New South Wales v Fahy
[2007] HCA 20236 ALR 406
(Judgment by: Gummow J, Hayne J) Court:
Judges:
Gleeson CJ
Gummow JKirby J
Hayne JCallinan J
Heydon
Crennan J
Subject References:
Negligence
Duty of care
Duty of care owed to police officer by Crown or Commissioner of Police
Safe system of work
(NSW) Police Service Act 1990 s 201.
Foreseeability
Whether Wyong Shire Council v Shirt should be overruled.
Judgment date: 22 May 2007
Canberra
[14] In August 1999, the respondent, Gemma Fahy, was a constableF [F16] in what was then called the Police Service of New South Wales.F [F17] 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.
[15] At about 9 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.
[16] 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.F [F18] 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 .F [F19]
[17] 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
[18] 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).
[19] 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 that Act. The police service was not a body corporate. The functions of the police service includedF [F20] providing "police services" for New South Wales. "[P]olice services" includedF [F21] "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way".
[20] Subject to the direction of the relevant minister, the commissioner was "responsible for the management and control of the Police Service".F [F22] 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."
[21] The Police Service Act prescribedF [F23] 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.
[22] 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:
5 Crown may be sued
- (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.
[23] In the Court of AppealF [F24] 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:
8 Further vicarious liability of the Crown
- (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] 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 .F [F25] 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] 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 workF [F26] for police officers.
[26] 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.
[27] Police officers are required to undertake tasks of a kind that few, if any, commercial employers could ask of their employees. Police officers must confront death, injury and destruction. It is they who must waken the sleeping household to tell them of the sudden death or serious injury of another. Ms Fahy herself spoke of incidents she had attended in 3 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 encapsulatedF [F27] 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.
[28] 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.F [F28] 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.
The facts
[29] 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.
[30] 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 m away. There was a trail of blood on the footpath.
[31] 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.
[32] 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.
[33] 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 9 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".
[34] 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.
[35] 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".
[36] 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 identifiedF [F29] "[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.
The pleaded case
[37] 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.
[38] 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.
[39] 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
[40] 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.
[41] 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.
[42] 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."
[43] 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.
[44] 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
[45] The state's notice of appeal to the Court of Appeal gave thirteen grounds of appeal. Three (grounds 11-13) concerned questions of quantum and may be put aside from consideration in the appeal to this court. The remaining ten 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.
[46] 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, understoodF [F30] the state's grounds of appeal as "address[ing] issues of scope of duty, breach and causation". But Spigelman CJ recordedF [F31] 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 unnecessaryF [F32] 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 identifiedF [F33] 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 identifiedF [F34] 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 concludedF [F35] "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.
[47] Basten JA analysed the case differently. His Honour notedF [F36] 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 notedF [F37] 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).
[48] Having observedF [F38] 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 firstF [F39] 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 concludedF [F40] 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.
[49] 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,F [F41] 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".F [F42] The conclusion reached by Basten JA was expressed very briefly. His Honour said:F [F43]
[98] The findings of the trial judge were that Senior Constable Evans was aware of the circumstances in which the plaintiff had been assisting the doctor to stem the victim's bleeding; Inspector Whitten knew that there was a real risk that the victim would die; he further knew that the plaintiff had had contact with the victim's wife and was in the process of taking her to the hospital when she was called back to the crime scene, and if he did not know from his own observation, should have known from Senior Constable Evans, of the circumstances inside the surgery. Those findings support the conclusion that there was a breach of the duty to provide reasonably safe conditions of employment . [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.
[50] Moreover, the statement of the conclusion must be understood in the light of what Basten JA had earlier saidF [F44] 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 understandingF [F45] 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:F [F46]
[90] ... 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.
[51] 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
[52] 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 Shirt and, in particular, should abandon the equation of a "foreseeable risk" with "[a] risk which is not far-fetched or fanciful".F [F47]
[53] 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.
[54] In that regard, this case may be contrasted with KoehlerF [F48] , 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 ,F [F49] 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.
[55] 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
[56] 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,F [F50] 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.
[57] 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",F [F51] 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.
[58] In Vairy v Wyong Shire Council ,F [F52] 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 saidF [F53] that:
[124] ... [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"F [F54] (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".F [F55]
Breach of duty in this case?
[59] How were the questions presented by Shirt to be answered in this case?
[60] 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).
[61] 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.
[62] The state submitted that the relevant risk to consider in determining whether Ms Fahy had established that there had been a breach of duty to provide a safe system of work was whether "a police officer might suffer a psychiatric injury if that officer's partner did not remain to provide support whilst the officer was exposed to trauma whilst assisting a doctor". For the reasons given earlier, that formulates the relevant risk from the wrong perspective. It seeks to ask, in effect, whether the particular mechanism which led to the injury of which the plaintiff complained was a foreseeable risk. But breach of duty requires consideration of whether the defendant's conduct (which it is to be assumed is identified in this case as the formulation of systems of work for police officers) involved a risk of injury to the plaintiff. And here, there could be no doubt that police work involved a risk of psychiatric injury to police officers. The inquiry that was then to be undertaken was "what a reasonable man would do by way of response to the risk". The focus must fall upon how police officers should have been instructed to perform their work, not upon what steps the police service should have taken to provide support for officers who had been exposed to traumatic incidents. It is necessary, therefore, to identify the system of work that should have been prescribed in response to the risk of psychiatric injury.
[63] 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.
[64] 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?
[65] 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.
[66] 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 m to the medical centre? Inevitably, the first two police officers arriving at the scene would have had to separate.
[67] 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.
[68] 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".
[69] 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.
[70] 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?
[71] 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.F [F56]
[72] 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 spokeF [F57] 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.
[73] Senior Constable Evans said, in his evidence at trial, that he did not stay in the treatment room with Ms Fahy because he had other police duties to perform. In particular he referred to a need to secure what was a crime scene where a serious crime had been committed, to search for a weapon and to look at a surveillance video record in the video store. The trial judge rejected Mr Evans' evidence as an "unconvincing" explanation for his absence. In the Court of Appeal the rejection of Mr Evans' account was treatedF [F58] as consistent with a finding that other officers who had come to the scene could have done what Mr Evans said he was doing. Whether this understanding of the evidence is consistent with the trial judge's findings is a question that need not be examined.
[74] What is important is that Mr Evans' explanation of what he was doing reflected what could have happened at the scene and, if it did, it would have been a course of conduct consistent with the requirements of the Police Service Act. The senior of two officers assigned to work together must take responsibility for the way in which duties are divided. The junior officer must comply with the senior officer's orders. Each must perform their duties and must protect "persons from injury or death, and property from damage, whether arising from criminal acts or in any other way".F [F59]
[75] The postulated instruction would require police officers assigned to work in pairs to remain together unless operational requirements dictated otherwise. That creates tension between the performance of the officer's duties and the need to protect a fellow officer. On its face, the instruction resolves that tension, but it seeks to do that on the assumption that a choice can be made between performance of one duty and performance of the other. That is, it assumes that the dictates of operational necessity or other sufficient cause (which must be given precedence over the duty to protect a fellow officer) will be apparent at the time. It may greatly be doubted, however, that this is so. Indeed, the more difficult and pressing the circumstances confronting police officers, the more difficult it will often be to decide what should be done, and who should do it. And it is the most difficult and pressing circumstances that are most likely to carry the risk of psychiatric injury to the officers involved. This necessary imprecision in the practical application of the instruction is a strong reason to doubt that a reasonable "employer" would have concluded that it should be issued.
[76] There is, however, a further, and more deep-seated, difficulty about the postulated instruction. Because it would require the making of a choice between the performance of duties owed generally and a duty owed to fellow officers, one duty would have to be given primacy. The hypothesis for the postulated instruction is that it is the first set of duties that is given that status. And as noted earlier, that strips the instruction to do what can be done to help and support fellow officers confronting traumatic incidents of much of its content. But because the qualification or exception to the instruction has that effect, a very likely, even inevitable, consequence of giving the instruction would be that the protection of fellow officers would be treated by those to whom it was given as being of no less importance than the performance of the duties imposed on police officers by the Police Service Act. This possible misunderstanding of the postulated instruction is a powerful reason for concluding that a reasonable "employer" would not have issued it. But more than that, no instruction could lawfully be given that would qualify the statutory responsibilities imposed upon police officers by the Police Service Act and enforced by s 201 of that Act. And by requiring officers to choose between whether their attendance to those duties is necessary and staying to support a colleague, the "employer" would seek to qualify those responsibilities.
[77] The qualification or exception to the postulated instruction, whether it is expressed by reference to "operational necessity", "other sufficient cause" or both, qualifies the duties whose performance is enforced by s 201. Because those duties were statutory responsibilities, they trumped the other considerations which would ordinarily be put into the balancing exercise spoken of in Shirt . Neither the Court of Appeal nor the trial judge recognised this to be so, and in that respect failed to apply Shirt .
No reconsideration of Shirt
[78] It follows from what has been said that there is no occasion, in this case, to reconsider the correctness of Shirt . It is as well to say, however, that no persuasive argument was mounted in this case for the view that Shirt should now be reconsidered.F [F60] It is a decision that has stood for more than 25 years and has been applied frequently both in courts of trial and appeal and in this court. There may be cases when the principles stated in Shirt have not been applied accurately. In particular, arguments of the kind made, and rejected, in Vairy and in Mulligan v Coffs Harbour City CouncilF [F61] may suggest a misunderstanding of the so-called "calculus" that would seek to determine questions of breach in some cases by balancing the cost of a single warning sign against the catastrophic consequences of a particular accident. But the fact, if it be so, that Shirt has not always been applied properly does not provide any persuasive reason to reconsider its correctness.
[79] Further, contrary to an argument advanced on behalf of the state, the fact that states and territories have chosen to enact legislation which, in some cases, may alter the way in which questions of breach of duty of care are to be approached in actions for damages for negligence provides no reason to re-express this aspect of the common law. If anything, the diversity of legislative approaches manifest in legislation enacted on this subjectF [F62] points away from the desirability of restating the common law.
Conclusion and orders
[80] The appeal to this court was conducted on the basis that disposition of the arguments about the provision of support to Ms Fahy at the scene was determinative. The respondent did not seek to uphold the judgment she had obtained at trial by reference to other considerations, whether concerning the police service's response to her participation in this traumatic incident or otherwise. It follows that, for the reasons given earlier, the appeal to this court should be allowed, paras 2 and 3 of the orders of the Court of Appeal made on 4 April 2006 be set aside and in their place there be an order that, in place of the order of the District Court of New South Wales that there be a verdict for the plaintiff, there be judgment for the defendant. Consistent with the terms on which special leave to appeal to this court was granted, the orders for costs made at trial and in the Court of Appeal are not to be disturbed and the appellant in this court should pay the respondent's costs of the appeal.