McDonald, Wilson & Shepherd v State of New South Wales

COUNSEL : B Gross QC/K Earl - Appellants D Cowan - Respondent SOLICITORS : Baker & Edmunds, Beecroft - Appellants I V Knight, Crown Solicitors Office - Respondent CATCHWORDS : TORT - negligence - duty of care - duty owed to police officers - whether duty breached - failure to provide for a contingency - nervous shock - psychiatric injury - PROCEDURE - pleadings - Notice of Motion to amend pleadings on appeal - whether evidence addressed amended pleadings - whether prejudice suffered - D LEGISLATION CITED : Police Service Act 1990 Katsilis v Broken Hill Co Pty Ltd (1977) 18 ALR 181 CASES CITED: Mummery v Irvings Pty Ltd (1956) 96 CLR 99 State of NSW v Seedsman [2000] NSWCA 119 (unreported, NSWCA, 12 May 2000) DECISION : 1) Appeals allowed with costs. 2) Judgment and orders in favour of the respondent be set aside. 3) Judgment on the issue of liability in favour of the appellants be substituted therefor. 4) The respondent be ordered to pay the appellants' costs in the Court below. 5) Remitted to the District Court to assess the appellants' damages.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40303/00; 40305/00; 40304/00 DC 8467/9 7 Meagher JA Stein JA Davies AJA

Tuesday, 11 September 2001 McDonald, Wilson & Shepherd v State of New South Wales The appellants' were serving police officers and members of the NSW Armed Hold-up Squad in 1991. They participated in an operation carried out at the Hilton Hotel in response to information received about an armed robbery that was planned to occur in the early hours of 22 July 1991. The offenders had secreted themselves within the hotel's false ceiling. The appellants' role was to man a listening post in the hotel and report the presence of the offenders. The respondent's plan was to have members of the State Protection Group (SPG) present to engage in any confrontation with the offenders. The planning of the operation took into account the presence of a large number of patrons at Juliana's nightclub within the vicinity of the relevant area of the hotel, which was to close at approximately 3am. The plan did not envisage that the SPG would arrive at the hotel until after the nightclub closed.

At 1.05am the appellants detected sounds of movement in the ceiling. The SPG was informed.

Prior to the arrival of the SPG (and at about 2.15am) an alarm sounded within the hotel in response to the offenders having fallen through the false ceiling within which they were hiding. The appellants left the listening post and became engaged in a violent confrontation with the offenders. The appellant McDonald was shot in the arm and seeks damages accordingly. All three appellant's seek damages for nervous shock and psychiatric injury. The three cases were pleaded identically and on appeal the appellants sought to amend a particular within their Statements of Claim.

The respondent is not prejudiced by the inclusion of the failure of the respondent to ensure the protection of the appellants in the pleadings. A duty to protect is an extension of a duty to evacuate the appellants and the evidence required to address the issue was called at trial. The amendment sought by the appellants to their Statements of Claim is granted.

The operational plan was fundamentally deficient. It made no allowance for the foreseeable possibility that the tactical phase of the operation may commence prior to the arrival of the SPG. Due to the fragile nature of the false ceiling it should have been appreciated that the offenders might fall through the roof at any time after they entered the space. The failure of the plan to provide for such a contingency placed the appellants, and indeed the public, at risk.

The plan made no provision for the protection of the appellants if the offenders descended from the ceiling prior to the arrival of the SPG. A plan which did provide protection for the appellants had previously been envisaged. It was both necessary and feasible to provide the respondents with protection.

The duty of care owed by the State of New South Wales to members of the police service is in no way distinguishable from that owed by any other employer to its employees. - State of NSW v Seedsman [2000] NSWCA 119 (unreported, NSWCA 12 May 2000) applied

There was a clear breach of the duty of care owed by the respondent to the appellants. This breach caused the injuries suffered by the respondents.

2 Judgment and orders in favour of the respondent be set aside.

3 Judgment on the issue of liability in favour of the appellants be substituted therefor.

4 The respondent be ordered to pay the appellants' costs in the Court below.

5 Remitted to the District Court to assess the appellants' damages.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40303/00; 40305/00; 40304/00 DC 8467/97 Meagher JA Stein JA Davies AJA

Tuesday, 11 September 2001 McDonald, Wilson & Shepherd v State of New South Wales

1 MEAGHER JA: I agree with Stein JA. 2 STEIN JA: Introduction

3 These are three appeals from a judgment of Gibb DCJ delivered in the District Court on 14 April 2000. Her Honour dismissed claims for damages brought by three police officers arising out of injuries received in and arising out of an altercation with two armed would-be offenders during an attempted robbery of the Hilton Hotel, Sydney on 22 July 1991. Facts

4 In July 1991 the three appellants were New South Wales police officers and members of the Armed Hold-Up Squad. Edward Shepherd and Craig McDonald held the rank of Detective Sergeant, and Mark Wilson was the junior of the three, being a Detective Senior Constable. All were experienced officers. Their damages claims arose out of an operation which was supposed to be carried out in the early hours of 22 July 1991 at the Hilton Hotel, Pitt Street, Sydney.

5 Information had been received by Shepherd and the Armed Hold-Up Squad about an intended robbery of the hotel. The robbery was to be a repeat of one carried out on 2 April 1991 by the same offenders, where approximately $300,000 had been stolen from the hotel strongroom.

6 The two would-be offenders were identified by the informant as being Mr Taousanis and Mr Fred Massih. They were known by police to be dangerous. The appellant McDonald described Taousanis as a 'vicious cunning criminal'. The appellant Shepherd knew Taousanis to be a 'very dangerous criminal prepared to shoot at police, heavily armed, ex commando, trained in weapons, very skilful in the use of guns, very dangerous. Also that he was responsible although never charged with a number of murders'. The appellant Wilson was also aware of Taousanis' 'violent propensities', as well as having made inquiries about Massih a few days prior to the operation.

7 According to the information received, the offenders' plan was to gain access into a false ceiling at a point in or near the foyer on level 7 of the hotel, during the night or early morning. The false ceiling was located two to three feet below the solid concrete ceiling between levels 7 and 8. The ceiling was described in evidence by Mr Geoffrey Walburn, the hotel's security manager, as being 'made up with a layer of steel frame and I suppose the best way to describe them would be similar to a compressed cardboard tiles that insulate for sound and temperature and they sit within the frame'. The offenders intended, once they were secreted within the false ceiling, to crawl along until they were above the strongroom. Safes were located in the strongroom. They intended to wait until sometime after 8.30 am on the following day, when staff would attend to business as usual and the hotel safes would be opened. As police understood the plan, the offenders would then drop from the ceiling and commit the armed robbery.

8 A police operation was planned in response to the information received about the plan by Taousanis and Massih to rob the hotel. The planning of Operation Hilton, as it became known, fell into several phases. After the Armed Hold-Up Squad received the initial information, they called for assistance from the newly formed State Protection Group (the SPG), which was responsible for the tactical planning of the operation, including any confrontation with or arrest of the offenders. Once the offenders were arrested, the SPG's role would end, and the Armed Hold-Up Squad would take over the process of interviewing the offenders.

9 The appellants' instructions with respect to the operation were that they were to run the listening post, located on the same floor as the strongroom, but out of line of sight. The appellants were directed that the operation would be completed under the control of the SPG and that they were to 'take no active part whatsoever in any confrontation with the offenders'. Superintendent Harding's evidence was that Assistant Commissioner Gibson had directed that any confrontation with the offenders was to be carried out by properly equipped members of the SPG. Harding indicated that members of the SPG would be in a position to supply support and protection for the appellants. The appellants were not given any specific instructions on what course of action they should take if the offenders left the ceiling space prior to the planned commencement of the tactical operation by the SPG, that is, prior to the arrival of SPG officers at the hotel.

10 The operation was complicated by the close proximity in the hotel of Juliana's nightclub to the robbery target, the strongroom. The entrance to the nightclub was situated 'next to the room the police were using [as a listening post] and … virtually behind that room'. On the night in question there was a private function for about 200 people in the nightclub, which was not expected to end until about 3 am. A hotel security officer was to be posted on the door of the nightclub so that when patrons were leaving, they were directed out through the fire exit so as to avoid the lobby area of the hotel. These arrangements were in place from about 11.30 pm or midnight onwards on the night. 11 The protection of the public was clearly considered to be a major consideration in the development of the tactical plan. The Operational Orders (prepared by the SPG) did not expressly specify any time frame for the apprehension of the would-be offenders. However, time constraints were imposed by external factors, including the operation of the nightclub and the availability of SPG personnel. The timing of the tactical plan was described at the trial by Detective Inspector Hazzard, who was in charge of the operation, as follows: … some time after 3 o'clock on the Sunday morning, which would be after … Juliana's… was closed… we would secure the area by placing a perimeter around it, and ensure that the premises were evacuated from anyone not involved in the operation, and we would make contact with the offenders… and request them to surrender. And, if they failed to do so, we would use other resources to flush them from their position. 12 A number of other internal police reports noted that the operation was not expected to take place until between 3.30 and 5.30 am, when there would be no danger to members of the public.

13 Her Honour found that there was no direction contained in the plan that members of the SPG were to be present in the listening post or at the hotel at any time prior to the planned start of the tactical operation. It was nonetheless directed by Gibson that any confrontation with the offenders was to be handled by the SPG, and that the group should be in a position to provide support and protection to the appellants. However, it must be emphasised that the plan itself did not involve locating any SPG members at the hotel prior to the planned start time of the tactical operation which, as has been observed, was not scheduled to commence before the closure of the nightclub at approximately 3 am.

14 There were thirty members of the SPG whose task it was to perform the operation. The supervisor for the shift which finished at 11 pm, Sergeant Magnus, wanted those men to stay on for the 11 pm to 7 am shift. There were only six men and a supervisor assigned to the 11 pm to 7 am shift and Magnus was concerned that if the Hilton operation 'went down' during that time frame, the group would be left undermanned. Hazzard disagreed with Magnus. Accordingly, the plan was to call out the on-call SPG members from their homes early on the morning in question. The outcome of this decision was that there was a greatly reduced number of SPG members available at the police headquarters in the Remington Centre in Liverpool Street during the night. Magnus alerted Hazzard to the risks if it happened that the tactical aspect of the operation commenced earlier than anticipated. What is important, however, is that there was no provision in the plan for the appellants to be evacuated from the listening post or to be under the protection of the SPG while at their post in the hotel.

15 In these circumstances, it is very difficult to comprehend how the SPG could provide any real protection for the appellants if the would-be robbers commenced their action earlier than 3 am. As mentioned, the three appellants were stationed in their listening post on level 7 of the hotel. Technicians had earlier placed listening devices within the false ceiling where the offenders were planning to gain entry. The listening post was located in the hotel's ticket office, and the appellants entered the post and began monitoring at about 10.30 pm on 21 July 1991. At 1.05 am on the morning of the 22 July 1991, the appellants detected sounds of movement in the ceiling. Shepherd then telephoned the contact officer (Detective Sergeant Jenkins) at the SPG and reported this. He continued to make periodic reports thereafter as the monitors relayed sounds of the offenders crawling along the false ceiling.

16 At approximately 2.15 am, an alarm sounded within the hotel. A report of the incident later prepared by police states that 'It appears that the offender/s fell through the fragile ceiling and set off the alarm…'. In response to the alarm, the appellants McDonald and Wilson ran from the listening post towards where the offenders were thought to be hiding. At trial both McDonald and Wilson suggested that they had left the listening post without having been certain that the alarm had been triggered by the offenders. Wilson's written report in August 1991 conceded that both he and McDonald had 'commenced to search for the offenders' after leaving the listening post, although at the hearing they said that, as well as being concerned about the escape of the offenders, they feared for the safety of the public.

17 Wilson described the events which occurred after he and McDonald left the listening post: … We made a search. I made a search of the corridor, the stairwell…I continued back down the corridor in a northerly direction and as I did so I passed Detective McDonald. He said something to me and then I heard him say, "Police, where are you going?" I turned to my left and I saw Jim Taousanis standing adjacent to the … strong room door…. As I looked at him he raised his right arm with a revolver in it and as he did so I had my gun at my side and I realised that I wasn't going to be able to shoot him before he shot me so I dived forward to my right and as I did he fired a number of shots. I landed on the floor… There was more shooting going on. As I hit the floor my gun was knocked out of my hand. I tried to get my gun back. I tried to get to my feet, expecting to be shot in the back of the head because I thought Detective McDonald was dead… I was face down. I got to the end of the corridor. I saw Detective Shepherd standing adjacent to the [listening post] door.'

18 Upon hearing the alarm, Shepherd telephoned Jenkins at the SPG. He did not immediately follow his two colleagues out of the listening post. Before he completed the call he heard McDonald shout 'Police: Where are you going?' He then heard gunfire. At this point he picked up his gun and ran from the listening post. As he left the room he saw Taousanis near the door to the fire escape, at which point Taousanis fired a shot at Shepherd. The shot narrowly passed his left ear. He dived back into the doorway of the listening post, by which time he observed Wilson on his stomach on the floor, and McDonald crouched to the right-hand side of the hallway wall. At that stage Shepherd did not know whether or not his colleagues were alive. When Shepherd stepped out again Taousanis had disappeared. Massih, however, was still present and fired at him from near the fire stair door, a distance of about 20 to 30 metres. Shepherd was able to return fire three times as Massih escaped through the fire stair door.

19 When the shooting had ceased, Shepherd saw that McDonald had been shot in the arm. After a search of the area, the three officers concluded that the offenders had escaped down the stairs and out through Pitt Street. They called for assistance. The offenders were arrested later that day by other police.

20 The appellants allege that the respondent was negligent in a number of respects. In failing to adhere to the original operational plan, and in failing to warn the appellants of the departure from the plan. More specifically, particular of negligence (e) provided: … if, as the plaintiff does not concede, the operational plan did not provide as set out hereunder, failure of the operational plan to require, and of the NSW police service to put into effect, that heavily armed state protection group members evacuate and replace the plaintiff[s] … immediately after sounds of the armed offenders were first detected. [Emphasis added] 21 The appellants seek damages for nervous shock and psychiatric injury, and in the case of McDonald, his physical injury as well. The appellants were jointly represented at both the trial and the appeal, and their cases were heard together. Apart from differences in injuries and damages claimed, their cases are pleaded identically.

22 Gibb DCJ found that there was no failure by the respondent to adhere to the operational plan, no decision not to follow the plan, nor any departure from the plan. Her Honour noted that s 201 of the Police Service Act 1990 expressly required police officers to comply with lawful orders. All three appellants were experienced officers who were aware of the offenders' dangerous nature and received explicit instructions not to engage with the offenders. However, this did not make it reasonably foreseeable that the appellants would fail to comply with their instructions.

23 Her Honour did not consider the general adequacy of the planning of Operation Hilton, although she noted that it failed. Accepting the benefit of hindsight, the plan was plainly inadequate. It is implicit in her Honour's findings that the plan was deficient in that it made no provision as to what was to happen if the offenders left the ceiling space prior to the proposed time of the operation. This was clearly a significant omission. In these circumstances, it made no provision for the protection of the appellants, even if they remained at their post. Her Honour accepted the view that the safety of the public was central to the planning and execution of any operation. Hazzard's testimony to the effect that having heavily armed SPG officers in the hotel prior to the time of confrontation would increase the danger to members of the public was accepted by her Honour. 24 Judge Gibb also found that Gibson did not direct that any SPG members should be present at the hotel prior to the start of the tactical operation, that he had ordered that any confrontation which occurred was to be handled by the SPG, and that the group should be in a position to supply support and protection for the appellants. The tactical phase of the operation, she held, was not scheduled to start prior to the closure of Juliana's nightclub at around 3 am. However, it needs to be emphasised that there was no provision in the plan whereby the SPG could supply support and protection for the appellants prior to 3 am if the need arose. 25 Counsel for the appellants at trial submitted that once the alarm sounded, his clients were under a duty to respond to the situation. Her Honour accepted this to be so, however she also found that they were duty-bound to obey their instructions, which were to avoid confrontation. It was held that the appellants were not under a duty to pursue or try to arrest the offenders, and that there was no departure from the operational plan which required the appellants to engage the offenders. Her Honour further held that there can be no duty to warn of the dangers of a course of action where the appellants were expressly told not to embark upon such a course.

26 At trial, there was also an allegation of negligence in respect of the non-supply of protective vests and shotguns. This rested upon the allegation that the respondent departed from the operational plan. Her Honour held that there was no departure from the plan by the respondent. There had been a change in the philosophy of the police service with respect to entitlement to carry specialised weapons (high powered) which had occurred with the establishment of the SPG. It was never part of the plan that the appellants carry shotguns as a part of the operation. In any event, it was found that the presence of shotguns would have made no difference in the outcome of the confrontation with the offenders. In both cases the offenders fired first. The plan did not call for the appellants to be supplied with protective vests. They were, however, available through the Armed Hold-Up Squad, yet the appellants did not take advantage of this. Finally, vests would have made no difference to the outcome, as McDonald was shot in the arm. No appeal was brought against these findings.

27 At first instance, the appellants also claimed that the respondent should have evacuated the appellants from the listening post. Hazzard had considered such a possibility but discounted it in order to avoid any action commencing while Juliana's nightclub was still in operation. No evidence was presented as to how a successful evacuation and replacement of the appellants could have been carried out without alerting the offenders and thereby endangering members of the public.

28 Her Honour also said that she accepted the reports by Shepherd and Wilson written in August 1991. However, she found their oral testimony to be contradictory in parts and attempts by them to explain their revised version of the events unsatisfactory. Her Honour held that the appellants had failed to discharge their onus with respect to the allegations of negligence or of any breach of duty by the respondent. Submissions on Appeal

29 The case at trial was that the SPG should have arrived as soon as possible after the notification at 1.05 am by the appellants that the offenders were in the ceiling. The appellants' submissions on appeal came down to, in effect, two grounds of appeal.

30 The first submission on behalf of the appellants was that 'on any view of the evidence it was part of the plan that at least two State Protection Group Officers would come to the listening post and protect the [appellants]… and… evacuate or replace them'. The appellants' submission focuses upon what they regard as being necessary for their protection. It was contended that the provision of two or three SPG officers who, being out of uniform, would 'surreptitiously and covertly' enter the listening post and either remain there to protect the appellants, or allow for their evacuation, was reasonable and necessary. These SPG officers would then remain in the listening post, where they would be able to respond to any adverse contingency, including the collapse of the false ceiling whilst the offenders were in it, which was submitted as being foreseeable. It was contended that either the evacuation or protection of the appellants was both 'feasible and reasonable', as the listening post was located in a hotel where the movement of people in and out of doors and in the nearby lobby occurs at various times without raising any suspicion.

31 The second submission of the appellants, being one on which they failed at trial, was that the containment and arrest of the offenders should have been commenced by the SPG as soon as possible after 1.05 am. It was put to the Court that although the role of the SPG was containment and arrest of the offenders, this allocation of responsibility was no longer pertinent in the absence of the SPG. There was no provision in the plan for the protection of the appellants from adverse contingencies which had the potential to generate conflict with the offenders. It follows that the directions given to the appellants, that they were to remain in the listening post, had no application to the foreseeable situation for which no provision was made in the planning of the operation.

32 The respondent submitted that the appellants had clear orders, which they were obliged to follow. They should not have left the listening post in any circumstance. 33 It was submitted that those planning the operation saw it as appropriate that the SPG be located in the Remington Centre, which was stated to be only two to three minutes away from the hotel, as opposed to being located within the hotel itself. There was a reduced number of SPG members on duty at the Remington Centre at the time the confrontation of the appellants with the offenders took place. The remainder of the group involved in the operation were at home, waiting to be called out closer to the planned time of confrontation, which was envisaged to be between 3.30 and 5.30 am.

34 It was further submitted on behalf of the respondent that there was ample evidence to support the conclusions of her Honour and where there was any conflict in the evidence, it was open to her Honour to prefer the evidence that supported her conclusion. The pleading point

35 On appeal, counsel for the appellants argued that the respondent was under a duty to 'evacuate, replace or protect' the appellants. The particulars of negligence in the Statements of Claim filed by the appellants read that 'heavily armed state protection group members evacuate and replace the [appellants] immediately after sounds of the armed offenders were first detected'. (emphasis added) The argument with respect to negligence on appeal therefore departs from that which was particularised at trial. 36 Although Mr Cowan, counsel for the respondent, did not protest at the inclusion of a duty to protect the appellants being relied on by the appellants during oral argument, he was later instructed to rely upon the point and forwarded a letter to that effect to the Court.

37 In response to the notification that the respondent sought to rely upon the pleading point, Mr Gross QC, appearing on behalf of the appellants, caused a Notice of Motion to be filed seeking leave to amend the Particulars of Negligence in each Statement of Claim, so as to substitute 'evacuate, replace or protect' in lieu of 'evacuate and replace'.

38 The inclusion of the failure of the respondent to ensure the protection of the appellants, as a particular of negligence, does not prejudice the respondents. Indeed, the respondent's submissions on this point make no mention of prejudice. A duty to protect the appellants is an extension of the duty to evacuate them. At trial, the evidence presented which was relevant to a duty to evacuate the appellants was also relevant to a duty to protect them. Indeed, on one view of the matter, there may be no need to amend the particulars of negligence in the Statements of Claim. As I have said, it is not apparent that the respondent is prejudiced by the slightly different way in which the case is now put. The evidence which was required to address the issue was called before the Court at the trial. It was covered also in submissions made to the District Court and particular (e) was treated as if it included 'protection'. In any event, it must be kept in mind that these are but particulars of negligence. See Katsilis v Broken Hill Co Pty Ltd (1977) 18 ALR 181 at 206 - 207 referring to Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 110.

39 Accordingly, although it may strictly be unnecessary, the Court should grant the amendment sought.

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.

2. Judgment and orders in favour of the respondent be set aside.

3. Judgment on the issue of liability in favour of the appellants be substituted therefor.

4. The respondent be ordered to pay the appellants' costs in the Court below.

5. Remitted to the District Court to assess the appellants' damages.

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