SM v State of New South Wales

Catchwords: TORTS – negligence – work injury damages claim – s.151D extension application – plaintiff has serious psychiatric conditions – whether application should be heard by the trial judge

Legislation Cited: Workers Compensation Act 1987 (NSW)

Cases Cited: Skinner v The State of New South Wales (No 2) [2021] NSWDC 49
State of New South Wales v Skinner [2022] NSWCA 9

Category: Procedural rulings

Parties: SM (Plaintiff)
State of New South Wales (Defendant)

Representation: Counsel:
J Krieg (Plaintiff)
M Jeppesen (Solicitor) (Defendant)
Solicitors:
Don Cameron & Associates (Plaintiff)
Hicksons (Defendant)

File Number(s): 2024/00452779

Publication restriction: No

JUDGMENT – EX TEMPORE

1. Before the Court for its consideration is an oral application by the plaintiff for orders that a Notice of Motion filed on 29 April 2025 seeking leave to commence proceedings pursuant to s.151D of the Workers Compensation Act 1987 (NSW) be adjourned for determination by the trial judge.

2. The background to the matter is that the plaintiff was a police officer from 8 May 2009 to 27 April 2023 when she was retired on medical grounds. Her last active day of service was in 2021.

3. The plaintiff claims that she has suffered psychiatric injuries which were negligently caused by the defendant to her by a combination of:

(a) Bullying/harassment/sexual harassment by other more senior police officers; and (b) Exposure to a significant number of traumatic and distressing incidents in the course of her duties including fatal car accidents, numerous suicides, and the aftermath of domestic violence and murders, to mention just a few of the examples particularised.

4. The plaintiff alleges that her mental anguish was obvious to other officers including more senior officers in the course of her police officer duties.

5. On the application, the plaintiff read the affidavits of Natalie Butcher dated 13 May 2025 and of the plaintiff, SM, dated 14 May 2025. The plaintiff also tendered a report from her treating psychologist, Patricia Santoso, dated 22 July 2025.

6. The basis of the application is that having regard to the plaintiff's psychiatric conditions, it is in the interests of justice and in her medical interests that she be subject to giving oral evidence on only one occasion and that the s.151D application should therefore be stood over to be considered by the trial judge.

7. Annexed to the affidavit of Ms Butcher is a considerable amount of psychiatric and other evidence which the Court takes into account. In particular, the Court takes into account the following matters:

(a) The plaintiff's statement dated 26 July 2022 annexed to the plaintiff's 14 May 2025 affidavit; (b) The opinions expressed by Ms Butcher at paragraphs 38 to 39 of her affidavit; (c) The report of Dr Graham George dated 12 July 2022, especially at pp 5 to 7; (d) The report of Dr Assad Saboor dated 11 November 2022, especially at pp 3 to 4; (e) The report of Dr Samuel Lim dated 25 March 2024, especially at pp 19 to 22, 25 (paragraph 14) and 33 (paragraph 28).

8. Those medical reports do not expressly state that it would be deleterious to the plaintiff's psychiatric condition to be required to give oral evidence on two occasions. The report of psychologist Ms Santoso dated 22 July 2025 does say that.

9. However, the psychiatric reports establish a number of matters:

(a) That the plaintiff has been diagnosed with PTSD and major depressive disorder; (b) That the causative link is accepted between those conditions and the plaintiff's police service; (c) That the plaintiff lives with her mother and is heavily reliant on her; (d) The plaintiff has difficulty concentrating with memory lapses and intrusive thoughts and has problems with tolerance; (e) The plaintiff has general serious anxiety at times which stops her leaving the house to do simple tasks; (f) The plaintiff has flashbacks and intrusive thoughts as part of her PTSD; (g) The plaintiff has daytime fatigue due to lack of sleep; and (h) That on the evidence, the plaintiff has had these conditions if not before, at least since, 2021.

10. The evidence establishes that the plaintiff sees her treating psychologist and psychiatrist regularly and is on regular medication for her conditions.

11. A complying agreement was entered into between the plaintiff and the defendant on 9 March 2023 to the effect that the plaintiff's psychiatric conditions constitute a 22% whole person impairment.

12. The issue of whether a s.151D application and the final hearing should be heard at the same time was considered in some detail by Abadee DCJ in Skinner v The State of New South Wales (No 2) [2021] NSWDC 49 particularly at paragraphs 5 to 11. His Honour noted in a police work injury damage case that the nature of such litigation and the extensive estimated hearing time in that case (a ten-day hearing appears also to be estimated in the current case), requires an application for a concurrent hearing of a s.151D application to be considered seriously.

13. In paragraph 11, his Honour notes that while he does not suggest any “inflexible rule” for the case management of such applications and that there are cases which, because of a relatively narrow factual dispute, warrant concurrent hearings, the nature of the matter and the resources of the Court and the parties would tend to indicate a separate hearing of the s.151D application.

14. I agree with his Honour's comments in that case. These comments were not questioned on appeal: State of New South Wales v Skinner [2022] NSWCA 9. Each case must be considered on its merits. I therefore consider the evidence which has been put before me today in support of a concurrent hearing. I wish to make it clear that in all cases involving PTSD or other psychiatric injuries that there is no general rule that the s.151D application should be heard at the same time as the final hearing. All matters must be taken into account.

15. The matters I have referred to above in relation to this plaintiff and the fact that there is agreement between the plaintiff's expert and the defendant's psychiatric expert as to the percentage of whole person impairment and a complying agreement has been entered into, are relevant. In addition, I take into account in particular the report of the plaintiff's treating psychologist dated 22 July 2025 who provides an express opinion that requiring the plaintiff to give evidence on two occasions would likely exacerbate her PTSD symptoms and negatively affect her psychological wellbeing.

16. Having regard to all of those matters, in this particular case I am satisfied that there would be a real risk to the plaintiff's psychiatric health if she had to give evidence on two occasions. However, the matters in dispute on the pleadings would indicate that unless the matter is resolved, which I am sure the parties are considering, the plaintiff is likely to have to give oral evidence for some time.

[DISCUSSION AS TO SUITABLE DATES FOR HEARING]

17. The orders I make are:

18. In relation to the Notice of Motion filed on 29 April 2025:

19. The Notice of Motion filed on 29 April 2025 for leave to proceed under s.151D of the Workers Compensation Act 1987 (NSW) is listed for hearing before the trial judge at the final hearing of the proceedings.

20. The matter is listed for hearing on 21 September 2026 with an estimate of 10 days.

21. The Standard Orders for Hearing are made.

22. The matter is listed for directions before the List Judge on 6 July 2026 at 9:30am.

23. Liberty to apply on 2 business days’ notice.

24. The costs of 23 July 2025 are reserved to the trial judge.

Note:

Based on the psychiatric evidence, the severity of the plaintiff’s psychiatric conditions and symptoms render it inappropriate to have a separate s.151D application determination prior to the trial due to the potential need for the plaintiff to give oral evidence on two occasions and the risk of aggravating her conditions.

**********