HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJSTATE OF NEW SOUTH WALES APPELLANT
AND
GEMMA FAHY RESPONDENT
New South Wales v Fahy [2007] HCA 20
22 May 2007
S341/2006ORDER
1.Appeal allowed.
2.Set aside orders 2 and 3 of the Court of Appeal of the Supreme Court of New South Wales made on 4 April 2006 and in their place order that the order of the District Court of New South Wales made on 28 February 2005 that there be a verdict for the plaintiff be set aside, and in its place order that there be judgment for the defendant.
3.The appellant pay the costs of the respondent of the appeal in this Court.
On appeal from the Supreme Court of New South Wales
Representation
P Menzies QC with P R Sternberg and B McDonald for the appellant (instructed by Crown Solicitor for New South Wales)
I M Barker QC with S Norton SC and E E J Welsh for the respondent (instructed by L J Sharpe & Co)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
New South Wales v Fahy
Negligence – Relationship between the Police Service Act 1990 (NSW) and the nature and extent of the duty of care owed by the "Crown" or Commissioner of Police to the respondent police officer.
Negligence – Respondent police officer assisted a stabbing victim without support from nearby police officers – As a result the respondent suffered post-traumatic stress disorder – Whether the "Crown" or Commissioner of Police breached duty of care owed to the respondent by failing to establish a system of work whereby, when possible, the respondent was supported by another police officer – Whether failure of nearby police officers to provide support to respondent was a breach of duty.
Negligence – Breach of duty – Foreseeability of risk of injury – Whether Wyong Shire Council v Shirt (1980) 146 CLR 40 should be overruled.
Words and phrases – "breach of duty" – "calculus of negligence".
Police Service Act 1990 (NSW), s 201.
GLEESON CJ. The issue in this appeal is whether a finding of negligence made in favour of the respondent by a District Court judge, and the Court of Appeal of New South Wales (Spigelman CJ, Basten JA and M W Campbell AJA)[1], should be overruled.
[1]New South Wales v Fahy (2006) 155 IR 54.
The facts are set out in the reasons for judgment of the other members of the Court. The respondent was a constable in the Police Service of New South Wales ("the Service"). As the other members of the Court have noted, the case was conducted by the parties, at some risk of over-simplification, upon the basis that the relationship between the respondent and "the Crown" was analogous to that of employee and employer, and that either "the Crown" or the Commissioner of Police owed the respondent a duty of care of the kind that exists in an ordinary employment setting, subject to any relevant statutory modification of the incidents of that relationship. The Statement of Claim alleged that the respondent was employed by the Service. The Grounds of Defence admitted that allegation, and also admitted that "an employer owes a duty to its employee to take reasonable care for the employee's safety". The main issue at trial, and on appeal, was breach of that duty. There were also some presently irrelevant questions about quantification of damages.
The damage said to have been suffered by the respondent, in consequence of the breach of duty by her employer to take reasonable care for her safety, was psychiatric injury diagnosed as post-traumatic stress disorder. The circumstances in which the injury occurred are explained in the reasons of the other members of the Court.
To observe that it was common ground that the Service, or the Commissioner, owed the respondent a duty to take reasonable care for her safety, and that this embraced a duty to institute and maintain a safe system of work, helps to set the context for the debate in this Court, but it raises questions as to the kind of act or omission that would constitute a breach of such duty. The relevant form of safety is protection from the risk of psychiatric injury and, in particular, post-traumatic stress disorder. Having regard to the nature of the duties of a police officer, and to the nature of post-traumatic stress disorder, concepts of risk, and safety, may require closer analysis. The duties of police officers commonly expose them to danger, sometimes from people who deliberately seek to cause them harm. Individual responses to stressful situations vary greatly, and police officers are sometimes called upon to deal with situations that many ordinary citizens would find unbearably stressful. Police service is not unique in this respect. Many callings expose people to forms of stress with which outsiders would be unable to cope. Furthermore, an individual's capacity to cope with stress may be affected by unpredictable personal circumstances.
In Barber v Somerset County Council[2], the House of Lords dealt with the case of a schoolteacher who suffered psychiatric injury caused by work-related stress. Applying as a standard of negligence "the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know"[3], the House of Lords disagreed with the Court of Appeal's decision that negligence had not been shown. However, Hale LJ in the Court of Appeal had formulated some practical propositions applicable to cases where complaint is made of psychiatric illness brought about by stress at work, and these were accepted in the House of Lords[4]. On the question whether psychiatric harm to the particular employee was reasonably foreseeable, they included the proposition that "there are no occupations which should be regarded as intrinsically dangerous to mental health"[5]. Another way of expressing a similar idea may be to say that the factors that may cause stress, and the circumstances in which an individual might suffer stress-related injury, are so various that to single out any occupation and treat it as intrinsically dangerous in this respect is unwarranted. There are circumstances, for example, in which caring for children might be at least as stressful as law enforcement.
[2][2004] 1 WLR 1089; [2004] 2 All ER 385.
[3][2004] 1 WLR 1089 at 1110 [65]; [2004] 2 All ER 385 at 406, applying Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783.
[4][2004] 1 WLR 1089 at 1092-1093 [7], [10], 1109 [63]; [2004] 2 All ER 385 at 389-390, 405.
[5][2004] 1 WLR 1089 at 1092 [7]; [2004] 2 All ER 385 at 389.
This being a case about breach of duty, there was reference in argument to the well-known statement of principle of Mason J in Wyong Shire Council v Shirt[6]. As his reasons make clear[7], Mason J was applying the law as stated by Lord Reid on behalf of the Privy Council in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty ("The Wagon Mound [No 2]")[8]. Dealing with the two factors of reasonable foreseeability of a risk of harm, and avoidance of the risk, Mason J explained how a tribunal of fact should set about deciding whether there has been a breach of a duty of care. The tribunal asks first whether a reasonable person in the defendant's position would have foreseen that his or her conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer is yes, then the task is to consider what a reasonable person would do by way of response to the risk. He then set out factors which are likely to enter into such a consideration; factors which may need to be "balanced out"[9]. This has since been referred to, somewhat unfortunately, as a "calculus". What is involved is a judgment about reasonableness, and reasonableness is not amenable to exact calculation[10]. The metaphor of balancing, or weighing competing considerations, is commonly and appropriately used to describe a process of judgment, but the things that are being weighed are not always commensurate. As was pointed out in Mulligan v Coffs Harbour City Council[11], there are cases in which an unduly mathematical approach to the exercise can lead to an unreasonable result.
[6](1980) 146 CLR 40 at 46-48.
[7](1980) 146 CLR 40 at 47.
[8][1967] 1 AC 617.
[9](1980) 146 CLR 40 at 47-48.
[10]See Ridge v Baldwin [1964] AC 40 at 65.
[11](2005) 223 CLR 486 at 490 [2].
In 1856, Alderson B said: "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."[12] Reasonableness is the touchstone, and considerations of foreseeability and risk avoidance are evaluated in that context. In Shirt, Wilson J, in dissent, expressed some concern that some forms of judicial exposition of the concept of reasonable foreseeability might deprive the requirement of foreseeability of practical substance[13]. Later judges have expressed similar concerns. There may be cases where courts have lost sight of the ultimate criterion of reasonableness, or have adopted a mechanistic approach to questions of reasonable foreseeability, risk management or risk avoidance. Complaints about failure to warn seem to give rise to problems of that kind. There have been occasions when judges appear to have forgotten that the response of prudent and reasonable people to many of life's hazards is to do nothing[14]. If it were otherwise, we would live in a forest of warning signs. That, however, does not warrant reconsideration in this case of what was said by Mason J. In cases where the principles have been misapplied, that may have been the result of a failure to read the most frequently quoted passage in the context of the whole of Mason J's judgment.
[12]Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 at 784 [156 ER 1047 at 1049].
[13](1980) 146 CLR 40 at 53.
[14]cf Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Neindorf v Junkovic (2005) 80 ALJR 341; 222 ALR 631; Vairy v Wyong Shire Council (2005) 223 CLR 422 at 425-427 [2]-[8].
There being no dispute that the respondent was owed a duty of care by her employer, and there being no dispute about the general nature of that duty (a duty to take reasonable care for the safety of the respondent by instituting and maintaining a safe system of work), the respondent has the benefit of concurrent findings that there was a breach of that duty. I expressed my views on the significance of this consideration in Graham Barclay Oysters Pty Ltd v Ryan[15], and do not intend to repeat them. The essence of the challenge to those findings is that the reasoning on which they were based was manifestly implausible.
[15](2002) 211 CLR 540 at 567-569 [48]-[54].
The case for the respondent was somewhat more diffuse than the case that finally succeeded and, as Basten JA pointed out in the Court of Appeal, the findings of the primary judge were expressed in a manner that tended to confuse issues of breach of duty and causation. The respondent attributed her condition to a number of alleged shortcomings in the conduct of individual police officers, and of the Service, both during and after the traumatic events in the immediate aftermath of the armed robbery of 25 August 1999. She had various complaints about the way she was treated on the night in question, and later. Ultimately, however, it was the conduct of Senior Constable Evans in failing to assist and support the respondent as she rendered assistance to the victim of the armed robbery that was held to involve a breach of the duty of care owed to the respondent.
There was plenty of evidence to justify a conclusion that psychiatric injury of the kind suffered by the respondent was a reasonably foreseeable consequence of failing to provide support and assistance in the circumstances in which she was placed. I do not understand that to be in contest. One of the respondent's primary complaints was that she was left alone by Senior Constable Evans to cope with a situation in circumstances where the system under which they were both working required that he ought not to have left her alone without reason; and the primary judge found that he had no good reason. This idea of a system that was in place, but was departed from by Senior Constable Evans, was contentious. The primary judge referred to "the buddy system" and "the recognised risks of stress-related disorders" in the context of a conclusion that police officers assigned to work together, such as Senior Constable Evans and the respondent on the night in question, were duty-bound to give one another support unless there were reasons why that was not practical. The appellant argued that this so-called "buddy system" owed more to assumptions made by the respondent's medical witnesses than to any cogent evidence of police practice. There is some force in that criticism. However, as the trial was conducted, there was a dearth of evidence from senior police officers. The respondent gave unchallenged evidence that, when police officers were working in pairs, "you had to look after who you were working with", and she gave examples of how this mutual support worked in practice.
Nobody suggested that it would be possible to prescribe with any precision the circumstances in which two police officers, working as a pair, should or should not separate. The decision in the present case was that there was a recognised risk of stress-related injury, that the Service had responded to the risk by requiring police officers working in pairs to give one another support and assistance unless there was some reason for separating, that Senior Constable Evans had shown no reason for leaving the respondent alone, and that the respondent's exposure to the trauma of the victim in the doctor's surgery without any help from her partner was a cause of her psychiatric injury.
Spigelman CJ said:
"The critical issue in the present case was whether or not the failure on the part of the officers of the Appellant to provide support in the course of the traumatic incident was a breach of duty. It can readily be accepted, as the Appellant submitted, that the Court should be slow to require the police to generally have a second officer supporting another in the course of exposure to the trauma of victims of crime. Pressure and stress are part of the system of work which police officers must be prepared to carry out. There are numerous occasions on which one of two officers operating under the buddy system would reasonably leave the other to perform functions on his or her own. Indeed, it must often be the case that it is necessary to do so. In the usual case it would not take much in the way of evidence to satisfy a court that the performance by a police officer of his or her primary duties was such that any failure to offer support for another police officer did not constitute a breach of duty.
However, in the present case the plaintiff established a proper basis for an inference that there was no such call of other duties which made it reasonable not to take steps to support the [plaintiff]. In particular the presence of other police officers on the scene was such as to support a conclusion that the attendance of Constable Evans to other tasks was not such as to render reasonable, in all of the circumstances, his failure to support the [plaintiff]."
The other members of the Court of Appeal agreed in substance with that finding. I see no sufficient reason for this Court to reject the finding. The appeal should be dismissed with costs.
GUMMOW AND HAYNE JJ. In August 1999, the respondent, Gemma Fahy, was a constable[16] in what was then called the Police Service of New South Wales[17]. Ms Fahy had joined the Service in February 1996 and in the course of her duties had attended many traumatic incidents. On 25 August 1999, she was one of two officers stationed at Green Valley Police Station assigned to patrol in a police truck. The other officer, Senior Constable Evans, was senior to her. Ms Fahy considered Senior Constable Evans to be a friend but they had been assigned to work together only three or four times previously.
[16]Police Service Act 1990 (NSW), s 73.
[17]Police Service Act, s 4. The Police Service Amendment (NSW Police) Act 2002 (NSW) amended the short title of the Police Service Act to the "Police Act 1990" and deleted references to the Police Service of New South Wales, instead referring to "NSW Police". It will be necessary in these reasons to refer to the provisions of the Police Service Act as they stood at the time of the events giving rise to this matter, and convenient to refer to the "Police Service" rather than to "NSW Police".
At about 9.00 pm on 25 August 1999, Ms Fahy and Mr Evans were directed to investigate a hold-up alarm at a pharmacy at Edensor Park Shopping Centre. Ms Fahy was later to allege that she suffered psychiatric injury in consequence of what happened thereafter.
In 2001, Ms Fahy brought an action in the District Court of New South Wales against the State of New South Wales claiming damages for negligence. She succeeded at trial. An appeal by the State to the Court of Appeal failed on the issue of liability but succeeded on a question about mitigation of damages[18]. By special leave, the State now appeals to this Court to agitate questions about liability, and in particular questions about breach of duty, including whether this Court should reconsider Wyong Shire Council v Shirt[19].
[18]New South Wales v Fahy (2006) 155 IR 54.
[19](1980) 146 CLR 40.
This abbreviated description of the facts that lie behind the appeal and of the course of litigation in the courts below masks a number of particular features of both the facts and the course of proceedings which it will be necessary to examine in some detail. It is as well to begin, however, by identifying some fundamental considerations that must inform examination of this matter.
The essential statutory framework
Because Ms Fahy claimed damages from the State on account of events occurring during her service as a police officer, any inquiry about the liability of the State must begin by considering the statutes that governed Ms Fahy's service as a police officer, the statutes that regulated claims against the State, and the statutes that regulated claims brought by an employee against his or her employer. It is convenient to begin by examining relevant provisions of the Police Service Act 1990 (NSW).
The Police Service established by the Police Service Act comprised the members referred to in s 5, which included the Commissioner and police officers employed under the Act. The Police Service was not a body corporate. The functions of the Police Service included[20] providing "police services" for New South Wales. "[P]olice services" included[21] "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way".
[20]s 6(2)(a).
[21]s 6(3)(b).
Subject to the direction of the relevant Minister, the Commissioner was "responsible for the management and control of the Police Service"[22]. Section 8(2) provided that: "The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the Police Service."
[22]s 8(1).
The Police Service Act prescribed[23] the ranks of police officers within the Police Service. Read as a whole, the Police Service Act demonstrated that the evident purpose of the legislation was, as may be expected, to create an hierarchical and disciplined force. Chief among the statutory provisions giving effect to that purpose was s 201 which made it a criminal offence for a police officer to neglect or refuse either to obey any lawful order or to carry out any lawful duty as a police officer.
[23]s 12.
The ordinary statement of claim by which the proceedings in the District Court were commenced alleged that the State of New South Wales was sued "pursuant to the Crown Proceedings Act, in respect of New South Wales Police". Presumably, this allegation was intended to engage s 5 of the Crown Proceedings Act 1988 (NSW), and its provisions that:
"(1) Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown (not being a claim or demand against a statutory corporation representing the Crown) may bring civil proceedings against the Crown under the title 'State of New South Wales' in any competent court.
(2) Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in the case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject."
How s 5 applied was not stated in the statement of claim and was not examined at trial.
In the Court of Appeal[24] reference was made to the Law Reform (Vicarious Liability) Act 1983 (NSW). Section 8 of that Act, as in force when the proceedings in the District Court were commenced and tried, provided that:
"(1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function:
(a)is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function); or
(b)is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown."
For the purposes of that Act, a police officer was deemed, by s 6, "to be a person in the service of the Crown and not a servant of the Crown".
[24](2006) 155 IR 54 at 60 [30].
Some questions about the application of the Crown Proceedings Act and the Law Reform (Vicarious Liability) Act were considered recently in New South Wales v Ibbett[25]. The issues that arise in this matter differ from those considered in Ibbett but are issues whose resolution depends upon premises that have their origin in those two statutes.
[25](2006) 81 ALJR 427 at 430 [4]-[6]; 231 ALR 485 at 487‑488.
Much of the argument of the appeal in this Court proceeded from the unstated premise that either "the Crown", or a person or persons for whom "the Crown" was made vicariously liable by the Law Reform (Vicarious Liability) Act, was to be treated as owing to Ms Fahy the duty of care owed by an employer to an employee. In particular, much of the argument in this Court proceeded from the assumption that "the Crown", or a person for whom "the Crown" was vicariously liable, was under a non‑delegable duty to provide a safe system of work[26] for police officers.
[26]cf Kondis v State Transport Authority (1984) 154 CLR 672.
This assumption depended upon a number of important intermediate steps, not all of which must now be examined. In particular, it is not necessary to decide whether the relevant duty of care was owed by "the Crown" or was to be understood as a duty of the Commissioner of Police (for whom "the Crown" was vicariously liable) qualifying, or giving content to, the statutory obligation imposed on the Commissioner by s 8(1) of the Police Service Act to manage and control the Police Service. No matter whether the asserted duty of care is that of "the Crown" or the Commissioner, it is necessary and important to recognise that it must be framed in a way that takes proper account of the statutory framework provided by the Police Service Act for the performance of police duties.
Police officers are required to undertake tasks of a kind that few, if any, commercial employers could ask of their employees. Police officers must confront death, injury and destruction. It is they who must waken the sleeping household to tell them of the sudden death or serious injury of another. Ms Fahy herself spoke of incidents she had attended in three years of police service: a fatal plane crash, a fatal industrial accident, numerous fatal car accidents, overdoses and hangings. And as well as confronting the consequences of folly and accident, police officers must confront the wrongdoer bent upon harm to both the police and members of the public. It is tasks of these kinds that are encapsulated[27] by the anodyne description of a function of the Police Service as being "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way". And it is tasks of these kinds that constitute the duties of a police officer and may be the subject of lawful orders to a police officer. To neglect or refuse either to obey those orders or to carry out those duties was a criminal offence. That is the work for which "the Crown" or the Commissioner was, so the parties' arguments assumed, duty bound to provide a safe system to perform. But the system that was devised had to be one which did not detract from the effectuation of the statutory purposes and functions of the Police Service. Examination of the facts and arguments in this case will reveal that too little attention has hitherto been given to these considerations.
[27]s 6(2)(a) and (3)(b).
The third kind of statutory provisions to which it was necessary to give attention at the trial of this matter were the provisions, regulating common law claims by employees against employers, of Div 3 of Pt 5 of the Workers Compensation Act 1987 (NSW) as in force at the time of the events giving rise to Ms Fahy's claim[28]. Reference was made to those provisions at trial and no point in the appeal to this Court was said to turn upon the application or operation of those provisions. It is, therefore, not necessary to examine what was said about these matters at trial or to make further reference to the provisions.
[28]Workers Compensation Act 1987 (NSW), s 151U.
The facts
Something further must be said about what happened to Ms Fahy after she and Senior Constable Evans were directed to investigate the hold‑up alarm.
When they arrived at the shopping centre, they were told that there had been a hold‑up and that someone had been injured. (The hold‑up had been at a video store, not the pharmacy to which they were originally directed.) Ms Fahy and Mr Evans were told that the victim had walked to a medical centre about 50 metres away. There was a trail of blood on the footpath.
At the medical centre the receptionist directed the officers to a treatment room where a doctor was attending to the injured victim. Ms Fahy went into the room; Mr Evans did not. The doctor was dealing with a stab wound to the victim's chest. Ms Fahy asked the doctor what she could do to help. He told Ms Fahy the victim was complaining of pain in his left side, and he asked her to look at that. Ms Fahy discovered that the victim had suffered another, very deep, laceration which extended from his left armpit to his waist. He was bleeding profusely. She tried to stop the bleeding by first applying dressings and then holding the wound together. Mr Evans may or may not have told Ms Fahy that he was going outside. Be this as it may, he did not stay with Ms Fahy.
The victim, still conscious, but bleeding profusely and evidently fearing death, spoke of his wife, his children, and his love for them. Ms Fahy tried to comfort him while, at the same time, using her radio, she asked, several times, where was the ambulance that had been summoned. The victim told her what the offenders were wearing and this, too, she relayed by radio. Throughout it all she attempted to keep the victim's wound closed.
Other police officers arrived at the scene but none came into the treatment room at the medical centre. One, the duty officer, Inspector Whitten, came to the door of the treatment room, "took one look ... turned around and ... walked away". When the ambulance officers arrived (about nine minutes after Ms Fahy and Mr Evans had arrived at the scene) Ms Fahy helped them move the victim into the ambulance. As the ambulance was leaving, the duty officer, Mr Whitten, told Ms Fahy to "put [her] hat on", "the media is here".
There then followed a series of other events Ms Fahy was later to allege contributed to the psychiatric injury she suffered. They included events on the night of the incident, and subsequent events said by Ms Fahy to constitute a failure to observe or to respond adequately to the trauma she had suffered. These matters loomed large at the trial of the action but they need not be described in any detail here.
Central to Ms Fahy's complaint, at trial and subsequently, was the fact that she had been left alone in the treatment room with the doctor and the wounded victim when, as the trial judge found, her immediate superior, Senior Constable Evans, had no operational or other sufficient reason which required him to leave her alone. In her pleading in the District Court, Ms Fahy had referred to Senior Constable Evans as her "partner" and she had alleged that "[r]ather than assist her, the partner decamped".
A psychiatrist called to give evidence at the trial spoke of Ms Fahy as perceiving herself "to be abandoned by her partner or buddy" and said that the "absence of her buddy" was "the decisive factor" in her development of a post‑traumatic stress disorder. The trial judge referred to "the lack of support from her senior officers, including Senior Constable Evans and Inspector Whitten", and described Ms Fahy's case as being that she had been treated "with extraordinary insensitivity, or by a deliberate course of conduct which had the effect of breaking down [her] resilience". In the Court of Appeal, Spigelman CJ identified[29] "[t]he critical issue" as being "whether or not the failure on the part of the officers ... to provide support in the course of the traumatic incident was a breach of duty" (emphasis added). But none of these descriptions identified precisely the relevant content of the duty that this "insensitive treatment", "failure to provide support", or "abandonment" breached.
[29](2006) 155 IR 54 at 58 [17].
The pleaded case
In her ordinary statement of claim Ms Fahy had alleged that the Police Service, "for which the [State] is liable", was under a duty of care to her, was in breach of that duty and was negligent. Seven particulars of negligence were given. None of them made any reference, in terms, to an alleged failure to provide a safe system of work.
Apart from particulars alleging, generally, a failure to take adequate precautions for the plaintiff's safety, and putting her in a position of peril, only two particulars referred to what had occurred at the shopping centre. First, it was alleged that there had been a failure to provide Ms Fahy "with proper and adequate assistance at the scene of the ... armed robbery". Secondly, it was alleged that the Police Service was negligent "[b]y its servant or agent, leaving the scene of the armed robbery and exposing [Ms Fahy] to the victim by herself". The remaining particulars of negligence concerned alleged failures to provide adequate counselling and adequate debriefing in respect of the incident.
The specificity of these particulars obscured the logically anterior question whether "the Crown" or the Commissioner was duty bound to establish a system of work for police that would not have left Ms Fahy as the only police officer in the treatment room when the doctor and Ms Fahy worked (desperately, and ultimately successfully) to save the life of the victim.
The trial
Evidence led at the trial focused upon two distinct subjects: what Senior Constable Evans and other officers did at the scene during and after the time Ms Fahy was assisting the treatment of the victim in the treatment room, and what counselling or debriefing was provided to Ms Fahy over subsequent days and weeks. As noted earlier, Senior Constable Evans was found not to have had any operational, or other sufficient reason that required him to leave Ms Fahy alone when she was in the treatment room with the doctor and the victim.
Evidence was given about police officers, who had been assigned to work in pairs, working as "partners". Consistent with the hierarchical and disciplined character of the Police Service, Ms Fahy pointed out that the senior of two officers assigned to work with each other was "in charge of decision‑making", but that "whether you were the junior or the senior, you had to look after who you were working with". Ms Fahy accepted that if two officers attended an incident, the first priority was to look after any injured person. In that regard she described earlier incidents she had attended, and made plain that during those incidents, she and the other officer with whom she was then working, whether that other officer was senior or junior to her, had worked closely together. But there were, she acknowledged, no "protocols" which controlled the senior officer's judgment about what each of two attending officers would do at any particular incident.
The evidence given by Ms Fahy about the way in which police officers who had been assigned to work in pairs did their work was generally to the same effect as evidence given by a former police officer (Terrence O'Connell) called to give expert evidence on behalf of the plaintiff. In particular, that witness did not suggest that any relevant rules had been made about how two officers should go about their work. And the general effect of his evidence was that no rules could be made about that subject. As he said, at a crime scene where a person has been injured, the arrangements between a pair of police officers attending the scene "tend to work themselves out, because when you're dealing with an emergent situation, the delineation between roles often isn't quite as clear as we imagine. In fact you do what you can do."
Further, the evidence given by Ms Fahy was consistent with the only documentary record of police operating procedures tendered at the trial – part of a pocket guide issued to police. Under the heading "Armed Robbery (Standard Operating Procedures)" the guide spoke of the need to "[e]nsure the well being of victims/witnesses", to "[c]irculate description of vehicle/offenders – as soon as possible", and to "[p]reserve crime scene". But it said nothing about how these tasks were to be divided if two officers attended the scene.
No other evidence was led to demonstrate that the system of work which did govern, or should govern, the performance of duties by two police officers attending a scene such as confronted Ms Fahy and Senior Constable Evans did, or should, regulate the performance of their duties in such a way that Mr Evans would not have left Ms Fahy alone with the doctor and victim in the medical centre treatment room.
The appeal to the Court of Appeal
The State's notice of appeal to the Court of Appeal gave 13 grounds of appeal. Three (grounds 11 to 13) concerned questions of quantum and may be put aside from consideration in the appeal to this Court. The remaining 10 grounds were, for the most part, cast in terms attacking particular factual findings made by the trial judge. Only the first ground (that the trial judge "erred in finding that the cause of [Ms Fahy's] post‑traumatic stress disorder ... was as a result of the negligent acts and/or omissions of a number of officers of NSW Police") might be understood as inviting attention to the questions of breach of duty which the State agitated in this Court. And even that ground was cast in terms which might suggest the need to give closer attention to questions of causation than questions about breach of duty. It appears, however, that argument in the Court of Appeal was directed to these questions of breach of duty. And it was not submitted in this Court that the issues which the State agitated in this Court had not been before the Court of Appeal. No submission was made that those issues did not constitute a part of the matter over which this Court has jurisdiction.
All members of the Court of Appeal agreed that the State's appeal in relation to questions of liability should be dismissed. Spigelman CJ, with whose reasons M W Campbell AJA agreed, understood[30] the State's grounds of appeal as "address[ing] issues of scope of duty, breach and causation". But Spigelman CJ recorded[31] that there was no issue that the State owed a duty to Ms Fahy to provide a safe system of work and that there was no issue that, if either Senior Constable Evans or Inspector Whitten were in breach of a duty of care, the State was vicariously liable for that breach. In the particular facts of the case his Honour found it unnecessary[32] to consider questions of vicarious responsibility for breaches of duty by Senior Constable Evans or Inspector Whitten and focused only on what he described as "the employer's direct obligation". He identified[33] the employer's duty as "a duty to take reasonable steps to avoid unnecessary risk of personal injury, relevantly psychiatric injury" and the risks to be avoided as those risks which are reasonably foreseeable. Having identified[34] the critical issue as being whether leaving Ms Fahy alone in the treatment room "satisfied the various elements of the tort including duty, breach and causation", Spigelman CJ concluded[35] "that the attendance of [Senior] Constable Evans to other tasks was not such as to render reasonable, in all of the circumstances, his failure to support" Ms Fahy.
[30](2006) 155 IR 54 at 56 [3].
[31](2006) 155 IR 54 at 56 [2].
[32](2006) 155 IR 54 at 56 [4].
[33](2006) 155 IR 54 at 56 [5].
[34](2006) 155 IR 54 at 57 [10].
[35](2006) 155 IR 54 at 58 [18].
Basten JA analysed the case differently. His Honour noted[36] some of the difficulties that lay behind the allegation that the State was sued pursuant to the Crown Proceedings Act "in respect of New South Wales Police" and the separate difficulties that might arise in determining whether "the Crown" was Ms Fahy's employer for purposes of determining the safety of conditions of employment. In that regard, Basten JA noted[37] that s 6 of the Law Reform (Vicarious Liability) Act expressly provided that a police officer was to be deemed to be a person "in the service of the Crown and not a servant of the Crown" (emphasis added).
[36](2006) 155 IR 54 at 60‑61 [30]‑[33].
[37](2006) 155 IR 54 at 61 [33].
Having observed[38] that despite the way in which the matter had been pleaded, the focus of the evidence was on the conduct of individual officers, Basten JA examined first[39] what it would have been necessary to establish to show that Senior Constable Evans had acted in breach of a duty of care which he had owed Ms Fahy. In particular, Basten JA concluded[40] that it would have been necessary to demonstrate that Mr Evans was, or should reasonably have been, aware of the risk of psychiatric injury to Ms Fahy. But because the case had not been pleaded or presented at trial in a way that depended upon showing that Mr Evans owed Ms Fahy a duty of care, there were no findings of fact that would support the conclusion that he had acted in breach of such a duty.
[38](2006) 155 IR 54 at 61 [34].
[39](2006) 155 IR 54 at 71‑74 [81]‑[90].
[40](2006) 155 IR 54 at 73‑74 [90], citing Koehlerv Cerebos (Australia) Ltd (2005) 222 CLR 44.
Basten JA then went on to consider the complaints made by Ms Fahy on the basis that they were complaints, first, that the failure of Senior Constable Evans to provide reasonably necessary support was a failure by the employer either to provide or to maintain a safe system of work[41], and second, that the treatment of Ms Fahy by Inspector Whitten, coupled with what had happened after the incident, was to be understood as a breach of duty "to provide appropriate support to an officer in the circumstances of the plaintiff, and monitor the effects of a potentially traumatic episode"[42]. The conclusion reached by Basten JA was expressed very briefly. His Honour said[43]:
"The findings of the trial judge were that Senior Constable Evans was aware of the circumstances in which the plaintiff had been assisting the doctor to stem the victim's bleeding; Inspector Whitten knew that there was a real risk that the victim would die; he further knew that the plaintiff had had contact with the victim's wife and was in the process of taking her to the hospital when she was called back to the crime scene, and if he did not know from his own observation, should have known from Senior Constable Evans, of the circumstances inside the surgery. Those findings support the conclusion that there was a breach of the duty to provide reasonably safe conditions of employment." (emphasis added)
It is to be noted that this conclusion did not state expressly what it was that the reasonable employer should have done. In particular, the safe system of work was not identified. All that was said was that the particular events described constituted a departure from the provision of a safe system of work.
[41](2006) 155 IR 54 at 73‑74 [90].
[42](2006) 155 IR 54 at 74 [93].
[43](2006) 155 IR 54 at 75 [98].
Moreover, the statement of the conclusion must be understood in the light of what Basten JA had earlier said[44] about the role of the "partner" or "the buddy system". The examination Basten JA undertook of the "partner" or "the buddy system" was made against an understanding[45] of "the real complaint being made" by Ms Fahy as being "that her employer had failed to provide an adequate system of work, so as to give her sufficient support both during and in the immediate aftermath of a potentially highly distressing event". His Honour continued[46]:
"On that approach, it was not sufficient simply to put two officers on duty together and tell them to work together in a manner vaguely described as 'the buddy system'. In the absence of any evidence as to relevant instructions, one would be inclined to infer that 'the buddy system' was intended to provide physical protection and backup, which would not have been available if officers patrolled alone. Further, to the extent that the officers witnessed matters which needed to be recorded for the purposes of an investigation and possible criminal proceedings, a second officer would obviously provide a source of corroboration and a check on the accuracy of the observations of the other. On the other hand, if the colleague was expected to provide psychological support in a distressing situation, then each officer would need to have understood that that was part of the particular role envisaged under 'the buddy system'. There was no evidence to suggest whether or not that was so understood, but the gist of the plaintiff's case in relation to Senior Constable Evans appears to have been that such support was reasonably necessary and was not provided."
[44](2006) 155 IR 54 at 73‑74 [90].
[45](2006) 155 IR 54 at 73 [90].
[46](2006) 155 IR 54 at 73‑74 [90].
The conclusion reached by Basten JA, that there was a breach of duty to provide reasonably safe conditions of employment, is consistent only with a conclusion that safe working conditions required that police officers working in pairs were to be required "to provide psychological support in a distressing situation" to each other. But what was meant by the reference to "provid[ing] psychological support" was not stated expressly by either Spigelman CJ or Basten JA. The only conclusion stated by the Court of Appeal was that the trial judge's findings of fact supported the conclusion that what had happened to Ms Fahy was not consistent with the implementation of a safe system of work.
The appeal to this Court
The State attacked the reasoning of the Court of Appeal in a number of ways. The attacks, though variously expressed, took two principal forms. First, it was said that the Court of Appeal erred in not identifying, other than negatively, what was the safe system of work that should have been prescribed. This, so the State submitted, constituted a failure to identify properly the scope and content of the relevant duty of care or served to mask the error in determining the significance to be attributed to the "partner" or "the buddy system". This latter characterisation of the error was related by the State to the separate question whether the Court of Appeal erred in concluding that there was a reasonably foreseeable risk of injury for the purposes of determining breach of duty. The second principal strand of the State's arguments was that this Court should reconsider Wyong Shire Council v Shirt and, in particular, should abandon the equation of a "foreseeable risk" with "[a] risk which is not far‑fetched or fanciful"[47].
[47]Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48.
As this summary of the State's submissions reveals, separate submissions were made about duty and breach of duty. But the accepted premise for argument of this litigation at all stages has been that either "the Crown", or a person for whom "the Crown" is vicariously liable, owed Ms Fahy a non‑delegable duty of care to provide and maintain a safe system of work. As noted earlier, this conventional assumption for the litigation depends upon the validity of a number of unstated premises, but neither the State nor Ms Fahy suggested that the premises should be challenged. It is not necessary to go behind the conventional assumption of the parties and, given the way in which the case proceeded in this Court and in the courts below, it would be inappropriate to do so. It is not necessary to go behind the assumption because, properly understood, the State's chief complaint about the conclusions reached in the Court of Appeal is better analysed as a complaint about breach of duty, not about the scope or content of the duty owed.
In that regard, this case may be contrasted with Koehler v Cerebos (Australia) Ltd[48] where attention focused upon the content of the employer's duty to an employee to take reasonable care to avoid psychiatric injury. That case concerned an allegation that the work expected of the employee was too great and that nothing had been done to modify her duties. As was pointed out in the joint reasons in Koehler[49], the content of the duty owed by an employer to an employee must take account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and any applicable statutory provisions. Considering those obligations reveals questions that bear upon whether the employer must modify the work an employee is to do.
[48](2005) 222 CLR 44.
[49](2005) 222 CLR 44 at 53 [21].
In the present case, however, Ms Fahy's complaint was directed to what she alleged the Police Service should have required of other officers. That was a complaint about the system of work prescribed by the Police Service. In order to consider that complaint, it is necessary to recall what was decided in Shirt.
Wyong Shire Council v Shirt
The Court's decision in Shirt has rightly been understood as authoritatively stating how a tribunal of fact must set about deciding whether there has been a breach of duty of care. The description of that task, in the reasons of Mason J[50], though well known, should be set out:
"[T]he 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."
[50](1980) 146 CLR 40 at 47‑48.
This approach to questions of breach of duty has come to be known as the "Shirt calculus". The description may be convenient but it may mislead. Reference to "calculus", "a certain way of performing mathematical investigations and resolutions"[51], may wrongly be understood as requiring no more than a comparison between what it would have cost to avoid the particular injury that happened and the consequences of that injury. Shirt requires a more elaborate inquiry that does not focus only upon how the particular injury happened. It requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury.
[51]The Oxford English Dictionary, 2nd ed (1989), vol 2 at 778, citing Hutton, A Mathematical and Philosophical Dictionary, (1796), vol 1 at 234.
In Vairy v Wyong Shire Council[52], it was explained why it is wrong to focus exclusively upon the way in which the particular injury of which a plaintiff complains came about. In Vairy, it was said[53] that:
"[T]he apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be 'nothing'."
It is only if the examination of breach focuses upon "what a reasonable man would do by way of response to the risk"[54] (emphasis added) that it is sensible to consider "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"[55].
[52](2005) 223 CLR 422.
[53](2005) 223 CLR 422 at 461 [124] per Hayne J; see also at 443 [60]‑[61] per Gummow J.
[54]Shirt (1980) 146 CLR 40 at 47.
[55]Shirt (1980) 146 CLR 40 at 47‑48.
Breach of duty in this case?
How were the questions presented by Shirt to be answered in this case?
There can be no doubt that performing the duties of a police officer can often be very psychologically stressful. That is the inevitable consequence of the kinds of work police officers are required to perform. That a police officer may suffer psychiatric injury as a result of performing that work is, therefore, readily foreseeable. The risk of such injury is not far‑fetched or fanciful; the risk of injury may not even be remote (if "remote" is understood as meaning extremely unlikely to occur).
The evidence led in this case revealed that the Police Service of New South Wales had long since recognised these risks. At least by 1991, the Police Service had established a psychology unit to provide "confidential services to members of the Police Service and to their immediate families". A psychologist was on call 24 hours a day to provide trauma crisis counselling for members of the Service "involved in a major incident or community crisis". Debriefings were compulsory following certain kinds of incidents and counselling was provided, as requested, "after other work related traumas ... eg assaults, attending particularly distressing fatal incidents, etc". In addition, counselling was available from the psychology unit to "staff suffering from a cumulative stress reaction". In June 1999, a special report was made to the New South Wales Parliament under s 31 of the Ombudsman Act 1974 (NSW) entitled Officers Under Stress. That report concerned "the need for the NSW Police Service to identify and support police officers whose psychological well‑being has been affected by stress". In the same month a set of guidelines was published in the journal Police News (which it may be assumed was circulated to police officers) that was said to be "intended to protect the welfare and legal rights" of police officers in certain critical incidents. All of these matters demonstrate not only that the risk of a police officer suffering psychiatric injury was foreseeable, but also that the Police Service had foreseen the risk and had taken steps to avoid, or at least ameliorate, the consequences of the stresses of police work.
The State submitted that the relevant risk to consider in determining whether Ms Fahy had established that there had been a breach of duty to provide a safe system of work was whether "a police officer might suffer a psychiatric injury if that officer's partner did not remain to provide support whilst the officer was exposed to trauma whilst assisting a doctor". For the reasons given earlier, that formulates the relevant risk from the wrong perspective. It seeks to ask, in effect, whether the particular mechanism which led to the injury of which the plaintiff complained was a foreseeable risk. But breach of duty requires consideration of whether the defendant's conduct (which it is to be assumed is identified in this case as the formulation of systems of work for police officers) involved a risk of injury to the plaintiff. And here, there could be no doubt that police work involved a risk of psychiatric injury to police officers. The inquiry that was then to be undertaken was "what a reasonable man would do by way of response to the risk". The focus must fall upon how police officers should have been instructed to perform their work, not upon what steps the Police Service should have taken to provide support for officers who had been exposed to traumatic incidents. It is necessary, therefore, to identify the system of work that should have been prescribed in response to the risk of psychiatric injury.
The implicit premise for the conclusions reached in the Court of Appeal, and by the trial judge, appears to have been that the Police Service, if acting reasonably, would have issued a general instruction to police officers assigned to work in pairs that, whenever possible, or perhaps unless operational requirements dictated otherwise, the officers should remain together, and each should provide psychological support to the other during any traumatic incident. An instruction of that kind poses a number of questions that must be examined.
First, if the instruction is intended as a reasonable response to the foreseeable risk of psychiatric injury, why would it be reasonable to confine the response to officers assigned to work in pairs? Why is it only those officers who warrant this protection?
Yet it was not submitted that reasonable care required that police officers not be assigned to work alone. And it is a notorious fact that police officers do work alone.
Secondly, even when officers are assigned to work together, there are many circumstances in which their duties will require them to separate. So, to vary the facts of the present case only slightly, what if there had been two persons stabbed in the attempted robbery? What if one had collapsed at the video store, but the other had managed to walk 50 metres to the medical centre? Inevitably, the first two police officers arriving at the scene would have had to separate.
Of course the second point is one that the exception or qualification, permitting separation when necessary, is intended to meet. And it is the content of the postulated exception that gives particular significance to the finding that Senior Constable Evans had no operational or other sufficient reason not to remain with Ms Fahy. But the fact that an exception or qualification must be made to the general rule is highly significant. The making of the exception or qualification, like the observation that officers can be and are assigned to work alone, reveals that there are cases where a police officer must face traumatic incidents alone. And it may reasonably be supposed that the worse an incident is, the more likely it is that officers will not be able to spend any time supporting each other because they will be fully occupied in controlling the situation and dealing with its consequences.
Thirdly, what is meant by one officer "providing psychological support" to another? The notion is replete with difficulty and ambiguity. Particular emphasis was given, in this case, to Ms Fahy's sense of abandonment and to the fact that, while trying to prevent a badly injured man bleeding to death, she had to do so many other things. She had to recall what the victim said. Not only was he giving what he thought were his last messages to those whom he loved, he gave some description of what the offenders were wearing. And at the same time Ms Fahy was using her police radio, more than once, to ask where was the ambulance, and to pass on what she had learned from the victim. These facts were critical to understanding the medical evidence that attributed such importance to what had happened during this period of nine or so minutes, compared with the litany of traumatic incidents Ms Fahy had confronted in the past, apparently without any ill‑effect. But these particular facts give no useful content to the notion of "providing psychological support".
There was no evidence led at trial that suggested what content should be given to this expression. If, as seems very likely, what one person should do to give psychological support to another, varies with the individuals concerned and the circumstances that give rise to the need for support, it is evident that the expression has, and can have, no fixed or certain content. There are individuals for whom and circumstances in which support is best given by the individuals remaining close by each other. Yet in the workplace, support may sometimes best be given by withdrawing to a respectful distance. Allowing a distressed colleague to recover composure without feeling under immediate scrutiny may be the better course. And there may be cases in which support is best expressed by silence rather than the persistently intrusive inquiry about well‑being.
Assuming, however, that the difficulties of giving content to the notion of providing psychological support could be surmounted, the first two kinds of difficulty identified above would remain. Why should there be an instruction confined to officers directed to work in pairs? Does not the exception to the rule (for operational necessity) falsify the conclusion that a reasonable employer would respond to the risk of psychiatric injury by issuing and enforcing such an instruction? Or are both difficulties sufficiently met by understanding the instruction as a response that recognises that the risk of psychiatric injury cannot be eliminated, but may be reduced?
Both difficulties that have been identified find their roots in the very nature of police work. It is the nature of that work that entails that the risk of psychiatric injury, occasioned by traumatic incidents, cannot be eliminated. It cannot be eliminated because police officers must confront traumatic incidents in the course of their duties. (Those observations may be thought to suggest the need to consider questions of voluntary assumption of risk but at no stage of the litigation has the State sought to raise such questions.) To perform the tasks that society expects of police, as those tasks were expressed in the Police Service Act, police officers must obey the lawful orders given by their superiors and must carry out their lawful duties. That is why to neglect or refuse either to obey a lawful order or to carry out any lawful duty is a criminal offence[56].
[56]s 201.
Once the content of the postulated general instruction is identified and set against the requirements of the Police Service Act it is evident that not to give and enforce compliance with such an instruction was not a breach of duty. That is not because the risks of psychiatric injury to police officers were and are not reasonably foreseeable. They are. The response that Shirt requires a court to identify when considering breach of duty is a response which must have regard, in this case, to the responsibilities cast on the Police Service and on individual police officers. They are the "other conflicting responsibilities" of which Mason J spoke[57] in Shirt and which were to be taken into account in identifying the reasonable response to the risk. In particular, obedience to lawful orders, and the carrying out of lawful duties, is of primary and determinative significance. Why that is so is illustrated by the facts of this case.
[57](1980) 146 CLR 40 at 47.
Advances in medicine and psychiatry which enable more reliable classification of psychiatric illness, greater understanding of aetiology and better diagnosis have been recognised in the courts[244].
[244]See, for example, Morris v KLM Royal Dutch Airlines [2002] 2 AC 628 at 679-680 [152]-[153] per Lord Hobhouse of Woodborough.
Those advances in medicine and psychiatry have been taken into account when novel problems emerged, which highlighted the limitations of established control mechanisms and impelled their review[245].
[245]Tame (2002) 211 CLR 317 at 378 [183] per Gummow and Kirby JJ.
In Tame a majority in this Court rejected established control mechanisms as definitive tests of liability, although the factors which gave rise to them may still be relevant to questions of reasonableness[246]. The majority stated that the criterion of reasonableness imposed at all levels of inquiry (to determine the existence and scope of a duty of care, breach of duty and damage[247]) is an intrinsic control mechanism. The criterion of reasonableness sets boundaries in respect of liability for psychiatric injury, and anchors the boundaries in principle, rather than allowing them to depend on arbitrary and indefensible distinctions[248].
[246](2002) 211 CLR 317 at 333 [17] per Gleeson CJ, 340 [51] per Gaudron J, 380-381 [190]-[191] and 383 [196] per Gummow and Kirby JJ.
[247]Donoghue v Stevenson [1932] AC 562.
[248]Tame (2002) 211 CLR 317 at 333 [18] and 337 [35]-[36] per Gleeson CJ, 339 [45] and 340 [51] per Gaudron J, 380-381 [189]-[191] per Gummow and Kirby JJ. In Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at 304 [99], Hayne J raised the possibility of the need to develop new control devices in substitution for rejected control mechanisms.
A claim in respect of a psychiatric injury which is reasonably foreseeable is limited only by reference to general considerations: the compatibility of a duty of care with any conflicting professional responsibilities[249], whether imposed by statute[250] or contract[251], and considerations of legal coherence[252]. Likewise, the question of what a reasonable employer should do as a response to a foreseeable risk of psychiatric injury to employees as a class or individually is subject to those general considerations.
[249]Tame (2002) 211 CLR 317 at 335 [26] per Gleeson CJ, 342 [57] per Gaudron J.
[250]Sullivan v Moody (2001) 207 CLR 562 at 582 [60].
[251]Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44.
[252]Tame (2002) 211 CLR 317 at 335 [28] per Gleeson CJ, 342 [58] per Gaudron J, 361 [123] per McHugh J, 381 [191] per Gummow and Kirby JJ, 417-418 [296] per Hayne J, 425 [323] per Callinan J. See Sullivan v Moody (2001) 207 CLR 562 at 582 [60].
It was submitted on behalf of the State that the admitted duty of care to employ a safe system of work could not reasonably extend to pairing police officers as partners and requiring them to provide mutual support and assistance. It was submitted that such a system would be impracticable and would lack common sense given the operational duties of any pair of police officers.
An employer's duty to take care of an employee's safety has to be performed in the light of the obligations on the employees to undertake stressful work. By reference to established principle, a proven risk of physical injury to an employee which can be averted by requiring employees to work in pairs can give rise to a duty on the employer in those terms[253]. Determining the reasonableness and practicality of a duty to have such a system of work in the circumstances here requires an examination of the duties of the employees and a consideration of the accommodation of possible conflicts between different duties.
[253]Collins v First Quench Retailing Ltd 2003 SLT 1220.
In the proceedings before the primary judge, the respondent, Senior Constable Deanne Abbott, and Mr Terrence O'Connell (who was a member of the police force between 1971 and 2000) gave evidence for the respondent. Inspector Stephen Egginton gave evidence for the State. Senior Constable Evans also gave evidence. They were all familiar with an established system of work, of pairing a senior and junior police officer as partners and requiring each to provide mutual support and assistance, subject to the exigencies of the situation, when attending crime scenes or motor vehicle accidents. This case was not concerned with, and the evidence did not cover, systems of work which might apply in the context of other police duties, some of which might be expected to be undertaken by a police officer working alone.
Consistent with the statutory duties mentioned above and a police officer's oath, the primary objective of the system of working in pairs on such occasions was the preservation of a victim's life, a task known to create a risk of psychiatric injury, particularly post‑traumatic stress disorder, to the police officers involved.
The system of working in pairs was the subject of police officer training. The senior partner of a pair was expected to control a crime scene and organise resources, including personnel. Such a responsibility could entail leaving an officer to perform duties alone. Duties such as securing a crime scene, recording details of witnesses and calling for assistance were all important but they were ranked as a lower priority than saving the lives of victims.
The senior partner in a pair was required to be very clear about his or her intentions, the responsibilities of the junior partner and the senior partner's expectations. The specific tasks which individual officers would undertake in a given situation would vary, but communication between officers paired as partners was important. Decisions calling for fine judgment in the allocation of priorities were made by the senior officer in a pair. Common sense governed such decisions. Senior Constable Evans agreed in oral evidence before the primary judge that on the occasion in question he was responsible for the respondent's welfare. Further, a commanding officer at a scene had a responsibility to support the other officers.
The respondent had been a police officer since 1996 and had been involved in at least 10 prior emergencies involving trauma without suffering psychiatric injury. On each of those occasions her partner gave her support and assistance and she gave several examples of the ways in which this was done, especially by reference to the division of operational tasks between partners on a rational and efficient basis.
As to the effect of a system of working in pairs for mutual support, Dr Robertson, a qualified psychiatrist, gave evidence that the purpose of such a system "is to share the trauma". He explained that a system of having two people working together in a traumatic situation helped both of them to maintain professional detachment.
Medical experts called by both parties agreed that there was a risk of police officers developing post-traumatic stress disorder as a result of attending traumatic events. However, none of them was able to state with certainty what were the critical predictors of the illness or whether repeated exposure to traumatic events increased the risk of developing the illness. No evidentiary basis was established for limiting the duty of care by reference to prior episodes of illness[254].
[254]cf Walker v Northumberland County Council [1995] 1 All ER 737 at 739 per Colman J; Keen v Tayside Contracts 2003 SLT 500 at 511 [69] per Lady Paton.
While the severity of exposure to grotesque aspects of trauma was considered by all of the medical experts to be important, they all also agreed that support during and after such an experience could decrease the risk of developing the illness and mitigate its severity or, putting it another way, assist in "adaptation following traumatic experience".
Be that as it may, in the context of a partner's exposure to traumatic events, all serving or former police officers who gave evidence about the system of working in pairs had a common understanding, and shared sensibilities, relating to support and assistance. Whilst it was agreed that crime scenes were dynamic, the demands on police officers were fluid, and the tasks were various, their common understanding of support and assistance was not confined by a "Cartesian distinction" bearing on "the interrelation of mind and body"[255]. Their common understanding encompassed support and assistance to avert the risk, to the partner, of psychiatric injury.
[255]Mount Isa Mines (1970) 125 CLR 383 at 405 per Windeyer J.
The system of work did not require Senior Constable Evans to stay with the respondent every minute when she was attending the victim. As the system was explained in the evidence, it required Senior Constable Evans to communicate with the respondent (something he could have done by radio, in person or through another police officer); it required him to check on how the respondent was coping with the primary duty to the victim. What was appropriate had to be determined by common sense and the exigencies of the situation. Senior Constable Evans was trained in the system of work and experienced in its operation. In giving an explanation for his conduct, namely that he was guarding or securing the crime scene and had other duties associated with that task, Senior Constable Evans did not demonstrate that giving support and assistance to the respondent was incompatible with those other duties.
The system of work had been set up as a reasonable, obvious and practical mechanism by which the State addressed the known risks to which police officers were exposed when attending victims of criminal acts or motor accidents.
In the absence of direct and persuasive evidence to the contrary, the system of work as described did not impose any unduly onerous burden on police work. It was not incompatible or inconsistent with the proper and effective discharge of police officers' statutory duties, or multiple operational duties as they arose. The system of work cannot be said to lack common sense, or to be impractical, when it is designed to protect victims' lives, and to avoid known risks to the police officers, which included the risk of psychiatric injury, particularly post‑traumatic stress disorder.
The institution of the system of work was a step which a reasonable person in the position of the State would take in order to deal with the known risks associated with exposure to traumatic events. It was a step which the State did take. The evidence permitted the inference drawn by the trial judge, and upheld on appeal, that on this occasion the State (through Senior Constable Evans) breached its duty. The decision of the Court of Appeal should stand.
I agree with the orders proposed by Gleeson CJ and Kirby J.