New South Wales v Fahy

[2007] HCA 20
236 ALR 406

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(Judgment by: Kirby J) Court:

Judges: Gleeson CJ
Gummow J

Kirby JHayne 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

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Judgment by:
Kirby J

[81] This appeal, from the Court of Appeal of the Supreme Court of New South Wales,F ^[F63] concerns the law of negligence. Specifically, it concerns the question whether the State of New South Wales (the appellant), as the admitted employer of Ms Gemma Fahy (the respondent), then a constable in the police service of the state,F ^[F64] was liable to pay damages to the respondent. The damages were claimed for a severe condition of post-traumatic stress disorder (PTSD) from which it was accepted the respondent suffered following circumstances arising in the course of her employment.

[82] The respondent succeeded at trial in the District Court of New South Wales (Graham DCJ).F ^[F65] By its appeal to the Court of Appeal, the appellant challenged that outcome. So far as the challenge related to the liability of the appellant, it was unanimously dismissed by the Court of Appeal, although the reasons for judgment were somewhat different as between Spigelman CJ (with whom M W Campbell AJA substantially agreed)F ^[F66] and Basten JA.

[83] Upon a particular aspect of the damages awarded to the respondent by the primary judge (in total $469,893), the Court of Appeal unanimously upheld the appellant's appeal.F ^[F67] On this footing, the Court of Appeal ordered that the matter be remitted to the District Court for determination of the allowance to be madeF ^[F68] for a reduction of the respondent's damages on the basis of a failure on her part to mitigate her damage by taking anti-depressant medication after this was prescribed for her.F ^[F69] No cross-appeal to this court was brought on that issue. Accordingly, if the appellant's challenge to its liability fails, that would be the result, unless the parties earlier settled that "one outstanding matter".F ^[F70]

[84] The general background to the case is described in other reasons.F ^[F71] However, to explain the conclusion to which I come, it will be necessary to add certain relevant facts disclosed in the evidence taken at the trial. Specifically, it will be necessary to refer in greater detail to the conclusions of the judges below, all of whom were of the view that the respondent was entitled in law to succeed in her claim framed in negligence.

[85] When the further facts are understood, concerning the system of work instituted for police constables faced (as the respondent undoubtedly was) with fraught circumstances, the conclusion of the primary judge, and of the Court of Appeal, can be better appreciated. This is a case of an employer that correctly recognised special risks and dangers for its employees. It devised a system which was carried out defectively on the occasion when the respondent suffered her damage. On this basis, the case is a relatively straight-forward one involving the failure of the employer to maintain and carry out its own system of work, protective of the respondent. So explained, it was open to the primary judge to find negligence against the appellant. There is no occasion for this court to find error in the substantive conclusion reached below. The judgment of the Court of Appeal to that effect should be affirmed.

The issues

[86] Matters not in issue : In this court, a number of topics, canvassed earlier, or in argument, can be put to one side as ultimately not in issue. Thus, in defining the scope and content of the duty of care owed by the appellant to the respondent, this court does not need to have regard to the Occupational Health and Safety Act 1983 (NSW). At trial, the respondent neither pleaded, nor relied upon, the provisions of that Act as affording evidence of negligence on the part of the appellant, as a body subject to the duties prescribed by that Act. While some of the provisions of the Act were referred to in documents tendered in evidence in the respondent's case,F ^[F72] the failure of the respondent to run such a case at trial would render it unfair, now, in this court, to permit the issue to be raised substantively for the first time.

[87] This is so, although it would appear that the Court of Appeal, in a series of decisions, has treated the obligations imposed by the Act as relevant to the ascertainment of the duty owed at common law to persons engaged in relationships of employment and quasi-employment.F ^[F73] Indeed, the Act has been specifically considered in that court as relevant to the obligations of care arising in the employment of police officers.F ^[F74] Nothing significant would appear to turn on this issue, given that the Court of Appeal did not find that the Act, or its application to the peculiarities of police employment, obliged any different approach to the content of the duty of care from that expressed by this court (in Wyong Shire Council v Shirt ,F ^[F75] to which reference will shortly be made).

[88] Various other issues, or potential issues, can likewise be ignored. Thus, no one until the proceedings reached this court ever suggested the possibility that a police constable might be excluded from recovery on the basis of negligence by reference to the notion of voluntary assumption of risk (volenti).F ^[F76] If we have reached a stage in the law of employment and quasi-employment in Australia that this nineteenth-century concept is to be revived for this purpose, notwithstanding all the legal reasoning that argues to the contrary,F ^[F77] specifically in the case of policeF ^[F78] and like employment,F ^[F79] a specific argument to that effect would be necessary. Unsurprisingly, in my view, no such argument was advanced in this appeal.

[89] Various other issues can also be taken as settled. They include the primary judge's general quantification of the respondent's damages, save for the point of mitigation;F ^[F80] his conclusion that the negligent acts or omissions of the appellant (if proved) "materially contributed to the onset of [PTSD] and depression or anxiety conditions in the [respondent]";F ^[F81] and his rejection of the defence of contributory negligence.F ^[F82]

[90] Contrary to what was suggested during argument in this court, the pleadings in the record show that the respondent did plead a case based on the appellant's vicarious liability for the acts and omissions of its "servant or agent". Thus, it was specifically pleaded that the respondent at the critical time "was accompanied by her partner who was also a member of the New South Wales Police Service. Rather than assist her, the partner decamped."F ^[F83] Moreover, the particulars of negligence pleaded against the appellant included:F ^[F84]

By its servant or agent, leaving the scene of the armed robbery and exposing the [respondent] to the victim by herself.

[91] Ultimately, it is of no consequence whether the appellant's liability arose directly, or through the acts and omissions of police officers (such as Senior Constable Steven Evans and Inspector Whitten) for whom it was made vicariously liable by the operation of the Law Reform (Vicarious Liability) Act 1983 (NSW).F ^[F85] As was rightly noted by the Court of Appeal,F ^[F86] on the facts of the case, "[n]othing turns ... on the two different ways of approaching the duty".

[92] Nevertheless, the great part of the respondent's case, as described in the reasons of the primary judge and of the Court of Appeal, concerned the appellant's system of work and its provision of counselling and follow-up after injury. On the evidence, it was the suggested failure of the system, at the point where the respondent suffered the trauma that triggered her PTSD and depression, that became the focus of most of the argument in this court. Correctly, the primary judge did not treat PTSD as somehow excluded by law from the kind of damage that would render the appellant liable in negligence if the other ingredients of the tort were proved.F ^[F87] Nor did he treat the fact that the respondent had been a police officer with 3 years' operational experience before her exposure to the traumatic events that triggered her psychological illness, and had apparently adequately coped with earlier stressful incidents, as somehow placing her outside the duty of care owed to her by the appellant to take positive steps to protect her from such well-known and recognised employment risks as face police constables in the state and throughout the Commonwealth.F ^[F88]

[93] The " employment " of police : As Gummow and Hayne JJ point out in their joint reasons,F ^[F89] this is another case where, to define with legal accuracy the ambit of the duty of care owed to the respondent in the circumstances complained of, it was necessary to start with the statutory provisions governing the relationship in question.F ^[F90] No statement of the common law applicable to a case in respect of which a statute has relevant application may ignore the material provisions of statute law.

[94] The peculiarity of the office of a constable of police, viewed from the standpoint of common law principles, was explained by this court in its early decision of Enever v R .F ^[F91] As Griffith CJ pointed out in that case, the fundamental problem, from the point of view of rendering the government or the Crown liable vicariously for wrongs done by a constable, statute apart, was that the constable's exercise of powers was viewed by the law as conduct personal and incidental to that office.F ^[F92] This holding left police constables exposed to personal liability at common law at the suit of third persons and potentially outside the protections ordinarily applicable by that time to those engaged in the employment relationship.F ^[F93] It eventually led to legislative reform. At the relevant time, the applicable legislation in New South Wales was the Police Service Act 1990 (NSW).F ^[F94]

[95] In the Court of Appeal, Basten JA commenced his analysis by reference to the collection of state legislation relevant to ascertaining the ambit and extent of the duty of care owed by the appellant to the respondent in the "employment" relationship.F ^[F95] To use the word chosen by Basten JA,F ^[F96] there are various reasons why the way in which the respondent sued the appellant, as if it were liable to her in law as an ordinary employer, was "inapt". As Basten JA observed, for specified statutory purposes the Commissioner of Police is expressly deemed to be the employer of a constable.F ^[F97] But there was no equivalent general provision in the Police Service Act.F ^[F98]

[96] In the trial of the present proceedings, these fine points of law were glossed over for a simple reason. In para 2 of her ordinary statement of claim, the respondent pleaded her cause of action asserting that she was "employed by the [New South Wales Police] Service as a Police Officer" and in para 1 she sued to recover from the appellant pursuant to the Crown Proceedings Act 1988 (NSW). In para 1 of its defence, the appellant admitted paras 1 and 2 of the statement of claim. Unsurprisingly, therefore, the respondent's claim went to trial, and was decided, upon the footing that the appellant was content to have its obligations decided as representative of the respondent's employer on the dual footing that the state or "the Crown in right of New South Wales"F ^[F99] was the proper party to be sued in the circumstancesF ^[F100] and that the legal relationship existing at all relevant times was that of "employment".

[97] Once a legal problem of this kind is identified, no court can be required to accept concessions or assumptions agreed between the parties that would lead the court to knowingly ignore or misapply the law.F ^[F101] Yet no party to this appeal, either in the Court of Appeal or in this court, asked the court to clarify the precise relationship that existed between the appellant and New South Wales police officers such as the respondent, if it was not that of employment. No party suggested that this court should revoke special leave on that basis.F ^[F102] Both parties appeared to be content to allow the appeal to be decided on the basis stated in the pleadings, upon which footing the trial had been conducted and the arguments of the parties decided. Judicial dicta exist which suggest that, in contemporary circumstances, at least for the application of industrial relations legislation, members of a state police force are indeed "employees" of the state.F ^[F103] Self-evidently, the appellant is not without access to the advice of experienced lawyers, and particularly when it comes to clarifying its own legal status and amenability to be sued in respect of a specified relationship having well-known legal consequences.

[98] In such circumstances, although the appellant's admissions on the pleadings gloss over potential problems that were correctly identified by Basten JA in the Court of Appeal, and although such problems are not theoretically immaterial to the resolution of the issues remaining in the appeal, I am content to deal with the dispute between the parties on the basis that they have chosen. ^[F104] This means that the appeal to this court must be decided on the footing that the respondent was an employee of the appellant, or of a body represented by the appellant, and was owed the duties that ordinarily attach in law to the employment relationship, without any relevant diminution or variation deriving from the peculiarities of the position held by the respondent, namely that of police constable, or the like positions held by the other relevant police officers whose conduct was put in issue, namely Senior Constable Evans (the respondent's "partner" or "buddy" at the relevant time) and Inspector Whitten (the duty officer in charge of the relevant operation during which the respondent suffered the damage for which she sued).

[99] Issues in contest : By the foregoing analysis, the actual issues in contest in this appeal are narrowed. Effectively, they are two:

(1)

The reopening of Shirt issue : Whether this court, as the appellant in an amended ground of appeal urged, should reconsider, and re-express, the authority stated in its decision in Shirt ^[F105] as to the test for establishing a breach of the duty of care on the part of a party alleged to be liable to another in the tort of negligence; and

(2)

The standard/breach issue : Whether, in the circumstances of this appeal, and according to the legal principles so expressed, the appellant has demonstrated error on the part of the Court of Appeal and the primary judge in expressing the ambit of the duty of care owed to the respondent and in upholding the suggested breach of that duty giving rise to liability in the appellant for negligence.

[100] Having regard to this court's authority, the duty of the respective courts, both at trial and in the Court of Appeal, was to apply the approach expressed in Shirt . ^[F106] The only court in which that approach might be re-examined, and re-expressed, was this court. Picking up some suggestions put to it in the course of argument of the special leave application, ^[F107] the appellant formally asked this court to allow it to add a ground of appeal challenging the holding in Shirt . Even if, upon one view, the alternative approach available to the appellant (namely that the event was "not unlikely to occur") ^[F108] would produce no different result in the present case, the correct starting point for this court is the identification of the governing legal rule. Where, as here, the issue has been fully argued, it is desirable that it be squarely determined by the court and laid to rest. For this reason, I shall deal first with the issue of the status of the " Shirt calculus" and whether it should be abolished, or re-expressed, as the appellant argued it should at the threshold of its submissions.

The maintenance of the approach in Shirt

[101] Context of the issue : The appellant's concession that the relationship of the respondent to the police service was that of employment effectively concluded, in the circumstances of this appeal, any issue as to whether a duty of care existed for which the appellant was liable in law. This was because the employment relationship is clearly one that falls within the concept of "neighbourhood" which Lord Atkin declared to be the first step in determining the existence of a legal duty of care for the purpose of the tort of negligence. ^[F109] Indeed, the employment relationship is one of comparatively few that impose specific obligations on the duty bearer to take affirmative action to prevent injury to others, namely those who are employed by, and thus subject to the general direction and control of, the other. ^[F110]

[102] At common law the general rule is that a person "is not bound to do acts for others' benefit; he may sit still and let things take their course". ^[F111] However, by long authority, the very nature of the employment obligation creates a duty of care between those party to it. Indeed, it is a relationship that obliges the employer affirmatively to establish and enforce a safe system of work. ^[F112] In the employment relationship, the employer is responsible for keeping abreast of technological and scientific knowledge ^[F113] and for taking positive action to consider, and respond to, the needs of accident prevention in accordance with "changing ideas of justice and increasing concern with safety in the community". ^[F114] Some of the most important contributions to the perception of the last-mentioned necessity, according to our law, were written by McHugh J. ^[F115]

[103] Merely prescribing a safe system is not enough to discharge the obligation that is owed to employees. The system must be enforced. This must be done even against employee resistance. ^[F116] Although an employer may not always have to take active steps to acquaint itself with special or unique weaknesses or predispositions to injury and damage on the part of particular employees, ^[F117] where the employer becomes aware that there is such a susceptibility, or should be so aware in the ordinary course of reasonable conduct, special precautions need to be taken by it to fulfil the duty of care that is inherent in the employment relationship. ^[F118]

[104] Against the background of this established body of doctrine in the common law, which was not challenged in this appeal, the issue presented was not whether a duty of care existed on the part of the police service to an employee such as the respondent. The express acknowledgment of the employment relationship foreclosed that issue. So much was correctly recognised in the Court of Appeal by Spigelman CJ: ^[F119]

[2] There is no issue that the Appellant owed a duty to the Respondent to provide a safe system of work. Nor was there any issue that, if either Constable Evans or Inspector Whitten were in breach of a duty of care, then the Appellant was vicariously liable for that breach. Nothing turns, on the facts of the case, on the two different ways of approaching the duty.

[105] Instead, the argument advanced for the appellant, in this court as in the Court of Appeal, concerned what that given duty of care reasonably entailed in the circumstances of this case and whether, as so defined, it had been breached by the acts and omissions of the police service. These were the questions that took the Court of Appeal to the approach required in Shirt .

[106] The decision in Shirt is so well known, and frequently applied, that it was not cited by name in the Court of Appeal's reasons. But in the statements of the ambit of the duty of care, both of Spigelman CJ ^[F120] and of Basten JA, ^[F121] the resonances of Shirt can clearly be observed. Moreover, in each of those reasons, care was taken to distinguish the then recent authority of this court in Koehler . ^[F122] That was a case in which this court unanimously rejected an appeal by an employee who claimed to have been exposed to the risk of psychiatric injury as a consequence of her employment duties. Koehler was plainly distinguishable on the facts. But it was common, both to the joint reasons in Koehler ^[F123] and, more reluctantly, the concurring reasons of Callinan J in that case, ^[F124] that the proper approach to the ascertainment of the duty of care owed by the employer to the employee (and whether it was breached) was that stated in Shirt .

[107] With Koehler fresh in mind, the Court of Appeal therefore approached the task before it by asking the questions mandated in the familiar passage in the reasons of Mason J in Shirt , which Callinan J in Koehler had ruefully observed had "been constantly applied throughout this country and in this court since it was decided". ^[F125]

[108] The Shirt calculus : Because it is central to the resolution of the issues argued in this appeal, it is necessary to remember that the critical passage in the reasons of Mason J in Shirt ^[F126] directs the decision-maker to ask two questions, viz (1) would a reasonable person in the defendant's position have foreseen that the conduct postulated involved a risk of injury to the plaintiff or a class of persons including the plaintiff; and (2) if so, what would a reasonable person do by way of response to such risk. However, there then immediately follows a passage which, as McHugh J remarked in Tame , ^[F127] has sometimes been overlooked, namely: ^[F128]

The perception of [that] 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.

[109] This passage in the reasons of Mason J in Shirt followed a decision of the Judicial Committee of the Privy Council in The Wagon Mound (No 2 ). ^[F129] In that decision, Lord Reid, giving the reasons of the board, in an appeal from a decision of Walsh J in the Supreme Court of New South Wales, ^[F130] remarked: ^[F131]

If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant's servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense.

[110] It was this approach which had led Glass JA, in the New South Wales Court of Appeal decision from which the appeal in Shirt came to this court, ^[F132] to describe the test of foreseeability, in the context of breach of duty, as "undemanding". ^[F133] When Shirt was heard in this court, Mason J observed that: ^[F134]

Despite the force of Mr McHugh's argument I am not persuaded that a finding of breach of duty was beyond the jury's competence.

[111] In stating the principles, later described as the " Shirt calculus", Mason J took considerable pains to emphasise that, in the context of breach of duty, "in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk", although "it certainly does not follow that a risk which is unlikely to occur is not foreseeable". ^[F135] He also emphasised that the touchstone which alone opened up a finding of civil liability in negligence at common law was "what a reasonable man would do by way of response to the risk".

[112] The decision in Shirt was given by this court at a time when appeals still lay in Australia from state courts to the Privy Council, a point noted by Mason J. ^[F136] Although this was a factor in persuading Mason J to accept and adopt the formulation of Lord Reid, his Honour made it clear that he also did so because "there are sound reasons for accepting it as a correct statement of the law". ^[F137]

[113] The issue now presented by the appellant's threshold attack on the principles so stated, is whether the formulation in Shirt should be revised and re-expressed.

[114] Suggestions for revision of Shirt: One of the foremost proponents of a revision of the approach expressed in Shirt was McHugh J, expressing in his judicial reasons arguments which he had advanced as counsel, but which had not found favour in Shirt with Mason J (or with Stephen, Murphy and Aickin JJ, who expressly or impliedly agreed with Mason J in his conclusions and reasoning). ^[F138]

[115] In McHugh J's repeated opinions in this court, ^[F139] the endorsement by Mason J in Shirt ^[F140] of the principle that "a risk which is not far-fetched or fanciful is real and therefore foreseeable" was the beginning of "the problems that now beset negligence law". ^[F141] Although the Shirt formulation is one which encourages, and promotes, consideration of the necessities of accident prevention (a principle which McHugh J elsewhere repeatedly favoured), ^[F142] his Honour several times suggested that this court should return to the test proposed by Barwick CJ in Caterson . ^[F143] That test would confine the risk to be guarded against to one that is "not unlikely to occur". This, or some other formula designed to exclude remote and insubstantial risks from the need for positive response, was the course propounded by McHugh J in order to return the Australian law of negligence, in this respect, to what he saw as the path of reasonableness from which it had strayed following The Wagon Mound (No 2 ) and Shirt .

[116] Equally, or more, insistent about the need to revisit the Shirt formulation have been successive opinions of Callinan J in Tame ^[F144] and Koehler , ^[F145] and Callinan and Heydon JJ in Vairy v Wyong Shire Council . ^[F146] That view is repeated in this case in the reasons of Callinan and Heydon JJ (although their Honours say that it is not necessary for the decision of this case that Shirt be overruled). ^[F147]

[117] The appellant agreed that the test in Caterson could not now be adopted, as least in New South Wales, as it would be inconsistent with the Civil Liability Act 2002 (NSW) which requires that the risk be "not insignificant". The appellant therefore urged this court to substitute the requirement that the risk be regarded as reasonably foreseeable only where it is so significant that it is reasonable to require a defendant to examine the need for precautions to eliminate it. This is the "significance" test. In effect, the appellant urged the court to adopt the test stated in s 5B of the Civil Liability Act 2002 (NSW) which provides:

5B General principles

(1)

A person is not negligent in failing to take precautions against a risk of harm unless:

(a)

the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)

the risk was not insignificant, and

(c)

in the circumstances, a reasonable person in the person's position would have taken those precautions.

[118] While I respect the repeated expressions of opinions of my colleagues who hold to the contrary view, I cannot agree that it is timely, appropriate or desirable to re-express the common law of Australia in this respect. I will state my reasons for this conclusion.

The re-expression of Shirt should be rejected

[119] The Shirt rule is nuanced : First, the decision in Shirt was stated by this court with a high degree of unanimity in what was effectively a test case propounded to permit a re-expression by the court of an applicable legal principle of broad application. Even Wilson J, who dissented as to the outcome and would have pulled back from the "undemanding test of foreseeability", stated that he had "some misgiving as to the use of the term 'not unlikely to occur' which in my opinion is patently obscure". ^[F148] Moreover, Wilson J remarked that he did not "understand [Barwick CJ in Caterson ] to be adopting a standard significantly different to that enunciated in The 'Wagon Mound' [No 2]". ^[F149]

[120] This last remark was perceptive, although it doubtless arose out of the then prevailing deference to the Privy Council in those areas of the law still subject to its appellate review of Australian judicial decisions. When the actual words of Lord Reid, later blamed as occasioning a wrong turning, are examined it is clear (as Mason J pointed out in Shirt ) ^[F150] that their Lordships in The Wagon Mound (No 2 ) positively rejected the view that "risk of injury which is remote is of necessity not a real risk and that it falls outside the concept of foreseeability". However, what Mason J went on to emphasise in Shirt was that the foreseeability of the risk was only the first question that the decision-maker had to ask. It might be answered in the affirmative. But a second question remained. It was what a reasonable person would do by way of response to the then identified risk. It was in that connection that Mason J listed the factors relevant to what was later called the "calculus" that had to be performed. Those factors introduced, in a much less obscure and more nuanced way, the practical considerations that Barwick CJ in Caterson had sought to express in his "patently obscure" ambit phrase "not unlikely to occur".

[121] It follows that it is quite wrong for critics to portray Shirt as providing an "open sesame" to liability by removing the requirement of reasonableness inherent in Lord Atkin's approach in Donoghue . ^[F151] The law has not lost the moorings of that fundamental requirement. On the contrary, the Shirt formulation, in a highly practical way, directs specific attention to a series of considerations that are typically such as to moderate the imposition of legal liability where that would not be reasonable.

[122] Shirt has been misapplied : If there has been an incorrect application by trial courts of the full force of the formulation expressed by Mason J in Shirt , that is not a weakness in this court's formulation. It simply shows that the "calculus" has not been given its full operation and perhaps, as McHugh J observed in Tame , ^[F152] those courts have been overly transfixed by reference to the "undemanding" test of foreseeability and insufficiently mindful of the second question to be asked and of the specific criteria which give that question a practical operation.

[123] In a number of cases, this court has pointed to the failure of trial counsel and judges to have regard, and to give proper weight, to the "magnitude of risks, the likelihood of the occurrence of risks, the expense and difficulty of responding to every possible risk in an effective way and the potentially conflicting considerations to be given weight". ^[F153] It is not a rational response to this problem to re-express a formulation that expressly calls attention to considerations which, in a proper case, may persuade the decision-maker that what a reasonable person would do by way of response to a foreseeable risk in the particular circumstances of a case might be: nothing. ^[F154]

[124] " Calculus " is not mathematical : The fact that the Shirt formulation has sometimes been ignored or misapplied is not a reason for abandoning it. In countless cases, courts of trial and of appeal have applied the formulation accurately, according to its terms. In the nature of things, this court rarely sees such instances. Any excuse for overlooking the repeated reminders about the criteria of practical reasonableness contained in the latter part of the Shirt formulation, that might have existed before such decisions as Tame , Swain ^[F155] and Koehler , has now well and truly been dealt with by the judicial observations made in those decisions.

[125] Moreover, self-evidently, the reference to the Shirt formulation as a "calculus" is not intended to suggest a mathematical or scientific precision in the endeavour. The very components of the "calculus" deny any such expectation, most (if not all) of them being insusceptible to exact computation. ^[F156] Furthermore, although the Shirt formulation must be applied retrospectively by a court which knows that a misfortune of some kind is alleged to have happened to the plaintiff, of its nature it is designed to be applied prospectively (what the reasonable person " would have foreseen" and " would do by way of response to the risk"). ^[F157] In this, there is nothing inconsistent with the approach stated in Shirt or indeed that earlier expressed by Barwick CJ in Maloney v Cmr for Railways (NSW ) ^[F158] to which Wilson J called attention in his reasons in Shirt . ^[F159] In Maloney , Barwick CJ had said: ^[F160]

Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances. That matter must be judged in prospect and not in retrospect. The likelihood of the incapacitating occurrence, the likely extent of the injuries which the occurrence may cause, the nature and extent of the burden of providing a safeguard against the occurrence and the practicability of the specific safeguard which would do so are all indispensable considerations in determining what ought reasonably to be done. ^[F161]

[126] Whatever may once have been the danger of oversight of the latter parts of the Shirt formulation, recent decisions, and recent trends in the law, have ensured that those risks need not now unduly trouble this court.

[127] Relevance of new legislation : It is also relevant here to consider the enactment of legislation designed to re-express legal liability in negligence in ways intended to reduce such liability, such as the Civil Liability Act. This is because the common law operates in the crevices left after statutory provisions have addressed subjects on which the common law once spoke with uninterrupted authority. As this court has said so many times in recent years, where statute speaks, it is the parliamentary command that takes primacy and constitutes the starting point for legal analysis. ^[F162]

[128] Nevertheless, the significance of legislation of this kind is not as the appellant urged. On the contrary, the disparity and specificity of the various legislative approaches in different states of Australia suggest that it would not be timely or appropriate for this court, on this ground, to attempt a re-expression of the general principles of the Australian common law. In this, I agree with the reasons of Gummow and Hayne JJ. ^[F163] This is not an area where the legislature has been neglectful or is unlikely to repair a demonstrated defect in the law. ^[F164] Nor is it one where this court's intervention is required to correct demonstrated injustice, departure from basic principle or disproportional consequences that cannot safely be left to particular parliamentary repair. ^[F165]

[129] Shirt correctly states the law : Ultimately, I would not favour a re-expression of the law expressed in Shirt because I share the view expressed by Mason J in that case that there are sound reasons for accepting the formulation there expressed as a "correct statement of the law". ^[F166] Not only is it a statement that emerged from a long series of decisions dating back, at least, to Donoghue . ^[F167] By expressing the approach to "foreseeability" in the first question stated in Shirt , in the undemanding way that appears there, for the purpose of deciding whether a breach of a duty of care has been established, this court has encouraged all those in a relationship of "neighbourhood" (and certainly employers) to keep in mind and act upon the affirmative obligations of accident prevention that can sometimes arise out of the particularities of the relationship in question.

[130] A similar thought was expressed in the United States of America by Professor (later chief judge) Richard Posner in his influential essay "A Theory of Negligence", published in 1972. ^[F168] Writing about the issue of foreseeability, Professor Posner pointed out that "[c]ourts invoke the doctrine of 'proximate cause' to excuse defendants from liability for unforeseeable consequences of negligence". ^[F169] He instanced the case of a train stopping at a crossing to allow a group of rowdy passengers to disembark. If this event were to cause fright to a car driver waiting at the crossing for the train to move on and to occasion erratic driving of the car because of such fright and anxiety resulting in a mishap and injury, the law would deny recovery. It might do so on the basis of causation. But Professor Posner indicated that the same result "follows from the economic standard of negligence". He explained: ^[F170]

If negligence is a failure to take precautions against a type of accident whose cost, discounted by the frequency of its occurrence, exceeds the cost of the precautions, it makes sense to require no precautions against accidents that occur so rarely that the benefit of accident prevention approaches zero. The truly freak accident isn't worth spending money to prevent. Moreover, estimation of the benefits of accident prevention implies foreseeability.

[131] That is why, in judging the existence or otherwise of a breach of a duty of care, the door is left open by the "undemanding" test posed by the first question stated by Mason J in Shirt . Generally speaking, it is highly desirable that the law should encourage those with the power to do so (and one might say especially employers) to turn their attention to issues of accident prevention. Yet because such prevention is not to be purchased at excessive cost nor required for the "truly freak accident", or otherwise unreasonably, the Shirt "calculus" proceeds to require attention to what the reasonable person would do in all the circumstances. And it gives guidance about the types of considerations that such a person would take into account in acting reasonably.

[132] Because, with McHugh J, I regard the communitarian notion of accident prevention as an important and desirable operative consequence of the law of negligence, ^[F171] I would not myself favour any re-expression of the law that would endorse a reduced vigilance in respect of accident prevention. Parliament can, if it chooses, endorse "notions of selfishness that are the antithesis of the Atkinian concept of the legal duty that we all owe, in some circumstances, to each other as 'neighbours'". ^[F172] However, it is not a direction that, in my view, the common law of Australia has taken or should take. Importantly, in my respectful view, it is the approach which, without re-expressing the test, majorities of this court have repeatedly taken in recent times; and now, once again, is taken in this appeal. It is the antithesis of the neighbourhood concept that lay behind the modern law of negligence. It places the decisions of this court outside the legal mainstream on this topic.

[133] Conclusion -- Shirt stands : I would therefore reject the appellant's application to have this court re-express the formulation stated in Shirt for the decision about the content of the duty owed by the police service, for which the appellant has accepted liability, to the respondent as employee and for the standard to be applied in deciding whether the police service breached its duty of care to the respondent. The liability of the appellant therefore falls to be decided in accordance with the principles explained by Mason J in Shirt . Both as a matter of binding authority and for reasons of basic legal principle applicable in Australia, the courts below were correct to so decide.

The standard and breach of the duty of care

[134] Awareness of police stress : The occurrence of stress (and specifically the risk of PTSD) in the employment of police officers, specifically police constables such as the respondent, was well established by the evidence adduced in the trial of the present proceedings. It is a reality that might to some degree also be the proper subject of judicial notice. ^[F173]

[135] The duties of police officers sometimes present them with circumstances of violence, horror, death, anger and destruction. In such circumstances, the risk of PTSD as a consequence of employment duties is far from far-fetched or fanciful. It is actual and real. A reasonably careful employer would not simply occasionally praise and exhort its employees and wash its hands of the responsibility to minimise the risks and dangers of such stress. It would do what is reasonable to prevent and minimise the dangers. What is reasonable will not, and could not, involve elimination of all such risks. But preventative and supporting strategies are known and available. Conformably with the discharge of the duty of care imposed by the common law of Australia on employers, appropriate protective strategies have to be devised, adopted, maintained and enforced.

[136] There was ample evidence at trial that, prior to the events that caused PTSD to the respondent, the police service was aware of the particular risks faced by police constables on the job and of the need to respond to them in every reasonable way. In June 1999, the State Ombudsman had published a special report to parliament, "Officers Under Stress". ^[F174] The opening words of the summary to the report describe it as one concerning "the need for the NSW Police Service to identify and support police officers whose psychological well-being has been affected by stress". The Ombudsman cited the police service's own research which in 1998 had found that:

•

For every five police officers involved in incidents, only three were offered professional support.

•

Of those who were offered support, 72 per cent were not offered further assistance after the initial intervention.

•

18 per cent of those interviewed indicated a clinically significant reaction to the incident; only half of this 18 per cent had received assistance.

•

More experienced officers were significantly more likely to be affected.

•

A third of those surveyed were unaware of the Police Service's psychology and welfare services.

The report concluded that the managers within the police service had a responsibility to "identify and respond to the needs of staff experiencing difficulties".

[137] According to the evidence, by the late 1990s, the police service in New South Wales was responding to external pressures to recognise the need to improve and maintain a safe and healthy working environment for police personnel, to the fullest extent practicable. This was the declared occupational rehabilitation policy of the service, released in June 1996. ^[F175] In addition to acknowledging a need for compliance with "statutory obligations under ss 15, 16 and 19 of the Occupational Health and Safety Act 1983", the service, in recognising the specific obligations of "Commanders/Managers and Supervisors", stated that they:

[a]re required to exercise a duty of care over all systems of work and the work environment in all workplaces under their control, and support the process of joint consultation with all employees, employee representatives and committees on all issues associated with occupational health and safety in the workplace.

[138] According to Mr Terrence O'Connell OAM, a long-time serving member of the police service and an expert witness on police systems, "at the time of Ms Fahy's incident, it was well known within the police service that inappropriate police management was likely to negatively impact on police exposed to traumatic events. An important study undertaken by Jeannie Higgins [Clinical Psychologist] into traumatic stress reactions among New South Wales Police between 1993 and 1995, found that 'rookie' recruits within the first 18 months of police service, were likely to exhibit disproportionate symptoms of PTSD".

[139] Mr O'Connell referred to a study of traumatic incidents in Scotland and Northern Ireland ^[F176] which found that insensitive management practices following an incident can exacerbate, or even produce, post-traumatic symptoms. In the case of policing, "it is the organisational or operational culture that largely shapes and influences management practice". Various ways of dealing with the problem of police stress were recorded by Mr O'Connell. One was denial and stigmatisation of psychological injury with "inappropriate coping strategies (such as excessive or 'binge' drinking) ... widespread among police". Mr O'Connell suggested that this culture provided "an insight into why Ms Fahy may have been reluctant to share her experience earlier with other police". The other strategy was operational modification, officer support and systems adaptation, accompanied by candid acknowledgment of the existence of a potential problem and the need to address it systematically, scientifically and empathetically. ^[F177]

[140] The report of Ms Higgins of March 1995, referred to by Mr O'Connell, was in evidence. ^[F178] It was prepared for the Police Association of New South Wales. Inferentially it (or equivalent data) was given or available to the police service. Senior police officers cooperated in the production of this report. The report emphasised the importance of basing employment strategies for reducing avoidable stress to police officers upon empirical data. But it recognised that PTSD commonly arose from exposure to a traumatic event in which both of the following were present: "1) actual or threatened death or serious injury to self or others; and 2) the person's response involved intense fear, helplessness, or horror". ^[F179]

[141] The cultural inhibitions on police constables seeking professional psychological assistance and expressing feelings, especially if they were female, was recorded and illustrated. Ms Higgins' report concluded: ^[F180]

We cannot prevent police being exposed to traumatic events but some current intervention programmes may simply further numb police to their feelings, perpetuate existing difficulties, and cost a lot ... Since we cannot easily prevent operational police being exposed to potentially traumatising events, policing organisations have a legal responsibility to make occupational environments as favourable as possible to optimal functioning and recovery. There is currently almost a complete lack of focus on organisational issues which perpetuate the negative effects of traumatisation.

[142] This, then, was the employment environment known to the appellant as the respondent's employer. The risk of serious injury (PTSD), found to have occurred to the respondent, was not only foreseeable. It was actually foreseen. It was impossible to remove entirely exposure to traumatic initiators of PTSD. However, two initiatives were knowable and known. They were (1) compliance with a strategy of mutual support and reinforcement to police officers at the scenes of such trauma; and (2) subsequent follow-up, reinforcement and support after exposure to serious risks, to ensure that the police officers principally involved were coping adequately or knew of support services available to help them to deal with feelings of stress. Initiatives of the second kind were devised because it was known that police officers might feel reluctant to discuss their feelings of stress with superiors or immediate work colleagues, for fear of revealing evidence of personal vulnerability.

[143] This court, like the courts below, does not have to invent these systems for the New South Wales Police Service. They already existed at the time of the respondent's exposure to serious trauma and consequent triggers for PTSD. The primary judge found (and the Court of Appeal agreed) that neither of the applicable systems was properly implemented in the respondent's case. This was the foundation for the conclusion that the respondent had established negligence on the part of the police employer and was entitled to damages for the injury suffered as a consequence. Out of fairness to the respondent and the judges who found in her favour on this issue, it is therefore necessary to record in these reasons the evidence and analysis that supported the conclusion reached, applying the orthodox reasoning of the Shirt analysis.

[144] The partner system : The respondent, in her evidence, described the way that, shortly before the incident of 25 August 1999, she was "paired" with Senior Constable Evans. She had worked with him as a "partner" on fewer than ten occasions dealing with "domestic violence incidents; break and enters; assaults". She described the system that was in place, according to the training that she had received at the Police Academy:

There's always the senior person on the truck, and they are in charge of decision-making, et cetera; and besides whether you were the junior or the senior, you had to look after who you were working with. So if I was a senior on the car and went to a fatal car accident, for example, I would say ... "You do this duty or that duty", and they would report back to me ... But I'd have to constantly keep an eye on them because I'm the senior person, I'm responsible for them.

[145] The respondent described the way she had been exposed to trauma in events that happened before 25 August 1999 and the way she had worked with her partner in typical circumstances and was able to look to the partner to "just counsel each other". The respondent was not cross-examined to suggest that the partner (or "buddy") system was a fabrication. It was clearly open to the primary judge to accept that it was a system introduced by the employer both for operational purposes and for the provision of mutual support so as to combat the weaknesses exposed by internal and external reports. It was not absolutely universal, inflexible or rigid in its implementation. Occasions would inevitably arise when the police constables had to work separately to cope with particular duties and multiple needs. However, as described by the respondent, the procedure accepted and implemented the principles of mutual assistance and professional support. Unless there was some other conflicting obligation or legal duty that made an inconsistent demand on the police partner, it was expected that he or she would be there to help the other with their essential duties. That was the employment system of work that was in place.

[146] Once this system of work is properly appreciated, concerns as to its practicality and feasibility fall away. It is not to the point to say, as do Gummow and Hayne JJ, ^[F181] that the duty to maintain a safe system of work could not reasonably require one police officer to "protect" another, as such a requirement would be in conflict with the other duties imposed on police officers by the Police Service Act and by the instructions of their superiors. Nor is it to the point to say, as do Callinan and Heydon JJ, that the duty could not require that a police officer not be left alone in a stressful situation, because such a requirement would be inconsistent with the exigencies of police work, and police officers are sometimes required to work alone. ^[F182] With respect, each of those formulations of the standard of care seriously misstates the standard that was presented by the evidence, and which was found by both the primary judge and the Court of Appeal to be owed by the appellant.

[147] The relevant standard of care was not one of protection or of accompaniment at all times. Rather, it was that a police officer was to "provide support" to their designated partner. ^[F183] The nature of the support which a partner can provide will depend upon the circumstances. But the requirement to provide support, to act, as it were, as a "buddy" to a designated partner, is not an instruction which "trumps" ^[F184] the other duties of a police officer, at the cost of the performance of those duties. Rather, the giving of assistance and support by one police officer to another officer who is his or her designated partner, where it is possible and reasonable to do so, furthers the performance of their duties by both police officers.

[148] The respondent's own description of the partner system was confirmed by the evidence of Senior Constable Deanne Abbott. It was not contested by the evidence of expert witnesses Mr O'Connell or Inspector Stephen Egginton. Naturally, they laid emphasis on the need for flexibility and the primary duty of police partners attending a scene of trauma to isolate the crime scene, to pursue suspects, to assist the injured, and to protect property. Yet none of these duties was disputed by the respondent or her witnesses. Her complaint (upheld by the primary judge and sustained on appeal) was that her partner, Senior Constable Evans, had none of these excuses. Instead, he simply "decamped", unjustifiably leaving the respondent, who was the junior officer in the pair, attending to grossly unreasonable and overwhelming duties, without the proper backup that was reasonable in the circumstances.

[149] The particular significance of mutual support at the scene of gross trauma was best explained in the evidence of Dr Andrew Robertson, a psychiatrist in practice for 30 years. He gave evidence for the respondent. He explained why the system of police partnership, and mutual support at the scene of serious trauma, was important both from an operational point of view and also to help the officers cope with trauma at the time and to avoid PTSD subsequently:

I think that the absence of any sort of physical or emotional support from a buddy did not allow her 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. [Emphasis added.]

[150] Unjustified abandonment : If Senior Constable Evans had gone off to isolate the crime scene, to pursue witnesses, to tend the injured or to protect property, the failure of the system of partner work to provide the respondent with the presence and support of her partner, and sharing of duties, would have been unfortunate. But it would not have been unreasonable. Within the language of Mason J in Shirt , it would then have been open to the tribunal of fact to conclude that the employer had done what was reasonable by way of response to the risk. Senior Constable Evans would have been fulfilling "other conflicting responsibilities which the defendant may have". ^[F185] On such evidence, a finding of negligence would then have been wrong.

[151] However, this was not the way the primary judge concluded. To the contrary, he accepted that the worst thing that the respondent felt at the crime scene was "her feeling of abandonment". ^[F186] And he concluded: ^[F187]

I am satisfied, on the balance of probabilities, that senior constable Evans left the [doctor's] room without giving any reason to the plaintiff.

Moreover, he said: ^[F188]

[Senior Constable Evans] was not a particularly impressive witness and the explanation as to why it was that he needed to go outside, and why it was that he was unable to leave those outside duties to any of the other police who were there, was, in my view, quite unconvincing. In the circumstances, that issue of credit, in so far as it is a real issue of credit, ought to be resolved in favour of the plaintiff.

...

It follows then, that ... the plaintiff was, during this episode, albeit for only a few minutes, left without her buddy, her senior partner, whose responsibility was essentially to look after her welfare. That had operated in previous incidents to provide her with a measure of comfort and enabled her then to perform her work with professional detachment.

[152] This was a very important finding in the respondent's favour. It was based substantially on the primary judge's assessment of the truthfulness of the respective testimony of the respondent and of Senior Constable Evans. As such, it would have required compelling reasons or strong objective evidence to authorise an appellate court to substitute a different conclusion. ^[F189] There were no such compelling reasons or objective testimony. The finding was not disturbed by the Court of Appeal.

[153] These then are concurrent findings of fact. A final court is ordinarily most reluctant to disturb such findings and will only do so in compelling circumstances. As the primary judge pointed out, the appellant refrained from calling other relevant police witnesses who had been at the crime scene. Even the duty officer, Inspector Whitten, was not called in the appellant's case. He too, according to the respondent, had simply looked into the surgery while the respondent was in there and left without comment. ^[F190] He too failed to give appropriate support to the respondent, to check how she was coping and to provide her with the detachment necessary to depersonalise the trauma and stress to which she was subjected and so to externalise it from herself.

[154] Inspector Whitten's omissions were unexplained by him. That failure was available to reinforce the primary judge's conclusions. These were that the first element in the system of work which the police service had put in place to respond to the risk of PTSD had not been properly fulfilled in the circumstances. In fact, on the findings made, the partner system had broken down. Neither the senior duty officer nor the respondent's designated police partner had fulfilled the essential purpose of the partnership arrangement. Specifically, the absence from the medical practitioner's surgery of Senior Constable Evans, leaving the respondent to cope there with overwhelming and multiple duties, was not explained or justified by "any other conflicting responsibilities" that Senior Constable Evans or the police service had at that time.

[155] Subjection to gross stress : Allowing that police officers, in the course of their duties, are subjected to stress and pressure of a kind that few other vocations are submitted to, that to which the respondent was subjected in the medical surgery on 25 August 1999 was truly exceptional, even by abnormal police standards:

•

She was in the presence of an injured man who appeared to her to have been stabbed through the heart and who had a massive cut to his back which exposed his ribs to full view and was bleeding profusely.

•

She was obliged to attempt to stem the victim's blood loss and effectively to hold his body together while the medical practitioner attended to the wound at the front of his chest.

•

She had to attend closely to the victim's conversation and to what he wished her to tell his family, should he not survive, as seemed a high possibility at that time.

•

She was also required, at the same time, to seek, remember and transmit by police radio his descriptions of the assailants and the circumstances of the attack.

•

She was concurrently obliged to radio descriptions and to enquire about the urgent arrival of the ambulance to transport the victim to hospital.

•

It was at that time that Inspector Whitten entered the surgery as the respondent was speaking on the police radio. He could see that she was attending to multiple tasks. However, he did nothing to assist and support her either physically or by just staying with her or attempting momentarily to share her efforts at the centre of the drama.

•

When the ambulance arrived, and the respondent emerged from the surgery, she noted that there were five police officers standing outside, including Inspector Whitten and Senior Constable Evans. When asked what they were doing, she said: "Nothing. They were standing there" and "all I remember, is ... them standing there looking at me".

•

It was at that stage that Inspector Whitten peremptorily instructed the respondent to put her police cap on, as the media were present.

•

Then, as the respondent went with another police partner to transport the victim's wife to the hospital, Inspector Whitten summarily ordered her to return to the crime scene, stating that he was unwilling to authorise overtime that might be involved, were she to proceed to the hospital.

[156] The circumstances in the medical surgery were, as the primary judge said, "gruesome and traumatic". It was clearly open to the primary judge to conclude on the evidence that Inspector Whitten and Senior Constable Evans had unnecessarily abandoned the respondent to the multiple tasks she was obliged to perform. That was her subsequent complaint and a trigger for the PTSD that the primary judge found. When the cross-examiner pointed out to the respondent that "You had the doctor", the respondent answered: "But he never talked to me. He wasn't a policeman."

[157] Unfortunately, neither Inspector Whitten, nor Senior Constable Evans nor others of the police at the scene came in to assist the respondent, to talk to her, or to encourage or support her. This was therefore the very antithesis of the police partnership system, with its dual operational and personal purposes.

[158] Because of the strong and repeated medical evidence that PTSD can be initiated by abandonment and perceived lack of support, the conclusion of the primary judge that the breakdown of the employer's system of work was a major contributor to the respondent's distress and causative of her condition ^[F191] is unremarkable. It was fully sustained by the findings of fact that he made. ^[F192] Not only did Inspector Whitten, as the duty officer, fail to ensure that the partnership system was fulfilled, by directing Senior Constable Evans or one of the other police officers to go immediately to assist the respondent or at least to take over the communication on the police radio. He left her where she was, unaided. He simply joined the other officers waiting outside doing "[n]othing". If this conclusion was in any way unfair to Inspector Whitten, it was certainly one that was open to the primary judge on the evidence. It was reinforced by Inspector Whitten's unexplained failure to give evidence in support of the appellant's case. ^[F193] It was not disturbed by the Court of Appeal.

[159] Default in proper follow-up : When the traumatic events thus described occurred, the respondent had only a few weeks of service left before she was entitled to commence her annual leave. According to the evidence, she attended for duty until then. She found that she was not coping. Although a system of psychological support had allegedly been put in place, the respondent said that she was unaware of it. Two weeks after the trauma, she made her own enquiries about contact with a police chaplain to help her cope. The evidence did not disclose any immediate follow-up or positive initiative on the part of the police service itself to check how the respondent was coping after events that would be unimaginable for most citizens in whose service they are performed.

[160] The coldness, indifference and lack of support for the respondent was evidence of the culture of the police employment described in the reports tendered at trial. While the evidence did not suggest that this neglect was deliberate or personal to the respondent, it was open to the primary judge to conclude that the absence of support allowed the condition of PTSD to accumulate and to become, for a time, debilitating in the respondent's case. It was, on an institutional level, akin to the reaction of Inspector Whitten when he saw the respondent in the midst of the trauma, performing, unaided, multiple and horrendous tasks. Her predicament was noted. Then the police authority simply withdrew.

[161] This was not a case, as Koehler was, of an individual employee with an alleged special or personal vulnerability. This was, as the primary judge and the Court of Appeal concluded, a case of institutional failure to respond in a reasonable manner to a well-known, and repeatedly manifested, service-wide problem inherent in the nature of this particular employment.

Conclusion -- negligence established

[162] It was therefore well open to the primary judge, on the basis of his findings, to conclude that the police service had failed to maintain and enforce a reasonably safe system of work for its employees such as the respondent. The police service was well aware, from a number of prior reports, of the need to address systematically the special problems of exposure to trauma faced by those whom it accepts to be its employees and to provide them with safe systems of work designed to prevent or reduce the risks of PTSD and work-induced depression. The police service responded by instituting the partnership (or "buddy") system. However, in the circumstances of this case, it failed to ensure that that system was properly and reasonably carried into effect.

[163] Furthermore, after she had been exposed to intense trauma and pressure, the respondent was dealt with in a seriously neglectful, seemingly indifferent and insensitive manner. Police personnel are expected, on behalf of society, to perform extremely important, dangerous and sometimes horrifying and life-threatening duties. But they are human beings and they are citizens. They are also employees of the service, accepted as such in this case. They are entitled to the protection of the ordinary principles of the common law.

[164] The reasonable, and therefore the lawful, obligations of the police service towards the respondent on the contested issue of the content and breach of the duty of care owed by the service are to be found in the decision of this court in Shirt . ^[F194] For the reasons stated earlier, the appellant's attempt to have that approach overruled as a matter of law, and re-expressed, should be rejected.

[165] Applying the approach laid down by this court in Shirt to the present circumstances, it was open to the primary judge and the Court of Appeal to conclude that a reasonable employer in the police service's position would have foreseen that its conduct and omissions involved the risk of injury to the respondent or a class of persons including the respondent. The risk was well known. Indeed, some steps had been taken to respond to it. To the question of what a reasonable employer would do by way of response to the risk, the considerations mentioned in Shirt support the conclusion reached in this case by the primary judge and by the Court of Appeal. The magnitude of the risk was significant. That risk demanded affirmative and institutional responses in the context of an employee exposed to such risk. The degree of probability of the occurrence of the risk was great given the near certainty that, in the course of their duties, police constables and other police officers would be repeatedly exposed to conditions of trauma in an employment culture traditionally unsympathetic to revelations of perceived stress or weakness. The expense, difficulty and inconvenience of taking alleviating action are real. But insufficient appears to have been done to publicise the availability of confidential trauma counselling. This eventually forced the respondent to look to her religion rather than to her employer for assistance.

[166] There are "conflicting responsibilities" that modify what a police employer can be expected to do for police employees to whom it owes a duty of care. Those conflicting responsibilities include the legal and professional duties imposed on police to secure a crime scene, to assist victims of crime, to investigate crime and bring those responsible to justice and to protect property. ^[F195] In some circumstances, such duties would indeed "trump" the police service's common law duties to those accepted as its employees.

[167] However, in the present case, such considerations can be put aside because of the finding of the primary judge, undisturbed by the Court of Appeal and indeed confirmed by it, ^[F196] that the respondent's police partner was not otherwise engaged on police duties but, like Inspector Whitten, was simply standing around doing "[n]othing". Unless that collateral finding of fact is now overturned by this court, it supports, and confirms, the conclusions of negligence reached below.

[168] According to ordinary principles of appellate review, this court has no authority to displace the finding. On that basis, this was a relatively simple case where the employer's system of work was not properly and safely implemented. This occurred with the knowing involvement of the duty officer who failed to give evidence to deny or qualify what the respondent said about him and his conduct. All such conclusions were fully open to the courts below.

[169] There is one final consideration that reinforces the foregoing conclusions. As has often been said, the law of torts serves a dual purpose. It exists to provide means of redress and compensation for those who suffer actionable civil wrongs caused by others. But it also states the community's standards, ^[F197] including standards of accident prevention that have their clearest application in the employment context. ^[F198]

[170] What follows from the fact that this court concludes that there was no breach of the duty of care owed by the police service to the respondent? The ambit of employer responsibilities to address a well-known vulnerability and special risk of police employment is narrowed. The stimulus of the law to the provision and maintenance of a safe system for police employment is diminished. The previous police culture of denial is once again reinforced. This entails both personal and institutional costs. An encouragement, where reasonable, to provide operational assistance and reinforcement is overridden. Effective measures to promote professional detachment and mutual support fail to receive the law's backing. These results were not necessary. They are certainly not desirable.

[171] In its 1997 report, received in evidence, the Royal Commission into the New South Wales Police Service emphasised that the police service needed to change its approach to staff, from its traditional approach which was "inward-looking ... characterised by command and control, autocracy and suspicion of new ideas". ^[F199] It is a significant misfortune that, by its decision in the present matter, reversing the judgments below, this court now encourages a restoration and re-entrenchment of the old approach to police employment in contemporary Australia.

[172] The approach of the majority in this appeal is yet another instance of the court's recent disfavour towards plaintiffs' claims in personal injury cases. ^[F200] It is the more surprising because it is expressed in a context of employment, where the law has traditionally been at its most protective. It is specially unfortunate because the facts disclose the devoted, but unsupported, work of Ms Fahy whose conduct as a police constable helped save a crime victim's life but at the same time needlessly subjected her to unrelieved stress. There was no one with whom to "share the trauma", a technique that tends to reduce the long-term impact of such stress. ^[F201] I regard this decision as a reaffirmation of this court's retreat from its former communitarian approach to negligence liability. The court turns its back on accident prevention in employment which, not so long ago, was a major theme of our negligence doctrine. Indifference on the part of employers is restored and rewarded. Most remarkably, all this is done in the present case where there were concurrent findings of fact in favour of the respondent at both levels of the courts below, a result that, conventionally, this court would be most reluctant to override. Respectfully, I dissent.

[173] Subject to the resolution of the issue of mitigation left open by the Court of Appeal's orders, which orders should stand, the respondent was entitled to damages for the established negligence of the police service for which the appellant is liable.

Order

[174] The appeal should be dismissed with costs.