State of New South Wales v Seedsman
[2000] NSWCA 119
•12 May 2000
CITATION: STATE OF NEW SOUTH WALES v SEEDSMAN [2000] NSWCA 119 FILE NUMBER(S): CA 40918/98 HEARING DATE(S): 31 August 1999 JUDGMENT DATE:
12 May 2000PARTIES :
State of New South Wales
Beth Louise SeedsmanJUDGMENT OF: Spigelman CJ at 1; Mason P at 152; Meagher JA at 170
LOWER COURT JURISDICTION : District Court LOWER COURT
FILE NUMBER(S) :DC 7835/97 LOWER COURT
JUDICIAL OFFICER :Goldring DCJ
COUNSEL: M Finnane QC / V Hartstein (Appellant)
M Joseph SC / E Romaniuck (Respondent)SOLICITORS: I V Knight Crown Solicitor (Appellant)
Oates & Smith (Respondent)CATCHWORDS: NEGLIGENCE - Foreseeability of harm - Psychiatric injury foreseesable - NEGLIGENCE - Employer's duty to employee - Psychiatric injury - No requirement of shock CASES CITED: Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310
Arnold v Midwest Radio Ltd (1999) EOC 92-965
Aston v Imperial Chemical Industries Group (High Court, 21 May 1992, unreported)
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1
Frost v Chief Constable of South Yorkshire Police [1998] QB 254
Gallagher v The Queensland Corrective Services (Supreme Court Queensland, 30 July 1998, unreported)
Gillespie v Commonwealth of Australia (1991) 105 FLR 196
Jaensch v Coffey (1984) 155 CLR 549
Johnstone v Bloomsbury Area Health Authority [1992] QB 333
Midwest Radio Ltd v Arnold (1999) EOC 92-970
Morgan v Tame [2000] NSWCA 121
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Petch v Customs and Excise Commissioners [1993] IRC 789
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18
Vernon v Bosley (No 1) [1997] 1 All ER 577
Walker v Northumberland County Council [1995] 1 All ER 737
White v Chief Constable of South Yorkshire Police [1999] 2 AC 455
Wodrow v Commonwealth (1993) 45 FCR 52
Wyong Shire Council v Shirt (1980) 146 CLR 40DECISION: Appeal dismissed with costs
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40918/98
SPIGELMAN CJ
Friday 12 May 2000
MASON P
MEAGHER JA
STATE OF NEW SOUTH WALES v Beth Louise SEEDSMAN
In the course of the Respondent’s employment by the New South Wales Police Service she was exposed to crimes committed against children. Goldring DCJ held that the Respondent suffers from Post Traumatic Stress Disorder (“PTSD”) and that the Police Service has failed to provide a safe system of work to protect employees from such mental injuries.
Held:
(Per Spigelman CJ, Mason P and Meagher JA agreeing)
1 The trial judge did not misdirect himself on the applicable legal principles. Mount Isa Mines v Pusey (1970) 125 CLR 383 referred to.
2 It was reasonably foreseeable during the years 1983 to 1988 that police work of the character which the Respondent carried out could cause psychiatric illness.
3 There is no basis for interfering with the trial judge’s finding, based on the expert psychiatric evidence, that the Respondent suffered a psychiatric injury.
4 There is no basis for interfering with the trial judge’s assessment or calculation of damages.
(Per Mason P, Spigelman CJ and Meagher JA not deciding)
5 There is no requirement that there be a “shock” in the sense of a sudden sensory perception, for an injury to be compensable in the case of the breach of an independent duty such as the duty of an employer to an employee to provide a safe system of work and protect an employee from reasonably foreseeable risks. ( Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383, Walker v Northumberland County Council [1995] 1 All ER 737, Gillespie v Commonwealth of Australia (1991) 105 FLR 196 applied).
- 67 -
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40918/98
SPIGELMAN CJ
Friday 12 May 2000
MASON P
MEAGHER JA
STATE OF NEW SOUTH WALES v Beth Louise SEEDSMAN
JUDGMENT
1 SPIGELMAN CJ: Between 1992 and 1997 the Respondent, Beth Louise Seedsman, was a Constable and Senior Constable in the New South Wales Police Service. In a judgment of 22 October 1998, Goldring DCJ, found in her favour in proceedings for negligence against the New South Wales Police Force. His Honour found that Ms Seedsman suffers from Post Traumatic Stress Disorder. He found that this condition was the result of her exposure, during the course of her employment, to crimes committed against children. His Honour found that the New South Wales Police Service failed to provide for the Respondent a safe system of work in that she was not appropriately protected from the mental injury which could result from exposure to the kind of human tragedies to which she was exposed. The State of New South Wales appeals from that decision.
2 His Honour set out the issues before him in a way which was accepted by the parties in this appeal, as follows:3 After a detailed analysis of the evidence, including the expert literature and expert evidence before him, his Honour answered this question in the affirmative.
“Would a reasonable employer have foreseen the possibility that police officers attached to a unit whose sole function was to investigate crimes of physical violence against children, especially where those police were young females, relatively new to police work, certainly not trained as detectives, and without any awareness of principles of stress management, would be likely to be subjected to prolonged stress and, as a consequence of such stress, to suffer psychiatric disorders?” (21-22)
Findings of Fact
4 The basic facts as found by his Honour were not challenged in this Court. The Plaintiff was born in 1960. She was accepted into the Police Service on 30 April 1982. She did three months initial training at the Police Academy and was then attached to Central Police Station until August 1983. She then volunteered for service in the Child Mistreatment Unit which had been established about two years before and which was then operating at Bankstown under the direction of Detective Inspector Rope.
5 Ms Seedsman worked with the Child Mistreatment Unit at Bankstown from 21 August 1983 until July 1985 when that Unit was amalgamated with the Juvenile Services Bureau attached to the Criminal Investigation Bureau in the City of Sydney. On 29 November 1987 she was attached to the Major Crime Squad (South Western Region) after the CIB was regionalised. At first she continued to work in the Child Mistreatment Unit and then moved to the Licensed Dealers and Breaking Section. On 3 September 1989, she was transferred to the Bass Hill Patrol, Detectives Section. At Bass Hill she was involved in general criminal investigations, which included cases of alleged sexual assault. During that period she also spent about seven months on secondment to a fraud task force investigating organised crime. When she returned to Bass Hill Patrol Detectives at the end of 1992, she found that there was a new head of Detectives and a number of incidents occurred which involved sexual harassment of her. In late 1993 she was subject to an Ombudsman investigation after a complaint about her alleged delay in investigating a complaint of sexual assault by a woman with an intellectual disability. She was also investigated after a quantity of firearms and ammunition was found in a locker in the women’s toilet at the Bass Hill Police Station. Her name appeared on the locker. She considered that she was being “set up” by one or more of the senior officers with whom she had had a number of conflicts.
6 In 1995 that Ms Seedsman took six months sick leave. At the end of 1995 she returned to part-time and, subsequently, full-time duty in a non-operational investigation area in the Human Resources Department of the Police Service. She continued in this work until the birth of her son in November 1996. After the birth she felt she could not return to police work. In July 1997 she applied for a discharge on medical grounds based upon her Post Traumatic Stress Disorder, which had, by that stage, been diagnosed. On 14 October 1996 she lodged a claim, known as a Hurt On Duty (HOD) claim, which was rejected. On 3 June 1997 she applied for a Certificate of Incapacity under the Police Regulation (Superannuation) Act 1906. The Statement of Claim in these proceedings was filed on 20 June 1997.
7 The critical events occurred during the period that Ms Seedsman was working at the Child Mistreatment Unit. His Honour found that within a few weeks of arriving at the Unit Ms Seedsman, then aged 23, was forced to undertake the interviewing of victims of child abuse, sexual and other physical assault and their families, on her own. Over the five years she spent at the Unit and at the Juvenile Services Bureau, she personally interviewed between two and three hundred children in matters relating to all forms of abuse: physical, sexual and emotional. His Honour found that she encountered children with spinal fractures and bruising, ruptured spleens, broken bones, brain damage, scalds, burns and many cases of “shaken baby syndrome” - children who were shaken until they suffered retinal detachment and haemorrhaging resulting in brain damage or death. She spent a great deal of time at the Royal Alexandra Hospital for Children visiting children in intensive care. She also attended numerous autopsies of children who had been beaten to death. Much of the work she did consisted of cases of sexual assault of children. This included a girl as young as four who had been subject to systematic criminal abuse by a stepfather. Ms Seedsman had clear and disturbing recollections of numerous incidents, such as that of a twelve month old girl who had been held by her mother in a bathtub of boiling water; the murder of a child whom she had met previously when she had investigated the murder of one of the child’s relatives; a young boy whose penis had been severed by his mother’s boyfriend; a six month old boy who had been viciously attacked by his defacto stepfather; several cases of genital mutilation of young boys and one occasion when she was called to a bush reserve to discover a ten year old girl crying, having just been sexually assaulted by her father who was still present; another occasion when she was called to a house where a woman had been murdered with a meat cleaver.
8 In cases of this character, Ms Seedsman was called upon to interview the children and their families. In many cases this involved very young children and, his Honour found, it became her function to comfort and reassure these children, to support them and prepare them to give evidence at committal hearings and at trials. In her evidence she set out a large number of exceptionally disturbing cases in which she had been involved.
9 There was no challenge either before his Honour, or on this appeal, to the essential proposition that the Police Force at the relevant time had not taken special steps, whether in terms of formal training or of supervision or of monitoring, with respect to the stresses imposed on individuals who were exposed to the kinds of experiences to which the Respondent was exposed.
10 His Honour outlined the symptomatology of the Respondent, culminating in the diagnosis of Post Traumatic Stress Disorder. In 1994 she had begun to notice physical symptoms including palpitations which woke her at night, insomnia, tearfulness without reason and “flashbacks” involving cases she had dealt with. There were a number of matters which were causing her stress at that time, to which it will be necessary to refer on the issue of causation. The cumulative effect of all of this led to her time off work. It was late in 1995 however that she was first diagnosed as suffering from Post Traumatic Stress Disorder. This was first done by Ms Ione Lewis a psychotherapist in August 1995. It was later confirmed by psychiatrists.
11 His Honour made the following findings as to the continuing effects upon her of the disorder:12 His Honour set out the psychiatric evidence including detail of the disease of Post Traumatic Stress Disorder to which it will be necessary to make further reference below.
“After the birth of her son, Sean, she developed what the experts referred to as ‘hypervigilance’. She is constantly apprehensive that some abuse will be inflicted on her son. Her husband said that when she leaves the house she constantly speculates about whether people she sees in the street or in shopping centres might be perpetrators of various types of child abuse. She dislikes leaving the house and avoids people. She is constantly anxious. She still experiences the nightmares, insomnia, uncontrolled and unexplained tearfulness and flashbacks which were the original symptoms. She is constantly in a high state of anxiety, especially about her son. She constantly imagines her son being subjected to the types of abuse and violence which she encountered while she was at the Child Mistreatment Unit, about which she is totally powerless to do anything. A symptom which is regarded as most problematic is that she has acute separation anxiety when she has to leave her son, even with her husband or his sister for a very short time. If she must leave him, for medical or similar appointments, she becomes extremely anxious. She was present in court for the two weeks of the trial, and it was obvious that she constantly left the courtroom when the sound of a child could be heard outside.” (12-13)
13 His Honour posed the issue of duty of care in terms of the following passage from the judgment of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48:
Legal Principles Applied by Trial Judge
14 His Honour said that the application of these principles to this case raised similar issues to those considered by Miles CJ in Gillespie v The Commonwealth (1991) 105 FLR 196 at 202:
“A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone [1951] AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
15 And at 212:
“In the present case it is not necessary to consider foreseeability with respect to the existence of a duty of care, because the relationship of employer and employee itself gives rise to that duty of care. Foreseeability for present purposes is to be considered only insofar as the degree of remoteness of the harm sustained by the plaintiff set the parameters of the steps that a reasonable person in the position of the defendant would have taken to reduce the risk to the extent that any ‘unnecessary’ risk was eliminated. In practical terms this means that the plaintiff must show that defendant unreasonably failed to take such steps as would reduce the risk to what was a reasonable, that is a sociably acceptable, level. It may be that this takes the court into an area of value judgment of which the inscrutability of a jury verdict may provide a more appropriate means of expression. Where a judge constitutes the tribunal of fact, reasons must be given for this decision, a decision which is non-juridical and in the nature of a value judgment. Others may reject those reasons, and an appeal court may substitute its own value judgment: Warren v Coombes (1979) 142 CLR 531.”
16 And at 213:
“The plaintiff has to prove that if the defendant had taken the obviating measures relied upon by the plaintiff in his case, then there was a likelihood that they would have obviated the ‘unnecessary’ risk of an anxiety state. A risk is ‘unnecessary’ if by the adoption of some reasonable form of precaution or safeguard it could be eliminated or minimised: Neill v NSW Fresh Food & Ice Co Pty Ltd (1963) 108 CLR 362 at 370 per Taylor and Owen JJ. In other words, if the precaution or safeguard would minimise the risk, the remaining level of risk is one which the law regards as ‘necessary’, acceptable or tolerable.”
17 On the basis of these authorities, his Honour approached the issue as to whether or not the Appellant has exposed the Respondent to an “unnecessary risk” of psychiatric disorder by considering the manner in which it had organised the system of work in which she had been engaged. His Honour expressed his approach in the following way:
“Another factor that needs attention in the light of the tests laid down in Wyong Shire v Shirt is the utility of the defendant’s conduct. It is sometimes said that a defendant’s undertaking may be so dangerous that it is negligent to carry it on at all.”
“To an extent exposure to extreme stress is a necessary incident of the work. It follows from that, however, that the law imposes a duty on the State, as the employer of police officers for the relevant purposes of the law, if such inevitable incidents are known to it, to do what is reasonable to prevent the ‘unnecessary’ risk that police, who are exposed to those stresses inherent in dealing with cases of child abuse, will suffer serious psychiatric illness, such as the plaintiff in this case has done.” (23)
Conclusions of Trial Judge
18 His Honour identified a duty of employers to provide a safe system of work, which included a duty to take reasonable precautions against the risk of mental or psychiatric injury, as well as against that of bodily injury. He propounded a test expressed in terms of whether or not the Appellant had, or ought to have had, knowledge of the risk and of the means of reducing or avoiding it.
19 His Honour summarised the evidence indicating that the State of New South Wales did have knowledge of the risk and of the means of avoiding such risks. Indeed, in areas of State administration other than the Police Force, such steps had been taken. The Plaintiff had identified in its case a series of preventive measures. The State of New South Wales adduced no evidence as to the impracticability of adopting any of the measures suggested. Goldring DCJ concluded that the State of New South Wales had the requisite knowledge that stress in the working environment, of the character with which we are here concerned, could lead to psychiatric disorders and that programmes were in place in other government departments to minimise the risk of psychiatric disorders occurring.
20 His Honour found:21 His Honour went on to deal with the subject matter of causation. Specifically his Honour noted the other examples of stress to which Ms Seedsman had been subject. His Honour concluded:
“I consider that I am entitled to take judicial notice of the fact that any police work is likely to be stressful. Any person who joins the Police Service must expect that from time to time he or she will be exposed to personal danger and to gruesome and disturbing sights and experiences. These are, unfortunately, part of the policeman’s or policewoman’s unhappy lot … Some of these situations will inevitably cause stress …
What is special in the case of the plaintiff and female officers like her is that she was taken at a relatively young age, with very little training of the type traditionally given detectives, and required to work, on her own within a very short time, in an environment with which even trained detectives had difficulty coping with the stress … While some of the work was recognisably police work, and strictly speaking, detective or criminal investigation work, it was investigative work of a special kind, which involved dealing with a section of the community with special needs and special demands. In retrospect, it is clear that this type of work was going to pose to the police working in child mistreatment units challenges different from those involved in other types of police work. The issues are the extent to which those challenges were foreseeable, including situations that created dangers to the physical or mental health of the police engaged in them, and imposed a duty on the Police Service to protect police officers from those dangers.
To summarise, the State of New South Wales had a duty to prevent the risk of psychiatric disorders in police involved in the investigation of child abuse. In the early 1980s, that risk was foreseeable. The State was, or ought to have been, aware that police involved in such work would necessarily be (1) exposed to traumatic invasions of the physical integrity of children; and (2) placed in situations where, in the course of interviewing child victims of physical and sexual abuse and their families, and preparing them to give evidence, they would necessarily be placed in a position where they would be expected to provide a significant degree of support and counselling. The State was aware that other State employees engaged in analogous support and counselling roles require training…. The State was, or ought to have been, aware that failure to do this would expose the police officers concerned to the risk of extreme stress, and if such stress was sustained, to the risk of consequential psychiatric disorder.” (34-36)
“I am satisfied on the balance of probabilities that this disorder results from the plaintiff’s continued and sustained exposure to intrusions of the integrity of children which she experienced either directly when she was called to crime scenes, hospitals or autopsies, or vicariously through interviewing the victims of abuse or their families. As I have indicated above, these actions are considered ‘traumatic’ and her symptoms are those of persons suffering this disorder.
Had the exposure been to a few cases of serious and gruesome child abuse spread over some years, the effect might not have been the same. Similarly, if Ms Seedsman’s working environment had been such as would have enabled her stress reaction to the exposure to have been discovered quickly, and if there had been advice and counselling available for her to have dealt with the stress reaction at or shortly after the exposure, it is more probable than not that the Post Traumatic Stress Disorder could have been avoided or its severity reduced.
While Ms Seedsman has been subjected to a great deal of stress during her police career, some of which could be seen as unusual, the various stressful events, other than the exposure to traumatic incidents of abuse of children, are not in themselves sufficient to bring about the disorder from which she suffers. Only the traumatic assaults on and abuses of children and the consequences constituted the interference with the physical integrity of self or other persons which can lead to Post Traumatic Stress Disorder…. The plaintiff has proved she was exposed to traumatic events, and the psychiatric evidence as I find it establishes that the exposure more probably than not caused her disorder.” (37-38)
Foreseeability
22 The primary focus of the Appellant’s submissions was the issue of foreseeability. The thrust of the submission was that although stress was a foreseeable consequence of the employment in the present case, a psychiatric disorder was not a foreseeable consequence. The Appellant accepted Mount Isa Mines Limited v Pusey (1971) 125 CLR 383 as authority for the proposition that it was not necessary for the particular form of psychiatric injury - namely Post-Traumatic Stress Disorder - to be foreseeable and that it was sufficient that some kind of psychiatric injury was foreseeable. The Appellant submitted that stress was not the same kind of injury as a psychiatric injury of any character.
23 The Appellant accepted that an employer’s duty to an employee extends to the exercise of reasonable care to avoid unnecessary risk of injury in the form of a recognisable psychiatric illness. However, it challenged the proposition that it was foreseeable, at the relevant time, that a police officer could suffer recognisable psychiatric injury as a result of the work which the Respondent was called upon to perform in the Child Mistreatment Unit.
24 The Appellant’s first submission was that his Honour did not approach the task before him in the appropriate way. He did not, it was submitted, ask whether or not what was foreseeable was a risk of a like kind to that suffered by the Plaintiff. He failed, it was submitted, to draw a distinction between stress and a serious psychiatric illness. This submission should be rejected.
25 His Honour plainly distinguished between stress and psychiatric disorder. His Honour asked himself the appropriate question when he postulated the test in the following terms:26 His Honour also said:
“Would a reasonable employer have foreseen the possibility that police officers attached to a unit whose sole function was to investigate crimes of physical violence against children especially where those police were young females, relatively new to police work, certainly not trained as detectives, and without any awareness of principles of stress management would be likely to be subject to prolonged stress and, as a consequence of such stress to suffer psychiatric disorders ?” (21-22)
“The expert evidence … is sufficient to convince me that if the measures … had been introduced … more probably than not she would not have suffered the psychiatric disorder resulting from stress …”. (37)
27 Other similar references appear in the judgment.
28 Contrary to the Appellant’s submissions, his Honour posed the correct legal test in terms of foreseeability of the particular kind of injury which the Plaintiff suffered. His Honour did not approach the case on the basis that “stress” was the relevant injury. His Honour regarded stress as a mechanism which brought about the injury, i.e. “psychiatric disorder”.
29 The frequently cited passage from Windeyer J in Mount Isa Mines Limited v Pusey at 402 is relevant to the present case:
“Liability for nervous shock depends on foreseeability of nervous shock. That, not some other form of harm, must have been a foreseeable result of the conduct complained of. The particular pathological condition which the shock produced need not have been foreseeable. It is enough that it is a ‘recognizable psychiatric illness’.”
30 His Honour approached the issue before him in this way.
31 The Appellant placed particular emphasis on what it submitted was the limited state of knowledge at the relevant time about the consequences of stress of the character to which the Respondent was exposed. Specifically, it was submitted that it was not at the relevant time known or understood that stress of this character could lead to psychiatric injury. The Appellant submitted that there was no evidence which showed that at the relevant period anyone knew or understood there could be such a connection.
32 It is not correct to say that evidence is required in all such cases. In making a decision on foreseeability, evidence of surveys or expert evidence is not always required. Commonsense has a role to play in this, as in other areas of judicial decisionmaking.
33 It is well established that the Court is entitled to draw inferences as to causation simply from a sequence of events. As Rich ACJ said in a frequently cited passage:
“I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology.” ( Adelaide Stevedoring Co Limited v Forst (1940) 64 CLR 538 at 563).
34 A similar proposition is appropriate in the present case with respect to the relationship between exposure to stressful situations and consequences of an adverse character on a person’s mental well being.
35 As Barwick CJ said in Mount Isa Mines supra at 389-390, with respect to the facts in that case:
“… an employer could and ought to foresee that the sight of a burning or recently burnt human might mentally disturb an employee whose proximity to the injured fellow employee ought to be foreseen. So much I think is within the ordinary experience of people who work with electrical current, particularly electrical current at a high voltage. No special medical or psychiatric knowledge is required in my opinion to foresee the possibility of injury by way of mental disturbance in such circumstances.”
36 In the present case the “possibility of mental disturbance” was foreseeable, in circumstances of extensive and intensive exposure by a young, new recruit, without special preparation or training, to the litany of child abuse, including instances of direct observation of injuries and of bodies, as appears on the facts of the present case.
37 This case has a number of unique features to which his Honour made frequent reference. First, it involves a significant number of occasions of quite exceptional human depravity. Second, it involves a significant number of occasions of death and intense suffering of young children. Third, it involves frequent direct observation of dead or mutilated bodies of children. Fourth, it involves a very young police officer with no relevant training and provided with no relevant preparation.
38 The Appellant’s second submission was that there was no evidence to support a conclusion that it was reasonably foreseeable during the years 1983 to 1988, when the Respondent served in the Child Mistreatment Unit, that police work of the character which the Plaintiff carried out could cause psychiatric illness, as distinct from stress. Specifically, it was submitted that post-traumatic stress disorder in the workplace was unknown until the 1990s.
39 In its submissions, the Appellant sometimes referred to the relevant period as being between 1982 and 1985 when the Appellant served in the Child Mistreatment Unit at Bankstown. At other times, the submissions made reference to the period 1983 to 1988 which encompassed the period after the Unit was amalgamated with the Juvenile Services Bureau and her work with the Child Mistreatment Unit in the Major Crime Squad, South West Region. On one occasion reference was made to the period “1980 to 1993” which encompassed the Respondent’s service with the Bass Hill Detectives.
40 In her submissions, the Respondent submitted that her case was not confined to the period when the Respondent worked in the Child Mistreatment Unit in Bankstown. She pointed out that par 3 of the Statement of Claim referred to her work experience from about 1983 until about August 1994. This included the period during which the Respondent was at Bass Hill.
41 In summarising the career of Ms Seedsman, his Honour had covered the entire period of 1987-1995 and noted her continued involvement in the investigation of some allegations of sexual assault during her period at Bass Hill.
42 The Respondent accepted that Dr Wright had stated in cross-examination that his diagnosis was based on what happened in the period 1983-1988 when she worked at the Child Mistreatment Unit in its various bureaucratic forms. However, in re-examination, Dr Wright’s attention was specifically drawn to evidence of a particular character that occurred during her period at Bass Hill and indicated that those particular events were of sufficient severity to constitute trauma which could cause a Post Traumatic Stress Disorder and, that in his opinion, those events did materially contribute to her Post Traumatic Stress Disorder. This evidence included incidents involving interviews with victims and perpetrators.
43 On this basis, the Respondent submitted that it was not correct to identify the work in issue as being confined to that at the Child Mistreatment Unit.
44 In the course of his judgment, his Honour, when considering the evidence concerning Post Traumatic Stress Disorder, commenced the relevant passage with a reference to evidence of the Respondent’s exposure “between 1983 and 1989 to certain situations.” Nevertheless, he went on in the next few sentences to refer to evidence which occurred after this period.
45 Dr Robert Wu, the first psychiatrist to make a diagnosis of Post Traumatic Stress Disorder, had died by the time of the trial. His Psychiatric Report of 14 March 1997 was tendered. He based his diagnosis on a detailed history taken from the Respondent. Neither with respect to this report, nor in the case of any other psychiatrist, did the Appellant contest the proposition that the factual substratum of the opinions - namely the recitation of events by the Respondent - had been established at the trial.
46 In the course of Dr Wu’s report, he made reference to a period in 1993 when, according to his report, “the issues which impinged on her were primarily at that point from the Child Mistreatment Unit”. However, there is no suggestion that the relevant history was limited to that period. In reciting her history, Dr Wu made express reference to the period at Bass Hill.
47 Dr Wu recited the following relevant history:48 At another point of his report he said:
“A particular incident was when she went to the morgue about a child who had died and had a retinal haemorrhage. She found that she was very upset by this but could not cry. She indicated that there was another incident whereby she found she was involved in a situation in which a mother committed murder. She was involved in a Vietnamese case whereby she attended the autopsy. She saw a situation whereby a woman was hacked to death by a meat clever.”
It appears from the structure of the report that these incidents occurred while she was at the Unit.
49 In this, and other passages, there is no suggestion that he was confining his comments to any specific period during the course of her employment with the Police Department. He concluded:
“Her memories are those of repeated traumatic events which she has observed. Similarly she has been exposed to autopsies which she felt were entirely unnecessary and these caused significant distress for her.”
50 His conclusion was:
“The history is a situation of fairly prolonged circumstances which are detailed as a series of traumatic events. The impact of trauma as we understand it now is one whereby there can be accumulative impact with increasing intensity of symptomatology and affect due to an added aspect in terms of repeated trauma.”
“I believe that her problems are a circumstance whereby she has had significant psychological injury on multiple occasions which have caused her severe and compounded distress and psychological symptomatology.”
51 There is nothing in his conclusions which suggest that he was limiting himself to the period in the Unit.
52 Dr Wright, in his report dated 4 May 1998, indicated that he had received Ms Seedsman on reference following the death of Dr Wu. He set out in his report a history of her employment in the NSW Police Service. Particular reference is made to the period in the Child Mistreatment Unit. There is no reason to believe that the relevant history was in any way limited to this period. Specifically, the Respondent made reference to the baby who was smothered with a freezer bag and the impact that had on her.
53 Dr Wright’s conclusion was:
“It is clear to me as indeed it has been to the previous reports already quoted that this disorder has arisen directly as a result of Ms Seedsman’s employment by the NSW Police Service for an extended period in the area of child mistreatment.”
54 It does appear that in his Report, Dr Wright intended to attribute the responsibility to the period in the Unit.
55 Dr Canaris also interviewed Ms Seedsman. He prepared a report of 1 June 1998, which was tendered in evidence. He made express reference to the period in the Child Mistreatment Unit and relied on the earlier report of Dr Wright of 4 May 1998. However, Dr Canaris said the following:56 Dr Canaris’ conclusion was:
“She had worked some five years full time in the Child Mistreatment Unit and had clearly been exposed to numerous highly traumatic experiences. Even after she was transferred to the Crimes Squad, she found herself having to attend court in relation to matters pending. Subsequently she found herself appointed to a local patrol where following a change in Police procedure, she again found herself working with child sexual assault victims. Because of her gender and her experience, she found much of this work coming her way. It was difficult to decline this work as she was working in a small and under-resourced patrol.”
“Your client gives a history of many years of cumulative exposure to some of the most harrowing aspects of police work.”
and
“Ultimately her anxiety is an unusual but nonetheless very distressing presentation of Post Traumatic Stress Disorder in which she effectively relives years of exposure experiencing emotions which at the time she had successfully disassociated or repressed. It should be borne in mind that of all traumatic experiences injuries to children are the most difficult to cope with as they tap into our deepest protective instinct. This is particularly so in situations in which such exposure is coupled with a sense of utter helplessness and overwhelming anger against the perpetrator.”
57 It does not appear that Dr Canaris based his diagnosis only on the period in the Child Mistreatment Unit.
58 Neither the pleadings, nor the manner in which the case was conducted, nor his Honour’s judgment, justify the approach in the submissions in this Court on the part of the Appellant that the Court should confine itself to the state of knowledge in the period of the early to mid-1980’s.
59 The Appellant appeared to accept that there was a change in the relevant state of knowledge during the course of the Respondent’s occupation. This could give rise to difficult issues of proof if it were necessary to distinguish the effect of exposure at different periods, only some of which may have involved negligent acts or omissions. The appeal was not conducted on this basis.
60 The Appellant submitted that the issue of foreseeability had to be related exclusively to police work. Evidence with respect to other workers who had frequent contact with abused and injured children was not relevant. In my opinion, this submission should be rejected. The law of negligence is concerned with human beings. It is not concerned with specific occupations. Where employees in two occupations have exposures to similar risks, employers in one occupation can reasonably be expected to have regard to the experiences of employers in the other occupation.
61 The manner in which this submission was put by the Appellant was to the effect that there were no studies, at what it said was the relevant time, which established any relationship between police investigative work of any kind, including of the character conducted by the Respondent, and a major psychiatric illness such as Post-Traumatic Stress Disorder. In my opinion, to postulate the relevant inquiry in so specific a manner is unduly restrictive. Whether or not studies expressly directed to police forces existed is a relevant consideration, but it is not determinative.
62 There are many characteristics of police work which raise particular issues with respect to the issue of the provision of a safe system of work. Exposure to stress which may lead to psychiatric disorder does, it may be accepted, occur for police in situations which may be more intensive and, in some respects, even unique. That does not justify an approach which ignores relevant analogies and knowledge derived from other occupations.
63 The Appellant also sought to restrict the scope of the material to which the Court may have regard on the issue of breach of duty to that expressly concerned with police. It submitted that, in the absence of studies showing a link between police investigations of child abuse and serious psychiatric illness, the Court could not infer fault on the part of the Appellant for failing to take any particular steps. This submission should also be rejected as too restrictive.
64 Dr Neil Adams, a psychologist, gave evidence on problems of occupational stress in the early 1980’s and the prevalence of training support systems and various forms of protection available to persons in counselling roles involving significant stress. His Honour accepted the evidence that there was a general awareness of the need for such measures in occupations in which workers were engaged in what could be called “counselling” situations. The Appellant submitted that there was no evidence on which the Court could act because there was no evidence that any person considered police as being involved in “counselling” in the early 1980’s. Nevertheless, his Honour did find as a fact that there were analogies between the two functions:
· “It was her function to comfort and reassure these children and to support them and prepare them to give evidence at committal hearings and trials …”.
· “The male police officers who had worked in the Child Mistreatment Unit recognised that police were seen as a support to victims and their families …”.
· “The Plaintiff and other female witnesses gave the impression that the police role, as they saw it, was more of a combination of criminal investigation and victim support role.”
65 The Appellant’s submissions in this regard should be rejected. The issue is not to be determined by the approach only of police forces, or persons associated with them, at the relevant time. The issue is not what police actually did at that time, but what they ought to have done. The analogies, suggested in the evidence of both Dr Adams and Ms Lam, between counselling roles and the functions of a specialist unit such as the Child Mistreatment Unit are sufficiently close for the contemporary experience of persons and organisations involved in other forms of contact with abused children to have been regarded as relevant by those responsible for these matters in the police. They should have understood that the way these matters were conducted in those areas was a relevant source of information for the police force.
66 Accordingly, when Dr Adams identified in his evidence a number of steps which an employer in the 1980’s ought to have implemented, this was of direct relevance to an employer of police. This included, as his Honour accepted, the need for a period of training, including training on counselling techniques; regular case management and debriefing sessions and other forms of support; a system of early identification of symptoms of stress or “burnout” or incipient “burnout” and appropriate support systems and relief mechanisms. Dr Adams indicated that, from his training as a counsellor in the early 1960’s, recommendations of this general character “would be considered as fairly basic and common knowledge in counselling work or any related service dealing with persons, particularly children, in stressed, social/interpersonal circumstances”. He emphasised that the relevant knowledge and skills were available in the early 1980’s and earlier.
67 The Child Mistreatment Unit had been set up at Bankstown in the early 1980’s by a Mr Rope, who at the time he gave evidence before his Honour had retired from the police force. He indicated that even in the early 1980’s when the Unit was set up he understood the term “burnout” to refer to persons who “could not cope with carrying out the function which they were supposed to be doing at the time”. He was aware prior to 1980 that police did experience stress. He gave evidence of a report prepared by Dr Sutton on the psychological affects of people working in the Child Mistreatment Unit which he had commissioned on her suggestion. He acknowledged in his evidence that he did so because he was “concerned” about “whether or not there were psychological effects”. On his recollection, the investigation of that report started in 1986.
68 Ms R Lam, who was employed as a social worker in Child Protection from 1984, was called as a witness. She gave evidence as to the system of work that was established at her hospital in 1984 which included an orientation period, support systems which occurred on a weekly basis and the provision of reading material on child protection. She gave evidence as to the similarity of some of the functions that she performed and those performed by the Respondent in the Child Protection Unit. She referred to one article which was amongst a considerable volume of reading material with which she was provided as part of her orientation. The article was entitled “The Psycho Dynamics of Child Abuse and their Relationship to the Battered Professional Syndrome”. The author of the article said:69 In 1992, a detailed investigation and report was undertaken by the NSW Police Service with respect to the risks of policing. Chapter 1 of that report is on the subject “Police Officer Stress”. That chapter begins with the following passage:
“I believe that anyone who becomes involved with the problem of child abuse is ‘at risk’ - the risk is, of being caught up in an abusing system where the worker is battered and responds by battering. This I call the ‘battered professional syndrome’.”
“This chapter reviews the recent research literature on the special hazards and stresses of policing, and on responses of police officers to these stresses. Since the mid 1970’s, there has been a ‘veritable flood of publications on police stress’ (Sewell et al 1988 p94).”
70 The authors go on to list a number of studies. The internal quotation about a “veritable flood” comes from a 1988 article in the United States, the author of which had himself published articles on the subject as early as 1981.
71 It is instructive to read this 1992 study, which the Appellant submitted was the first occasion on which foreseeability of post-traumatic stress disorder would reasonably have been foreseen as a consequence of the Respondent’s work, noting the dates of the studies upon which the report relied.
72 The authors of the report note that studies that related stress and emotional problems have included studies which looked at rates of suicide. Studies in the United States which appear to suggest a higher suicide rate for police, to which the authors make mention, include studies published in 1984 and 1989.
73 The 1992 report also makes reference to 1981 and 1983 studies in the United States which listed twenty-five events which police officers identified as the most stressful to which they were subject. Included on this list was “answering a call to a scene involving violent non-accidental death of a child”.
74 His Honour also made reference to other United States literature. This included an articled published in 1979 which referred specifically to the development in the United States of “Police Stress Programmes” which it described as “aimed at reducing stress and its consequences”. Under the subheading of “Compensation for Disabilities Due to Stress” the authors of this 1979 article said:
“In the past compensation has been applied mainly to easily verifiable work injuries such as crushed hand or death in a fall, rather than to long term chronic diseases whose causes may be hard to establish. Now, however, through concepts such a ‘cumulative trauma’, compensation is being extended to cover a wide range of physical and mental conditions . These trends have also been extended to police work where occupational stress is viewed as a valid cause for disability compensation.
Disability compensation is increasingly being awarded for a wide range of stress related disorders including ‘alcoholism, nervous exhaustion and even some neurotic and psychotic diagnosis such as depression or paranoia when they have been attributed to stresses of the job.’ (Reiser “Stress Distress and Adaptation in Police Work” (1976) 44 The Police Chief 24). Leedy (ed) C ompensation in Psychiatric Disability and Rehabilitation 1971 also cites a number of examples in which compensation has been awarded to persons suffering job related psychiatric disturbances .” (Emphasis added)
75 The authors went on to note that, notwithstanding the special characteristics of police work, studies of occupational stress in other forms of employment were material for determining the related issues in the police context.
76 An extract from a 1981 book by L Territo and H Vetter published in the United States on Stress and Police Personnel was contained in the appeal papers. In the foreword of the book the authors comment:77 In the preface to the book the authors indicate:
“In the stress field the working environment of a police officer, peer group identification serves an important defensive function …If the peer support group is disrupted by promotion, transfer, death or other reasons, however, the results are likely to be depression, alienation, lowered morale and severely strained friendships and family relations.
Stress affects us physically, emotionally and interpersonally.
………
Emotional reactions to stress include confusion, anxiety, fear, anger, cynicism and even hysteria. … The end result of continued exposure to high stress situations, if left untreated, are alcoholism, divorce and even suicide. Numerous studies have reported the existence of these stress syndromes among police officers.”
“The first section, The Nature of Stress , provides the reader with an orientation and introduction to the general topic of stress and some of its principle, psychological , physiological, and social consequences.
………
The second section, Stress and the Police Officer , examines job stress and some of its more destructive manifestations, namely alcoholism, divorce and other family problems, and suicide.”
78 Other parts of the book identify stress control programs and counselling services available in police forces in various States of the United States.
79 Goldring DCJ referred to this book in the following terms:
“This book, which states it was designed as a handbook for active police, was held at the Australian Institute of Criminology Library in 1982, and it is surprising that the largest police service in Australia was not generally aware of the proposition that police work in general was likely to produce stress in police officers to the extent that they might develop psychiatric disorders as a result of stress. It contains chapters dealing specifically with stress in female police and a section on programmes and techniques for alleviating stress in police.” (32)
80 This passage makes it clear that his Honour was not focussing his attention merely on stress but was concerned to answer the relevant question for these proceedings, namely the consequences of stress as a mechanism which brings about a relevant psychiatric illness.
81 The trial judge placed particular reliance on the evidence of Sergeant O’Connell who was stationed at Wagga Wagga where there was a Child Mistreatment Unit from the mid 1980’s. His Honour said of Sergeant O’Connell:82 The trial judge found in favour of the Respondent on the issue of foreseeability on the basis of a considerable body of evidence, including keenly contested oral evidence. There was material from which his Honour could draw the ultimate inference. To a substantive extent it turned on oral testimony. This Court should not interfere.
“He was personally aware of the experience of a young female police officer who had been assigned to this Child Mistreatment Unit and who suffered extreme stress to the extent that she was transferred to other duties.
Before this, in 1982 or 1983, because of his experience Sergeant O’Connell organised a voluntary course for police on methods of coping with occupational stress. This was organised in Wagga, with instruction from outside experts. It seemed to be successful. The course was reported in the Sydney newspapers, and as a result Sergeant O’Connell was reprimanded by the Inspector then in charge of police welfare. This is clear evidence that senior police were aware in 1982 that some New South Wales police officers thought that stress appeared to be a problem, yet the reaction appeared to be a total denial that police had any responsibility to deal with this.
In 1989, Sergeant O’Connell made a submission of eleven single space, typed pages to the District Commander of Wagga, dealing with “adequate support and training for police personnel attached to Child Mistreatment Units throughout the State.” This document reviewed the literature and made specific recommendations to improve training. … The 1989 submission is useful in setting out what appears to be common knowledge about stress management and some ways police might benefit from it. However, in my view, it is less relevant to this case than the fact that a senior police officer had responded negatively to Sergeant O’Connell’s 1982 initiative, which is clear evidence that senior police were aware that stress was in fact a problem with police in New South Wales. This would itself be evidence that the police ought to have been aware of the potential danger of stress, and of psychiatric illness resulting from stress , in the police working environment at that time.” (32-33 Emphasis added)
Causation
83 The Respondent established causation to the satisfaction of his Honour. He found that there was the necessary link between the act or default of the Appellant and the damage suffered. Specifically, he found that the damage would not have occurred if the Appellant had taken the requisite steps.
84 The principal issue agitated below and on this appeal in this regard was the fact that there were a significant number of other stressors that could have caused her Post Traumatic Stress Disorder. The critical conclusion in this respect was the following sentence which I quote again:85 The other matters which caused stress included the following:
“While Ms Seedsman had been subjected to a great deal of stress during her police career, some of which could be seen as unusual, the various stressful events, other than the exposure to traumatic incidents of abuse of children, are not in themselves sufficient to bring about the disorder from which she suffers. Only the traumatic assaults on and abuses of children and the consequences constituted the interference with the physical integrity of self or other persons which can lead to Post Traumatic Stress disorder.” (37-38)
(i) The incident in which firearms and ammunition had been placed in a locker at Bass Hill Police Station which led to an investigation by the Internal Affairs Unit.(ii) The numerous incidents of sexual harassment to which she was subjected at the Bass Hill Police Station.
(iii) The complaint to the Ombudsman about alleged inadequacies in her investigation of a sexual assault on a handicapped woman.
(iv) The emotional and physical breakdown suffered by her husband in July 1995 caused, it appears, in significant part by the nature of his duties which included homicide investigations, together with the strains caused by the disclosure before the Police Royal Commission of corrupt conduct by his former colleagues and the element of suspicion that temporarily fell on him. As she herself put it in a report for internal police purposes:
“To witness my husband’s suffering during the month of July 1995 was I believe the catalyst that brought me to my knees - I just couldn’t keep going.”
86 The Appellant’s submissions were that the effect of these other incidents causing stress was such that a causal link could not be established between her disorder and the Respondent’s experience in the Child Mistreatment Unit. Therefore, it was submitted, there could not be a causal link between the loss and the Appellant’s negligence as found by his Honour.
87 Mr M Joseph SC who appeared for the Respondent placed particular reliance on the evidence which linked specific significant symptoms of the disorder to experiences which occurred during the period at the Child Mistreatment Unit and, in particular, the medical evidence which relied upon the nature and quality of the nightmares that she suffered.
88 Dr Wright, the treating psychiatrist, gave the following evidence in cross examination:89 The issue was also raised with Dr Canaris. A number of propositions were put to him in cross-examination and reference was made to her insomnia and its relationship to nightmares. The following appeared in his cross-examination:
“Q If her husband’s collapse following this revelation at the Royal Commission was the catalyst for her going off sick, that would be a very significant matter in any diagnosis of Post Traumatic Stress disorder, would it not?
A No.
… … …
Q Are you able to answer the question.
A I don’t believe that the incident was a causative factor in the diagnosis of Post Traumatic Stress disorder.
Q Why is that?
A Because this patient has a Post Traumatic Stress Disorder which is characterised by symptoms relating to her time working in child protection. She has nightmares about children. She has flashbacks about injuries received by children. She has fears about the safety to her child. Her anxieties are all focused about that work. The key factor in the aetiology of Post Traumatic Stress disorder was her period of work in child protection.
… … …
Q So that has nothing to do with it, would you agree with this, that she sees her husband - I’m talking in a general sense - she sees her husband have an emotional collapse. That in fact can be the very sort of thing that could trigger a Post Traumatic Stress disorder on your understanding of what can trigger it?
A The causative factors must have already been in place. It could make the condition worse, but her condition was caused by her exposure to those incidents involving children.
… … …
Q Under DSM-IV, doctor is it not the situation if a person witnessed or is confronted with an event involving actual or threatened death or serious injury, or threat to the physical integrity of another, particularly a close relative, that is one of the matters that would be very relevant to any diagnosis of Post Traumatic Stress disorder?
A People get exposed to all kinds of stressors without developing Post Traumatic Stress disorder. One has to look at the content of the symptoms in this person’s case and they don’t relate to fears about or concerns in relation to her husband. They relate to issues to do with a child.”
90 Ms Lewis, the psychotherapist, was also questioned about this matter in chief:
“So there could be other explanations for the nightmares …
A No there could be other explanations for her insomnia. There could be other explanations for her heavy drinking, but it is extremely difficult to advance any explanation other than her work in the Child Mistreatment Unit and her subsequent exposure to child abuse in the course of general duties policing for the nightmares and in particular for the content of the nightmares. Now, if you are going to come back and tell me yes, that this lady had, you know, a nightmare which focussed around different content, well yes we could. You know you would certainly get me to say, yes, we have to look at other possible explanations then but so far, so long as we can say well look, the nightmares are basically confined to those experiences, then it is very difficult to advance any other explanation for them.
… … …
Q So the point is that sleeping badly and drinking are not necessarily related to Post Traumatic Stress Disorder are they, it could be related entirely to the stresses she was feeling at that particular time?
A Well, if you exclude the history of nightmares, if you say that this person, you know, did not report any bad dreams. That hypothesis becomes plausible but if you include the nightmares and you accept that she had nightmares at the time then you are forced to say yes, but those experiences back then made and continue to make a substantial contribution.”
91 As Dr Canaris and Ms Lewis expressly, and Dr Wright implicitly, indicate, it was not only the experiences at the Child Mistreatment Unit which gave rise to traumatic experiences with respect to children. These had also occurred during a period at Bass Hill Police Station when she was involved in more general police duties. It was during that period that she experienced a case in which a child had been so violently shaken as to result in cerebral haemorrhaging and retinal detachment by, she believed, the child’s mother. She also investigated many child abuse cases. One involved two sisters who had been sexually assaulted by their stepfather, she being the first person in whom one of the victims had ever confided. It was also during this period that she investigated the death of a six year old boy who had been murdered by his mother who was found to be insane. She attended the autopsy and in an internal police report she indicated her reaction to this occasion:
“Q And at the end of that, having obtained that history you came to the view on the last page that the Post Traumatic Stress Disorder syndrome had been caused by the long term affects of dealing with sexual assault victims and other victims which exceeded normal coping mechanisms?
A Yes.
Q What made you come to that opinion, that is that that was the cause as opposed to some of the other issues in which you obtained a history of?
A The other issues that she gave a history of related to work stress rather than a traumatic response though they certainly may have made her vulnerable to developing PTSD in the context of her work in the Child Mistreatment Unit and later at Bass Hill. But the horror that she expressed around her work of the experience of sexual assault victims and the child abuse, the physical abuse and scenes that she witnessed in the morgue which were particularly distressing and which had not previously talked about. The other incidents she’d been able to talk about and seek support from her fiance at that time and some friends and some family members. But it was the images around the physical abuse and her feelings around the sexual assault histories that she had taken which were - she was unable to talk about.”
“At the time of the autopsy and for some time after it I would have dreams - nightmares about this child. I always sensed I was unable to help him, he was so alone at the morgue, no parent or person that cared.
I still am reminded of him when I see young Asian children around the place …”
92 It was also during the period at Bass Hill that she investigated the murder of a woman who had been hacked to death with a meat cleaver in her home.
93 Notwithstanding this evidence it was clear that the most intensive exposure to child abuse situations had occurred during the period at the Child Mistreatment Unit. The accumulation of such experiences is, on the evidence, a significant factor in the development of a psychiatric condition. As Dr Wright said during the course of his examination in chief:
“Q Firstly, is it your opinion that there has or has not been a material contribution to this disease, firstly by the amount of caseloads she had?
A I believe there has been a contribution.
Q Now has that got something to do with an accumulation of stress within the individual?
A Yes, it has. I think the longer time period a person works in these kinds of situations and the more repeatedly they are exposed to individuals who have been the victims of perpetrators or the families of abuse, the increase there is of an accumulated stress effect on that person.
… … …
Q But in terms of looking after abused children or their families, what is it about that that is significant in terms of creation of a Post Traumatic Stress Disorder?
A Well, there are a number of factors involved. One is the injuries and other effects on the abused children. Most people have an abhorrent reaction to trauma in children. That is a fairly universal response. For someone to then have to not only deal with that at close quarters, but to then have to spend protracted periods of time, sometimes years, with the victims, their families and the perpetrators, who are sometimes related to the families, causes that individual in this case a police officer, to have their normal coping mechanisms gradually overwhelmed.”
94 During his cross-examination, the other factors which caused stress were put to Dr Wright. He placed particular reliance on the content of the nightmares experienced by the Respondent and concluded that her experiences at the Child Mistreatment Unit “continued to make a substantial contribution”.
95 In my opinion, there was evidence before his Honour which justified the conclusion that the experience of the Respondent which was the result of negligence on the part of the Appellant materially contributed to the injury she suffered. This is not a conclusion with which this Court should interfere.
Injury
96 The Appellant submitted that this Court should overturn the trial judge’s finding that the Plaintiff suffered from Post-Traumatic Stress Disorder. His Honour had before him a body of expert evidence in favour of the Plaintiff in this regard. The Appellant submitted that this Court should reject the evidence of Dr Canaris on the basis that he was “an unreliable and a rambling witness”. It was submitted that Dr Wright’s opinion should be rejected on the basis that he ignored certain propositions which, the Appellant submitted, were significant, such as the absence of studies showing that police investigative work caused post-traumatic stress. It was also submitted that he ignored the evidence of other stressful events as causes of post-traumatic stress. His Honour, it was submitted, should have accepted the evidence of Dr Lewin, called on behalf of the Appellant, to which evidence his Honour referred and which he rejected.
97 Nothing that has been put before the Court suggests that these matters form an appropriate basis for an appellate court to intervene. All of the Plaintiff’s witnesses were cross-examined at considerable length. Challenges to their reliability, and such an allegation as the submission that a doctor should not be accepted because he was a “rambling witness”, are matters for assessment by a trial judge. Furthermore, as his Honour noted, the Respondent was seen by Dr Dyball, on behalf of the Appellant. His reports were not tendered and his Honour inferred that they would not have supported the Appellant’s case.
98 His Honour referred to Dr Lewin in the following terms:
“While I am quite certain that Dr Lewin is a learned and conscientious physician, in the circumstances of this case, I am not inclined to put as much weight on his opinion as I am on those of the other psychiatrists who have examined and reported upon Ms Seedsman, including two treating psychiatrists, Dr Wu and Dr Wright. Dr Lewin’s scepticism about what appear to be a consistent view in the American Psychiatric Association does not necessarily mean that he is wrong, but it does strike me as being totally inconsistent with a substantial body of psychiatric opinion which although contrary, seems the best to accommodate what is in evidence about Ms Seedsman. In addition, when he gave evidence he seemed to wish to retreat from his written diagnosis of adjustment disorder. I find his evidence neither impressive nor convincing. For those reasons where the opinion of Dr Lewin is not consistent with other psychiatrists, I would prefer those other views.” (16)
99 The reasons given by his Honour for rejecting Dr Lewin are not such as would allow this Court to intervene.
100 The Appellant’s submission that the diagnosis that the Respondent was suffering Post-Traumatic Stress Disorder should be rejected, was based, in part, on the definition of the disease. It submitted that this disease was restricted to persons who had experienced danger by direct physical proximity or by becoming aware of danger to a loved one.
101 His Honour accepted the description of Post Traumatic Stress Disorder set out in the Diagnostic and Statistical Manual of Mental Disorders: DSM-IV (“DSM-IV”) as published by the American Psychiatric Association. His Honour set out in his judgment a section of the report which listed the “diagnostic criteria” for the disease, which his Honour described as a “brief description of Post Traumatic Stress Disorder”. The issues turn on the first category of the criteria as follows:102 His Honour did not set out in his judgment the narrative statement with respect to Criterion A1 which appears in the document under the sub-heading “Diagnostic Features” where it is stated:
“A. The person has been exposed to a traumatic event in which both of the following were present:
(i) The person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of their self or others.
(ii) The person’s response involved intense fear, helplessness or horror. Note, in children, this may be expressed instead by disorganised or agitated behaviour.”
“The essential feature of Post Traumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual, or threatened death or serious injury, or other threat to ones physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm or threat of death or injury experienced by a family member or other close associate (Criterion A1).”
103 The submission of the Appellant was that none of these essential characteristics for a diagnosis was present in the case before the Court. It was submitted that at no stage was the Respondent subject to any threat to her own physical integrity; nor did she witness an event that involved “death, injury or a threat to the physical integrity of another person”; nor did she learn of any harm or threat experienced by “a family member or other close associate”. His Honour’s findings of fact were to the contrary. The Appellant submits that there was no evidence to justify these findings.
104 His Honour’s findings appear in the following parts of his judgment:105 It was on this basis that his Honour concluded:
“It is clear that the American Psychiatric Association acknowledges that a Post Traumatic Stress Disorder can result from the exposure of the patient to a situation which threatens the physical integrity of another person. Ms Seedsman was exposed in this way.” (15)
There is evidence that between 1983 and 1989 the Plaintiff was exposed to situations which clearly meet the criteria set out by the American Psychiatric Association for Post Traumatic Stress Disorder. On numerous occasions she actually saw the bodies of children which had been mutilated or showed visible signs of physical assault. On one occasion she was present at a scene where a father was in the act of sexually assaulting his daughter. She was called to a house where she saw the body of a person murdered with a meat clever. Psychiatric experts whose evidence I accept find that this is enough to explain the symptoms which Ms Seedsman exhibits, and which I have described briefly. I cannot accept that such exposure is any less traumatic than say, exposure of a soldier to killings in combat, to that of police who are involved in, or threatened by armed criminals, or fire fighters who discover charred bodies in burnt out houses. The latter group was the subject of a study by an Australian, Professor McFarlane of Flinders University, which establishes clearly that some people outside the military combat forces could suffer Post Traumatic Stress Disorder.
The DSM-IV is certainly not written as legislation. It describes, in terms which should be taken as guidelines, rather than strict boundaries, a condition which a clinician may diagnose when certain criteria are met. It is clear from Dr Wu, Dr Wright, Dr Canaris and though their opinions may not carry quite the same weight, Dr Lombardo and Ms Lewis applied the criteria and came up with their diagnosis. In my view, they were entitled to do so.” (16-17)
“I am satisfied that the plaintiff’s condition is properly diagnosed as a Post Traumatic Stress Disorder resulting in a state of hyper vigilance, extreme anxiety, insomnia, nightmares and flashbacks”. (17)
106 The Appellant submits that his Honour made factual errors in this recitation of the relevant facts. First, it submits that the evidence was not that the Respondent “was present at the scene where a father was in the act of sexually assaulting his daughter”. Rather, the evidence was that she arrived on the scene shortly after the assault and subsequently interviewed the victim. Furthermore, it was submitted that the other specific example given by the trial judge that she was called to a house where she saw a person who had been murdered with a meat cleaver, was in fact an event that occurred after what it submitted to be the relevant period of 1983-1988.
107 In a statement dated 11 August 1998, tendered as an exhibit in the proceedings, the Respondent outlined the range of abuse with which she had come in contact during her period at the Child Mistreatment Unit. It is not entirely clear with respect to many of these incidents as to what precisely it was that the Respondent witnessed. On most occasions she was participating in some form of interview, with either a victim, relative, or perpetrator. She lists some twenty-four instances between 1983 and 1990. She refers to one incident in 1985 when she visited a six month old boy in hospital whom she described as being “in full traction” and “he had a condition called ‘watchful eyes’ which means he no longer cried and stared at all adults that approached him with ‘saucer shaped’ eyes awaiting the next assault.” She mentioned another incident in 1985 in which the penis of a three year old boy had been cut off and “subsequently found in the hand of the mother”. It is not entirely clear what she directly witnessed in this regard. On another occasion in 1985, she saw a “shaken baby” who died. She saw the body at the city morgue. Sometime in 1986-1987 she attended the autopsy of a new born baby who had been born at home to its mother and smothered with a number of plastic bags.
108 Although a majority of the incidents about which she gave evidence involved interviewing the victims and, occasionally, the perpetrators, it does appear that the Respondent was exposed to a number of instances of direct observation of injury to other persons during the period which the Appellant submits was the relevant period. The number of such occasions can be increased if, as indicated above, the relevant period is extended.
109 The Appellant submits that witnessing the results of an event, including direct observations of dead or mutilated bodies, does not satisfy the requirements of Post Traumatic Stress Disorder.
110 The relevant expressions in DSM-IV are:
“The person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others.”
and
“… witnessing an event that involved death or injury or a threat to the physical integrity of another person.”
111 The Appellant submits that the Respondent did not experience or witness, nor was she confronted by any “event” of this character. She witnessed only the injuries that such events had caused.
112 DSM-IV does make provision for a case in which a person learns about an event without directly observing it. However, this basis for a diagnosis is limited by DSM-IV to the case of “a family member or other close associate”. The victims to which the Respondent was exposed do not answer that description.
113 It is an essential requirement of liability for pure psychiatric damage that a plaintiff suffer a recognised psychiatric illness. (See e.g. Mount Isa Mines Limited v Pusey (1970) 125 CLR 383 at 394; Mullany and Handford Tort Liability for Psychiatric Damage (1993) Chapter 2). The Appellant’s submission that the Respondent did not suffer Post Traumatic Stress Disorder could, if accepted, mean that this condition was not satisfied, unless some other illness was established.
114 DSM-IV is not a statutory formulation which a court must construe and decide whether the requirements are satisfied. It is, as its title suggests, a “diagnostic manual” for clinical use. It contains within itself a number of explicit warnings against the kind of use to which the Appellant sought to put it and which emphasise that the criteria are only guidelines for professional judgment.
115 Under the heading “Cautionary Statement”, the authors say:116 Under the heading “Use of Clinical Judgment” the authors say:
“The specific diagnostic criteria for each mental disorder are offered as guidelines for making diagnoses, because it has been demonstrated that the use of such criteria enhances agreement among clinicians and investigators. The proper use of these criteria requires specialised clinical training that provides both a body of knowledge and clinical skills”.
117 Finally, under the heading “Limitations of the Categorical Approach”, the authors say:
“It is important that DSM-IV not be applied mechanically by untrained individuals. The specific diagnostic criteria included in DSM-IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion. For example, the exercise of clinical judgment may justify giving certain diagnoses to an individual even though the clinical presentation falls just short of meeting the full criteria for the diagnosis as long as the symptoms that are present are persistent and severe.”
118 As one commentator has noted:
“DSM-IV is a categorical classification that divides mental disorders into types based on criteria sets with defining features. … A categorical approach to classification works best when all members of a diagnostic class are homogenous, when there are clear boundaries between classes; and when the different classes are mutually exclusive. Nonetheless, the limitations of the categorical classification system must be recognised.
In DSM-IV, there is no assumption that each category of mental disorder is a complete discrete entity with absolute boundaries dividing it from other mental disorders or from no mental disorder. There is also no assumption that all individuals described as having the same mental disorder are alike in all important ways. The clinician using DSM-IV should therefore consider that individuals sharing a diagnosis are likely to be heterogenesis even in regard to the defining features of the diagnosis and that boundary cases will be difficult to diagnose in any but a probabilistic fashion.”
“The DSM represents guidelines that should be subjected to clinical judgment, adherence to the diagnostic criteria is not mandatory but advisory”. (Neal “The Pitfalls of Making a Categorical Diagnosis of Post Traumatic Stress Disorder in Personal Injury Litigation” (1994) 34 Med, Science and the Law 117 at 121).
119 DSM-IV also contains reservations about its use in litigation which it is unnecessary to set out. The limitations of such use was also referred to in Vernon v Bosley (No 1) [1997] 1 All ER 577 esp at 610-611 per Thorpe LJ. At 611 his Lordship rejected the proposition that the existence of a recognised psychiatric illness can be reduced to PTSD as defined in the DSM-IV or nothing.
120 Aspects of the application of Post Traumatic Stress Disorder in litigation remain controversial. (See e.g. Mendelsohn “Post Traumatic Stress Disorder and Litigation” (1999) 15 Aust Forensic Psychiatry Bull 3; Freckelton “Post Traumatic Stress Disorder: A Challenge for Public and Private Health Law” (1985) 5 J of Law & Med 252).
121 The issue is not one of labelling, but of establishing a psychiatric injury of some character. As Brennan J put it in Jaensch v Coffey (1983-1984) 155 CLR 549 at 560:
“Compensation is awarded for the disability from which the plaintiff suffers, not for its conformity with a label of dubious medical acceptability.”
122 In each case, the Court must deal with the particular submissions made to it.
123 In the present case, the Appellant did not rely on any particular restriction on the scope of recovery for pure psychiatric injury. Indeed, it accepted that the Respondent was entitled to recover for pure psychiatric injury if that is what she suffered. The issues posed by the Appellant were whether the Respondent had suffered any such injury at all and, if so, whether injury of that kind was foreseeable. In its submissions to the trial judge, repeated in this Court, the Appellant accepted the applicability of Walker v Northumberland County Council [1995] 1 All ER 737. That case suggests that pure psychiatric injury is within the general duty of an employer to take reasonable care to avoid exposing employees to unnecessary risks of injury. (See Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307-8).
124 It does appear that Goldring DCJ acted on the basis that observation of injury, rather than observation of the event causing injury, was a sufficient basis for a diagnosis of Post Traumatic Stress Disorder. If it were material to interpret the DSM in this way, it appears that his Honour erred in this interpretation. However, his Honour did say that DSM-IV could not be applied as if it were legislation. He acted on the diagnosis of the experts who gave evidence before him (and of Dr Wu). Divergence from the DSM criteria was, of course, an appropriate basis for cross-examining the experts. This occurred.
125 On the expert evidence before him his Honour was, in my opinion, entitled to accept the diagnosis. Garling DCJ preferred the expert witnesses of the Respondent. He was entitled to do so. The Appellant has not made out its case that this Court should reverse his Honour’s findings in this respect.
126 The evidence which his Honour accepted after detailed cross-examination, clearly established psychiatric injury to his satisfaction. This Court should not interfere.
General Damages
127 The Appellant challenged the award of $125,000 by way of general damages as excessive. It submitted that his Honour based this assessment on two factual errors.
128 The first alleged error is in the relevant passage of his judgment when his Honour said:
“Until about 1986 or thereabouts, she appears to have been a confident police officer, not overly ambitious, but keen to qualify as a detective, to seek and obtain promotion to the rank of sergeant and to remain active in police work until normal retiring age.” (40)
129 It is submitted that this is wrong because she remained a confident and keen police officer until about 1994.
130 The second alleged factual error was the statement by his Honour:
“In Ms Seedsman’s case I have found permanent and serious impairment of a life and for a period, since she discovered the cause of her condition, of great anguish.” (40)
131 It was submitted that there was evidence which his Honour ought to have accepted that she discovered her “condition” in July 1995 but suffered “anguish” only after the birth of her son on 11 November 1996.
132 It is important to place the two particular references in the context of his Honour’s judgment. When that is done, it appears that his Honour’s overall assessment was not based on these particular matters to a degree that one could uphold a submission that the award of damages would be so far outside the appropriate range as to constitute an erroneous exercise of his Honour’s discretion. His Honour said at 40:133 It does not appear to me that his Honour was using the words “until about 1986” with the degree of precision which the Appellant suggests. Nor is there any difficulty in the conclusion that she did suffer anguish for a period after the discovery of her condition. This ground of appeal should be dismissed.
“The Plaintiff’s life has been changed utterly. Until about 1986 or thereabouts, she appears to have been a confident police officer, not overly ambitious, but keen to qualify as a detective, to seek and obtain promotion to the rank of sergeant, and to remain active in police work until normal retiring age.
She suffers recurrent flashbacks, nightmares and extreme anxieties about her child. She has been diagnosed as suffering from a serious and almost certainly permanent psychiatric illness. Her relations with her family and her children have been adversely affected by her condition.
Pain and suffering cannot totally be compensated for by an award of damages; and where the pain and suffering result from a psychiatric, rather than physical disorder, the task of assessing damages is even more difficult. In Ms Seedsman’s case I have found permanent and serious impairment of a life and for a period since she discovered the cause of her condition, of great anguish. Her enjoyment of her family life and of her children is and will continue to be significantly less than if she was not suffering from this condition. I make an award of $125,000 as general damages for pain and suffering and loss of enjoyment of life.”
134 The Appellant submitted that his Honour was wrong to compute the Respondent’s damages for loss of future earning capacity on the basis that she would have been promoted to the rank of Inspector. His Honour’s findings in this regard were, first, that the Respondent would reasonably have expected to receive a promotion to the rank of Sergeant at or about the time of the trial. Furthermore, he found:
Loss of Future Earning Capacity
135 It was submitted that there was no evidence to support these findings. His Honour made reference to the evidence of Inspector Young which, as his Honour indicated, was quite unequivocal about Ms Seedsman’s capacity to be appointed as Sergeant. She had relieved in a Sergeant’s supervisory position on a number of occasions. Inspector Young said:
“I find that there was a very strong chance that at some time in the 17 years which Ms Seedsman would have remained in the police force, she would have been promoted to inspector, at a higher rate.” (42)
“I have absolutely no problem with seeing her at a Sergeant supervisory level. In fact, I recommended her for relieving in that position during that time that she worked in my team.”
136 Further, contrary to the Appellant’s submissions, Inspector Young had also given evidence which could form a reasonable basis for his Honour’s finding that further promotion was likely. Indeed, it appears for a period of one week the Respondent had in fact filled Inspector Young’s position at an Inspector level.
137 Inspector Young gave evidence that Ms Seedsman relieved as the Manager in the Team Leader’s position, namely Inspector Young’s own position:
“She was incredibly competitive at a Sergeant’s level, whether that is Senior Sergeant or Sergeant. Not having worked with her long enough to be as confident at a more senior rank I would have still encouraged her to apply.”
138 On this basis, his Honour’s finding that a promotion to the rank of Sergeant about the time of the trial was likely is well supported. The evidence of Inspector Young, together with his Honour’s own assessment of the career of the Respondent, also justified a finding that promotion to Inspector at some stage during the seventeen years was likely.
139 The Plaintiff also submitted that his Honour’s finding concerning the Respondent’s inability to return to the work force was not supported on the evidence. His Honour had indicated that he would discount the figure he had reached for future earning capacity by 15% for the vicissitudes of life and then went on to say:140 It is significant that his Honour had earlier found, when comparing the evidence of Dr Wright and Dr Canaris in this respect, as follows:
“Although Dr Wright’s prognosis is that she will be totally and permanently incapacitated for work, he did not discount the possibility that at some time in the future she might be able to return to some form of paid work. Dr Canaris also took this view. On this basis I propose to discount the amount I have calculated by a further ten percent to allow for that possibility.” (42)
141 His Honour also said shortly before this passage:
“Dr Wright emphasised that the longer Post Traumatic Stress Disorder remains undiagnosed and untreated, the more likely its symptoms are to be permanent.
Dr Canaris had a similar opinion to Dr Wright about the nature and effect of Ms Seedsman’s condition; he was quite guardedly optimistic, that she might in the distant future be able to return to work, but put this at no better than a 50% chance. However, he is not the treating clinician and in the circumstances, on the basis of Dr Wright’s opinion, it is more probable than not that she is permanently disabled for full time work, despite her clearly expressed wish ultimately to return to work.” (14)
142 The submission of the Appellant was to the effect that the discount of the 15%, and then a further 10% discount from that discounted figure, was not sufficient in the light of Dr Canaris’ opinion that she had a 50/50 chance of returning to work. However, his Honour gave his reasons for giving particular weight to the opinions of Dr Wright. He did not in fact implement those opinions in full, by allowing what he described as a “further 10% discount”. This was well within the range of what was open to his Honour to find and this Court should not interfere.
“In this case, Dr Wright, who has seen her often since February 1998, is, in my view, in the best position as the treating clinician to offer expert advice. I place a great deal of weight on his prognosis and diagnosis.” (13)
143 Ground 8 in the notice of appeal was in the following terms:
Computation Issues
“The learned trial judge erred in finding that the Appellant’s accountant’s report was virtually useless because she had made certain assumptions with which he did not concur when:
(a) Those assumptions were put as alternatives to calculations in which the assumptions were not made;
(b) The learned trial judge made no finding about the calculations made without those assumptions;
(c) The learned trial judge relied on the Appellant’s accountant’s report in respect of her calculation on superannuation entitlements”.
144 His Honour identified a number of respects in which the assumptions on which both the Defendant’s expert and the Plaintiff’s expert prepared their reports were not accepted by him.
145 His Honour’s specific references to the evidence of Ms Rogers, the Appellant’s expert was:146 His Honour also said with respect to the loss of superannuation benefits and long service leave entitlements:
“The defendant’s expert, Ms Rogers, gave evidence that she was instructed to prepare her reports on the basis of a number of assumptions. One of those was that Ms Seedsman would be able to work 30 hours per week in future. I have indicated that the evidence I have accepted is that there is only a slight possibility that she will be able to work at all in the future. Another is that Ms Seedsman had been in receipt of a hurt on duty benefit. The evidence is that although she applied for this, it was refused. There are other assumptions which I find to be without foundation. However, these assumptions make the whole of the report virtually useless.” (41)
“On the best figures available, the figures prepared by Ms Rogers, shorn of all assumptions except those I have set out, the present value of the loss of this pension as at 1 October 1998, is $75,110. I include this salary in the damages to be awarded.” (43)
147 It can be seen ground of appeal 8(c) is without any foundation. As for ground 8(b), it was not incumbent upon the trial judge to make findings on the calculations without the assumptions which he rejected and the fact that he failed to do so, does not impinge on his description of the Appellant’s accountant’s report as “virtually useless”.
148 As to ground 8(a), the assertion is made that his rejection of the Appellant’s accountant’s report as “virtually useless” was not supportable by reason of the fact that the report provided alternative calculations not based on the assumptions which his Honour rejected. This is supported by references to passages of the accountant’s report. I have been unable to identify in these passages with any degree of clarity what it is that the Appellant alleges to constitute the calculations which are relevant and which are not based on the assumptions that his Honour rejected. Nor has the Appellant in its submissions indicated in any way what, if any, amounts should be substituted for the sums his Honour awarded with respect to any relevant head of damage, by reason of a computation said to be based on assumptions which his Honour did not reject. Nor has the Appellant attempted in any way to assist the Court by comparing the evidence which it said ought to be accepted with any other relevant evidence with respect to these matters of computation. In these circumstances, this ground of appeal should be rejected.
149 The next ground of appeal on computation is a submission that there is an inconsistency between two findings made by his Honour. First, his Honour said:
“The evidence is that most police retire at 55 or shortly after their 55th birthday, when they become entitled to superannuation benefits. … I also assume that she would have retired at fifty-five and found some lower paid work. I take into account also that in addition to her salary, she would have received some allowances.
On that basis a fair measure of what would fairly compensate her for lack of future earning capacity would be to take the weekly net salary of a sergeant at mid-range, (i.e. Detective Sergeant, Level 3) and allow 21.5 years at this rate (i.e. until age 60).” (42)
150 Considered in its whole context, there is no inconsistency between his Honour’s assumption that she would have retired at fifty-five and allowing compensation at the Detective Sergeant Level 3 range until age sixty. His Honour had already held that the promotion to the rank of Sergeant would have occurred at or about the time of the trial. He held that at some later time she would have been promoted to Inspector. Furthermore, in addition to her salary she was entitled to receive other allowances. It appears that his Honour’s identification of a longer period i.e. until age sixty at a mid range level of Detective Sergeant Level 3 was a means of allowing for the periods of time in which she would receive, either by appointment to a higher Sergeant Level or to Inspector Level, the additional allowances available to her over and above her salary. There is no error in the trial judge’s general approach to computation in this regard.
151 In my opinion the appeal should be dismissed with costs.
152 MASON P: I agree with the judgment of the Chief Justice.
153 I would add this on the topic of the appellant’s duty as employer.
154 In its written submissions the appellant accepted the respondent’s formulation of the relevant law in par 5 of her submissions that:
There is nothing inconsistent with the established legal principles concerning the relationship of employer and employee that excludes, as a matter of law, from the employer’s duty to the employee, the need to exercise reasonable care to avoid unnecessary risk of injury in the form of a recognisable psychiatric illness where the type or kind of recognisable psychiatric illness is foreseeable.
155 This common ground between the parties accepts that the law in Australia is at variance with that in England as declared by the House of Lords in White v Chief Constable of South Yorkshire Police [1999] 2 AC 455. There the House of Lords (Lord Goff of Chieveley dissenting) held that an employer’s duty to care for the safety of employees and to take reasonable steps to protect them from physical harm did not extend to protecting them from psychiatric injury when there was no breach of the duty to protect from physical injury; and that the general rules restricting the recovery of damages for pure psychiatric harm applied to claims by employees.
156 This decision overturned that of the Court of Appeal in Frost v Chief Constable of South Yorkshire Police [1998] QB 254 where it was held that a master and servant relationship in itself gave rise to a duty of care which extended to psychiatric injury caused in the course of employment by the employer’s negligence, irrespective of whether the employee would otherwise have been classed as a primary or secondary victim (a classification recently introduced into English law but not part of Australian law).
157 In my judgment in Morgan v Tame [2000] NSWCA 121 I refer to two “control devices” which limit claims for pure psychiatric injury: the need for a sudden impact or affront to the nervous system and the requirement of proof that the plaintiff was of a normal standard of susceptibility to psychiatric illness (unless extraordinary susceptibility was known to the defendant).
158 As the law stood in England before White, neither was a prerequisite to a successful claim with respect to pure psychiatric illness if brought by a person who could establish a duty of care independently based upon breach of the employer’s duty of care. Of course, breach of duty and foreseeability of psychiatric harm were requirements of a successful cause of action in negligence.
159 The proposition I have just stated is illustrated by Walker v Northumberland County Council [1995] 1 All ER 737 where Colman J held that a social worker was entitled to damages for a nervous breakdown caused by stress at work. The case was decided on well-established general principles of negligence and the judgment did not refer to Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 or any other English “nervous shock” case. Colman J treated it as an axiomatic proposition that the employer’s duty to provide a reasonably safe system of work and to take reasonable steps to protect the employee from risks which were reasonably foreseeable was a sufficient framework within which to determine the case. On the facts of the case, the defendant Council was found not liable in respect of the plaintiff’s first breakdown which was not reasonably foreseeable. However, having been made aware of his susceptibility and the stress under which he felt, the defendant should have reduced the plaintiff’s workload on his return. For failing to do this the Council was held in breach of its duty of care. See also Aston v Imperial Chemical Industries Group High Court, 21 May 1992, unreported, Rose J, discussed in Law Commission (UK), Liability for Psychiatric Illness (Law Com No 249) par 2.47; Johnstone v Bloomsbury Area Health Authority [1992] QB 333; Petch v Custom and Excise Commissioners [1993] ICR 789; Hendy & Ford, Munkmann on Employer’s Liability 12th ed 1995, pp128-130.
160 In my view, the Australian law is to similar effect.
161 In Walker, Colman J referred with approval to the judgment of Miles CJ in Gillespie v Commonwealth of Australia (1991) 104 ACTR 1. That case involved a claim by a former Australian diplomat in respect of a mental breakdown which he suffered in consequence of stresses created by the living conditions in Caracas, Venezuela, to where he had been posted. The plaintiff contended that such stress and therefore his injury would have been avoided or reduced if the defendant had prepared him by a course of training for the severely stressful conditions likely to be encountered. Miles CJ held that the relationship of employer and employee itself gave rise to a duty of care. Whether or not that duty was breached was to be determined according to the general principles enunciated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. Miles CJ held (at 17):162 The employment relationship is one of the settled categories where a duty of care has never been in issue. So clear is the duty that it is non-delegable. In Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 Hayne J said (at [276]) (citation omitted):
This is not a nervous shock case. As I understand the nervous shock cases, many of them at least are concerned with the question of whether a duty of care existed on the particular facts. Many of the nervous shock cases have been concerned with the plaintiff’s reaction to the receipt of bad tidings or to the witnessing of injury to another person. In Mount Isa Mines Ltd v Pusey itself the plaintiff developed a schizophrenic condition in reaction to going to the assistance of two workmates who were injured in an electrical explosion and who died from shocking burns. But it is clear, as the passage from the judgment of Dixon J in Bunyan v Jordan [(1937) 57 CLR 1 at 16] indicates, that damages are not limited to recovery for a condition of “shock”, whatever that term may mean, and will be awarded for any foreseeable harm resulting from the defendant’s breach of duty, so long as the other conditions necessary for liability are present.
The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm’s way and to do so in circumstances over which that employer can exercise control. The duty is, of course, not absolute; it is the duty “of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury”.
163 The duty “extends to taking reasonable steps in accident prevention and not waiting for accidents to happen before safeguarding the health and safety of employees” (Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [101] per Kirby J).
164 In my judgment in Morgan v Tame I explain why, in my opinion, the common law of Australia generally requires proof of a sudden shock or affront to the senses, before admitting a claim for the negligent infliction of pure psychiatric illness. Fleming, The Law of Torts 9th ed ,1998 at p177 cites Gillespie and Walker as authorities for the proposition that the requirement that there be a “shock” in the sense of a sudden sensation is not applicable to independent duties like employers’ duties. I respectfully agree. Like Deane J in Jaensch v Coffey (1984) 155 CLR 549 at 597 I think that Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 may, upon proper analysis, lend support for a general proposition that an employer is liable for damages in respect of nervous shock sustained by an employee at his or her place of employment in circumstances where the employer has failed to take reasonable steps to avoid a reasonably foreseeable risk of injury in that form. (I note that a different interpretation of the ratio decidendi in Pusey was taken in White by Lord Hoffmann (at 507). Contrast Lord Goff at 485.)
165 But even if Pusey stands for a different (although not inconsistent) proposition, I would follow Gillespie and Walker in preference to the majority decision of the House of Lords in White. See also Wodrow v Commonwealth (1993) 45 FCR 52; Arnold v Midwest Radio Ltd (1999) EOC ¶92-965 (appeal upheld on other grounds: see Midwest Radio Ltd v Arnold (1999) EOC ¶92-970); Gallagher v The Queensland Corrective Services (1998), Supreme Court Queensland, 30 July 1998, Jones J, unreported; Peter Handford, “Psychiatric Injury in the Workplace” (1999) 72 Tort Law Review 126.
166 I have not overlooked the statements of Lord Griffiths (at 464), Lord Steyn (at 497-8) and Lord Hoffmann (at 505) in White to the effect that the law of master and servant is not a discrete and separate branch of the law of tort, but is to be considered in relation to actions in tort generally. At that level of generality the proposition may readily be accepted. But it is in no way self-evident that the employer’s liability for negligently caused psychiatric injury must necessarily fall in line with the law applicable to rescuers or (a fortiori) plaintiffs outside established categories of “nervous shock victims”. There is, with respect, more than an element of circularity in their Lordships’ proposition. The converse is of course true: it is not axiomatic that the employee should be in a better situation.
167 In my view the well-established principles that inform the employer’s common law duty of care, and the reasons lying behind those principles, to which Hayne J makes reference in Crimmins, are sufficient to generate a duty of care with respect to pure psychiatric injury. In Frost, Rose LJ said (at 266):
The standard of care required in the discharge of [the duty that exists by reason of the master and servant relationship] and the degree of proximity will of course vary from case to case according, among other matters, to the nature of the job and the degree of fortitude to be expected of the employee.
168 In my opinion, the application of well-established principles relating to standard of care and foreseeability are sufficient “control devices” in the employment situation to justify the disregarding of or an exception to the requirement of a shock-induced illness.
169 Whether the employer’s duty of care is also sufficient to exclude the need to consider whether psychiatric illness would have occurred to an employee of reasonable fortitude does not strictly arise because that threshold was passed in the present case. The caselaw to which I have made reference appears to disregard this second “control device” where the employment relationship exists. As presently advised, that appears to be correct.
170 MEAGHER JA: In this matter I agree entirely with the judgment of the Chief Justice, which I have had the opportunity of reading in draft. I also agree with the judgment of Goldring DCJ at first instance.
171 I do however, wish to add a small addendum on the appellant’s submission. Learned senior counsel for the appellant submitted, as I understood it, that there was no binding legal precedent which would justify a Court in finding negligence against the police in respect of facts like those involved in the present case. That is probably so in the limited sense that there is no such case in which the plaintiff was a junior employee and the defendant a Commissioner of Police (or the equivalent).
172 In a wider sense it is simply not true. The case which establishes liability is Donoghue v Stevenson [1932] AC 562. That case is authority for the proposition (inter alia) that where a reasonable employer knows that there is a real possibility of injury to his employees, he must take due care to guard against such injury. The law must not be confined to rigid and exclusive categories: Donoghue v Stevenson (supra) per Lord Atkin at 594.
173 In my view it does not matter whether that injury be physical or mental. It is true that in England some rather difficult distinctions are drawn between the two types of injury, and the case law on the subject (culminating in Frost v Chief Constable of South Yorkshire Police (1999) 2 AC 455) does not inspire confidence in either the clarity or the purpose of such a distinction.
174 To draw such a distinction seems to me to be contrary to the decision of the High Court of Australia in Mount Isa Mines v Pusey (1970) 125 CLR 383.
175 If, then, one applies the Donoghue v Stevenson test to the present case, the answer dictates itself. The appellant required a young and sensitive girl, as part of her duties, to do Child Abuse work; and moreover, without providing debriefing or rotation of those duties. She witnessed barbarous and disgusting sights. One surely does not, need a legal authority to tell one that in these circumstances, sooner or later, she may suffer from stress; nor, it seems to me, does one need such authority to conclude that constant stress of that kind might slide into mental disorder. In the present case, on the facts, the respondent did suffer, first, stress, and then mental disorder.
176 The appellant also submitted that it was under no liability to the respondent because there was no expert evidence at the relevant times which would lead one to this conclusion. The answer to this submission is the obvious one given by Barwick CJ in Pusey’s Case (supra) at 390:177 The appeal should be dismissed with costs.
“No special medical or psychiatric knowledge is required in my opinion to foresee the possibility of injury by way of mental disturbance in such circumstances”.
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