STATE OF NEW SOUTH WALES v BALL [2007] NSWCA 71 | Case summary

1 IPP JA: This is an application for leave to appeal and, if granted, an appeal against a judgment of Hughes DCJ. The proceedings before this Court concerned the dismissal by Hughes DCJ of the claimant's application for an order that the entire amended statement of claim, or in the alternative, paras 7 (a), (b), (d), (e) and (g) thereof, be struck out on the grounds that no reasonable cause of action was disclosed. The claimant has not persisted in its claim that the entire statement of claim is defective and has proceeded to argue only that the paragraphs mentioned be struck out. 2 By the opponent's statement of claim he alleged that, at all material times, he was a detective chief inspector in the New South Wales Police Service. From 1995 to 2001, he worked within the Child Protection Enforcement Agency (the CPEA). He alleged that his duties caused him to suffer from post-traumatic stress disorder and that these injuries were caused by the negligence of the claimant. 3 Paragraphs 7 (a), (b), (d), (e) and (g) of the statement of claim contained part of the opponent's particulars of negligence. They read as follows: (a) Allowing the CPEA to operate without sufficient funds or resources to adequately carry out its investigations or prosecute paedophile offenders. Because of the drop in staff levels particularized in (b) below, many investigations were carried out by one investigator, not a team. Apart from being less effective, this also added to the delay in investigations. The Plaintiff experienced, inter alia, stress and guilt in not being able to effectively allocate resources to CPEA investigations. (b) Failing to provide sufficient staff to the CPEA. Between 1996 and September 2001 the authorized staff strength of CPEA under the Plaintiff's supervision dropped from 50 to 30 persons whereas the workload did not reduce. The actual staff numbers were much lower than the "authorized strength". The Plaintiff made frequent complaints to his superior officer, Superintendant [sic] Heslop, about the staff shortages but no relief was forthcoming. … (d) Placing the Plaintiff in a position where he was forced to be chronically overworked because of lack of staff. The Plaintiff worked long hours and was effectively "on call" throughout his time at the CPEA. At times, he had 40 active "strike forces" under his command. The next lower ranked officers in the group were detective sergeants. It is alleged that there should have been more senior staff available for delegation of supervisory and administrative duties and to share the work load. (e) Failing to follow up the Plaintiff's investigations. As a direct consequence of the staff shortages noted in (b) above, many investigations were suspended. The responsibility fell upon the Plaintiff to prioritise every investigation and suspend cases that eh felt should not have been suspended. Again, complaints were made by the Plaintiff to Superintendant [sic] Heslop. Further, the Plaintiff's concerns in this regard were documented by him in his monthly, and later fortnightly, reports to the Crimes Agencies Operations Co-ordination Review Team but nothing was done to rectify the situation. … (g) Expecting the Plaintiff to carry out duties that were too burdensome for one individual. Because of the lack of senior staff the Plaintiff was required to be more involved in the paedophile investigations in addition to his supervisory and administrative duties. His exposure to horrific crimes was more extensive and intensive than it should have been. It is against this background that the Plaintiff alleges that [sic] Defendant should have known that it was dangerous for the Plaintiff to experience daily exposure to allegations of child sexual assault, child pornography, and to conduct investigations into the dealings of notorious paedophiles including Robert "Dolly" Dunn, Michael Hill, Frank Arkell and others. 4 The claimant contends that these particulars are not justiciable by virtue of s 42 of the Civil Liability Act 2002 (NSW) and, for that reason, should be struck out. 5 Section 42 relevantly provides: "… (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions, (b) the general allocation of those resources by the authority is not open to challenge, (c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate), …" 6 The opponent contends that s 42 does not apply to his claim by reason of s 3B(1)(f) of the Civil Liability Act. This section provides that the Act does not apply to "civil liability relating to an award to which Div 3 of Pt 5 of the Workers Compensation Act 1987 applies". 7 The opponent concedes that he does not fall within the definition of a worker under the Workers' Compensation Act 1987, as only police officers who joined the New South Wales Police Service after 1 April 1988 fall within that definition and he joined the Service before that date. 8 It was submitted by Mr Ower, on the opponent's behalf, that a purposive or contextual construction should be applied. He submitted that s 3B(1)(f) should be construed as excluding the application of the Civil Liability Act to civil liability claims by any employee in an employer/employee relationship. He submitted that, otherwise, the Civil Liability Act might apply to one police officer, but not to another, where both are injured at the same time under precisely the same circumstances. He submitted that this could not have been the legislative purpose underlying 3B(1)(f). He submitted that that would be anomalous. 9 There is no doubt that that s 3B(1)(f) can produce anomalies. Indeed, that is the case as regards the legislation that presently governs civil liability in this state. For example, different persons injured in the same incident may be governed by one of three different statutory regimes, the Civil Liability Act, the Motor Accidents Compensation Act 1999 (NSW), and the Workers' Compensation Act. This may result in different legal consequences for each person. In Landon v Ferguson (2005) 64 NSWLR 131 (with the concurrence of Hodgson and Santow JJA) I said (at 135): "The statutes in this State relating to workers compensation and common law damages claims by workers against their employers and others can be described as a hodge-podge. No consistent thread of principle can be detected. For example, the caps on damages under the Workers Compensation Act are lower than the caps under the Motor Accidents Compensation Act . Some workers' injuries occur in circumstances where the workers are required to bring their claims under the Workers Compensation Act . In other circumstances workers are required to bring their claims for damages under the Motor Accidents Compensation Act . In yet other circumstances neither Act applies, but other legislation governs the claims. No detectable rational reason explains the difference in categories. In some cases it is difficult to discern under which particular statute the case falls, and difficult and sometimes illogical distinctions have to be drawn." 10 It is impossible, in my view, in this context, to arrive at a contextual purpose. The different legislative regimes that have application to civil liability, generally, render any legislative purpose in regard to provisions such as 3B(1)(f) impossible to determine with any degree of reliability. A linguistic construction must be applied. 11 The words of 3B(1)(f) are crystal clear. They admit of no ambiguity whatever. To construe the Act, as Mr Ower suggests, would require a fundamental reworking of the language. This Court is not entitled to do that. I would not uphold that submission. 12 Mr Ower next drew attention to s 42(b), which provides that a general allocation of resources by a public authority is not open to challenge. He submitted that the particulars under challenge did not allege a general allocation of resources. Rather, he submitted, they alleged a specific allocation. This submission requires attention to be given to the precise words used in the particulars that are the subject of this appeal. 13 Paragraph 7(a) opens by alleging negligence on the ground that the claimant allowed the CPEA to operate without sufficient funds or resources to adequately carry out its investigations or prosecute paedophile offenders. The balance of the paragraph supports or amplifies these allegations. 14 The opening allegation is, in my view, a clear allegation of an inappropriate general allocation of resources. It complains, in effect, of a general allocation of resources within the authority such that the CPEA was under-resourced. I would not uphold Mr Ower's submission in regard to that paragraph. 15 As regards para 7(b), the opening sentence alleges negligence by the claimant in failing to provide sufficient staff to the CPEA. The next sentences go on to allege that the actual staff numbers of the CPEA were less than the authorised staff strength of the agency. No allegation is made in this paragraph that there had been a general allocation of resources to the CPEA that the agency had not used. Paragraph 7(b) as a whole, in my view, alleges a failure to allocate, generally, sufficient resources to enable the authorised staff strength to be met. This construction of para 7(b) is supported by the general thrust of the opponent's case as manifested by paragraph 7(a), which is an allegation that the claimant allowed the CPA to operate without sufficient funds. I would not uphold the opponent's submissions in regard to para 7(b). 16 The words in question that are under challenge in paragraph 7(d) are those in the first sentence, "[b]ecause of lack of staff", and the last sentence of that paragraph (which alleges that more senior staff should have been available for particular purposes). The same vice that appears in paras 7(a) and 7(b) applies in relation to those parts of para 7(d) and, in my view, those parts should be struck out. 17 The words under challenge in the second sentence of para 7(e) allege that, "[a]s a direct consequence of staff shortages noted in para 7(b), many investigations were suspended". Again, the same problem arises. Those words should be struck out. 18 In para 7(g), the words under challenge are in the second sentence. They are, "[b]ecause of the lack of senior staff". The comments I have made above apply. Those words should be struck out. 19 To summarise, in my view, the following orders should be made: (1) Leave to appeal should be granted. (2) The appeal should be upheld. (3) The orders made by Hughes DCJ should be set aside and, in lieu thereof, the following orders should be made: (a) Paragraph 7(a) of the statement of claim should be struck out. (b) Paragraph 7(b) should be struck out. (c) The words "[b]ecause of lack of staff" in the first sentence of para 7(d) should be struck out. (d) The last sentence of para 7(d) should be struck out. (e) The second sentence of para 7(e) should be struck out, and (f) The words "[b]ecause of the lack of senior staff" in the second sentence of para 7(g) should be struck out. (4) The opponent should pay the costs of the appeal and the proceedings before Hughes DCJ (5) The opponent is entitled to a certificate under the Suitors' Fund Act 951 (NSW) if otherwise qualified. 20 McCOLL JA: I agree with Ipp JA.

STATE OF NEW SOUTH WALES v BALL

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