[35] The duty which an employer owes is owed to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable. That is why, in Hatton, the relevant question was rightly found to be whether this kind of harm to this particular employee was reasonably foreseeable. And, as pointed out in that case, that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned."
(Footnotes omitted)
5 However, Police Officers who particularise certain traumatic events experienced in their past are invariability met with an application by the defendant that these incidents cannot be pleaded as they are statute barred. If this proposition is correct then it follows that the Police Officer cannot plead that he or she suffered stressful and traumatic events in the course of his or her duty and his or her employer knew or ought to have known that the Police Officer was vulnerable to the risk of psychiatric injury by further stressors. That means at trial the Police Officers case is doomed to fail as the pleading falls foul of Koehler. It is the culmination of exposure to traumatic events which makes the Police Officer more susceptible of suffering psychiatric harm. Given the past exposure to past traumatic events, when another incident occurs that may seem trivial, if can have the cumulative effect of worsening the Police Officer's psychiatric state such that it takes him or her out of the Police Force permanently.
6 For Police Officers Gould and Reeves it was the way in which they allege they were treated by their employer during the Wood Royal Commission in 1995 that led took then out of the Police Force.
7 The defendant submitted that this paragraph should be struck out pursuant to Rule 14.20 of the Uniform Civil Procedure Rules 2005. The defendant submitted that the pleading in the ASC [20A] was an attempt by the plaintiff to lead evidence of incidents for which Justice Hidden had found that the defendant was actually prejudiced.
8 Justice Hidden in Gould v NSW [2005] NSWSC 1121 at [17] (the earlier Gould decision) stated:
"I should record that the defendant mounted a substantial case that it would be prejudiced by an extension of the limitation period in respect of these incidents because of the death of material witnesses and the unavailability of relevant records, but that is not a matter which I need to determine. An extension of time to pursue this aspect of the claim must be refused because the plaintiff has not demonstrated a viable cause of action arising from the incidents."
9 While Justice Hidden did not decide that the defendant was prejudiced, the defendant submitted that it would suffer actual prejudice if the plaintiff can now plead the traumatic incidents in that way that it seeks now to do. In the statement of claim these eight incidents were pleaded as causes of action. Justice Hidden held that they were not viable causes of action. According to the defendant in State of New South Wales v Heins [2005] NSWCA 258 the Court of Appeal granted leave to the plaintiff on the basis that the pleading would not allow evidence to be called relating to critical incidents prior to the date for which the defendant would be prejudiced.
10 The defendant also submitted that it cannot defend these earlier allegations and the consequences of that are that any causes of action that rely upon a material fact which the defendant cannot defend, means the defendant is irremediably prejudiced. The defendant says that a fair trial is not possible and that paragraph [20A] should be struck out.
11 In Heins at [10], [12], [14], [15] and [19] the Court of Appeal (per Handley JA) stated:
"With respect the defendant's claims of prejudice based on events prior to 1 January 1996 could not be disposed of in this way. Counsel for the plaintiff made it clear that evidence would be led of the plaintiff's exposure to stressful incidents between 1986 and 1994 over a period between 9 and 17 years before the statement of claim was filed. This would be done in order to prove that there was no proper system then in place to protect the mental health of persons like the plaintiff, to show that the defendant knew or should have known that the plaintiff worked under these conditions, knew or should have known of his mental state, and should have foreseen that he was vulnerable.