(g) the plaintiff made no request for relief from his position, for a period of sick leave or any other assistance when he was spoken to.
450 In short, the picture presented by the plaintiff to his superior officers, and which they could ascertain upon making reasonable enquiries, was that he was fine, working well, and required nothing of them to counteract any effects of the Hussein threat.
451 The Hon. Bob Carr, with whom he worked closely and consistently, did not detect any problems with the plaintiff. The plaintiff's colleagues in the Premier's Office and Department did not observe, nor were they told, that anything was untoward.
452 Leaving aside any suggestion of an automatic referral system, there was no reason to be derived from what they knew or could establish for the plaintiff's superiors to refer him to the Police Psychology Unit, or for any other form of early intervention.
453 On analysis the plaintiff's submissions on this aspect really mean that the plaintiff's superiors should have referred him because of the nature and seriousness of the threat, and because he was a member of the CTCC engaged in close personal protection duties.
454 In my opinion, the conduct of the plaintiff's superiors in not referring him to the Police Psychology Unit for an expert mental health assessment or any other form of early intervention was not unreasonable. Put in another way, I do not think that a reasonable person in the position of the plaintiff's superiors would have taken this precaution. In short, although a reasonable person would have been aware of the not insignificant risk of a psychiatric illness developing from the threat which the plaintiff received, in light of the plaintiff's denials that he was affected in any way, when asked how he was, his regular attendance at work, his ability to discharge his duties without any observed inadequacy, and his ability to undertake successfully his promotion qualifications when considered without the thought of hindsight, it was reasonable to refrain from making a referral of the plaintiff to the Police Psychology Unit or other form of early intervention.
455 I am therefore not satisfied that this particular (c) has been proved by the plaintiff against the Commissioner, or the plaintiff's superior officers for whom the Commissioner was liable.
456 Particular (d) is an allegation that there was a failure to ensure that the plaintiff was made aware of the early signs and symptoms of any psychiatric and/or psychological conditions that may eventuate. It is unnecessary to consider this particular further because, in the joint report of the psychiatric experts (Ex 19) at p 4, it is recorded that:
"Both experts concurred that there was a possibility that Mr Benic's symptoms would have become contaminated by him being provided with information and education about all of the possible psychological outcomes which might eventuate. They did not concur with the proposition outlined in the Statement of Claim in this regard."
457 In light of this unanimous view, I do not think that, on any basis, it can be properly argued that a failure to inform the plaintiff as is alleged in particular (d) was unreasonable. In fact, the joint opinion suggests that it was appropriate not to inform him. I am not satisfied that this particular has been made out.
458 Particular (e), which relates to a failure to ensure that the plaintiff's psychological and/or psychiatric welfare was adequately monitored and kept under review, is one which relates, as I understand it, to an allegation that the plaintiff's superiors, Mr Slattery and Ms Smith, in particular, did not ensure that adequate monitoring of the plaintiff's welfare occurred.
459 The effect of this particular is that, in addition to referring the plaintiff to the Police Psychology Unit, to which particular (c) relates, there ought to have been a system in place which kept the plaintiff's mental health and welfare under review by the plaintiff's superiors themselves monitoring and checking with the plaintiff how his mental health and welfare was.
460 It is appropriate to note that senior counsel for the plaintiff, in his opening (T12.34), made it clear that it was not any part of his case that the NSW Police Force ought to have had in place a system which automatically monitored every police officer who had received a threat, or which automatically referred every police officer for a psychiatric or psychological assessment.
461 If such an allegation had been made, then the provisions of s 42 of the Civil Liability Act would have become important, both to have been addressed by evidence and also to be considered in this judgment.
462 In light of that concession by senior counsel for the plaintiff, it has not been necessary in this judgment to give any attention to the meaning of, and consequence for this case of, the evidence given by the expert psychiatrists about the demonstrated lack of a broad positive benefit being derived from "critical incident debriefing", which is a form of automatic counselling for everyone involved in a "critical incident".
463 Instead, it was submitted that the particular circumstances surrounding the plaintiff's condition were such that his superior officers ought to have, and did not, ask him in a formal way how he was and whether he was adequately coping with the consequence of the threat. The "formal way" which it was said ought to have been used was not identified with any real precision.
464 It seemed that two possibilities were suggested to the witnesses. The first was that conversations should have taken place in person in a formal interview environment rather than over the telephone, or informally when a personal encounter occurred.
465 The second possibility was that a mental health expert should have been asked to undertake a formal interview to see if what the plaintiff had told his superior officers was accurate or not.
466 For the same reasons I have expressed earlier, in dealing with particular (c), I am not satisfied that it was unreasonable of the plaintiff's superiors to have refrained from involving a mental health professional.
467 As I have earlier found, the plaintiff was asked about his health and welfare by his superiors on a number of occasions. On each such occasion, the plaintiff gave answers which were reassuring and conveyed the impression that he was coping well.
468 There was no evidence which proved to my satisfaction that, had a different method of interviewing the plaintiff been adopted, such as the first possibility suggested above, a different response would have been forthcoming from the plaintiff.
469 But on the question of whether any one or more of these approaches was likely to have been more successful, and that this ought to have been known to the Commissioner, or his officers Ms Smith and Mr Slattery, the evidence was silent.
470 Everyday experience does not support the proposition that an individual will respond more fully, and openly, in a formal interview with a superior officer, than a response given in the course of a less formal, more friendly discussion. There was no expert evidence which suggested that this was the case.
471 A number of witnesses, including Mr Slattery, were asked whether they could have engaged in a more formal interview with the plaintiff than the informal conversational approach which they took. As was obviously the case, it was open to have adopted a different approach.
472 I am not satisfied that asking the question in a more formal or other different way would have made any difference to the responses received. It was not unreasonable of the plaintiff's superiors to have failed to engage in this conduct.
473 I reject this allegation of breach of duty.
474 Particular (f) relates to a failure to carry out an assessment of security arrangements at the plaintiff's home. It can be considered together with particular (h) which also relates to the adequacy of security measures.
475 There is no question that the NSW Police Force policy (Ex H) allowed for an assessment to be made of whether the private residences of officers who had received threats had adequate security enhancements. Relevantly, the policy included the following (at pp 6-7):
"Additional measures available to threatened members may take the form of advice on personal security, the conduct of a security review of premises, suppression of personal records, and for sworn members, the approval for carrying … [a] fire arm whilst off duty.
…
Where a serious threat has been established, a member may be eligible to have security enhancements made to their primary private residence. It should be born in mind, however, that such enhancements represent only one response available to the member's wellbeing.
Such security enhancements provide no guarantee of safety. Some of the most successful measures to ensure personal safety are often those precautions members can take themselves.
The provision of security enhancements to a member's home, should be employed only when circumstances, such as the seriousness of the threat, dictate such action. Prior to deciding the type and extent of any enhancements, Commanders/Managers should consider requesting the Protective Security Group to conduct a formal residential Security Review of the threatened member's residence. Such review is undertaken by suitable qualified officers and provides recommendations regarding enhancements to the member's home security commensurate with that threat."
476 One thing that is plain from the evidence of the plaintiff is that he was well qualified to judge for himself the extent and adequacy of the security enhancements on his private residence. At the time the threat occurred, the existing enhancements were already quite extensive. They included an alarm and a number of security cameras.
477 The plaintiff himself did not seek to upgrade the existing security precautions at his private home. The evidence did not suggest that he was unable to do so if he had wanted to. Nor did he raise any issue with his superiors or else the officers at Maroubra Police Station about having the security at his private home enhanced.
478 I have found that immediately after reporting the threat to the Maroubra Police Station, some security action was taken to assist with the protection of the plaintiff. This included, at the plaintiff's request, obtaining permission from the Commissioner for him to carry his weapon whilst off duty. It also included the plaintiff being informed by Mr Murchie of the appropriate radio channel to be used to get assistance from the local police if required. I have also found that Mr Murchie told the plaintiff that he would arrange for additional car patrols of the plaintiff's house to take place.
479 The plaintiff gave no evidence about asking any of his superiors for any different, or improved, security arrangements. The plaintiff gave no evidence that he had asked for his security arrangements, including both personal protection or else enhancements to his home, to be changed or upgraded. Given the nature of his employment, and his skill and experience, it would be surprising if there was a significant deficiency which was felt by the plaintiff in his security arrangements, and which he did nothing about.
480 The plaintiff himself gave no evidence of any specific security precaution which he knew or reasonably thought was necessary, or else appropriate, to enhance the security of his home. Equally, there was no evidence that such security enhancements as did exist were inadequate, and needed to be upgraded.
481 There is no evidence that the taking of any security precautions at the plaintiff's home would have had, or else would reasonably likely have had, any ameliorating effect on the plaintiff's mental state. It was certainly not suggested that any relevant officers knew of any likely beneficial effect for the plaintiff if such precautions were taken.
482 In short, the plaintiff had arranged his own security prior to the threat, he requested and received additional security precautions, he was offered and received the benefit of additional security patrols and he asked for nothing more. He was an expert in the area of protection and the assessment of the adequacy of security measures.
483 In all of those circumstances, I am not persuaded that it was unreasonable for the Commissioner not to have taken any further additional steps as alleged by particulars (f) and (h).
484 As well, the joint report (Ex 19) of the psychiatrists does not identify any benefit to the plaintiff's mental health which might have been gained by additional security enhancements.
485 The plaintiff pleads in particular (g) that he ought to have been provided with respite from his work following the threat which he received.
486 Although it is possible that this was the particular which was abandoned by the plaintiff in his final submissions, since there were pleaded two subparagraphs with the letter (g) as particulars, it is appropriate that I express my views about those obligations.
487 The plaintiff did not need to provide protection duties for Mr Carr on each and every day between 25 December 2003 (after receiving the threat) and 27 February 2004. That was because, on a number of those days, he was either not rostered for duty, because Mr Carr was overseas and did not require the plaintiff's protection, or else he was having rostered days off.
488 According to Ex 3, during this period of 64 days, the plaintiff was not rostered for duty on 35 days and the plaintiff worked for only 29 days.
489 To the extent that the particular suggests that respite should have been provided for the plaintiff in the first period of eight to nine weeks, the number of days worked does not suggest respite was needed. The plaintiff was entitled to sick leave which was able to be taken on full pay. He did not take any sick leave in that period.
490 The plaintiff did not ask for sick leave or else say he was unfit for work. Any failure to provide respite for the plaintiff during that short time period was not in any way unreasonable.
491 If the particular refers to some respite being provided to the plaintiff in the longer term (after the first period of nine weeks or so), then there is no evidence sufficient to prove any failure to provide necessary respite, let alone evidence that such failure was unreasonable.
492 The plaintiff's case also suffered from the lack of any definition of what period of respite was appropriate and when it ought to have been provided.
493 The plaintiff, I have found, was asked about his health. He was consistently in attendance at work. He did not ask for any respite. He did not take any leave for any problem related to Hussein's threat.
494 I am not satisfied that his superiors (and ultimately the Commissioner) could be said to have acted unreasonably. I reject this particular of negligence.
495 Having now considered each of the particulars, and acknowledging that the nature and content of the duty of care is analogous to that of an employer, namely, a non-delegable duty, I am not satisfied that there has been any breach of duty. The standard of the Commissioner demanded by the plaintiff, in the way in which his case has been argued, has exceeded what was in all the circumstances reasonable.
496 It is as well to recall the importance in the law of negligence of the central concept of reasonableness. As Gleeson CJ said in Swain v Waverley Municipal Council (2005) 220 CLR 517 at [5]:
"In legal formulations of the duty and standard of care, the central concept is reasonableness. The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and as to taking precautions against such harm. Life is risky. People do not expect, and are not entitled to expect, to live in a risk-free environment. The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours' keepers, but they are not their neighbours' insurers."
497 The plaintiff's case demanded something more than what was reasonable on the issue of breach of duty. It cannot be upheld.