Cox v State of New South Wales trading as Ambulance Service of NSW

Category: Procedural rulings

Parties: Geraldine Cox (Applicant)
State of New South Wales trading as Ambulance Service of NSW (Respondent)

Representation: Counsel:
M Short (Applicant)
M Rabsch (Respondent)
Solicitors:
HWL Ebsworth Lawyers (Applicant)
Benjamin Lawyers Pty Ltd (Respondent)

File Number(s): 2025/00357513

Publication restriction: Nil

JUDGMENT

1. Geraldine Cox has sued the State of New South Wales (“the State”) as the responsible defendant for the Ambulance Service New South Wales (“Ambulance Service”). She has been employed as a paramedic since 2000. She alleges in her statement of claim filed in September 2025 that she has sustained a serious psychological injury as a result of a traumatic event that occurred on 9 December 2015. She claims work injury damages pursuant to Part 5 Division 3 of the Worker’s Compensation Act 1987 (NSW) (“WC Act”) arising from the State’s breach of duty of care.

2. The State filed a notice of motion on 13 November 2025 seeking an order that the proceedings be transferred to the District Court pursuant to s 146 of the Civil Procedure Act 2005 (NSW).

3. Ms Cox opposes the application, arguing through her counsel that the amount likely to be awarded to Ms Cox if successful is likely to be more than $1,000,000.00 and that the case involves complex legal issues or issues of public importance: s 146(4)(a).

4. For the reasons that follow, I accept the submissions of Ms Cox and the State’s application is dismissed.

The facts and issues raised on the pleadings

5. While on duty in the ambulance with her work partner at a service station, a man shot and killed another man and then approached the ambulance and pointed the gun at Ms Cox. She ducked for cover fearing she was going to be shot. Ms Cox and her partner then attended to the man who had been shot but he died. A short time later she heard further gunshots and was later informed the shooter had shot himself nearby.

6. Ms Cox returned to work a few days later but ceased work in March 2016 and has not worked since.

7. She has alleged continuing her duties exposed her to returning to the scene of the trauma and that she was not provided with adequate counselling and support and psychological treatment, was not adequately supervised or assessed, and that the system of return to work and or psychological assessment and support was inadequate.

8. A statement of particulars filed alleges extensive psychiatric injuries and disabilities including physical manifestations of those injuries as well as complete destruction of her earning capacity.

9. The pre-filing defence forwarded to Ms Cox’s solicitors in compliance with the Workplace Injury Management and Workers Compensation Act 1998 (NSW) denies that the incident caused significant distress and that she went into shock and sustained psychological injury, denies that Ms Cox was not offered any proper counselling of psychological assistance, denies that she as informed by the Ambulance Service “not to change her routine”, denies she performed her normal duties and that she performed them to 15 March 2016 and denies that she has been unable to work since that time.

10. In respect of the duty of care pleaded, the defence does not admit the content or scope of the duty but provides no alternative assertion as to the scope or content of the duty it does admit it owed.

11. The defence denies every particular of negligence and denies there was any breach of duty at all. The defence also says that any breach of duty did not cause Ms Cox’s loss injury or damage.

12. The defence pleads contributory negligence, effectively placing on Ms Cox an obligation to actively seek assistance and support from the Ambulance Service and for failing to seek appropriate treatment of her symptoms.

13. The defence pleads the action is time barred (s 151D of the WC Act) and that Ms Cox has failed to mitigate her loss (s 151L of the WC Act).

The application

14. Section 146 of the Civil Procedure A**ct relevantly provides:

146 Transfer of proceedings to lower court

(1) If the Supreme Court is satisfied, in relation to proceedings before it—

(a) that the proceedings could properly have been commenced in the District Court or the Local Court, and

(b) that any cross-claim in the proceedings could properly have been brought as a cross-claim in the District Court or the Local Court,

the Supreme Court may order that the proceedings, including any such cross-claim, be transferred to the District Court or to the Local Court, as the case requires.

…

(4) Proceedings in the Supreme Court on a claim for damages arising from personal injury or death are to be transferred under this section unless the Supreme Court is satisfied—

(a) in the case of a motor accident claim or workplace injury damages claim—

(i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and

(ii) that the case involves complex legal issues or issues of general public importance …

15. Subsection (4)(a) mandates that proceedings on a claim for damages like this must be transferred, unless this Court is satisfied of both of the matters set out in s 146(4)(a)(i) and (ii).

16. The State relied upon an affidavit of Luke Sandars, affirmed 13 November 2025. The affidavit exhibited two volumes of evidentiary material which well-supported a potential verdict of over $1,000,000.00 and explains why the defendant conceded that the first limb of s 146(4)(a) was met. The material most relevant to the determination of the issue before me, i.e. whether the case involves complex legal issues or issues of general public importance, is the pre-filing defence and a solicitor’s letter dated 12 August 2025 which sets out in broad terms the issues the State raises in the proceedings and the evidence it has served in support of its position taking issue with every aspect of Ms Cox’s claim.

17. Ms Cox relied upon an affidavit of her solicitor, Timothy Benjamin, affirmed 28 November 2025. That affidavit disclosed that there had been a prior workplace related psychological injury. It outlined in broad terms the post 2015 injury procedures followed by Ms Cox and her symptoms and difficulties continuing with work. The affidavit also outlined a systems aspect of Ms Cox’s claim that on my understanding led to a downgrading of the way in which the incident was to be considered and processed by the Ambulance Service. This was apparently based on the unusual factual circumstances of the incident, and that it was not a “call-out” to attend or to treat the persons involved. Appended to the affidavit were documents addressing material relevant to the stress and mental health injuries sustained by emergency service workers to underscore the argument Ms Cox makes through her counsel that the issues involved in this case include issues of general public importance.

Submissions for the State of New South Wales

18. Counsel for the State, Mr Short, submitted that the proceeding does not entail complex legal issues. Questions of assessment of the duty of care owed by an employer to persons engaged in dangerous or difficult or distressing occupations are all within law that is settled. There is nothing complex about causation in this case. This kind of issue has been determined by District Court judges on countless occasions. There is no issue of general public importance.

19. Specifically, it was submitted that there is nothing in Ms Cox’s case that goes beyond the principles settled in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 (“Koehler”) and Kozarov v State of Victoria (2022) 273 CLR 115; [2022] HCA 12 (“Kozarov”).

20. In those circumstances it was submitted that the Court must transfer the proceedings, which could have been filed in the District Court.

Submissions of Ms Cox

21. Ms Rabsch, counsel for Ms Cox, submitted persuasively to the contrary.

22. Unlike most of the authorities in this area, this claim is based on a single isolated incident as the triggering event. The assessment of the risk of psychological injury to Ms Cox which determined the response and level of care to be provided to her was advanced based on a system that treated the event as “otherwise than in the course of duty”, and “unlikely to recur”. This makes even more central the legal issue of the nature and scope of the duty of care owed to ambulance officers, (and, more generally, first responders), to incidents that are arguably outside the usual scope of incidents expected.

23. Ms Rabsch submitted that there are conflicting authorities between the High Court and State appellate courts in the area of accumulated trauma and isolated traumatic incidents, citing State Rail Authority of NSW v Howell [1996] NSWCA 495 (“Howell”); Koehler (regarding the need to closely evaluate the content of the duty of care in circumstances involving the potential for psychiatric injury); State of NSW v Fahy (2007) 232 CLR 486; [2007] HCA 20 (“Fahy”); Hegarty v Queensland Ambulance Service [2007] QCA 366 (“Hegarty”); State of NSW v Doherty [2011] NSWCA 225 (“Doherty”); State of NSW v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 (“Briggs”); James v State of Queensland [2018] QSC 188; Sills v State of NSW [2019] NSWCA 4 and, finally, Kozarov.

24. Ms Rabsch submitted that there is tension between the approaches of the Courts of Appeal in Briggs and Hegarty and the question of the importance of autonomy and privacy when dealing with psychiatric or psychological injury: (the majority in Briggs – Leeming JA with whom Ward JA agreed, McColl JA expressly disagreeing) as opposed to Doherty where the employee under-reporting his problems did not affect the employer’s liability in circumstances where, in that case, crime scene investigators required a high standard of monitoring, including conducting psychiatric testing.

25. Whilst leave to appeal to the High Court was given in Briggs, the case was settled before any appeal was determined.

26. Kozarov, Ms Rabsch submitted, demonstrated a move away from Koehler and the line of cases that followed. In Kozarov there was focus on the employer not being able to assume employees are coping absent evident signs to the contrary, and that the duty includes taking proactive measures.

27. In terms of single incident traumatic events within and outside the usual scope of duties, Howell and Fahy demonstrate (in particular in the strong dissenting judgments in Fahy) the need for clearer legal guidelines in this area, particularly where it may be argued that the traumatic active murder/suicide event experienced by Ms Cox was outside the scope of what an ambulance officer would expect to encounter in their role, which is normally concerned with aftermath, as opposed to immediate threat.

28. Ms Rabsch also submitted that there may be issues of the content of the contract of employment and how that affects the scope of duty of care given this particular incident. There are also complexities involved in determining issues of the effect of pre-existing vulnerabilities, although to my mind this latter issue is one commonly dealt with in the District Court, and does not add any particular complexity.

29. In terms of general public importance, Ms Rabsch submitted that clarification of the scope of duty of care of employers of emergency workers is of itself a matter of general public importance. The role of standard operating procedures and their adequacy and validity in dealing with one-off traumatic events of this type is also a matter of general public importance for the huge number of first responders who are exposed to traumatic events inside their normal work events, but also who no doubt feel that they should and do respond to random violent events where a person is injured or in peril. There are more than 40,000 first responders in NSW alone and their function in the community is well recognised as valuable and vitally important work.

Decision

30. I am persuaded by the submissions of Ms Rabsch. For the reasons she has cogently outlined in her written and oral submissions, this proceeding is one that entails complex legal issues, particularly regarding the content of the duty of care, as well as issues of general public importance, being the processes by which first responders are treated by the law in this state, particularly in circumstances of finding themselves responding to a random incident of violence, when they are ”off-duty” or were not formally called on to assist.

Orders

31. The defendant’s notice of motion is dismissed with costs.

**********

Amendments

18 December 2025

Par 12, line 1: the word “and” corrected with “an” Par 29, line 10: the word “virtually” replaced with “vitally” Par 30, line 6: the word “findings” corrected to “finding”.

21 December 2025

Par 13, line 2: the word "filed" corrected with "failed".