New South Wales v Fahy

[2007] HCA 20
236 ALR 406

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(Judgment by: Callinan J, Heydon J) Court:

Judges: Gleeson CJ
Gummow J
Kirby J
Hayne J

Callinan J
HeydonCrennan 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

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Judgment by:
Callinan J
Heydon J

[175] Several questions were argued in this appeal: the scope of the duty of care owed to police officers by the state; whether there has been a breach of that duty; and whether Wyong Shire Council v Shirt ^[F202] should be overruled.

The facts

[176] The respondent joined the Police Service of New South Wales in February 1996. By 1999 she seems, in the course of her work, to have encountered more situations of stress than many of her colleagues, who, in consequence, referred to her as "Dr Death". Her account of her experiences included this:

[E]veryone died on my shift, in any weird wonderful way, it always happened on my shift. I have a friend who's been in the job 10 years and she's never been to a fatal, and I've been in the job three and a bit, and I've been to over 10.

[177] Her claim was, in effect, that her resilience was more than matched by the insensitivity with which her superiors treated her after the events which gave rise to this litigation and which, she claims, triggered the illness which she now suffers. In the past, she had been able to manage stress, because, she said, "my partner had always been there".

[178] A robbery was attempted on 25 August 1999 at a video store at Edensor Park, a suburb of Sydney, by two men, one of whom stabbed and slashed the proprietor before fleeing. The proprietor was able to make his way to a nearby medical centre.

[179] The respondent and Senior Constable Steven Evans were called to the store from which they followed a trail of blood to the medical centre. An "extremely pale" and shocked receptionist took them into a surgery at the medical centre, where a doctor was attending to the victim's wounds. The respondent described what she saw:

My initial thought is -- excuse the French -- "well, he's f***ed; he's dead". Like, he's just covered with blood everywhere, and it's just running off him, like someone had got his shirt and dunked it in a bucket of water, and that's how much blood there was -- just soaked -- and he's just gasping all the time.

[180] When the respondent turned to speak to Senior Constable Evans, she saw that he had left the room. She described her reaction to this as follows:

It was like a, "Sh**" -- you know -- "what am I going to do?" Then I could hear [the victim] again, so I just went straight into work mode. Like, I took an oath to protect life and property, so I asked the doctor, "What can I do to help?"

[181] At the doctor's request she examined the victim's left side and saw that he had suffered a knife wound of about 60 cm in length, from the left armpit to the waist. She ripped the shirt off so that access could be gained to the wound.

[182] The respondent then performed a number of tasks simultaneously. She tended to the wound by holding the opening together with one hand, and applying medical pads to stem the bleeding with the other. She kept talking to the victim, both to keep him conscious, and to try to obtain a description of his assailants. She spoke to other police officers by radio, relaying the information provided, and called for an ambulance. She did not ask for help, and competently managed the tasks she had set for herself.

[183] The respondent was alone with the doctor and the victim for perhaps 10 minutes, certainly no longer, before an ambulance arrived. The trial judge said that these minutes "were hectic and emotionally fraught". The respondent "was confronted with an awful sight".

[184] Just before the ambulance arrived, a senior police officer, the duty officer, looked into the surgery and saw the respondent, the victim and the doctor there. According to the respondent, the duty officer "just took one look and ... turned around and ... walked away". She impliedly criticised him in this evidence:

Q -- When that occurred, how did you feel?

A -- Helpless. I mean, I was there; I was tired from holding on, and I've looked at him, you know --

Q -- Did you catch his eye?

A -- Yes; more in disbelief of what I was seeing. And he's just looked and just turned and walked away.

Q -- Take a moment. Would you prefer a few minutes?

A -- No, please, no.

Q -- Apart from that moment where [the duty officer] came in, had any other police come in to give you any assistance while you were in there?

A -- No.

Q -- Had you heard anything from them?

A -- No.

[185] After that, the respondent assisted the ambulance officers with their equipment. Six or so other police officers were "just standing there" while she did.

[186] As the ambulance left, the duty officer approached the respondent. He told her to put her hat on because the media had arrived.

[187] The respondent accompanied another police officer to the proprietor's house to tell his wife about the assault. The woman "collapsed" when she was told what had happened. The respondent and the other officer were on their way to the hospital with the woman when the respondent was instructed on the radio to return to the scene, where she remained until about 11.30 pm. When, in response to a question by the duty officer, she informed him she had started work at midday, he told her to go home because he was not going to pay her overtime. The respondent reminded the duty officer that the scene could be a murder scene if the victim died. He said that he did not care: he was not paying the respondent overtime and she was to go home. The respondent left, feeling ill, and even the next day the image of the victim's injuries "kept playing over and over and over in [her] head". She said this in her evidence:

Q -- What can you remember of the journey home?

A -- Nothing. I remember suddenly being at my front gate and my dog waiting for me to walk in.

Q -- How did you spend the balance of the night?

A -- I sat and cried. I'd pat my dog. It was outside and I thought I'd better go inside and I walked inside, hands in my jacket, and I'd just got blood all over. So I went inside to soak my clothes, to get the blood out.

Q -- How much did you sleep, if at all, that night?

A -- I didn't.

[188] At work the next day, the respondent kept a "stiff upper lip". She neither sought nor was offered counselling. She did however obtain the telephone number of the police chaplain.

[189] It was not disputed that the respondent suffered a post-traumatic stress disorder as a result of the events of 25 August 1999, although there was disagreement as to its severity and the relevance of other contributing factors.

The proceedings at first instance

[190] The respondent sued the appellant in the District Court of New South Wales, for damages under the Workers Compensation Act 1987 (NSW), alleging negligence in these respects:

(a)

Failing to take any or any adequate precautions for the Plaintiff's safety;

(b)

Putting the Plaintiff in a position of peril in the circumstances;

(c)

Failing to provide the Plaintiff with proper and adequate assistance at the scene of the said armed robbery;

(d)

By its servant or agent, leaving the scene of the armed robbery and exposing the Plaintiff to the victim by herself;

(e)

Failing to counsel or adequately counsel the Plaintiff following the incident;

(f)

Failing to provide the Plaintiff with proper and adequate debriefing in respect of the incident;

(g)

Further and alternatively, following the incident and the months thereafter it was necessary for the Plaintiff to undergo counselling and debriefing which did not occur. The plaintiff relies on the failure of the said service to provide these measures to the Plaintiff as being negligent and a breach of the duty of care which the Service owed her.

[191] There is no express allegation, it may be observed, of any deficiency in the system of work.

[192] The trial judge was obliged to resolve conflicts in the medical evidence before him. As to one of the principal issues argued, of the necessity for, and the sufficiency of, a proper system of work for police officers, a high point for the respondent was some evidence given by a psychiatrist, Dr Robertson:

A -- ... I think that the absence of any sort of physical or emotional support from a buddy did not allow [the respondent] to maintain a sense of professional detachment, which is what protects one when dealing with people like this. It became very much a personal concern of hers, and the whole purpose of a buddy system, as it's sometimes called, is to share the trauma and to allow those who are working to maintain a sense of professional detachment; because of the absence of her buddy, she wasn't able to do that, and I think that this was the decisive factor, I think this was reinforced by what happened in the immediate aftermath with -- but that's really all I was going to say.

Q -- Now assume that the incident had been the same but that she had received that support, commendation, of which you have told us -- her partner did his job and the support and commendation you speak about were there -- what's the likely outcome, do you feel, in this patient's case would have happened?

...

Q -- What would be the outcome probably?

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

[193] There was evidence -- it is unnecessary to elaborate upon it -- that the appellant was aware that the work of police officers could be so stressful that special measures should be adopted to deal with it, including counselling and psychological therapy. The availability of these and other aids was notified to police officers by, among other means, a journal.

[194] An experienced police officer, over objection, gave this evidence for the appellant which it is not suggested in this court was inadmissible:

4.

Is it appropriate for the more senior partner to leave the other officer at a crime scene or should the senior partner stay with the other officer?

The location the victim was in would not technically be regarded as the crime scene. The crime scene would have been the location where the robbery and stabbing occurred.

As the senior officer has further responsibilities they must make a decision as to how to deploy staff at the scene. This may involve tasking some staff to assist victims and others with crime scene preservation. Given that this situation, at the time of the officer's arrival, involved a possible homicide and a large crime scene it would take some resources and time to set up appropriate measures to preserve it. It is evident that some officers, at least in the early parts of the police involvement, would be required to carry out duties by themselves, as limited resources would be available. Given this, it would be appropriate for Constable Evans to leave [the respondent] with the doctor to ensure Crime Scene Preservation was commenced immediately.

5.

Is it inappropriate for the more senior partner to leave another officer with 3 years experience with a doctor to treat a seriously injured victim?

The senior officer must decide on how best to deploy staff given the responsibilities of managing a crime scene. This would, naturally, involve leaving some staff to perform duty by themselves. An officer of 3 years experience would be expected to know what to do in such a situation given their exposure to policing incidents over that time and training provided to them. The senior officer needs to take into account the capabilities of the officers available to them and deploy them accordingly. Given that at the time [the respondent] was left with the doctor and patient and there [was] only one other car crew at the scene it would be appropriate to leave her to assist the doctor and go about attempting to manage the scene as a priority.

[195] The trial judge, Graham DCJ, summarised the respondent's case:

The plaintiff's case is that the fact that she contracted a posttraumatic stress disorder arising from this incident was due, at least in part, to what might be termed a differential. The experience with the victim was a serious one, and one which was, no doubt, unpleasant and, in a general sense, very traumatic. But the plaintiff's case is that the difference in this case was that, during her involvement with the victim, and in the immediate aftermath, she was treated in a way which was calculated to bring about an exacerbation of her situation, so as to render it more likely that she would contract that disorder or make that disorder, if it were to be contracted, much more serious, due to the lack of support from her senior officers, including senior constable Evans and inspector Whitten [the duty officer], and the insensitivity with which she was treated by them and, in particular, by inspector Whitten.

The plaintiff's case is, also, that a material contribution to the contracting of posttraumatic stress disorder, or of making it a more severe form of that disorder, was attributable to the failure of the plaintiff's superiors in the police service, over the next month or so in particular, to monitor her reactions and to make her aware of the availability of various forms of assistance within the police service, such as the welfare branch, the psychology unit, peer support officers and various other measures of that type.

The plaintiff's case is that, by being left to her own devices, as it were, without being observed or advised, in circumstances where she was clearly displaying symptoms consistent with a seriously adverse reaction to the incident, the defendant was negligent and failed in its duty of care to the plaintiff. There is no dispute that senior constable Evans left the room.

[196] His Honour accepted that police officers will inevitably be exposed to extraordinary and stressful events and that they must be, and are, subject to strict discipline. As to some of the issues in the case, the trial judge took the view that, by reason of the absence of the duty officer Inspector Whitten from the witness box, he should infer that his evidence, had it been adduced, would not have been favourable to the appellant. He was prepared to draw a similar inference from the absence of other potential witnesses for the appellant.

[197] The findings, relevant for present purposes, of negligence made by the trial judge are these:

Thus, the plaintiff was left without support, both during and after what was, on any view of it, a very traumatic event. It is, in my view, clearly foreseeable that such a course of treatment could materially contribute to the onset of, or the severity of, post traumatic stress disorder, a psychiatric injury which was, in any event, foreseeable in the circumstances, and was neither a farfetched nor fanciful risk in those circumstances.

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

...

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

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

[198] In the result, the trial judge held for the respondent and assessed damages of $469,893.

The appeal to the Court of Appeal of New South Wales

[199] The appellant appealed to the Court of Appeal (Spigelman CJ, Basten JA and M W Campbell AJA). ^[F203] That court was not unanimous as to all of the matters in issue. Spigelman CJ (M W Campbell AJA agreeing with the Chief Justice) and Basten JA all accepted that the relationship of employer and employee is a special relationship giving rise to a duty of affirmative action, and that, in a context in which exposure to risk is an integral part of the work, as here, the law requires affirmative action on the part of each employee to the others. M W Campbell AJA differed from the other members of the court in finding that the conduct of Inspector Whitten, in directing the respondent to put on her hat, to return to the scene of the crime, and later to return to the police station because he would not approve overtime, was not in breach of any duty of care, and did not make a material contribution to the respondent's illness. The three judges did agree that the fact that a person may not have reacted adversely to exposure to trauma on an earlier occasion, or occasions, did not mean that further exposure, particularly of the intense character of the present instance, would not reasonably foreseeably lead to psychiatric injury. They further agreed that while courts should be slow to insist upon the presence of a second officer in every case of exposure to victims of crime, in the present circumstances, another officer, whether Senior Constable Evans or someone else, should have been present.

[200] Basten JA gave separate consideration to the relationship between the respondent and Senior Constable Evans, as well as between Inspector Whitten and the respondent, and the respondent and the Crown as her employer. Having regard to the way in which the parties had conducted their cases at the trial, his Honour did not find it necessary to reach any conclusion about the significance of the provisions of s 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW) which deems a person such as the respondent to be "in the service of the Crown", and not a servant of the Crown. The vicarious liability of the appellant, his Honour held, consisted in Inspector Whitten's failure to give, or provide support to the respondent in the knowledge that Senior Constable Evans was not there to give it.

[201] As to causation, Spigelman CJ (M W Campbell AJA agreeing) said that the primary causal factor was the respondent's exposure to the trauma of the victim in the doctor's surgery. The fact, however, that the respondent was isolated was part of the incident itself. The onus therefore shifted to the state to establish that the injury would have occurred in any event, even if there had been no breach of duty on the part of the state: it failed to discharge that burden.

[202] Specifically as to system of work, Spigelman CJ said: ^[F204]

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

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

[203] The appellant enjoyed a minor success in its appeal, but not in respect of the issue of causative negligence. The only ground upon which the appellant's appeal did succeed was as to mitigation of damages, a matter with which this court is not concerned.

The appeal to this court

[204] There was reference in argument to the Police Service Act 1990 (NSW), and in particular to s 201 of it, which makes it a criminal offence for an officer to refuse, or neglect, to obey a lawful order, or to perform a lawful duty. Of a member of a disciplined armed force, hardly less could be expected. That such an expectation is given statutory expression, and the common knowledge of what the work of law enforcement may require, provide the context for a consideration of the respective rights and obligations of the parties.

[205] In this court the appellant's arguments were essentially twofold: that the trial judge and the Court of Appeal erred in holding that the appellant failed to adopt a safe system of work -- effectively, that in either all, or any, stressful situation in which another officer could be present, he or she should be present; and, that the test of foreseeability propounded in Shirt ^[F205] raises too low a threshold for negligence, and ought no longer be followed.

[206] As appears however from the passages from the reasons in the Court of Appeal that we have quoted, that court did not formulate a requirement of a duty of care quite as expansive, or impose quite as heavy an evidentiary onus on the appellant of proving necessity of absence of a supporting officer in all, or practically all stressful situations, as the appellant's submissions assume. Nonetheless the court's holding certainly suggests that, save for cases of demonstrated necessity, the appellant should not allow an officer to be alone in stressful situations.

[207] It may be accepted that there will be occasions upon which the mere presence of another officer might be of value to a police officer in the course of police work. The same might be equally true of other occupations in which there is, from time to time, an element of danger or stress. But the fact that the possibility of danger or stress is a regular incident of a particular occupation is also an indication that emergencies and events calling for a division of labour, and a need and capacity for improvisation or adaptation on the part of an officer coping alone, will inevitably occur.

[208] In our opinion, the appellant is not under an obligation to provide and maintain a system of work requiring the presence of a minimum of two officers, except when as a matter of real necessity that is not possible. Nor is it obliged to discharge an evidentiary onus in cases in which an officer is acting alone to establish any such necessity.

[209] Certainly, the respondent's earlier resilience is not to be held against her. But that she had performed her work well in stressful circumstances in the past, without any apparent qualms and ill-effects would at least suggest: first, that her training had helped her to do so; secondly, that police officers could be expected to, and did, not infrequently, encounter and need to deal alone with events of the kind that occurred here; and, thirdly, that such events might obviously call for the carrying out of several tasks simultaneously by an officer in attendance. It is not difficult to think of situations in which the availability of more even than two officers would still not enable each of them to stand side by side: for example, if three or more criminals fled in different directions and were to be pursued and apprehended separately by a police officer; or a picket or demonstration during which the participants were so numerous that from time to time an officer would inevitably be isolated. Exposure to danger and stress are almost as necessary concomitants of civil law enforcement as they are of military service. Of course, as Dr Robertson said, maintenance of professional detachment by people in occupations of these kinds is desirable. But it is in the nature of human affairs that complete professional detachment on all occasions is an ideal, rather than a universal practicality.

[210] Another difficulty for the respondent is that the medical evidence generally, and for example, Dr Robertson's also, left unexplained how the mere presence of another officer, presumably any other officer, either someone else, or Senior Constable Evans with whom the respondent had worked for a few other shifts only, could have arrested the onset, or made a substantial contribution to the arrest of the onset, of a psychiatric illness. That this is so highlights the substantial difficulties about a categorical requirement of the presence of two or more officers together in stressful situations as a necessary element of a safe system of work for police officers. What, it may be asked, if the two officers assigned to a shift dislike each other, or one has a temperament, mannerisms or a personality which would make his or her presence unhelpful? These are matters with which the appellant has to deal on a day by day basis, which go beyond, and are outside, medical expertise alone. As the evidence of the senior police officer called by the appellant explained, police resources are finite, and deployment at or about a place of criminal activity, and elsewhere as a consequence of it, is a matter for decision and adaptability at the time and in the circumstances prevailing. The respondent had been a police officer for three or so years. Her experience and training could reasonably be expected to have enabled her to perform alone the tasks that she did, in the presence of, and for, the medical practitioner, for the 10 minutes required, without suffering a psychiatric illness. The system of work was not deficient. Even if the risk of a psychiatric illness as a result of exposure for a period alone to a wounded victim could be, in circumstances of the kind existing here, as we do not think it may be, regarded as a not fanciful possibility, that it might develop in 10 minutes clearly is so remote that the appellant was not obliged to abate it by rostering, and insisting upon another police officer's presence throughout.

[211] It was of no significance therefore that other witnesses for the appellant were not called by it. No inferences adverse to the appellant should be drawn from their absence. In the circumstances there was no evidence that they could have given that was relevant to any of the issues, of duty of care, the system of work, or breach of duty.

[212] There was no obligation upon the appellant to provide such a system of work as would almost always, and in this case have, required the presence of another officer. The other measures adopted by the appellant, of training, and to reduce and relieve stress, and the inevitable exigencies of police work generally, together negate such a requirement. For those reasons, the appellant's appeal must be allowed.

[213] It is not strictly necessary therefore to decide whether Shirt should be reopened and overruled. In deference, however, to the full argument about that, we propose to express our view of it.

[214] In Shirt , Mason J, with whom Stephen and Aickin JJ agreed, stated the test of foreseeability and the requirements of the response to the risk in this way: ^[F206]

[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.

[215] His Honour's statement reflects, and enlarges somewhat upon, the advice of Lord Reid speaking for the Privy Council in The Wagon Mound (No 2 ) ^[F207] in which his Lordship coupled the foreseeability of an injury, with the expense of guarding against it as relevant, indeed decisive, matters in establishing negligence.

[216] The test posited in Shirt has, we think, given rise to problems in practice. It is unrealistic to expect or require people to imagine in advance, and then grade as likely, very likely, extremely likely, remote, or far-fetched or fanciful, all of the various possible consequences of their intended conduct. That a result falling just short of the far-fetched or fanciful might happen is something that is unlikely to occur to even a farsighted person. We do not doubt that the degree of likelihood or otherwise of a particular result, or an injury, has a real bearing on the foreseeability of it. That is not to say that people should not carefully consider the courses of conduct upon which they are to embark, and the possibility that injury might flow from them. The development of the law of negligence has done much to improve standards of conduct generally. But it is, in our opinion, not reasonable to say, acting as courts do, in hindsight, that everything falling short of the far-fetched or fanciful should have been foreseen. We adhere, in this regard, to what Callinan J said in another case of psychiatric injury, ^[F208] that is of an injury of a peculiarly unpredictable kind by reason of the vast range of personal susceptibilities to it, and the frequent absence to the lay observer of readily ascertainable and objectively verifiable symptoms and manifestations of it: ^[F209]

[54] Three Justices of this Court in Wyong Shire Council v Shirt held that any risk, however remote or even extremely unlikely its [realization] may be, that is not far-fetched or fanciful, is foreseeable. I suppose that it is true that there is nothing new under the sun. With enough imagination and pessimism it is possible to foresee that practically any misadventure, from mishap to catastrophe is just around the corner. After all, Malthus in 1798 famously predicted that the population of the world would inevitably outstrip the capacity of the Earth to sustain it. The line between a risk that is remote or extremely unlikely to be [realized], and one that is far-fetched or fanciful is a very difficult one to draw. The propounding of the rule relating to foreseeability in the terms that their Honours did in Wyong requires everyone to be a Jeremiah, and has produced the result that undue emphasis has come to be placed upon the next element for the establishment of tortious liability, the sorts of measures that a reasonable person should be expected or required to take to guard against the risk. [Footnotes omitted.]

[217] The observations of McHugh J in Tame v New South Wales are in point: ^[F210]

[101] ... I think that the time has come when this Court should retrace its steps so that the law of negligence accords with what people really do, or can be expected to do, in real life situations. Negligence law will fall -- perhaps it already has fallen -- into public disrepute if it produces results that ordinary members of the public regard as unreasonable.

[218] The unsatisfactory nature of the test has also resulted, on occasions, in the application of double standards by the courts, stemming perhaps from a reluctance to require of an injured plaintiff the same high degree of foresight as has been required of defendants. Otherwise, apart from cases in which duties are owed by reason of the particular respective positions of the parties, some, perhaps many plaintiffs would either fail in their claims, or be saddled with contributory negligence equal to, or greater than that of the defendants, or even be held voluntarily to have assumed risks.

[219] The test posed has caused undue emphasis to be placed upon an inquiry as to the expense of guarding against injury. If anything of any conceivable utility could have been done easily or inexpensively, there has been an unfortunate tendency to make these assumptions when it has not been done: that regardless of the likelihood of injury in fact, had it been done it would have prevented, or at least reduced, the chance of injury -- that it should therefore have been done -- and that the failure to do it constitutes negligence. In fact, the reality is often that it was not done, because it would not have occurred to a reasonably careful person either that injury would result, or that the "neglected measure" would have made a difference. The failure to erect a warning sign, usually something that can be done inexpensively, is a classic instance of this. In Commissioner of Main Roads v Jones ^[F211] a motorist who was seriously injured when his car struck a horse on a stretch of unfenced road alleged that a highway authority was negligent in failing to erect a sign warning of the possible presence of wild horses on the highway. The Full Court of Western Australia found for the motorist, holding that the absence of such a sign caused his injuries even though, as Callinan J pointed out ^[F212] on appeal to this court, there was irrefutable evidence that on the journey in question, before the collision, the motorist had for long distances repeatedly and flagrantly ignored a multiplicity of signs notifying speed limits.

[220] Vairy v Wyong Shire Council ^[F213] and Mulligan v Coffs Harbour City Council ^[F214] are two other recent cases in which it had been held in the courts below that warning signs were the panacea for all injuries. ^[F215] Too many cases have turned on the understandable, but often unconvincing, assertion by a plaintiff that he or she would have seen and heeded a warning sign had one been in place. ^[F216]

[221] These and very many other cases in which the test in Shirt has been sought to be applied are not simply ones of misapplication. They demonstrate how unrealistic and difficult in practice the test is. In the result, plaintiffs' hopes of large awards of damages have been raised by unduly sympathetic trial and intermediate courts only and inevitably to be dashed on final appeal, and too onerous a burden has been placed upon defendants and insurers. Legislatures too have reacted against the test by enacting legislation to make the recovery of substantial damages for personal injuries for negligence more difficult. ^[F217] So unrealistic on occasions have been the decisions, that the courts themselves have jeopardised their standing and reputation.

[222] There is a further problem. In Donoghue v Stevenson , Lord Atkin said: ^[F218]

The liability for negligence ... is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay.

[223] It is no doubt true that in many respects defendants have been found liable in negligence even though their acts or omissions are not morally wrong. Shirt has, however, often had the effect of making morally innocuous defendants liable in a very striking way. Its reversal would bring the law of negligence more into line with the underlying principles on which Lord Atkin sought to base it in Donoghue .

[224] The case for a reconsideration of Shirt is very strong. It has stated the relevant common law for fewer than 27 years. Buckle v Bayswater Road Board ^[F219] had stated the law of negligence of highway authorities for 65 years yet this court in Brodie v Singleton Shire Council ^[F220] reopened and swept it away, upon the basis that the majority thought that its difficulties of application requiring the drawing of a distinction between misfeasance and nonfeasance justified it in doing so.

[225] In our opinion the justification for overruling Shirt is greater.

[226] Just as it is not necessary for the decision of this case to overrule Shirt , so it is not necessary to consider what test should replace it. However, it is appropriate to say something brief on that subject. In the law of tort, of negligence particularly, absolute rigidity of principle in practice turns out to be impracticable. When it is sought to be imposed it so often proves incapable of sensible application. Accordingly, a flexible and realistic test should be substituted for a test of foreseeability of fancifulness or otherwise. The test that commends itself to us is the one stated by Walsh J at first instance in The Wagon Mound (No 2 ), that what should be foreseen is a risk that is "significant enough in a practical sense". ^[F221]

[227] Such a test would usually produce, we think, a similar result to that favoured by Barwick CJ in Caterson v Cmr for Railways , ^[F222] that an event should only be regarded as a foreseeable one for the purposes of the law of negligence if it is "not unlikely to occur". On balance however Walsh J's test has the advantage of greater practicality and flexibility.

[228] We would allow the appeal and join in the orders proposed in the judgment of Gummow and Hayne JJ.