New South Wales v Fahy (266)

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,Gummow,Hayne JJ,Kirby J,Callinan,Heydon JJ,Crennan J
• Judgment Date: 22 May 2007
• Neutral Citation: [2007] HCA 20,2007-0522 HCA B
• Docket Number: S341/2006
• Date: 22 May 2007

State Of New South Wales

Appellant

and

Gemma Fahy

Respondent

[2007] HCA 20

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ

S341/2006

HIGH COURT OF AUSTRALIA

New South Wales v Fahy

Negligence — Relationship between the Police Service Act 1990 (NSW) and the nature and extent of the duty of care owed by the ‘Crown’ or Commissioner of Police to the respondent police officer.

Negligence — Respondent police officer assisted a stabbing victim without support from nearby police officers — As a result the respondent suffered post-traumatic stress disorder — Whether the ‘Crown’ or Commissioner of Police breached duty of care owed to the respondent by failing to establish a system of work whereby, when possible, the respondent was supported by another police officer — Whether failure of nearby police officers to provide support to respondent was a breach of duty.

Negligence — Breach of duty — Foreseeability of risk of injury — Whether Wyong Shire Council v Shirt (1980) 146 CLR 40 should be overruled.

Words and phrases — ‘breach of duty’ — ‘calculus of negligence’.

Police Service Act 1990 (NSW), s 201.

Gleeson CJ

1 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.

2 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.

3 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.

4 5 InBarber v Somerset County Council2, 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’3, 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 Lords4. 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’5. 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.

5 6 This being a case about breach of duty, there was reference in argument to the well-known statement of principle of Mason J inWyong Shire Council v Shirt6. As his reasons make clear7, Mason J was applying the law as stated by Lord Reid on behalf of the Privy Council in Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (‘The Wagon Mound [No 2]’)8. 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’9. 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 calculation10. 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 Council11, there are cases in which an unduly mathematical approach to the exercise can lead to an unreasonable result.

6 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.’12 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 substance13. 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 nothing14. 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.

7 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 inGraham Barclay Oysters Pty Ltd v Ryan15, 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.

8 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.

9 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...