New South Wales v Fahy
[2007] HCA 20236 ALR 406
(Judgment by: Gleeson CJ) Court:
Judges:
Gleeson CJGummow 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
Judgment by:
Gleeson CJ
[1] The issue in this appeal is whether a finding of negligence made in favour of the respondent by a District Court judge, and the Court of Appeal of New South Wales (Spigelman CJ, Basten JA and M W Campbell AJA), [F1] should be overruled.
[2] The facts are set out in the reasons for judgment of the other members of the court. The respondent was a constable in the Police Service of New South Wales (the service). As the other members of the court have noted, the case was conducted by the parties, at some risk of over-simplification, upon the basis that the relationship between the respondent and "the Crown" was analogous to that of employee and employer, and that either "the Crown" or the Commissioner of Police owed the respondent a duty of care of the kind that exists in an ordinary employment setting, subject to any relevant statutory modification of the incidents of that relationship. The statement of claim alleged that the respondent was employed by the service. The grounds of defence admitted that allegation, and also admitted that "an employer owes a duty to its employee to take reasonable care for the employee's safety". The main issue at trial, and on appeal, was breach of that duty. There were also some presently irrelevant questions about quantification of damages.
[3] The damage said to have been suffered by the respondent, in consequence of the breach of duty by her employer to take reasonable care for her safety, was psychiatric injury diagnosed as post-traumatic stress disorder. The circumstances in which the injury occurred are explained in the reasons of the other members of the court.
[4] To observe that it was common ground that the service, or the commissioner, owed the respondent a duty to take reasonable care for her safety, and that this embraced a duty to institute and maintain a safe system of work, helps to set the context for the debate in this court, but it raises questions as to the kind of act or omission that would constitute a breach of such duty. The relevant form of safety is protection from the risk of psychiatric injury and, in particular, post-traumatic stress disorder. Having regard to the nature of the duties of a police officer, and to the nature of post-traumatic stress disorder, concepts of risk, and safety, may require closer analysis. The duties of police officers commonly expose them to danger, sometimes from people who deliberately seek to cause them harm. Individual responses to stressful situations vary greatly, and police officers are sometimes called upon to deal with situations that many ordinary citizens would find unbearably stressful. Police service is not unique in this respect. Many callings expose people to forms of stress with which outsiders would be unable to cope. Furthermore, an individual's capacity to cope with stress may be affected by unpredictable personal circumstances.
[5] In Barber v Somerset County Council , [F2] the House of Lords dealt with the case of a schoolteacher who suffered psychiatric injury caused by work-related stress. Applying as a standard of negligence "the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know", [F3] the House of Lords disagreed with the Court of Appeal's decision that negligence had not been shown. However, Hale LJ in the Court of Appeal had formulated some practical propositions applicable to cases where complaint is made of psychiatric illness brought about by stress at work, and these were accepted in the House of Lords. [F4] On the question whether psychiatric harm to the particular employee was reasonably foreseeable, they included the proposition that "there are no occupations which should be regarded as intrinsically dangerous to mental health". [F5] Another way of expressing a similar idea may be to say that the factors that may cause stress, and the circumstances in which an individual might suffer stress-related injury, are so various that to single out any occupation and treat it as intrinsically dangerous in this respect is unwarranted. There are circumstances, for example, in which caring for children might be at least as stressful as law enforcement.
[6] This being a case about breach of duty, there was reference in argument to the well-known statement of principle of Mason J in Wyong Shire Council v Shirt . [F6] As his reasons make clear, [F7] Mason J was applying the law as stated by Lord Reid on behalf of the Privy Council in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2 )). [F8] Dealing with the two factors of reasonable foreseeability of a risk of harm, and avoidance of the risk, Mason J explained how a tribunal of fact should set about deciding whether there has been a breach of a duty of care. The tribunal asks first whether a reasonable person in the defendant's position would have foreseen that his or her conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer is yes, then the task is to consider what a reasonable person would do by way of response to the risk. He then set out factors which are likely to enter into such a consideration, factors which may need to be "balanced out". [F9] This has since been referred to, somewhat unfortunately, as a "calculus". What is involved is a judgment about reasonableness, and reasonableness is not amenable to exact calculation.F [F10] The metaphor of balancing, or weighing competing considerations, is commonly and appropriately used to describe a process of judgment, but the things that are being weighed are not always commensurate. As was pointed out in Mulligan v Coffs Harbour City Council ,F [F11] there are cases in which an unduly mathematical approach to the exercise can lead to an unreasonable result.
[7] In 1856, Alderson B said: "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."F [F12] Reasonableness is the touchstone, and considerations of foreseeability and risk avoidance are evaluated in that context. In Shirt , Wilson J, in dissent, expressed some concern that some forms of judicial exposition of the concept of reasonable foreseeability might deprive the requirement of foreseeability of practical substance.F [F13] Later judges have expressed similar concerns. There may be cases where courts have lost sight of the ultimate criterion of reasonableness, or have adopted a mechanistic approach to questions of reasonable foreseeability, risk management or risk avoidance. Complaints about failure to warn seem to give rise to problems of that kind. There have been occasions when judges appear to have forgotten that the response of prudent and reasonable people to many of life's hazards is to do nothing.F [F14] If it were otherwise, we would live in a forest of warning signs. That, however, does not warrant reconsideration in this case of what was said by Mason J. In cases where the principles have been misapplied, that may have been the result of a failure to read the most frequently quoted passage in the context of the whole of Mason J's judgment.
[8] There being no dispute that the respondent was owed a duty of care by her employer, and there being no dispute about the general nature of that duty (a duty to take reasonable care for the safety of the respondent by instituting and maintaining a safe system of work), the respondent has the benefit of concurrent findings that there was a breach of that duty. I expressed my views on the significance of this consideration in Graham Barclay Oysters Pty Ltd v Ryan ,F [F15] and do not intend to repeat them. The essence of the challenge to those findings is that the reasoning on which they were based was manifestly implausible.
[9] The case for the respondent was somewhat more diffuse than the case that finally succeeded and, as Basten JA pointed out in the Court of Appeal, the findings of the primary judge were expressed in a manner that tended to confuse issues of breach of duty and causation. The respondent attributed her condition to a number of alleged shortcomings in the conduct of individual police officers, and of the service, both during and after the traumatic events in the immediate aftermath of the armed robbery of 25 August 1999. She had various complaints about the way she was treated on the night in question, and later. Ultimately, however, it was the conduct of Senior Constable Evans in failing to assist and support the respondent as she rendered assistance to the victim of the armed robbery that was held to involve a breach of the duty of care owed to the respondent.
[10] There was plenty of evidence to justify a conclusion that psychiatric injury of the kind suffered by the respondent was a reasonably foreseeable consequence of failing to provide support and assistance in the circumstances in which she was placed. I do not understand that to be in contest. One of the respondent's primary complaints was that she was left alone by Senior Constable Evans to cope with a situation in circumstances where the system under which they were both working required that he ought not to have left her alone without reason; and the primary judge found that he had no good reason. This idea of a system that was in place, but was departed from by Senior Constable Evans, was contentious. The primary judge referred to "the buddy system" and "the recognised risks of stress-related disorders" in the context of a conclusion that police officers assigned to work together, such as Senior Constable Evans and the respondent on the night in question, were duty-bound to give one another support unless there were reasons why that was not practical. The appellant argued that this so-called "buddy system" owed more to assumptions made by the respondent's medical witnesses than to any cogent evidence of police practice. There is some force in that criticism. However, as the trial was conducted, there was a dearth of evidence from senior police officers. The respondent gave unchallenged evidence that, when police officers were working in pairs, "you had to look after who you were working with", and she gave examples of how this mutual support worked in practice.
[11] Nobody suggested that it would be possible to prescribe with any precision the circumstances in which two police officers, working as a pair, should or should not separate. The decision in the present case was that there was a recognised risk of stress-related injury, that the service had responded to the risk by requiring police officers working in pairs to give one another support and assistance unless there was some reason for separating, that Senior Constable Evans had shown no reason for leaving the respondent alone, and that the respondent's exposure to the trauma of the victim in the doctor's surgery without any help from her partner was a cause of her psychiatric injury.
[12] Spigelman CJ said (at [17]-[18]):
[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 [plaintiff]. In particular the presence of other police officers on the scene was such as to support a conclusion that the attendance of Constable Evans to other tasks was not such as to render reasonable, in all of the circumstances, his failure to support the [plaintiff].
[13] The other members of the Court of Appeal agreed in substance with that finding. I see no sufficient reason for this court to reject the finding. The appeal should be dismissed with costs.