[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 Officer's case is doomed to fail as the pleading falls foul of Koehler. It is the culmination of the 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, it 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 took them 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 [23A] 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 Reeves v NSW [2005] NSWSC 1138 at [27] and [28] (the earlier Reeves decision) stated:
"Before turning to the evidence about delay, it is convenient to deal immediately with the first eight incidents. As to them, the defendant has made out a substantial case of actual prejudice, arising from the death of relevant witnesses, including the plaintiff's commanding officers at different times, or the inability to locate them, together with the lack of contemporaneous records…"
"…the absence of relevant witnesses and records deprives it of the opportunity to investigate the plaintiff's condition after each of the incidents, any steps taken at the time to alleviate that condition and any procedures which might then have been available to assist him. The observations of Giles JA in State of New South Wales v Donnelley [2004] NSWCA 133 at [51] - [54], upon which counsel relied, are apt."
9 At [21] His Honour stated:
"…it does appears to me that the evidence is capable of supporting an inference that those earlier incidents contributed to the plaintiff's psychological state from the mid 1990's."
10 The defendant submitted that actual prejudice means that it should not be able to now plead the traumatic incidents in that way that it seeks now to do. In the statement of claim before Justice Hidden there were nine incidents pleaded as causes of action. Leave was granted in relation to one, the Police Royal Commission cause 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.
11 The defendant also submitted that it cannot defend against these eight incidents 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 [23A] should be struck out.
12 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.