 2001 Amendment Act, in relation to the Workers Compensation Act, commenced on 27 November 2001. The pleadings in the present case were filed in the District Court on 16 November 2001. The present proceedings were commenced before the 2001 Amendment Act. Accordingly, it is necessary to consider the terms of the Workers Compensation Act 1987 as in force prior to the 2001 Amendment Act.

146 In relation to non-economic loss, s 151G(2) of the Act provided:

(2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.

The reference to non-economic loss in this context should be understood as a reference to non-economic loss attributable to the defendant. Accordingly, the submissions referred to above should be accepted and the proportion of a most extreme case must be calculated by reference to that aspect of the loss attributable to the defendant, after making allowance for the failure to mitigate.

Damages: future medical expenses

147 The trial judge allowed an amount of $25,000 for future medical expenses, which, the defendant notes, represented approximately $25 per week for 52 years. However, that does not appear to be the way in which the trial judge assessed such loss. Whilst noting that the plaintiff had claimed an amount of $100 per week for 52 years, his Honour also noted the defendant’s submission that there should be a modest cushion of between $5,000 and $10,000 in respect of treatment in the immediate future: Judgment, p 79. His Honour considered medical evidence as to the cost of continuing visits to a psychologist at a weekly expense of $176, acknowledging that there was some uncertainty as to how long she would require further treatment, taking into account uncertainty as to whether her condition would improve to an extent that no further treatment would be required, or might, on the other hand, deteriorate. I see no reason to interfere with his Honour’s assessment which was based on appropriate considerations, arising from the evidence.

Damages: future economic loss

148 The trial judge found that there had been a 50% reduction in her earning capacity which, his Honour assessed at $900 per week: Judgment, p 92. He therefore allowed a sum of $450 per week for 27 years, appropriately discounted, giving a rounded figure of $300,000 for future economic loss.

149 As noted above, the case for the defendant was that the plaintiff retained a capacity to work in a wide variety of occupations, which did not involve operational duties with the Police Force, or any similar occupation, which might expose her to traumatic experiences of the kind which would trigger a deterioration in her psychological condition.

150 The assessment of possible work opportunities appears to have been undertaken at trial largely by reference to her continued placement within the Police Service. She had been given restricted duties within the Service which, with some qualifications, had proved satisfactory. However, there was uncertainty as to her long-term prospects and particularly her opportunities for promotion.

151 It may be that the conclusion reached by the trial judge involved a pessimistic assessment of her future earning capacity, but it depended to a significant extent on his assessment of the plaintiff herself and upon his analysis of the medical evidence, as well as the nature of employment available within the Police Service. I am not persuaded that his assessment fell outside a reasonable range and I would not, accordingly, interfere with his Honour’s conclusion in that regard.

Conclusions

152 The appeal by the State must be upheld in part and the matter remitted to the District Court for further consideration in accordance with the judgments of this Court. As each party has had a significant level of success, it is appropriate that each bear its own costs of the appeal. The Respondent is, nevertheless, entitled to a certificate under the Suitors’ Fund Act, in accordance with the principles stated in Wyong Shire Council v MCC Energy Pty Ltd (No. 2) [2005] NSWCA 196.

153 I propose the following orders:

(1) Appeal allowed and orders 1 and 2 made by the District Court on 28 February 2005 be set aside.

(2) Remit the matter to the District Court for determination of the loss suffered as a result of the defendant’s negligence.

(3) In lieu of the order for the costs of the trial made below, order that the Appellant pay one-half of the plaintiff’s costs of the action in the District Court.

(4) Each party bear its own costs of the appeal.

Suitors’ Fund Act

154 M W CAMPBELL AJA: I agree with the Chief Justice.

155 I add that in my opinion the failure of Inspector Whittten, after looking into the room where the respondent was working, to provide support to her was a relevant breach of duty.

156 His Honour summarised the evidence in cross-examination of Professor Bryant on this aspect as follows (Red 61 C to F):

“Thus, he also agreed that the event of the duty officer looking into the room, saying nothing and leaving, would be an important factor reinforcing the plaintiff’s idea of abandonment at the scene.”

157 The scene in the room was a gruesome and frantic one. It should be inferred that the Inspector observed that to be the case, especially in the absence of any evidence from him.

158 Inspector Whitten left without providing any support for the respondent who was in an extremely stressful and busy situation. The evidence does not show, or even suggest, that he did not have the resources to provide another police officer to support the respondent by his or her presence and to assist her with the multiple tasks upon which she was engaged. There is nothing to suggest that the Inspector did not have the time to enquire how the respondent was coping and whether she needed assistance.

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15/11/2006 - Typographical error - word left out - Paragraph(s) 99

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Citations

State of New South Wales v Fahy [2006] NSWCA 64

Most Recent Citation

Potier v R [2015] NSWCCA 130

Cases Citing This Decision

10

Arnott v Choy [2010] NSWCA 259

State of New South Wales v Fahy [2008] NSWCA 34

State Rail Authority of New South Wales v Brown [2006] NSWCA 220

Cases Cited

17

Statutory Material Cited

7

Purkess v Crittenden [1965] HCA 34

Malec v JC Hutton Pty Ltd [1990] HCA 20

CITATION:	State of New South Wales v Fahy [2006] NSWCA 64 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14 December 2005
JUDGMENT DATE:	4 April 2006
JUDGMENT OF:	Spigelman CJ at 1; Basten JA at 28; Campbell AJA at 154
DECISION:	1 Appeal allowed and Order 1 set aside; 2 Remit the matter to the District Court for determination of the allowance to be made for the Respondent’s failure to mitigate; 3 Order the Appellant to pay three-quarters of the Respondent’s costs of the appeal
CATCHWORDS:	NEGLIGENCE – duty of care - duty of affirmative action between employees – failure to provide safe system of work – police officer leaving other police officer alone during traumatic event – posttraumatic stress disorder - breach of duty of care – past exposure to traumatic events does not prohibit finding of reasonable foreseeability - CAUSATION – tortious conduct a material contribution – whether multiple causes – whether loss divisible - whether injury would have occurred absent the tortious conduct - DAMAGES – assessment of damages for non-economic loss under s151G(2) of the Workers Compensation Act 1987 – refusal to use antidepressant medication prescribed by psychiatrist – failure to mitigate damages
LEGISLATION CITED:	Anti-Discrimination Act 1977 (NSW), s4B Crown Proceedings Act 1988 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW), s6, s8, s9B Police Act 1990, s4, s41, s84 Police Legislation Amendment (Civil Liability) Act 2003 (NSW) Workers Compensation Act 1987, s151L, s151G Workers Compensation Legislation Further Amendment Act 2001 (NSW)
CASES CITED:	Chapel v Hart (1998) 195 CLR 232 Chapman v Hearse (1961) 106 CLR 112 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323 Fazlic v Milingimbi Community Inc (1982) 150 CLR 345 Koehler v Cerebos (Australia) Limited [2005] HCA 15, 79 ALJR 845 Konrad v Victoria (1999) 91 FCR 95 March v E & M.H. Stramare Pty Ltd (1990-91) 171 CLR 506 Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 Middelton v Melbourne Tramway and Omnibus Co Ltd (1913) 16 CLR 572 New South Wales v Burton [2006] NSWCA 12 Purkess v Crittenden (1965) 114 CLR 164 Watts v Rake (1960) 108 CLR 158 Wyong Shire Council v MCC Energy Pty Ltd (No. 2) [2005] NSWCA 196
PARTIES:	State of New South Wales (Appellant) Gemma Fahy (Respondent)
FILE NUMBER(S):	CA 40132/05
COUNSEL:	Mr P. Menzies QC/Mr P. Sternberg - Appellant Ms S. Norton SC/Ms E. Welch - Respondent
SOLICITORS:	I V Knight, Crown Solicitor - Appellant L J Sharpe & Co, Rockdale - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 11701 of 2001
LOWER COURT JUDICIAL OFFICER:	Graham DCJ
LOWER COURT DATE OF DECISION:	14/12/2005