Consideration
40 As I have said, the operational plan was fundamentally deficient. It made no allowance for the obviously foreseeable possibility that the 'action' as the hotel might well commence prior to 3 am. It was conceivable that the offenders would decide to descend from the confined ceiling space earlier than the time which police believed they intended. It should have also been appreciated, bearing in mind the fragile nature of the false ceiling, that the offenders might fall through and that this could occur at any time after they crawled into the space, which occurred at around 1 am.
41 It was conceded on the evidence that Assistant Commissioner Gibson had envisaged that the SPG would provide protection for the appellants. Notwithstanding, the plan made absolutely no provision for any protection for the appellants if, for whatever reason, the offenders descended from the ceiling prior to 3 am.
42 Not only did this grave deficiency in the plan have potential consequences for the appellants, even if they remained in the listening room, it also potentially put at risk the lives of members of the public. Those who planned the operation could not seriously have believed that if the offenders, known to be armed and highly dangerous, descended into the hotel prior to 3 am, when up to 200 people were at the nightclub, that there was no possibility of a confrontation. It must have been expected that the appellants would, if such an event occurred (as it did), leave their post, if for no other reason than to seek to protect members of the public. This would be an almost inevitable outcome notwithstanding their firm instructions not to engage the offenders. In this regard, it is hardly 'mystifying' that the appellants left their post, as her Honour observed.
43 In any event, I would have thought that the appellants' duty was clear, particularly if they reasonably apprehended danger to the public. That duty was to leave their post and endeavour to protect any members of the public in the vicinity of the offenders. This would have been their overriding duty notwithstanding their orders. One wonders what might have been the situation if the offenders had shot any member of the public after they fell through the false ceiling and it became known that three armed police officers were secreted in a room close by but that they remained there and did not seek to protect the public or apprehend the offenders.
44 The failure of the plan to provide for such a contingency, as in fact occurred, and one which was readily foreseeable, placed the appellants at great risk. It also placed the public at risk.
45 The nature of the duty of care owed by the State of New South Wales to members of the police service was discussed in State of NSW v Seedsman [2000] NSWCA 119 (Unreported, NSWCA, 12 May 2000). The respondent had suffered Post Traumatic Stress Disorder as a result of being involved in a number of investigations into violence against children. There had been no adequate support system or training in place to address the stresses imposed upon individuals exposed to such experiences.
46 Mason P stated that:
The employment relationship is one of the settled categories where a duty of care has never been in issue. So clear is the duty that it is non-delegable. In Crimmins v Stevedoring Industry Finance Committee (1999) 74 ALJR 1 Hayne J said (at [276]) (citation omitted):
The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control. The duty is, of course, not absolute: it is the duty "of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury".
The duty " extends to taking reasonable steps in accident prevention and not waiting for accidents to happen before safeguarding the health and safety of employees" ( Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [101] per Kirby J). [paras 162 - 163]
47 Spigelman CJ noted that:
The laws of negligence is concerned with human beings. It is not concerned with specific occupations. [para 60]
48 It is clear that the duty of care owed by the State of New South Wales to police officers is in no way distinguishable from that owed by any other employer to its employees.
49 There was a clear breach of the duty of care owed by the respondent to the appellants. It was the breach of duty which caused the injury and the respondent does not contest her Honour's finding that the conduct of the appellants (in leaving their post) did not constitute a novus actus interveniens. It was not only necessary to provide protection for the appellants, as Gibson proposed and Harding accepted, but it was feasible to do so. Two or three SPG members could have been sent to the hotel, in civilian clothes, to provide protection for the appellants in the listening post. Notwithstanding Hazzard's concerns, I am unable to appreciate that this could not have been done and advised without alerting the offenders.
50 One might be pardoned for concluding that it was open on the evidence to find that the reason that the plan did not provide any SPG officers to protect the appellants prior to 3 am, was in the interests of economy. It seems somewhat strange that so few members of the SPG were available at the Remington Centre at 1.05 am when the offenders were located in the ceiling and that it would have been necessary to call the balance of the officers from their homes (and beds) so that the operation could proceed later in the morning as planned.
51 Notwithstanding the above conclusions as to breach of duty, it must be said that on one analysis of the Operational Orders themselves, the respondent was in breach. The Orders provided that 'on the confirmation that the offenders have secreted themselves in the false ceiling, Operations Unit personnel and Armed Hold-Up Squad personnel will form a perimeter and contain the offenders to the seventh level'. However, when the offenders' presence in the ceiling was confirmed to the SPG at 1.05 am, there were no SPG officers available at the hotel or determined to be sent there until at least 3.30 am. Further, it was anticipated that when this phase of the operation occurred, thirty SPG members would be needed. Such numbers would not be available until much later in the morning for reasons already mentioned.
52 Accordingly, it is my opinion that the appeals should be allowed. The judgments entered for the respondent should be set aside and a finding in favour of the appellants be made on the issue of liability. The matters need to be remitted to the District Court for the assessment of damages.