New South Wales v Fahy
[2007] HCA 20236 ALR 406
(Decision by: Crennan J) Court:
Judges:
Gleeson CJ
Gummow J
Kirby J
Hayne J
Callinan 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
Decision by:
Crennan J
[229] The facts, the issues to which they give rise and the course of the litigation have been set out in the reasons for judgment of others rendering it unnecessary for me to repeat those matters except for the purposes of explaining these reasons.
[230] As a result of performing her duties as a police constable, the respondent suffered particular harm, a "recognisable psychiatric illness", [F223] capable of "objective determination". [F224] It was not disputed that she suffered acute and extreme post-traumatic stress disorder.
[231] The respondent's psychiatric illness arose after she assisted a doctor attending a victim of violent criminal acts.
[232] During the course of an armed robbery, injuries inflicted on the victim included a cut of approximately 60 cm in length under his left armpit to his waist, and a stab wound in the centre of his chest causing arterial blood loss. The victim thought he was dying. The respondent worked at the victim's left side, holding his slashed body together, staunching blood loss, receiving the victim's messages for his wife and children and his information about the assailants, and operating her radio to the extent that she could. The doctor worked from the victim's right side, attending to the stabbing injury near the victim's heart. The respondent was taxed by the situation and throughout the incident she kept looking for assistance.
[233] There was no dispute that the incident was a serious emergency or that the victim had incurred life-threatening injuries. There was no doubt that what the respondent did was within the normal scope of her employment.
[234] As explained in more detail in the joint reasons of Gummow and Hayne JJ, police officers' duties can be generally construed by reference to the services described in the Police Service Act 1990 (NSW). [F225] Police officers' duties include "the protection of persons from injury or death ... arising from criminal acts". [F226] All constables in the New South Wales Police Service take an oath to uphold this duty.
[235] The respondent brought a modified claim in the District Court of New South Wales for common law damages pursuant to the Workers Compensation Act 1987 (NSW) as it stood prior to amendments made in November 2001. The question arising was whether the State of New South Wales (the state) (whether as the "Crown" or the Commissioner of Police), through its "employee", Senior Constable Evans, was in breach of an admitted duty to take reasonable care for the respondent's safety while at work.
[236] The respondent relied on an established system of work in which senior and junior police officers were paired as partners and were required to give mutual support and assistance, to the extent that such support and assistance could reasonably be provided in any particular situation. The state denied that such a system existed.
[237] By the time of the appeal to this court, the respondent concentrated on her complaint that Senior Constable Evans, her senior and partner on this occasion, did not give her proper and adequate support and assistance while she was attending to the victim. She was accompanied by Senior Constable Evans to the crime scene and to the medical centre to which the victim had gone. Her pleading recited that "[r]ather than assist her, [he] decamped". Another pair of police officers, a senior constable and a probationary constable, had arrived at the medical centre at approximately the same time, and within minutes some five police officers were present, including Inspector Whitten, then the commanding officer on the scene. While there was a contest about what Senior Constable Evans said to the respondent when he left her with the victim and the doctor, there was no dispute that he did not return, or contact her by radio, while she attended to the victim.
[238] Argument was not aimed at the question of the foreseeability of risk in terms of determining whether there was a real and not far-fetched or fanciful risk to the respondent of psychiatric injury, particularly post-traumatic stress disorder, as a result of attending to a victim of violent criminal acts.
[239] There was a considerable uncontradicted body of evidence which showed that police work involved a risk of psychiatric injury, including post-traumatic stress disorder, to police officers as a class, as a result of the nature of many of the tasks which police officers are obliged to perform. Plainly, criminal acts can involve violence and the consequences of protecting victims of criminal acts from death can be distressing.
[240] The New South Wales Police Service recognised that police officers were exposed to high levels of stress when dealing with crime scenes or motor accidents, and the victims involved. It was also known that significant numbers of police officers suffered psychiatric injury, including post-traumatic stress disorder, after attending gruesome crime and accident scenes. In a relevant report of a 1995 study in evidence, it was stated that "[t]here is an extraordinarily high rate of police retired as medically unfit with a psychiatric diagnosis." That statement was not contradicted.
[241] Since the existence of the risk was incontestable, this case does not provide an opportunity to consider whether the test in Wyong Shire Council v Shirt , [F227] that a reasonable risk is one which is not "far-fetched or fanciful", [F228] is too "undemanding". [F229]
[242] Because the risk was foreseeable, the argument before this court was principally aimed at the question of what a reasonable person in the position of the state should do "by way of response to the risk". [F230] The answer to that question determines the question of whether, on this occasion, there had been a breach of the state's duty to provide a safe system of work.
[243] In the Court of Appeal of New South Wales, Spigelman CJ proceeded on the basis that there was no issue that the state was under a duty as employer to set up a safe system of work to avoid the risk of personal injury, including psychiatric injury. [F231] In the common law of Australia liability for psychiatric injury has been recognised where the plaintiff and defendant were in an employer and employee relationship. [F232]
[244] In Mount Isa Mines [F233] Windeyer J upheld the plaintiff employee's claim for psychiatric injury. The duty of care was based on the foreseeability of psychiatric injury by shock and on the employer's legal duty to provide safe working conditions for employees. In relying on two English authorities [F234] and "known medical fact" [F235] in support of this finding, his Honour deprecated arbitrary and illogical restrictions on claims for psychiatric injury. [F236]
[245] Until medical science enabled courts to better distinguish immediate emotional responses to distressing experiences [F237] from psychiatric injury, courts were cautious about allowing claims because of a fear of "imaginary claims". [F238] A second factor which militated against allowing claims for "nervous shock" was the fear that "an unduly onerous burden would be placed on human activity", [F239] especially where a claimant was not shocked by apprehending injury to him- or herself, but injury to another.
[246] To discourage claims which were spurious, or claims which would unduly burden human activity, courts developed and applied a number of "control mechanisms", [F240] "more or less arbitrary conditions" [F241] which plaintiffs needed to satisfy in addition to the requirement of reasonable foreseeability of psychiatric injury. It is unnecessary to say more here because these developments are traced in the joint judgment of Gummow and Kirby JJ in Tame , which was heard together with Annetts v Australian Stations Pty Ltd . [F242] The same developments, and the fact that English courts came within a "hair's breadth" of some retreat from established control mechanisms, are considered by Lord Hoffmann in White . [F243]
[247] 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. [F244]
[248] 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. [F245]
[249] 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. [F246] 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) [F247] 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. [F248]
[250] 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, [F249] whether imposed by statute [F250] or contract, [F251] and considerations of legal coherence. [F252] 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.
[251] 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.
[252] 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. [F253] 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] 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.
[254] 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.
[255] 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.
[256] 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.
[257] The respondent had been a police officer since 1996 and had been involved in at least ten 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.
[258] 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.
[259] 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 were 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. [F254]
[260] 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".
[261] 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. While 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". [F255] Their common understanding encompassed support and assistance to avert the risk, to the partner, of psychiatric injury.
[262] 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.
[263] 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.
[264] 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.
[265] 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.
[266] I agree with the orders proposed by Gleeson CJ and Kirby J.