State of New South Wales v Briggs - [2016] NSWCA 344 - NSWCA 2016 case summary — Zoe

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State of New South Wales v Briggs

[2016] NSWCA 344

Court of Appeal (NSW)|2016-08-23|Before: McColl JA, Ward JA, Leeming JA

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Court

Court of Appeal (NSW)

Decision date

2016-08-23

Before

McColl JA, Ward JA, Leeming JA

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

Chester v Council of Municipality of Waverley (1939) 62 CLR 1; [1939] HCA 25 Chilton v Corporation of London (1878) 7 Ch D 735 Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232; [2002] NSWCA 272 Commonwealth v Quince (1944) 68 CLR 227 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 Enever v The King (1906) 3 CLR 969 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Hegarty v Queensland Ambulance Service [2007] QCA 366; [2007] Aust Torts Reports 81-919 Hoffmann v Boland [2013] NSWCA 158; [2013] Aust Torts Reports 82-134 Hull v Thompson [2001] NSWCA 359 Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 Kable v State of New South Wales [2012] NSWCA 243; 293 ALR 719 King v Philcox (2015) 255 CLR 304; [2015] HCA 19 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Little v Commonwealth (1947) 75 CLR 94 McDonald v National Grid Electricity Transmission plc [2014] UKSC 53; [2014] 3 WLR 1197 McDonald v State of New South Wales [2001] NSWCA 303; [2001] Aust Torts Reports 81-620 Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Morris v KLM Royal Dutch Airlines [2002] 2 AC 628; [2002] UKHL 7 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 New South Wales v Williamson [2005] NSWCA 352 O'Connor v S P Bray Ltd (1937) 56 CLR 464 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 Perre v Apand (1999) 198 CLR 180; [1999] HCA 36 Police Service (NSW) v Honeysett (2001) 53 NSWLR 592; [2001] NSWCA 452 S v State of New South Wales [2008] NSWSC 933 S v State of New South Wales [2009] NSWCA 164 Schultz v McCormack [2015] NSWCA 330 Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637 Shoalhaven City Council v Pender [2013] NSWCA 210 State of New South Wales v Ball (2007) 69 NSWLR 463; [2007] NSWCA 71 State of New South Wales v Burton [2006] NSWCA 12; [2006] Aust Torts Reports 81-826 State of New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 Universal Film Manufacturing Company (Australasia) Ltd v New South Wales (1927) 40 CLR 333 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Veljanovska v Verduci (2014) 42 VR 222; [2014] VSCA 15 Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR; [2004] HCA 16 Woolworths Ltd v Perrins [2015] QCA 207 WorkPac Pty Ltd v Thearle [2016] NSWCA 303 Wyong Shire Council v Shirt (1980) 146 CLR 40 Texts Cited: J Carabetta, "Employment Status of the Police in Australia" (2003) 27(1) Melbourne University Law Review 1 Z Cowen, 'Crown Service: The Action per quod servitium amisit and the Police' (1953) 69 Law Quarterly Review 177 N Foster and A Apps "The neglected tort - Breach of statutory duty and workplace injuries under the Model Work Health and Safety Law" (2015) 28 Australian Journal of Labour Law 57 R Guthrie, "Sick leave and workers' compensation for police officers in Australia" (2010) 17 Journal of Law and Medicine 816 P Handford, Tort Liability for Psychiatric Damage (2nd ed, 2006, Lawbook Co) New South Wales Ombudsman, Special Report to Parliament, Officers Under Stress (June 1999) W Wade and C Forsyth, Administrative Law (11th ed, 2014, Oxford University Press) Category: Principal judgment Parties: State of New South Wales (Appellant) Ryan Briggs (Respondent) Representation: Counsel: TGR Parker SC / S Flett (Appellant) I Roberts SC / T Ower (Respondent)

[4]

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Ryan Briggs is a former police officer who suffered a psychological injury caused by his exposure to traumatic events in the course of his duties. Mr Briggs claimed his injury was a result of tortious acts of the Commissioner and his officers, for which the State was vicariously liable. Mr Briggs' claim was at all times treated as a "work injury damages claim" for an award of "modified common law damages" under Part 5 of the Workers Compensation Act 1987 (NSW), and the parties (correctly) proceeded on the basis that the provisions of the Workers Compensation Act applied. Consequently, the Civil Liability Act 2002 (NSW) did not apply: s 3B(1)(f)). The primary judge found in favour of Mr Briggs, accepting that the defendant had breached its duty of care owed to the plaintiff to take reasonable care to avoid exposing police officers to the foreseeable risk of psychological injury, thereby causing, aggravating and entrenching his injury. His Honour found that the defendant breached its duty of care (a) over the period of July 2003 to July 2011, given the plaintiff's exposure to "traumatic and gruesome events" in the course of his general duties, and (b), more specifically, after Mr Briggs told his supervisor he was "struggling" and applied for a theoretical demotion in July 2011. The State of New South Wales appealed, alleging errors of law in how the primary judge formulated the content of the duty of care, breach, causation and damages, as well as failures in the primary judge's findings of fact. Held, allowing the appeal: 1. Per curiam: In relation to the numerically large body of police officers, breach of a duty of care must be assessed in light of a postulated system that should have been devised, or a general instruction which should have been given, and which would probably have prevented the psychological injury: at [8], [31], [64]-[68], [96], [138]-[139], [151]-[153]. New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20, applied S v State of New South Wales [2009] NSWCA 164, considered 2. By Leeming JA, Ward JA agreeing: When considering the relationship between the parties, the scope or content of the duty of care must be moulded having regard to statutes which apply peculiarly to the NSW Police Force: at [31], [46]-[49], [61]-[62], [64], [186]-[188]. Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15; Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59; New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20; Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44, applied 3. A defendant is not negligent merely by failing to take a course of conduct which would have eliminated the risk of harm. Unless it be shown that the defendant was acting unreasonably in failing to take that course, negligence is not established: at [31], [166]. Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51; Shoalhaven City Council v Pender [2013] NSWCA 210; applied 4. The scope of a duty of care must be formulated prospectively, not by engaging in a "hindsight" analysis of whether the risk of injury could have been reduced or eliminated: at [31], [64]-[71], [140]-[141], [151]-[153], [170]. Vairy v Wyong Shire Council (2005) 223 CLR 422; New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11; Badenach v Calbert [2016] HCA 18; 90 ALJR 610; Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377; Hoffmann v Boland [2013] NSWCA 158; [2013] Aust Torts Reports 82-134; Schultz v McCormack [2015] NSWCA 330, applied 5. Consideration of the assessment of breach and duty in cases of undiagnosed psychiatric injury and the role of courts: at [10]-[30] (McColl JA) and [117]-[131], [225]-[227] (Leeming JA). New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20; Hegarty v Queensland Ambulance Service [2007] QCA 366; [2007] Aust Torts Reports 81‑919; Woolworths Ltd v Perrins [2015] QCA 207; Barber v Somerset County Council [2004] UKHL 13; [2004] 1 WLR 1089, Benic v State of New South Wales [2010] NSWSC 1039; Box Hill Institute of TAFE v Johnson [2015] VSCA 245, considered and applied 6. Consideration of the nature of (a) the service of a police officer in the NSW Police Force, and (b) the liability of the State: at [50]-[61] (Leeming JA). Enever v The King (1906) 3 CLR 969; Commonwealth v Quince (1944) 68 CLR 227; Little v Commonwealth (1947) 75 CLR 94; Attorney‑General for New South Wales v Perpetual Trustee Company (Ltd) (1952) 85 CLR 237; Attorney‑General for New South Wales v Perpetual Trustee Company (Ltd) (1955) 92 CLR 113; Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; Police Service (NSW) v Honeysett (2001) 53 NSWLR 592; [2001] NSWCA 452; Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232; [2002] NSWCA 272; Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637; J Carabetta, "Employment Status of the Police in Australia" (2003) 27(1) Melbourne University Law Review 1, considered

[5]

Judgment McColl JA: [1] Ward JA: [31] Leeming JA: judgment [32] The applicability and operation of the Workers Compensation Act 1987 (NSW) [33] Issues on appeal [40] The need to identify the content or scope of a duty of care [44] The importance of statutory context [46] The statutory context relevant to this appeal [50] Duty must be formulated prospectively [64] Factual background [73] The SIDS incident [74] July 2003 - July 2011 [78] July 2011 - the "struggling disclosure" [86] July - November 2011 [90] November 2011 - the "road rage incident" [92] The findings of breach and causation made by the primary judge [95] Systems for dealing with traumatic events in the NSW Police Force [110] Hegarty v Queensland Ambulance Service [117] Breach - second period (July 2003 until July 2011) [132] Uncertainty as to the findings made by the primary judge [133] Failure to identify a general instruction [138] What would Mr Briggs' response have been? [143] Impermissible hindsight [151] Breach - third period (the "struggling disclosure") [154] Summary [170] Notice of contention - PSC investigation [172] Reasoning of the primary judge [173] Four alleged breaches in the notice of contention [176] First alleged breach [182] Second alleged breach [185] Third alleged breach [189] Fourth alleged breach [198] Further issues arising on notice of contention [202] Causation and damages [209] Causation [210] Damages [216] Orders [222]

[6]

McCOLL JA: I have had the benefit of reading Leeming JA's reasons in draft. I agree with the orders his Honour proposes and, subject to the observations I make below, with his Honour's conclusion that the primary judged erred in finding that there was a breach of duty in relation to Mr Briggs' undiagnosed psychological injury and with his Honour's disposition of the notice of contention, causation and damages.
I do not join in his Honour's reasons concerning duty of care on which, as his Honour says (at [62]), the outcome of the appeal does not turn and which issue was not the subject of detailed argument. [1]
As Leeming JA has pointed out (at [42]), it was not in issue that there was an obligation to take reasonable care to avoid foreseeable risks of injury arising from Mr Briggs' service in the NSW Police Force. It was also conceded that the risk of a police officer sustaining recognisable psychological injury through encountering traumatic events was foreseeable. [2]
As much was also acknowledged at trial. The primary judge held that the case was within a category where there could be no issue "that the NSW Police Force, as the plaintiff's employer, owed the plaintiff a duty of care". [3] The appellant, the State of New South Wales (SNSW), "did not contend that it did not owe the plaintiff a non-delegable duty of care, nor did the defendant contend that the scope of the employer's duty of care in this case did not extend to the need to consider the avoidance of psychological injury occurring in the course of the plaintiff's employment as a police officer". [4] The SNSW does not challenge these findings nor, as in S v State of NSW, [5] does it contend "that any particular aspect of the contractual arrangement between [it] and the respondent, or the statutory framework in which those contractual arrangements existed" bears any particular significance in the context of the issues arising upon this appeal.
It is also, with respect, unnecessary to consider differences in professional opinion concerning critical incident stress debriefing. [6] The primary judge held that the SNSW had not breached its duty of care in relation to the Employees Assistance Program (EAP) debriefing session the respondent attended after the SIDS episode in July 2003. There was no challenge to that finding. The fact that such a debriefing was proffered was accordingly not in controversy on appeal.
What was in issue, was whether the psychological health of a general duties police officer such as Mr Briggs should, in effect, be constantly monitored by the NSW Police Force. [7]
I agree with Leeming JA [8] that it is difficult in this context to understand paragraph [454] of the primary judgment concerning the events between July 2003 and July 2011. The primary judge accepted that during this period "the psychological difficulties the plaintiff described he was experiencing … may not have been obviously evident to his supervisors from their interactions with him", but nevertheless concluded "the described circumstances mandated the convening of EAP sessions on multiple individual occasions in response to specific events occurring in that period." [9] It appears the primary judge devised the steps he concluded the SNSW should have taken to discharge its duty of care to Mr Briggs absent any expert evidence directed to that class of police officers into which Mr Briggs fell.
As Leeming JA observes and as was the case in Fahy, [10] no evidence was led at trial that suggested with any focus on the particular circumstances of general duties officers such as Mr Briggs, what steps his managers and supervisors should have taken in response to any of the many events to which he was exposed other than the SIDS incident, in which respect the SNSW was found not to have breached its duty of care. As Leeming JA concludes, [11] the primary judge did not identify the system of work which should have been prescribed in response to the risk of psychiatric injury.
I would make the following general observations.
The law of torts exists both "to provide means of redress and compensation for those who suffer actionable civil wrongs caused by others" and, too, to state "the community's standards including standards of accident prevention that have their clearest application in the employment context". [12] A fundamental objective of the law of negligence is the promotion of reasonable conduct that averts foreseeable harm. [13] It is now recognised that "[p]rotection of mental integrity from the unreasonable infliction of serious harm, unlike protection from transient distress, answers the 'general public sentiment' underlying the tort of negligence that, in the particular case, there has been a wrongdoing for which, in justice, the offender must pay". [14]
Such recognition was not always the case. This is not the occasion to undertake a comprehensive review of the common law's approach to claims for damages for psychiatric injury. As Gummow and Kirby JJ explained in Tame, "[t]he authorities respecting recovery for 'nervous shock' disclose a series of adjustments in the accommodation of conflicting interests which have struggled for legal protection." [15]
As is well understood, in the nineteenth century, there was a lack of sympathy in the common law in the United Kingdom and in Australia towards recovery for nervous shock, which was treated as "too remote" and outside the scope of the relevant duty of care. [16]
However, by 1970, Windeyer J was able to say that nervous shock cases were "not a new tort [but] … turn[ed] simply on the circumstances in which damages are recoverable for a particular kind of harm caused by a tort." His Honour added that "[l]aw, marching with medicine but in the rear and limping a little, has today come a long way since the decision in Victorian Railways Commissioners v Coultas". [17]
That recognition did not mean the common law embraced, or embraces, claims for damages for psychiatric injury to the same extent as it does claims for damages for personal injury. Historically, various control mechanisms were formulated to restrict liability in negligence for psychiatric illness not consequent upon physical harm. [18] They reflected a perceived need to keep such liability within practicable bounds and were founded on "a perceived distinction between psychiatric and physical harm". [19]
In Tame, the majority in the High Court rejected control mechanisms such as that liability for psychiatric harm be assessed by reference to a hypothetical person of "normal fortitude", that the psychiatric injury be caused by a "sudden shock", and that a plaintiff "directly perceive" a distressing phenomenon or its "immediate aftermath" as definitive tests of liability. [20] They were seen to operate "in an arbitrary and capricious manner" and were described as "[u]nprincipled distinctions and artificial mechanisms … [which] bring the law into disrepute." [21]
The "control mechanisms" were also rejected in the context of "[a]dvances in the capacity of medicine objectively to distinguish the genuine from the spurious, and renewed attention to the need to establish breach, causation and a recognisable psychiatric illness that is not too remote". [22] As is readily apparent, and as Windeyer J had effectively earlier observed, legal developments depended, at least to some extent, upon medical advances. In such matters, lawyers (and judges) need the assistance of expert evidence. [23]
That is not to say, that experts in the area of psychiatric harm will speak with one voice.
In Benic v State of New South Wales, [24] to which Leeming JA refers, [25] Garling J discussed the competing views among psychiatrists on the "the matter of preventability". That was a reference to the question whether early intervention by way of psychological counselling and/or psychiatric treatment would have been effective in that case to prevent the plaintiff developing the PTSD from which he suffered, and continued to suffer. His Honour concluded that it was not possible to be categoric in the making of a general finding that, on the then current state of knowledge, early intervention by way of treatment would succeed in preventing or alleviating PTSD in a person exposed to a traumatic event. Nor was it possible to make a general finding that a failure to provide any treatment by way of early intervention would result in the symptoms of PTSD occurring or becoming entrenched. Rather, the extent of current research demonstrated that it was a matter of individual analysis to establish the likelihood in any one person of early intervention being successful in alleviating that person's symptoms of PTSD, in the light of the nature of the trauma which they had experienced and the nature of their own personality. [26]
In this case, as Leeming JA has explained, the issue of breach had to be considered in the context that the inevitable consequence of the kinds of work police officers are required to perform is that their duties can often be very psychologically stressful.
It is apparent that since at least 1991, the Police Service has recognised that police officers may suffer psychiatric injury as a result of their work and has taken steps to avoid, or at least ameliorate, the consequences of the stresses to which they are exposed. Some of the details of those steps were set out by Gummow and Hayne JJ in Fahy. [27]
In its 1999 Special Report to the New South Wales Parliament, Officers Under Stress, [28] the Ombudsman identified "the need for the NSW Police Service to identify and support police officers whose psychological well-being has been affected by stress." The Ombudsman pointed out that exposure to traumatic incidents affected the ability of some police officers to carry out their duties, yet many supervisors within the Police Service had no way of knowing that some of their officers were struggling to cope. In the Ombudsman's view, this jeopardised the interests of the affected officers, the Police Service and the community. This was because failure to identify an officer who was not coping could result in the officer making an error of judgement that caused serious harm to the officer or a member of the public. [29] The Ombudsman's Report recognised the sensitive issues associated with police managers seeking professional assessments of their officers, but pointed out that both police officers and the community would suffer if adequate guidelines were not developed to address this issue. Notwithstanding those sensitivities, the Ombudsman's Report emphasised that police who were suffering stress might be placed in situations requiring them to make decisions with potential life and death consequences. [30] It pointed out that the general requirement of confidentiality which attended to debriefings after critical incidents did not apply in the event of "… harm to self; … potential harm to others; and … an overwhelming social obligation to do so." [31]
Other material illustrates the responses of those in the position of employers in workplaces where there is a high risk of psychiatric illness due to constant and repeated exposure to traumatic events.
In Hegarty v Queensland Ambulance Service, [32] there was a body of evidence to the effect that systems can be, and are, available to train supervisors to identify signs of dysfunction in personnel regularly exposed to traumatic events. That included evidence of the recommendations of the Queensland Parliamentary Select Committee of Inquiry into Ambulance Services, which reported in December 1990. One of those recommendations was that there be an education program aimed at promoting a better understanding of the causes and consequences of stress in ambulance work, directed to existing operational staff, senior management staff, and spouses/partners of ambulance officers. In response to that Report, it would appear a system known as Priority One was developed in Queensland in the early 1990s, intended to provide a framework within which individuals might seek assistance through self-referral, or alternatively, Peer Support Officers or supervisors might recommend assistance based on perceived problems. [33]
In addition, in Hegarty, Professor Richard Bryant, a clinical psychologist, the principal expert witness called by the plaintiff, gave evidence of a training program developed by the Royal Ulster Constabulary "during the troubles in Northern Ireland, and in the mid-80s": "… so that operational commanders, the people directly overseeing the police officers, they were trained to identify a number of areas that would raise a flag about, and those areas included whether somebody was exposed to particularly significant trauma or whether there was problems in the person's operational functioning such as whether there was absenteeism, increased sickness leave, et cetera. If those factors were there, they were trained to raise a flag to identify that those people needed closer looking at." [34]
One would infer that the systems developed by the Queensland Ambulance Service and the Royal Ulster Constabulary and that recommended by the Ombudsman to assist personnel exposed to traumatic events to deal with the risk of psychiatric damage were informed by expert evidence.
In both Fahy [35] and Hegarty, [36] reference has been made to what I accept is a delicate question of when a colleague or a supervisor might step in if an employee is manifesting signs of psychiatric problems. However in the context of services such as the Police (and, it might be thought, those in emergency areas such as the Ambulance Service), it is hard to believe it is beyond the wit of an "employer" in the position of the State, informed by the sort of expert assistance I infer was available in Queensland and Northern Ireland, to devise a system of work which can take such matters into account.
The matters to which Leeming JA refers concerning intrusions into an employee's private affairs are undoubtedly valid in some contexts. [37] But, with respect, they cannot assist in the resolution of this case.
In an area where "employees" are constantly exposed to traumatising incidents and the foreseeable risk of suffering recognisable psychological injury, the courts cannot, in my view, be timid about the need to ameliorate that risk. In particular, while issues such as "[t]he dignity of employees, and their entitlement to be free of harassment and intimidation" [38] are important, so, too is the proper discharge of the "employer's" duty of care in the context of employing people in a traumatising workplace. In such areas, the solicitude the "employer" must exhibit concerns an actual, or potential, workplace injury. The fact that it entails a worker's mental health does not immunise it from the employer's responsibility to discharge the relevant duty of care. Nor, with respect, should it be characterised as an intrusion into an employee's private life. [39]
In this context, it should be noted that the legislature in this State has recognised police officers among others in what may be described as emergency services, and those in the coal mining industry, who face a significantly higher than average risk of injury or death, [40] as those who should have their rights to damages for psychological or psychiatric injury preserved and not subject to the operation of the limiting provisions of s 151AD of the Workers Compensation Act 1987 (NSW) inserted into that Act in 2012. [41]
Courts should, in my respectful view, be cautious about making personal observations concerning the manner employers should formulate systems of work to deal with risks of psychiatric injury. In this vexed area, it is not for an individual judge to determine the policy of the law according to his or her own view of what social interests dictate, [42] nor should the law in this area be developed by reference to "idiosyncratic judicial perception". [43] Rather, it is best, to reprise Windeyer J, that the law, march with medicine (and I would add those expert in fields of occupational work and safety) "but in the rear and limping a little." In that way, the law may best give effect to, and recognise, community concerns that employees' mental integrity should be protected from unreasonable infliction of serious harm to which their workplaces expose them.
WARD JA: I have had the opportunity of reading in advance the comprehensive reasons of Leeming JA, with which I agree. I also agree with the orders his Honour has proposed.
LEEMING JA: Mr Ryan Briggs is a former police officer who claimed to have suffered work-related psychological injury as a result of tortious acts of the Commissioner and his officers, for which the State was vicariously liable. The State of New South Wales appeals from a judgment in favour of Mr Briggs in the amount of $1,115,541, following a five day trial in the District Court: Briggs v State of New South Wales [2015] NSWDC 235. For the reasons which follow, I have concluded that the appeal should be allowed, principally because the primary judged erred in finding that there was a breach of duty in relation to Mr Briggs' undiagnosed psychological injury.

[7]

The applicability and operation of the Workers Compensation Act 1987 (NSW)

Section 6 of the Law Reform (Vicarious Liability) Act 1983 (NSW) deemed Mr Briggs and other police officers to be persons in the service of the Crown. Section 8 of the same Act rendered the Crown vicariously liable in respect of torts committed by other officers in the service of the Crown in the course of their service or as an incident of their service (which is unaffected by the provisions of ss 9-9G in Part 4 of that Act which deal specifically with tortious claims against police officers: see s 9E(a)). That deemed liability of the Crown was reflected in proceedings being commenced against the State of New South Wales, in accordance with s 5(1) of the Crown Proceedings Act 1988 (NSW).
It was common ground, no later than the conclusion of the trial, that Mr Briggs had suffered a psychological injury caused by his exposure to traumatic events in the course of his duties. Although the liability of the State turned upon Mr Briggs having been a police officer in the service of the Crown, his claim was at all times treated as a "work injury damages claim" for an award of "modified common law damages" under Part 5 of the Workers Compensation Act 1987 (NSW), and the parties proceeded on the basis that the provisions of the Workers Compensation Act applied. That appears to have been correct, although for reasons which are somewhat complex: 1. subsection 3(5) of the Workers Compensation Act provided that "[t]he Crown shall, for the purposes of this Act, be treated as the employer of members of the Police Force"; 2. the Workers Compensation Act provided in s 2A that it "is to be construed with, and as if it formed part of, the 1998 Act" (being a reference to the Workplace Injury Management and Workers Compensation Act 1998 (NSW)); 3. the definition of "worker" in s 4 of the 1998 Act included a person who worked under a "contract of service" with an "employer", and 4. a Constable, Senior Constable or Sergeant in the NSW Police Force must answer the description of a person who worked under a "contract of service", because the same definition had a specific exclusion for members of the NSW Police Force who were contributories to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906 (NSW) (a fund which was closed to Mr Briggs because he became a member of the NSW Police Force after 1 April 1988).
It will be seen that those deeming provisions are necessary, because Mr Briggs was not an employee, a matter to which I shall return below. It is convenient to note at the outset the following four consequences of the Workers Compensation Act applying to Mr Briggs' claim.
The first was that Mr Briggs' claim was not subject to the ordinary jurisdictional limit for most actions in the District Court of $750,000: District Court Act 1973 (NSW), s 44(d1).
The second was that the Civil Liability Act 2002 (NSW) did not apply: Civil Liability Act, s 3B(1)(f), and see State of New South Wales v Ball (2007) 69 NSWLR 463; [2007] NSWCA 71. Questions of breach of duty and causation fell to be determined by reference to the common law, rather than ss 5B-5E of the Civil Liability Act, and the duty to take care not to cause mental harm was provided by the common law as stated in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 and Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35, rather than by reference to s 32; cf Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22.
The third was that by the time he commenced proceedings, in March 2015, Mr Briggs required leave pursuant to s 151D of the Workers Compensation Act because more than three years had passed since the injury. Leave was obtained from the primary judge, and no challenge was made on appeal to that grant of leave.
The fourth was that, in addition to such benefits as Mr Briggs received upon his medical discharge from the NSW Police Force, Mr Briggs also received workers' compensation payments, totalling $241,620.58. The latter sum is required to be repaid in the event that he is entitled to damages for his employer's negligence: Workers Compensation Act, s 151A. The orders made by the primary judge, in a subsequent judgment, reflected this: Briggs v State of New South Wales (No 2) [2015] NSWDC 299.

[10]

The importance of statutory context

Only slight attention was given in either the reasons for judgment or the submissions on appeal to the statutory context against which content of the duty of care for breach of which the State was vicariously liable. But statute must be considered at the outset. McHugh, Gummow, Hayne and Heydon JJ said in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 at [19] and [21]-[22]: "The proper starting point Because the appellant's claim was framed in negligence, and because her claim was brought against her employer, it may be thought necessary to have regard only to the well-established proposition that an employer owes an employee a duty to take all reasonable steps to provide a safe system of work. From there it may be thought appropriate to proceed by discarding any asserted distinction between psychiatric and physical injury, and then focus only upon questions of breach of duty. Questions of breach of duty require examination of the foreseeability of the risk of injury and the reasonable response to that risk in the manner described in Wyong Shire Council v Shirt. But to begin the inquiry by focusing only upon questions of breach of duty invites error. It invites error because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account. ... The content of an employer's duty of care The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions. ... [Q]uestions of the content of the duty of care, and what satisfaction of that duty may require, are not to be examined without considering the other obligations which exist between the parties."
The same point was made, this time in relation to a claim of psychiatric injury suffered by a New South Wales police officer, by Gummow and Hayne JJ in State of New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 at [18]: "Because [the plaintiff] claimed damages from the State on account of events occurring during her service as a police officer, any inquiry about the liability of the State must begin by considering the statutes that governed [the plaintiff's] service as a police officer, the statutes that regulated claims against the State, and the statutes that regulated claims brought by an employee against his or her employer."
The other members of the majority, Callinan and Heydon JJ, observed at [204] that (what was then known as) the Police Service Act 1990 (NSW) and the "common knowledge of what the work of law enforcement may require" provided the context for a consideration of the respective rights and obligations of the parties. Although dissenting in the result, Kirby J agreed in terms with the passage at [18] of the reasons of Gummow and Hayne JJ reproduced above (at [93]), as did Crennan J (at [234], as I read her Honour's reasons).
More recently, a unanimous High Court in Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 at [20] and [22] stated that identifying whether a duty of care exists and, if so, its nature and scope, required consideration of the applicable legislation, and in particular whether the duty would be consistent with the legislation.

[11]

The statutory context relevant to this appeal

First, s 4 of the Police Act 1990 (NSW) creates the NSW Police Force, in which Mr Briggs served. Mr Briggs was not an employee, although the parties and the primary judge referred to him as such. Nor was the NSW Police Force his employer, despite the repeated references by the primary judge (in fact, the "NSW Police Force" is not itself a legal person).
In truth, Mr Briggs was an officer in an hierarchical, disciplined force, who was required to take an oath or affirmation of office (s 13), and whose functions were those of a constable at common law as well as those conferred by statute (s 14). Mr Briggs was a public officer charged with discretions and responsibilities in the execution of an independent legal duty. The State is not (statute aside) vicariously liable for tortious conduct of such officers. As much has consistently been held by the highest authority, commencing with Enever v The King (1906) 3 CLR 969, and summarised by Dixon J in Little v Commonwealth (1947) 75 CLR 94 at 114. Gibbs CJ observed in Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626 at 537 that the principle has been criticised by some textwriters, to which may be added a note by Z Cowen in (1953) 69 Law Quarterly Review 177. Academic criticism has continued, including by J Carabetta, "Employment Status of the Police in Australia" (2003) 27(1) Melbourne University Law Review 1, urging a re-examination by the High Court. However, at least for the purposes of courts below the High Court of Australia, it must be regarded, in Gibbs CJ's words, as "firmly established as part of the common law of Australia". It is not without constitutional significance, at least in the United Kingdom, where the separation of police officers from the executive government has been said to be "an important facet of the constitution, and a prime safeguard against the evils of a police state": W Wade and C Forsyth, Administrative Law (11th ed, 2014, Oxford University Press) at 102.
The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the NSW Police Force: s 8(1). I pass over the Minister's power of direction because it is not presently relevant, not because it is unimportant. The Commissioner has power to classify the various duties that members of the NSW Police Force are required to perform and allocate the duties to be carried out by each such member: s 8(3), and to issue instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force: s 8(4).
Secondly, the necessary focus was upon the negligent acts or omissions of the Commissioner of Police and other officers, all of whom were in the service of the Crown. The relations of employment and service are distinct, and there may be differences in other legal relations based upon them, including tort. For example, the difference between being in the service of the Crown and being a servant of the Crown was dispositive in the actions for loss of services in Commonwealth v Quince (1944) 68 CLR 227 (member of Royal Australian Air Force) and Attorney‑General for New South Wales v Perpetual Trustee Company (Ltd) (1952) 85 CLR 237 (member of New South Wales Police Force). When advising that the further appeal in the latter case should be dismissed, Viscount Simonds analysed the historical position in some detail (at 118-122) and concluded that there was a "fundamental difference" between the service of a constable and the domestic relation of master and servant: Attorney-General for New South Wales v Perpetual Trustee Company (Ltd) (1955) 92 CLR 113 at 122 and 129. The fact that police officers are not employed in the usual legal sense was said to be "trite law" in Sheikh v Chief Constable of Greater Manchester Police [1990] 1 QB 637 at 643, and Mr Carabetta's article to which I have referred commences, "It is a well-established rule of the common law that members of the police force are not 'employees'."
That said, there may be powerful reasons for some or most of the incidents of an employment relationship to apply in particular contexts. There are many similarities between police officers and employees in a large organisation or government department. For that reason, various statutes applicable to "employees" and "employers" applied to Mr Briggs and the NSW Police Force. The workers compensation legislation applicable to officers who became members of the NSW Police Force after 1 April 1988 referred to at the commencement of these reasons is one example. Another may be seen in this Court's decision in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232; [2002] NSWCA 272, holding that the word "employee" in s 53 of the Anti-Discrimination Act 1977 (NSW) should not, as Spigelman CJ put it, "be confined to situations in which there is a contract of employment, but extend to the situation of a police officer" (at [94]). A third is seen in Police Service (NSW) v Honeysett (2001) 53 NSWLR 592; [2001] NSWCA 452, in relation to liability under the Employees Liability Act 1991 (NSW). (The "Police Service (NSW)" was the name formerly given to the NSW Police Force, and s 2A, which declares a police officer to be an employee of the Crown for the purposes of the Act, was inserted by the Police Legislation Amendment (Civil Liability) Act 2003 (NSW) to put the result in Honeysett beyond doubt.) These are examples of one aspect of the "symbiotic relationship" between legislation and the common law to which Gleeson CJ referred in Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [31].
More generally, there are statements pre-dating the High Court's decisions in Koehler v Cerebos (Australia) Ltd and New South Wales v Fahy to the effect that police officers are largely treated as employees. In particular, Priestley JA's analysis in Honeysett at [30] concluded that "in many ways the conditions of service of police officers had been substantially assimilated to those of ordinary employees" and "in virtually every way police officers are treated statutorily as employees". See also New South Wales v Williamson [2005] NSWCA 352 at [7]. As a general matter, I do not disagree with those statements, noting that they are qualified, rather than universal, and that they describe the effect of statute, rather than some change in the general law.
However, those statements now fall to be considered in light of what was said in Koehler v Cerebos (Australia) Ltd. It has been suggested, under the provocative heading "Revolution: Koehler v Cerebos (Australia) Ltd", that "the High Court of Australia adopted a wholly new approach to work stress claims, one which placed much more emphasis on the duty element and its relationship with the employee's contract of employment ...": P Handford, Tort Liability for Psychiatric Damage (2nd ed, 2006, Lawbook Co) at 559-560. Whether or not that development is as revolutionary as has been suggested may be open to doubt. In Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 at [63] the joint judgment said: "the idea that, in determining the content of a duty of care, primacy must be given to identifying the relationship between the parties is a principle of long standing in the law of Australia, stemming as it does from the dissenting reasons of Dixon J in Insurance Commissioner v Joyce."
But in any event, in the passage at [21]-[22] of Koehler reproduced above, the High Court insisted that regard be had to both the legal and equitable obligations arising out of the contract of employment "and, of course, any applicable statutory provisions". Save for the special cases of the Commissioner and the NSW Police Force Executive Service, there is no contract of employment to which a police officer is a party. Instead, the relation of service is constituted by a police officer taking the oath, in accordance with s 13 of the Act, in the form prescribed by (former) reg 12 of the Police Service Regulation 1990 (which was applicable to Mr Briggs when sworn in in December 1999). It has been said, of the position in the United Kingdom, that attestation "has always been the moment at which [constables] assume their powers and privileges": Sheikh v Chief Constable of Greater Manchester Police at 647. Thereafter, until his discharge, he was required "to serve wherever the officer [was] duly directed" and "to perform such police duty as may be duly directed, whether or not during the officer's rostered hours of duty": reg 13 of the Police Service Regulation 1990, reg 9(2) of the Police Service Regulation 2000 and reg 8(2) of the Police Regulation 2008. In short, Mr Briggs' obligations were principally determined by the police duties which had been classified by the Commissioner (and the Commissioner's delegates), and the lawful orders and directions given to him to perform such duties, rather than by contract.
Because the obligations owed by and to a police officer such as Mr Briggs are principally sourced in primary and delegated legislation, as opposed to contract, adherence to what was held in Koehler v Cerebos (Australia) Ltd seems to me to require close attention to those provisions.
Take by way of example one of the matters identified by Mr Briggs in his particulars of negligence - a failure to ensure that his psychological health was regularly reviewed. Statute provided that Mr Briggs was to be medically examined during his year on probation in accordance with the regulations under the Public Sector Management Act 1988 (NSW) (Police Service Regulation 2000, reg 11), but that examination did not (at least so far as the evidence in this appeal discloses) include any psychological testing. In contrast, there is reference in S v State of New South Wales [2009] NSWCA 164 at [81] to "the practice of regular psychological assessment for officers in the Undercover Unit" (see also at [203] in the reasons at first instance S v State of New South Wales [2008] NSWSC 933). That difference ultimately reflects the way in which the Commissioner has classified various police duties. It is clear that the formulation of the content or scope of the duty of care on which Mr Briggs relies will be informed by such matters.
Thirdly, the functions of the NSW Police Force included "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way" and "the provision of essential services in emergencies": s 6. The duties of a police officer, and the matters he or she could be ordered to perform, extended to those functions. Police officers were to comply strictly with the Act and the regulation and promptly comply with all lawful orders from those in authority over them: Police Service Regulation 2000, reg 9(1); Police Regulation 2008, reg 8(1). And it was an offence for an officer to neglect or refuse to obey any lawful order or to carry out any lawful duty: s 201. It is this latter matter which most directly distinguishes the service of a police officer from the duties owed by an employee.
The answer to any issue as to the scope of a duty of care or breach must accommodate those statutory provisions: Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [60]. In particular, it is not only obvious but also mandated by statute that police officers will be exposed to traumatic events, and indeed that they may be commanded to perform duties which expose them to traumatic events. Further, some police duties are especially risky, and it would seem that special attention is given to the psychological assessment of officers who are required to perform such duties. Plainly enough, police officers are subject to "conflicting responsibilities" which, as Mason J stated in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47, must be considered in determining whether a breach of duty has been made out.
That said, the outcome of this appeal will not, ultimately, turn upon the matters identified above, which were not the subject of detailed argument. Were that not so, I would have favoured inviting the parties to make further submissions on these matters. I have mentioned them because the simplified approach taken by the parties to these issues does not displace this Court's obligation to analyse the matter correctly. "The Court is bound to give judgment according to law", as Jessel MR said in Chilton v Corporation of London (1878) 7 Ch D 735 at 740, a proposition applied by a majority of the High Court in Universal Film Manufacturing Company (Australasia) Ltd v New South Wales (1927) 40 CLR 333 at 342 and 351. However, similar issues were raised on the notice of contention, and were the subject of submissions raised by the parties.
Finally, there is no occasion in this appeal to consider whether a claim based on breach of statutory duty, in accordance with a line of decisions often associated with Dixon J's statement in O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 478, might have been made out, noting that there can be cases where a plaintiff fails at negligence but succeeds for breach of statutory duty (see for example McDonald v National Grid Electricity Transmission plc [2014] UKSC 53; [2014] 3 WLR 1197 and Veljanovska v Verduci (2014) 42 VR 222; [2014] VSCA 15 and see N Foster and A Apps "The neglected tort - Breach of statutory duty and workplace injuries under the Model Work Health and Safety Law" (2015) 28 Australian Journal of Labour Law 57). In particular, no reliance was placed upon the Occupational Health and Safety Act 2000 (NSW), which deemed police officers to be employees of the Crown and at work at any time the officer was on duty (s 134; a similar provision is now found in s 7(2) of the Work Health and Safety Act 2011 (NSW)). This may be a matter of some significance for the analysis in some future case. While it is plain that duties imposed by common law must be subject to statutes such as the Police Act, a different analysis will be necessary where statute is the source of both the exposure of an officer to traumatic situations and an obligation of a (deemed) employer to minimise a (deemed) employee's risk to health and safety.

[12]

Duty must be formulated prospectively

The fact that Mr Briggs' case was wholly founded in negligence meant that the strictures from the High Court concerning the need to formulate scope of duty with requisite precision, and to do so prospectively, applied. Most employees will only rarely face the traumatic situations which are part and parcel of the duties of a police officer, and most employees do not commit an offence if they neglect to obey lawful orders or fail to carry out any lawful duty. Senior counsel appearing for the State, who had not appeared at trial, emphasised the passages from Fahy reproduced below, which insisted on breach being assessed in light of the postulated system that should, on the plaintiff's case, have been devised or the general instruction which should have been given. First, Gummow and Hayne JJ said in Fahy at [27]: "Police officers are required to undertake tasks of a kind that few, if any, commercial employers could ask of their employees. Police officers must confront death, injury and destruction. It is they who must waken the sleeping household to tell them of the sudden death or serious injury of another. Ms Fahy herself spoke of incidents she had attended in three years of police service: a fatal plane crash, a fatal industrial accident, numerous fatal car accidents, overdoses and hangings. And as well as confronting the consequences of folly and accident, police officers must confront the wrongdoer bent upon harm to both the police and members of the public. It is tasks of these kinds that are encapsulated (s 6(2)(a), (3)(b)) by the anodyne description of a function of the Police Service as being 'the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way'. And it is tasks of these kinds that constitute the duties of a police officer and may be the subject of lawful orders to a police officer. To neglect or refuse either to obey those orders or to carry out those duties was a criminal offence. … But the [safe system of work] that was devised had to be one which did not detract from the effectuation of the statutory purposes and functions of the Police Service. Examination of the facts and arguments in this case will reveal that too little attention has hitherto been given to these considerations."
Gummow and Hayne JJ returned to the point flagged in the final sentence reproduced above at [71]-[72]: "It is the nature of that work that entails that the risk of psychiatric injury, occasioned by traumatic incidents, cannot be eliminated. It cannot be eliminated because police officers must confront traumatic incidents in the course of their duties. ... To perform the tasks that society expects of police, as those tasks were expressed in the Police Service Act, police officers must obey the lawful orders given by their superiors and must carry out their lawful duties. That is why to neglect or refuse either to obey a lawful order or to carry out any lawful duty is a criminal offence (s 201). Once the content of the postulated general instruction [namely, for officers to work in pairs and remain together where possible] is identified and set against the requirements of the Police Service Act it is evident that not to give and enforce compliance with such an instruction was not a breach of duty. That is not because the risks of psychiatric injury to police officers were and are not reasonably foreseeable. They are. The response that Shirt requires a court to identify when considering breach of duty is a response which must have regard, in this case, to the responsibilities cast on the Police Service and on individual police officers. They are the 'other conflicting responsibilities' of which Mason J spoke in Shirt and which were to be taken into account in identifying the reasonable response to the risk. In particular, obedience to lawful orders, and the carrying out of lawful duties, is of primary and determinative significance. Why that is so is illustrated by the facts of this case." [Citations omitted, original emphasis.]
The need to identify a general instruction which should have been given was put even more clearly by Gummow and Hayne JJ at [62]: "The State submitted that the relevant risk to consider in determining whether Ms Fahy had established that there had been a breach of duty to provide a safe system of work was whether 'a police officer might suffer a psychiatric injury if that officer's partner did not remain to provide support whilst the officer was exposed to trauma whilst assisting a doctor'. For the reasons given earlier, that formulates the relevant risk from the wrong perspective. It seeks to ask, in effect, whether the particular mechanism which led to the injury of which the plaintiff complained was a foreseeable risk. But breach of duty requires consideration of whether the defendant's conduct (which it is to be assumed is identified in this case as the formulation of systems of work for police officers) involved a risk of injury to the plaintiff. And here, there could be no doubt that police work involved a risk of psychiatric injury to police officers. The inquiry that was then to be undertaken was "what a reasonable man would do by way of response to the risk". The focus must fall upon how police officers should have been instructed to perform their work, not upon what steps the Police Service should have taken to provide support for officers who had been exposed to traumatic incidents. It is necessary, therefore, to identify the system of work that should have been prescribed in response to the risk of psychiatric injury." [Emphasis added.]
The other members of the majority, Callinan and Heydon JJ, likewise rejected the postulated requirement to provide and maintain a system of work requiring the presence of two police officers except when as a matter of need that was not possible: at [208]-[212]. Their Honours relied on the inevitability that police officers would encounter traumatic events in the course of their duties ("Exposure to danger and stress are almost as necessary concomitants of civil law enforcement as they are of military service") and pointed to the practical difficulties of the postulated instruction, including the possibility that the officers disliked one another, the fact that police resources are finite and that deployment is a matter for decision and adaptability at the time and in the circumstances prevailing.
True it is that the reasons of Callinan and Heydon JJ are less emphatic than those of Gummow and Hayne JJ in their insistence on the necessity to postulate a general instruction. But even if this Court is not bound by that element of the reasoning, I would nevertheless apply it. It is a consequence of the need to assess questions of breach prospectively, in relation to a numerically large body of police officers.
Further, it is not correct to reason that because a step could reasonably have been taken which would reduce the risk of injury to an employee, it was therefore in breach of duty not to take that step. This was the erroneous mode of reasoning criticised by French CJ and Gummow J in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [20]: "Her Honour considered a number of possible actions WOMA could have taken and how effective each would have been to avoid the injury suffered by Mr Kuhl. She concluded that a break box on the hose would have been the most appropriate, that it would have reduced the risk of injury and that, therefore, WOMA owed Mr Kuhl a duty to have installed a break box. Such an approach runs the risk of predetermining the outcome before considering the first important step; whether WOMA owed Mr Kuhl a duty of care to begin with and, if so, what was the scope and content of that duty. Those questions are determined by considering reasonable foreseeability and the 'salient features' of the relationship between the plaintiff and defendant. Even if it can be said that there was some reasonable course of conduct the defendant could have engaged in that would have avoided the injury suffered by the plaintiff, the defendant will not be liable unless there can first be established the existence of a duty of care with the relevant scope and content." [Citations omitted.]
Their Honours were dissenting, but in this respect their reasoning is consistent with the law applied by the majority, and, more recently, by Gordon J in Badenach v Calbert [2016] HCA 18; 90 ALJR 610 at [79]. In the same appeal, in which a solicitor was alleged to have been negligent, French CJ, Kiefel and Keane JJ observed at [32] that "[i]t cannot be reasoned from the fact that the daughter later brought a claim that the solicitor should have appreciated that this was likely to occur". Moreover, the principles stated by French CJ and Gummow J in Kuhl have been applied at the intermediate appellate court level, including by McColl JA, with the agreement of Macfarlan JA and Beech-Jones J, in Schultz v McCormack [2015] NSWCA 330 at [71], in an occupier's liability case where the duty of care owed was uncontroversial: "... to begin the inquiry by focusing only upon questions of breach of duty invites error because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account. Rather, it was appropriate to identify and define the scope of the duty of care the respondents owed the appellant, and then proceed to the issue of breach." [Citations omitted.]
Sackville AJA made the same point in Hoffmann v Boland [2013] NSWCA 158; [2013] Aust Torts Reports 82-134 at [113]: "It is a mistake to consider first what measures could have been taken to prevent the injury and to take those measures as the basis for determining the relevant duty, its scope and content."
It will be seen below that I have concluded that the reasoning of the primary judge discloses substantially the same errors identified above.

[14]

The SIDS incident

Mr Briggs was sworn in as a Probationary Constable in December 1999, and confirmed the following year. He became a Senior Constable in December 2004, a Detective Senior Constable in July 2005 and a Sergeant in 2010. His rank from time to time over the years considered in these reasons is a distraction, and without conveying any disrespect for his promotions, I have referred for simplicity throughout these reasons to Mr Briggs.
Mr Briggs married in October 2001 and the couple had a son who was born on 3 June 2003. Some two months later, Mr Briggs attended upon the death of an infant by SIDS in July 2003 in the course of his duties. This was described by the primary judge and the parties as the "SIDS incident". I will, without intending to belittle what occurred, use the same language. Mr Briggs was required to attend at around the same time as ambulance personnel, when he saw the unsuccessful attempts at resuscitation, and he had to interact with the deceased child's distressed mother for an extended period of time. As a new father himself, he was upset by those events.
Several days later, Mr Briggs attended a debriefing session conducted by an external counsellor. The session was described in the evidence as a meeting or debriefing attended by about half a dozen police officers a few days after the event, conducted by a counsellor as part of the police Employee Assistance Program, or EAP. The debriefing lasted for 15 or 20 minutes. Mr Briggs said that no one said they had any problems, that he did not think at the time that he was having any problems, and that he had said, "I had a son the same age and how lucky I am". Mr Briggs gave evidence that that was the only occasion he attended any such session.
The primary judge found that: "the traumatic exposure of the plaintiff to the SIDS incident was an event that created a predisposition in him developing further psychological reactions in the face of other events, even where such other events may have been relatively commonplace, or seemingly innocuous": at [517]. As much was common ground by the end of the trial. Counsel then appearing for the State accepted that the psychological injury in 2011 was a "recrudescence" which related back to 2003 and accepted that it was a workplace injury. However, the State maintained that "the defendant could not at any circumstance have known, given what occurred between 2003 and 2011 that there was likely to be this recrudescence in 2011".

[15]

July 2003 - July 2011

Mr Briggs attended detective training at Gosford from November 2002 and became a Detective Senior Constable in July 2005. He was stationed at Gosford in the Central Coast until 2006, on general duties, and said that almost all the time he was on vehicle patrols. This was described colloquially as being "on the trucks" - an expression which was broader than one might think, and included not only working in a "paddy wagon" but also working in a sedan. He encountered a large range of traumatic incidents, summarised by the primary judge at [72]: "During the plaintiff's time as a detective at Gosford, his work involved him being exposed to some gruesome events, including horrific murders, an instance of self-mutilation by a mentally ill person who had self-amputated his penis, suicides, the need to attend autopsies, as well as dealing with assaults and armed robberies."
Mr Briggs gave evidence that he started to feel a "little sort of dejected" and "more numb" and less pro-active, but kept those feelings to himself. The primary judge accepted Mr Briggs' evidence that the prevailing culture in the police force included "a recognised reticence on the part of police officers to volunteer to disclose such matters" (at [459]) and "not volunteering the existence of psychological issues" (at [460]).
Mr Briggs (together with others working with him at Gosford) was commended for his work, and was unaware that he had any psychological problems.
Mr Briggs separated from his wife in July 2005. From August 2006 until February 2010, Mr Briggs was stationed with the State Crime Command Gang Squad at Parramatta, and throughout that time he acknowledged that he did not encounter the same level of traumatic incidents. He was made bankrupt in around 2007 but was discharged after three years; it was not suggested that this impacted upon Mr Briggs' claim for damages. Aside from his evidence that he had "a lot of personal debt", the reasons for Mr Briggs' bankruptcy were unexplored in the evidence.
In February 2010, Mr Briggs was promoted to Sergeant and stationed at Rose Bay in Sydney, although he continued to live at Bateau Bay on the NSW Central Coast. He gave evidence that his commute (by car) could take around 2 hours. He said he had understood that Rose Bay would be a quiet posting with administrative duties and would not require him having to "go out on the trucks".
In April 2010, Mr Briggs remarried. His second wife had two young sons, aged 6 and 8 at the time. He also had shared custody of the child of his first marriage.
Mr Briggs gave evidence that, on returning after taking six weeks leave for a honeymoon, his work duties had become more onerous because of staff shortages. The result was that although he was a sergeant, he was required to go back "on the trucks". In performing those duties, he encountered a series of traumatic events, including attending the Gap on average twice a week in connection with suicides and attempted suicides. On one occasion in particular, he was personally involved in winching a deceased woman to the top of the cliff.
The primary judge stated that Mr Briggs found himself "getting heavy-handed in the execution of his duties" (at [92]), that his ability to deal with the public had declined, and that he became "snappy, intolerant and heavy-handed at times" and "quick to take offence" (at [95]). He made efforts to avoid being rostered "on the trucks". He took leave for knee surgery in December 2010 and further leave in early 2011 when his wife was pregnant.

[16]

July 2011 - the "struggling disclosure"

In July 2011, he made what was described as the "struggling disclosure" to Detective Inspector Sipos, who was based at Rose Bay Local Area Command, at the same time as he was applying for a different role as a brief handling manager. The work requested by Mr Briggs involved what was described as a "theoretical demotion", which was explained in the evidence as "he's going back to work that a senior constable would normally be assigned to". It would also have resulted in less take home pay, because he would not have received shift allowances.
The primary judge made no finding in terms as to what was said by Mr Briggs to Detective Inspector Sipos. His Honour set out the entirety of Mr Briggs' evidence in chief on this issue at [102], including the following: "Q. What did you say to Inspector Sipos? A. Well I saw that they had advertised the position for a a [sic] brief handling manager and I said to him I asked him if it was okay if I could put in for that because I was struggling and I wanted to get off the truck and I needed a break. He said to me 'It's not a sergeant's position but you know mate you can put in for it if you like and we'll see what happens'. Q. All right, now can I just ask you then. You said you used the words 'I'm struggling and I need a break'? A. Yes. Q. Were they the words you actually used? A. Something along those lines, yeah. Q. Did he ask you what it was that was causing you to be struggling? A. No. Q. So he said make an application and see how you go essentially? A. Pretty much, yeah."
Detective Inspector Sipos, who was the only witness called in the State's case, had no clear recollection of an informal conversation which had taken place some four years earlier.
The primary judge found at [104]: "... I accept the plaintiff's evidence that his struggle related to the much more fundamental issue of how he was reacting to situations in the course of his work, leading him to become intolerant, short-tempered, angry and to over-react to situations in an untoward manner. This was in the context of a progressive build-up of overwhelming feelings where he had tried to keep his emotions to himself, together with a realisation he had lost some of his professional capabilities".

[17]

July - November 2011

In July or August 2011, Mr Briggs took parental and annual leave, and on 8 August his wife gave birth to twins. He returned to work on 19 October 2011 but on 2 November 2011 applied to be transferred to the Central Coast. His letter accompanying that application went into substantial detail into the personal difficulties he was experiencing. Under the heading of "Background", he referred to his newborn twins, the fact that during his wife's pregnancy she had been admitted to hospital on a number of occasions with heart related problems, that his "being on average 2 hours away working placed great stress on my wife during the entire pregnancy", that there had been difficulties "getting the babies into a sleep pattern routine", that his wife had, towards the end of his parental leave, begun "showing signs of depression/baby blues and not coping very well" for which reason he took another four weeks annual leave. Under the heading "Comment", he said that his wife was finding it increasingly difficult to manage and was feeling helpless, that his shift patterns and travelling time resulted in his being absent from home for in excess of 18 hours, and that he was seeking a transfer to Brisbane Waters Local Area Command "on the advice of treating practitioners to my wife", in order to support her, to assist with the demands of the children, lessen the burden upon her and assist her in her recovery from depression. There was one paragraph which referred to his own difficulties: "Due to my concern about my wife and our family, I am experiencing difficulty in concentrating and sleeping. I have travelled to Sydney for work for a period of seven years and have done so without incident, however since being distracted by my current family situation I have found myself fatigued and have 'dozed off' on a number of times whilst travelling on the F3 freeway."
Mr Briggs advised that if it were necessary he was able to provide supporting documentation from his wife's treating practitioners. The letter concluded with a request that: "tenure be waived and compassionately transferred to Brisbane Water LAC, Tuggerah Lakes LAC or Police Assistance Line Tuggerah so I can continue my career within the NSW Police Force and support my wife and family".

[18]

November 2011 - the "road rage incident"

Before that transfer application was determined, an event described as the "road rage incident" took place on 16 November 2011. Mr Briggs was returning home after a 12 hour shift, in thick traffic on the expressway. He said: I was in the middle lane, it was afternoon traffic so it was quite - quite thick and heavy. There was a guy that was coming up the right‑hand lane, you know, he was hammering down and he was trying to get in front of the cars but there was traffic so he couldn't and he's come back ... he's come across my lane behind me, he's come up the left lane next to me, traffic there, couldn't get through so he's come back behind me through my lane and back up next to me and all I've done is looked at him and he's looked at me and given me the finger. And I just lost it because I, well, you know, you're being the idiot. I've done nothing wrong. But I just lost it and, you know, I started being abusive and yelling at him and then he was being a smartarse and laughing and, you know, continuing to stick his finger up which only infuriated me more. And I, you know, so I chased off after him. I tried to run him off the road and then he actually physically ran off the road and he got away. I mean I was in a little Suzuki Swift and he was in a V8 Commodore."
At that time, Mr Briggs ceased work. He complained of vomiting and diarrhoea. He saw his general practitioner Dr Galea, but neither party tendered that doctor's records. Shortly thereafter, he saw Dr Peters (who is a psychologist with a PhD), who diagnosed PTSD and whose advice extended to his compensation options ("I believe he has PTSD, I believe he should be able to get under the old legislation and we need to talk about what his position is under the new legislation later").
Mr Briggs returned to work on 17 October 2012, at Gosford (much closer to his home), working on administrative duties for four hours a day one day a week. Shortly after recommencing at work, he was informed that he would need to be interviewed by the Professional Standards Command (PSC) in relation to an internal affairs investigation, and on 5 December 2012, he was required to provide a urine sample. He ceased work on 12 December 2012, taking sick leave. On around Christmas Eve, he was told that he would be required to participate in an interview, which took place over some 8 hours in early January 2013. He was asked questions directed to his association with an associate of a motor cycle gang, whether while he was in the Gang Squad he had disclosed confidential information to gang members in return for anabolic steroids (he was told that his urine had not tested positive), and his employment in his wife's business. It will be necessary to go into further detail in relation to events after October 2012 when dealing below with the notice of contention.

[19]

The findings of breach and causation made by the primary judge

Mr Briggs' pleading was framed as a breach of the duty of care owed by the defendant in failing to take reasonable care to avoid the risks of psychological injury to the plaintiff, thereby causing, aggravating and entrenching his injury of PTSD. The following particulars were given: "(a) Failing to have the Claimant psychologically assessed and treated at any stage after his transfer to the Detectives at Gosford and General Duties at Rose Bay; (b) Failing to ensure that the Claimant's psychological health was regularly reviewed or monitored; (c) Failing to establish and maintain a safe system of work; (d) Failing to educate and warn the Claimant as to the signs of psychological injury; (e) Failing to reasonably respond to the Claimant's request for alternative duties whilst at Rose Bay in August 2011; (f) Allowing the Claimant to continue to attend suicides at the Gap; (g) Failing to arrange appropriate alternative duties for the Claimant after his emotional breakdown in November 2011; (h) Failing to establish and enforce an effective system for early detection and treatment for psychological injury caused by the Claimant's cumulative exposure to gruesome scenes of traumatic death; (i) Failing to provide a system of work whereby the Claimant was adequately monitored and reviewed and, if necessary, referred for treatment, provided with leave and/or transfer to alternative duties so that his psychological illness did not become chronic; (j) Failure to take any, or any appropriate steps to rehabilitate the Claimant back to duty; (k) Requiring the Claimant to perform duties for which he was certified unfit and thereby vulnerable to further injury; (l) Failing to provide 'wellchecks' in accordance with its own policies; (m) Failing to provide any counselling or psychological support for the Claimant; (n) Failure to debrief the Claimant following his involvement in 'critical' and otherwise traumatic incidents; (o) Requiring the plaintiff to be improperly investigated on unreasonable charges after his return to work on 'alternate duties' and whilst on sick leave, including an 8 to 9 hour interview. (p) Failing to advise the Claimant as to the outcome of the investigation referred to in paragraph (o) above."
It may be noted that all save one of those particulars is in substance an omission (the exception is the second last, which is relevant to the notice of contention). Many (such as pars (b), (c), (h) and (i)) are directed to achieving a superficially unobjectionable result, namely, the effective monitoring of Mr Briggs' psychological health), an omission which lies at the core of the findings of liability made by the primary judge. To anticipate what follows, there are two difficulties with such a case. The first is that the obligation to determine breach prospectively means that the postulated system must extend not only to Mr Briggs, but to all comparable officers (in this case, that probably amounts to all general duties police officers). However, there is no formulation of any general instruction which should have been given within the NSW Police Force in order to address the foreseeable risk of mental illness. The second is that the particulars omit any articulation of how the assessment or monitoring is to be effectively carried out. As will be seen below, that is no small thing.
Neither of those difficulties appears to have been cured throughout the trial, and, as will be seen below, they are reflected in the reasons of the primary judge.
On appeal, the parties followed the approach taken by the primary judge at [438]-[510] of classifying, for the purposes of determining questions of breach and causation, Mr Briggs' career with the NSW Police Force into the following six periods: 1. The SIDS incident on 31 July 2003; 2. The period from July 2003 until July 2011; 3. The "struggling disclosure" made in July 2011; 4. The period between August and October 2011 when Mr Briggs was on leave; 5. The period from 19 October 2011 until 16 November 2011; 6. The period from November 2011 until January 2013, when Mr Briggs was on sick leave or had returned on restricted duties, including his investigation by the PSC.
The primary judge addressed breach of duty at [427]-[511], and found that there were breaches of duty in each of the 2nd and 3rd periods referred to above, but not otherwise.
In relation to the first period, the primary judge found that there was no breach of duty following the SIDS incident in July 2003 and the EAP session conducted shortly thereafter: at [440]-[448]. His Honour accepted the evidence of Mr Briggs that neither he nor the other participating police officers were "particularly forthcoming by way of disclosure of any personal or emotional reactions to that SIDS incident" (at [442]). However, in light of his failure to make any significant disclosure, either at or following that counselling session, of being emotionally affected by the incident, and: "absent any report from … a work colleague or supervisor …, there is no reasonable basis upon which to conclude that the plaintiff's employer had actual or imputed grounds to suspect that [Mr Briggs] had incurred an unaddressed work‑related psychological injury" (at [444]), his Honour found at [446] that: "the plaintiff's employer had discharged its duty to him in the immediate aftermath of the SIDS incident by convening the EAP session and by ensuring the plaintiff's participation in that process. There is no evidence to suggest that any follow-up sessions, either individually or in a group, were indicated in the plaintiff's circumstances at that time." There was no challenge by Mr Briggs to that conclusion on appeal.
The 4th period was when Mr Briggs was on leave. The 5th period was less than a month, and there was no specific evidence of Mr Briggs being exposed to traumatic events during that time. In relation to the 6th period, the primary judge found that while what occurred was insensitive and apparently in breach of certain Police Guidelines, "no particular or identifiable breaches of the duty of care owed by the defendants can be identified" (at [507]). Mr Briggs challenged that finding by notice of contention. I return to this below.
The findings that there had been breaches of duty in the 2nd and 3rd periods identified above were made at [449]-[498]. I will need to return below to the details of the reasoning. His Honour found that in the 2nd period: "[I]t was not enough for an employer to simply place posters on the walls of police stations referring to the availability of EAP services in a police culture where there was a recognised reticence on the part of police officers to volunteer to disclose such matters" (at [459]).
Although it goes to causation, his Honour also found in this section of his reasons that Mr Briggs "would have been open to such interventions had they been offered to him. ... There is no sound reason to assume otherwise": at [460]. His Honour stated at [472] that "the above analysis is not one arrived at by using impermissible hindsight".
Turning to the 3rd period, the "struggling disclosure" in July 2011 was said to be: "a sentinel communication which in my view required exploratory attention by the representatives of the employer in the context of a stressful working environment, especially where the employer's duty of care had to be addressed" (at [483]).
Then, at [489]-[491], his Honour made a series of findings to the effect that incremental inquiries after the "struggling disclosure" would have led, more probably than not, to Mr Briggs receiving prompt professional assistance. Once again, the primary judge denied that this was "a convenient view arrived at with the benefit of hindsight": at [492].
Both findings of breach were challenged by the State, as was the finding that the "struggling disclosure" reasonably conveyed to Detective Inspector Sipos "that [Mr Briggs] was suffering from a psychiatric disorder, or that intervention was necessarily warranted".
The primary judge addressed causation at [512]-[548]. I shall return below to the details of his Honour's analysis. His conclusion was that: "the plaintiff's PTSD condition and depression, and his inability to continue in his work with the resultant impairment in his earning capacity, have been caused by, and materially contributed to, by the negligence of his employer, and then further exacerbated by the insensitive manner in which the employer dealt with him until his discharge on 25 April 2013" (at [547]).
The State challenged the findings of causation.
His Honour rejected defences of contributory negligence and mitigation (which issues are outside the scope of this appeal), and then assessed damages. The largest component was future loss of earning capacity, which was assessed on the basis of one year's full loss of earnings, with a 50% residual earning capacity thereafter. The State challenged the primary judge's assessment of damages. The State did not seek to elaborate orally upon its written submissions on damages, which themselves were relatively brief (2 pages).

[20]

Systems for dealing with traumatic events in the NSW Police Force

The State candidly acknowledged that the evidence of systems provided to support police officers was less comprehensive than might have been expected in such a case. Contrast the "many hundreds of pages" tendered in Benic v State of New South Wales [2010] NSWSC 1039 summarised at [399]-[405]. Why a different course was taken in this litigation was unexplained. Nevertheless, the evidence identified certain systems which were provided to police officers.
First, Mr Briggs on his own evidence participated in one such system shortly after the 2003 SIDS incident: the 15-20 minute collective debriefing conducted in the presence of an external facilitator.
Secondly, Mr Briggs accepted that he was aware that confidential counselling was available to police officers, once again through an external provider. Posters for that service were displayed in police stations throughout NSW, with a phone number to call.
Thirdly, a report from the NSW Ombudsman to Parliament titled "Officers Under Stress" in June 1999 identified confidential welfare and counselling services provided by the Welfare Unit and the Psychology Unit within the NSW Police Force. The report described Critical Incident Stress Debriefing Teams who conducted "debriefings" following traumatic incidents. It stated that activation of a critical incident team was mandatory in certain situations, such as the death or suicide of a close colleague in the line of duty, the use of a firearm in the course of duty, where an officer had been involved in a hostage, siege, barricade or serious pursuit, prolonged rescue work, the death of person in custody and other situations which would be "considered by most persons to be unusual and extremely traumatic". The activation of a critical incident team would be "considered" in situations such as "exposure to gruesome sites" and "the death of children".
The Ombudsman's report emphasised that although it was mandatory in certain circumstances to offer the service, there was no compulsion upon any individual officer to attend or participate. Further, to the extent that the debriefing required the officer to divulge information, plainly what was said would not be confidential.
The Ombudsman's report also identified certain narrowly circumscribed occasions in which police officers could be compelled to undergo psychological assessment.
It would seem that the debriefing in which Mr Briggs participated in 2003, following the SIDS incident, was substantially as described in the Ombudsman's report. The primary judge proceeded on the basis that that section of the report amounted to a recommendation, which had subsequently been implemented (at [384]-[385]). That was a minor error; the Ombudsman was in fact describing the actual practices within the NSW Police Force, but save perhaps for a matter arising in connection with [456] (see below) nothing turns on that.

[21]

Hegarty v Queensland Ambulance Service

The questions which were at the forefront of the Ombudsman's report, namely, the difficulties in diagnosis, the respect for individuals' autonomy and the protection of confidentiality when dealing with potential mental illness amongst employees exposed to traumatic incidents, were considered in some detail by Keane JA (as his Honour then was) in Hegarty v Queensland Ambulance Service [2007] QCA 366; [2007] Aust Torts Reports 81-919. That litigation bore some similarity to the present case, although Mr Hegarty had been an officer in the Ambulance Service rather than a police officer. Mr Hegarty's case was that his duties required him to attend many traumatic and distressing scenes. He contended that had there been an appropriate system of training for supervisors in place, signs of dysfunction in him would have been recognised and he would have accepted a suggestion to seek psychological assessment and treatment earlier than in fact he did. He further contended that if that had occurred, either he would not have developed psychiatric injuries or would have suffered them to a lesser extend: see at [40]. The resemblance with particulars (b), (c), (d), (h) and (i) in Mr Briggs' claim is clear.
Although the primary judge was referred in terms to Hegarty, the decision was not mentioned in his reasons. Keane JA's reasons contain the following insightful passage, which warrants extensive quotation: "[41] ... It must be said immediately that, while an employer owes the same duty to exercise reasonable care for the mental health of an employee as it owes for the employee's physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension."
I agree. It is a matter which is borne out by the evidence in the present case, which included that of Dr Diamond, who was critical of opinions expressed by other police officers as to Mr Briggs' mental well-being: "None of the officers have specialist or expert training or knowledge of psychological issues and, in my view, are unqualified to give opinions about [Mr Briggs'] psychiatric and psychological state."
Keane JA continued at [41]: "Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be attended with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which an employee works."
In particular, it is far from clear that psychological counselling or debriefing following traumatic incidents is appropriate in all cases. My understanding is that there is, at the least, a respectable body of professional opinion to the effect that critical incident stress debriefing ought not be offered invariably to persons who have encountered trauma. This is illustrated by a 2002 publication by the Australasian Centre for Policing Research titled "Managing the Risk of Psychological Harm for Operational Police", which states, by reference to professional literature, that: "evidence regarding the effectiveness of CISD is mixed. While some studies claimed positive benefits of early psychological intervention, other studies determined that there were no differences between participants who had received debriefing and those who had not received any intervention" (Blue 2/745W).
Although the document was sought to be tendered at trial by the plaintiff, and the State did not object to it as "part of the material that was given to Dr Diamond", as best I can see, it seems that this report was merely marked for identification at the trial and not formally tendered, although it was included in the appeal books. More recent literature to the same effect may be seen in Practice Guideline 26 "Post Traumatic Stress Disorder", published by the National Institute for Clinical Excellence for Medical Health, which includes at para 7.1, "There is a vigorous debate between those who would provide some intervention for all victims and survivors of traumatic incidents, and those who advocate waiting and targeting interventions at people likely to develop the disabling symptoms of chronic PTSD". (The publication is readily available, and the paragraph is reproduced in Benic v State of New South Wales [2010] NSWSC 1039 at [590].)
The fact that there has been a dispute documented in the professional literature is a matter which is capable of being verified by reference to a document the authority of which cannot reasonably be questioned, so as to engage s 144 of the Evidence Act 1995 (NSW), even if the document sought to be tendered by Mr Briggs included in the appeal books is not in evidence. But all that presently matters is that it is neither clear as a matter of common knowledge nor unequivocally established by evidence that debriefing or counselling is in all cases either appropriate or necessary. This is the point made by Keane JA at [41] reproduced above, and by senior counsel by reference to that paragraph in oral submissions ("In other words, is it really going to help to talk to the employee? Is it necessarily going to help? Might help with some, might not with others"). If some employees respond very well to counselling, while for others it is of no assistance and for still others it is actually counterproductive, then how is the employer to know into what category any particular employee falls?
Keane JA stated at [43]: "[43] The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer's duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff's problems. [44] ... The plaintiff's case means that the employer must be concerned, not only with non-performance by the employee as an employee, but also with possible episodes of unhappiness in the employee's private life. It is not self-evidently necessary or desirable that employees' private lives should be subject to an employer's scrutiny. [Citations omitted, emphasis added.]
More recently, it has been observed by Gageler J that a contemporary understanding of the employment relationship respects the privacy and autonomy of the employee: Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 at [151], something which must likewise apply to serving police officers.
Again, I respectfully agree, but would go further. I think that a compelling case is required before the private affairs of an employee are subjected to scrutiny by an employer. It is a large thing for an employer to direct an employee to be counselled, even in ordinary employment relations which fall short of conferring a power to issue orders which must be obeyed. It is likewise a large thing for a superior officer to direct another officer to be counselled. It may be less obvious, but it is also a large thing even to suggest that an employee or another police officer participate in counselling. For what then is to happen? Is a record to be made on the employee's file that the suggestion has been made, and if so, are the reasons for the suggestion to be recorded? Is the relevant officer even qualified, let alone well-placed, to make that assessment? Suppose the employee declines - is that to be recorded in a file and may it be considered in relation to other decisions (including future promotion and retrenchment)? Alternatively, suppose the employee accedes to the request - is he or she to report back to the supervising officer that it has occurred, and if so is he or she to state his or her perception of how effective it was? Is the employee to provide updates as to how long the counselling will take, or whether other medical or psychological assistance is being provided?
All of those matters fall to be assessed against the entirely understandable and important desire to assist persons who may be suffering from mental illness. As presently advised, I do not believe that there is any clear course of action that will be appropriate in every case. As Gummow and Hayne JJ said in Fahy at [69]: "Yet in the workplace, support may sometimes best be given by withdrawing to a respectful distance. Allowing a distressed colleague to recover composure without feeling under immediate scrutiny may be the better course. And there may be cases in which support is best expressed by silence rather than the persistently intrusive inquiry about well-being."
Employees may be, and appear to be, disaffected at work because a child is dying, or because a parent can no longer recognise them, or because a relative has been convicted of a serious criminal offence, or because a spouse has left them, or for all manner of reasons wholly unconnected with their employment. I do not say that this can never be the business of an employer. To the contrary, I can contemplate cases where such matters would be relevant to an employer or superior officer (consider for example a naval officer who had agreed to become a submariner, or a police officer who has agreed to become an undercover operative, as in S v State of New South Wales [2009] NSWCA 164). But as presently advised I struggle to see how there can be a duty to inquire about private matters in ordinary cases, as an element of an obligation to take reasonable steps to reduce foreseeable risks to the mental health of officers or employees.
Returning to Hegarty, Keane JA concluded, in relation to the contemplated suggestion that there be psychological counselling, as follows: [45] Issues did necessarily arise, however, as to the identification of a sufficient basis for the making of a suggestion by the defendant that the plaintiff seek psychological assessment and treatment. The resolution of this issue is fraught with difficulties peculiar to cases of psychiatric injury. In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer's intervention and the making of a decision to intervene. An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee's performance of his or her duties at work. [46] Employees may well regard such an intrusion as an invasion of privacy. Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee, even one who is in a supervisory position. If an employee is known to be at risk of psychiatric injury, prospects of promotion may be adversely affected and questions may arise as to the entitlement, or even obligation, of the employer to terminate the employment. Employees who are ambitious, and eager for promotion, and whose signs of dysfunction might equally be signs of frustrated ambition, might rightly be deeply resentful of suggestions which reflect an adverse assessment of the employee's ability or performance and prospects of promotion. Such employees can be expected to pursue such remedies as may be available for their grievance over the intrusion. Dissatisfaction or resentments of this kind may give rise to industrial relations issues for the employer, as well as defamation issues for other employees. A conclusion that an employer has acted unreasonably in failing to recommend psychological assessment and treatment cannot be made without recognising that the employer's decision must be made in a social, economic and legal context which includes these considerations." [Citations omitted.]
Jerrard JA and Douglas J agreed with Keane JA, both adding supplementary reasons which do not detract from what has been reproduced above.
The State placed heavy reliance on the entirety of this passage. Mr Briggs sought to distinguish Hegarty on two bases. The first was that it was said that other officers were on notice of Mr Briggs' illness; I return to this in detail below. The second was that police officers were armed, such that their mental state required a closer level of monitoring than that of an officer in the Ambulance Service. That does not, in my view, detract from the commonsense force of the problems encountered when a claim of breach of duty is made based upon failing to provide psychological assessment and treatment. Indeed, similar considerations of dignity and privacy were articulated in the House of Lords, in the context of a claim by a school teacher, in Barber v Somerset County Council [2004] UKHL 13; [2004] 1 WLR 1089 at [29] and [65]. As will be seen below, this was insufficiently attended to in the reasons of the primary judge.

[23]

Uncertainty as to the findings made by the primary judge

I have difficulty understanding precisely what the primary judge meant by the final two sentences reproduced above. I well understand that his Honour was saying that more needed to have been done. But what, precisely, was it which caused what occurred to have fallen "well short" of the minimum required? 1. The first difficulty is that the whole of Mr Briggs' service over this eight year period has been grouped together, and there is no finding that in relation to any particular traumatic event an EAP session should have been convened. That seems to have reflected the way the case was particularised and run at trial. 2. Secondly, what were the "other protocol arrangements" to which his Honour referred? 3. Thirdly, what was meant by the words "make EAP and other protocol arrangements"? What appears to be a grammatical slip gives rise to an ambiguity which is hard to resolve. If those words are to be understood as referring to making counselling available then the evidence established that it was available, and at all times throughout this eight year period. If those words are to be read as referring to the making available of something more - a stronger suggestion falling short of a direction, then precisely what it is is unstated. If alternatively "make" is to be read as "mandate", such that his Honour considered that Mr Briggs ought to have been required to participate in a number of EAP sessions or some other treatment, then that is a very large step. 4. Fourthly, irrespective of whether the primary judge had intended a suggestion or a direction, all of the difficulties identified by Keane JA in Hegarty, including the invasion of privacy, the dignity of officers, the difficulties in diagnosis, are unaddressed.
The ambiguity continued in [456], which purported to explain the qualification in [453] and [454]. That paragraph was in the following terms: "In my view, the qualification that must be applied to the circumstances reviewed in the above paragraphs in relation to this period necessarily arises because over the course of the plaintiff's 8 years of service from the time of the SIDS incident until his attempt to transfer to non-operational duties in August 2011, he had attended many incidents which justified the convening of critical incident team responses, or at least the provision of EAP debriefing, if not the actual provision of psychological assistance."
Once again, I am not sure what the primary judge meant. So far as I can see the EAP in which Mr Briggs participated in 2003 following the SIDS incident corresponded to the Critical Incident Team Responses mentioned in the Ombudsman's report (which the primary judge incorrectly regarded as a recommendation). There was no evidence that Mr Briggs was exposed to circumstances which mandated the convening of a Critical Incident Stress Debriefing Team (such as the death of a colleague, the use of a firearm, a hostage or siege, or the death of a person in custody). It may be acknowledged that exposure to situations which would be "considered by most persons to be unusual and extremely traumatic" is less definitive, but there were no specific findings by the primary judge that that is what had occurred. The impression gained from reviewing Mr Briggs' evidence is that, putting the SIDS incident to one side, there was no other especially traumatic incident which fell outside the ordinary and essential work of police officers on general duties. In saying that, I am not intending to downplay the recurrent exposure to suicides and needless violence which is the melancholy but ordinary duty of many police officers. I am also aware that some commentators are of the view that the causes of stress suffered by police officers are considerably more complex: see R Guthrie, "Sick leave and workers' compensation for police officers in Australia" (2010) 17 Journal of Law and Medicine 816 at 818-821.
It was not part of Mr Briggs' case, nor did the primary judge find, that there had been a breach of the existing protocol with relation to mandatory Critical Incident Stress Debriefings. What then did the primary judge mean by "the convening of critical incident team responses", "the provision of EAP debriefing" and "the actual provision of psychological assistance"? His Honour seems not to have attended to the critical question: was there an obligation for Mr Briggs' superiors to direct him to attend confidential or collective counselling in respect of any particular incident to which he had been exposed. The primary judge did not identify incidents which would differentiate the tasks undertaken by Mr Briggs in this period from the general tasks which are the ordinary lot of police officers on general duties: see Fahy at [27], [61] and [71]-[72]. Nor was there identified what were the signs of which Mr Briggs' superiors were to be taken to be aware that required that very significant and intrusive step? If not, and if his Honour intended to convey only that services should have been made available to Mr Briggs on a voluntary basis, then it was necessary to attend to the facts that (a) confidential counselling was made available, and (b) Mr Briggs' own position seems to have been that he would only participate if he were directed to do so (see further below).
The difficulty recalls that identified by Gummow and Hayne JJ in Fahy at [69]: "There was no evidence led at trial that suggested what content should be given to this expression [viz, 'providing psychological support']. If, as seems very likely, what one person should do to give psychological support to another, varies with the individuals concerned and the circumstances that give rise to the need for support, it is evident that the expression has, and can have, no fixed or certain content."

[24]

Failure to identify a general instruction

Ultimately however it is unnecessary to express a view as to precisely what the primary judge considered should have occurred, because I have concluded that on any view, his Honour's reasoning is formulated from the same erroneous perspective identified by Gummow and Hayne JJ in Fahy at [62]. To reiterate this basal point, the focus of the legal analysis must be upon how officers should have been instructed to perform their work. The primary judge, contrary to what was required by Gummow and Hayne JJ in Fahy, did not identify the system of work which should have been prescribed in response to an identified risk of psychiatric injury.
Substantially the same error is found at [457]-[458]. The gist of those paragraphs is that "some sort of basic inquiries" ought to have been made: "Those events suggested that some sort of basic inquiries ought to have been made of the plaintiff as to how he was coping with his emotions following such events. In my view, the employer's duty of care in such circumstances was not discharged by the employer leaving such matters to the plaintiff, or expecting the plaintiff to make disclosures to the effect he was affected by the traumas to which he had been exposed, or was experiencing difficulty in that regard. The employer's duty of care was not one which was delegable to the plaintiff for him to decide whether he needed to invoke EAP or critical incident processes aimed at providing psychological assistance to police officers. In my view, the described circumstances which prevailed in that period did not constitute a reasonable response of the kind that would be expected from an employer in the position of the police force by way of response to a foreseeable risk of the plaintiff suffering psychological harm if work stresses were not professionally addressed."
What is more, the concluding sentence in each of those paragraphs reproduced above amounts to reasoning based on hindsight. In order for liability to be made out, what was required was the identification of some different, specified system of work which, if it had been implemented and maintained, across the NSW Police Force as a whole, would have been a reasonable response to the foreseeable risk of psychological injury. As Hayne J said in Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [124] and [126], in terms which have often been followed: "The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be 'nothing'. When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered. That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury."
In Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 at [20], Spigelman CJ said: "The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness."
Mr Briggs relied on this Court's decision in S v State of New South Wales [2009] NSWCA 164. That decision turned on very special facts. The police officer was acting as an undercover operative, an especially stressful duty, and the evidence did not suggest that other types of work "involved the stresses and dangers of the same magnitude as undercover work": at [60]. Indeed, the evidence in that case was that was a "high risk specialist area", each applicant was required to undergo psychological assessment prior to appointment, and attend a training course which included sessions on stress management involving psychologists and a psychiatrist: at [63]. I do not consider that S v State of New South Wales assists in the present case; to the contrary it illustrates the importance of the classification of duties by the Commissioner and the selective use of the power to conduct a mandatory psychological assessment in place in the NSW Police Force.

[25]

What would Mr Briggs' response have been?

Both the Ombudsman's report, and the reasons of Keane JA in Hegarty, were sensitive to the important questions of autonomy, dignity and confidentiality involved in the provision of psychological and psychiatric assessment and counselling. So too was the cross‑examination of Mr Briggs at trial. Mr Briggs candidly acknowledged that not only was he aware of the EAP available to police, but that he had taken part in it in 2003 following the SIDS incident, and that he was also aware of the service for confidential counselling provided by an external provider (which was advertised on posters in police stations). The cross examination continued: "Q. So what I'm driving at Mr Briggs is in the period from 2003 up until - just dealing with the period up until starting at Rose Bay, you were aware that there were facilities and services available within the force and part of the force if you were struggling form a psychological point of view that you could make use of? A. Yes. Q. You didn't do that? A. Correct. Q. I don't mean that as a criticism, Mr Briggs, but just as far as the facts are concerned if, for example, 2005, 2006 your superintendent said, 'Briggsy, you've got to [do] these every six months in you go and go and have a talk to this person.' You're directed to go and do it: you would have gone and done it? A. Yes. Q. You would have sat there, I take it, and listened to what you described as the touchy feely stuff that would have been said to you? A. Yes. Q. You wouldn't have fessed up or told them there was anything wrong with you? A. I would have. Q. But there was nothing wrong with you? A. No, I would have said how I was feeling at the time. I may not have known that anything was wrong with me but I would have said how I was feeling at the time. I'm not a professional."
Senior counsel for Mr Briggs accepted, properly in my view, that the primary judge had misunderstood this evidence. His Honour stated at [459]-[460]: "I accept the evidence of the plaintiff that he was not provided with any such debriefing or counselling services in that period of 8 years. The glib proposition was put to the plaintiff that if such services had been made available to him at such times, he would not have availed himself of "the touchy feely stuff": T132.30 - T1342.37 [sic]. In my view, it was not enough for an employer to simply place posters on the walls of police stations referring to the availability of EAP services in a police culture where there was a recognised reticence on the part of police officers to volunteer to disclose such matters. I accept the plaintiff's evidence that he would have been open to such interventions had they been offered to him: T132.37 - T132.42. There is no sound reason to assume otherwise. In that regard, there is a material difference between the police culture of not volunteering the existence of psychological issues and the need for an employer to provide facilitative arrangements for such matters to be identified and addressed in the proper discharge of the duty of care owed."
The primary judge then reiterated that conclusion at [463] as follows: "I consider that over time, if the plaintiff had been offered such psychological debriefing opportunities, it is more likely than not that he would have availed himself of them, just as he had done in relation to the SIDS incident in 2003. I therefore do not accept the defendant's submissions to the contrary."
However, Mr Briggs' evidence was squarely to the contrary. He stated that he would have attended any assessment which he was directed to attend, but, contrary to what the primary judge said at [460], the plaintiff's evidence was that he did not attend any form of counselling although such was available to him throughout the entirety of his service in the Force.
It may be that the primary judge was alive to the nuances distinguishing between compulsory assessment and making available voluntary counselling. His Honour said at [462] that: "Recognising that there was such a culture of non-disclosure, it was the responsibility of the plaintiff's employer to create suitable opportunities for such feelings to be ventilated so as to either counteract the effect of that culture, or to work around that culture in the proper discharge of the duty of care it owed to its police officers."
Once again, the difficulty with this approach lies in the need to identify, with some precision, what it was that should have been done, in order that the duty of care might be properly discharged. The error is materially identical to that identified by Gummow and Hayne JJ in Fahy at [49], in criticising the conclusion that there had been a breach of the employer's duty to provide reasonably safe conditions of employment. Their Honours said: "It is to be noted that this conclusion did not state expressly what it was that the reasonable employer should have done. In particular, the safe system of work was not identified. All that was said was that the particular events described constituted a departure from the provision of a safe system of work."
This same point was made at [51], and again at [62], which concludes: "It is necessary, therefore, to identify the system of work that should have been prescribed in response to the risk of psychiatric injury."
Substantially the same errors appear in the reasons of the primary judge. To reiterate, simply finding that "suitable opportunities for such feelings to be ventilated" is insufficient. At no stage did the primary judge state expressly what should have been done. The same criticisms as in Fahy of the imprecision of "providing psychological support" may be made of the language of the primary judge. Most importantly, at no stage was there a finding as to what instruction should have been given by the Commissioner to officers in the NSW Police Force, over and above the systems which were already in place.

[26]

Impermissible hindsight

I have mentioned one instance of reasoning based on hindsight above. At [472]-[473], the primary judge maintained that his reasoning process had not been arrived at by using impermissible hindsight. Those paragraphs maintained that "the police management hierarchy" must have been aware that officers were exposed to traumatic events "which in some instances warranted a supervisory consideration of ascertaining how the plaintiff was coping and reacting to those stressful circumstances": at [472]. To much the same effect, at [473], the primary judge said that a reasonable employer of police officers "would have given such contemporary consideration to the emotional wellbeing of its police officers who had been exposed to traumatic events" and that "[s]uch supervisors should have taken the well understood and available steps for harm avoidance by arranging debriefing and other protocol measures in order to address the potential for adverse impact on officer wellbeing following exposure to significant traumatic events".
I return to what was said by Keane JA, with the agreement of the other members of the Queensland Court of Appeal, in Hegarty at [47] (a passage more recently approved by the same court in Woolworths Ltd v Perrins [2015] QCA 207 at [151]): "Further, 'litigious hindsight' must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law's insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee's mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard."
Senior counsel for Mr Briggs did not seek to explain precisely what instruction should have been given throughout the NSW Police Force, or otherwise to respond to the submission that, notwithstanding his protests to the contrary, his Honour had been engaged in impermissible hindsight‑based reasoning.

[27]

Breach - third period (the "struggling disclosure")

In light of the foregoing, this separate breach found by the primary judge may be addressed relatively concisely. The same errors identified above are repeated, although it must be acknowledged that there was an important distinction between what occurred in July 2011 and what had occurred over the previous eight years. Mr Briggs was in fact applying for what was regarded as a theoretical demotion, while at the same time he used the word "struggling" to his superior officer. It is to be borne in mind that he had been stationed at Rose Bay for a little less than 18 months, in which time he had enjoyed six weeks leave following his remarriage, and a deal of other leave during his wife's pregnancy.
However, there are significant difficulties with this aspect of the case. First, although it may be presumed that there would once have been a documentary record of Mr Briggs' application, it was tendered by neither party. Nor was secondary evidence given of it. Yet the nature of his application and, especially, the reasons given by Mr Briggs in support would have been central contextual matters to identifying what was to be taken from what he said to Detective Inspector Sipos.
Secondly, it is undoubtedly true that at this time there were difficulties in Mr Briggs' private life. His wife had unexpectedly fallen pregnant, with twins, and had been unwell during the pregnancy. He was also still working twelve hour shifts two hours' drive from his home. Later that year, Mr Briggs volunteered his wife's condition and his lengthy commute as the reason for a transfer to the Central Coast. I would readily infer that all of those matters were known to Detective Inspector Sipos when he used the words "struggling". Detective Inspector Sipos must have known of his lengthy commute, and must have been aware of the lengthy period of leave he had taken while his wife was in hospital. These matters were apt to have placed an important and non-work-related context against which a statement that Mr Briggs was "struggling" was to be considered.
Thirdly, although the primary judge did not make precise findings as to what was said, and in what context, it was not suggested that Mr Briggs had been direct. The finding by the primary judge at [104] that the "struggle" related not to the lengthy commute between Rose Bay and the central coast, nor to Mr Briggs' personal position, but to "how he was reacting to situations in the course of his work" does not assist. Indeed, it serves to distract. The question must be what should an officer in the position of Detective Inspector Sipos have been expected to understand from what was conveyed to him by Mr Briggs, rather than what was in Mr Briggs' mind at the time. As the State pointed out, what mattered was the words said and what Detective Inspector Sipos understood or ought to have understood from those words. Detective Inspector Sipos gave evidence that: "Q. Unusual, wasn't it? A. I don't know if it's unusual. In this organisation there are opportunities where you don't have to work nightshift necessarily. That's not unusual not to want to work nightshift. I didn't like nightshift either."
I agree with the State that the "struggling disclosure" did not reasonably convey that Mr Briggs was suffering from a psychological disorder, or that intervention was warranted.
Fourthly, the primary judge relied on the following exchange: Q. If such a conversation took place then as a duty officer to whom such a request was passed you had an obligation to investigate what it was that he was struggling with; did you not? A. Yeah, that could be correct."
The primary judge relied on that as a concession, saying at [109]: "In the context of the plaintiff's disclosure that he was struggling, I find that disclosure ought to have operated as a signal or a cue to his superior officer that something may be amiss with the plaintiff, and that this needed to be investigated or explored by discussion with him, in accordance with the obligation conceded by Inspector Sipos: T234.28."
Let it be assumed, favourably to Mr Briggs, that the question, "If such a conversation took place" equated to what was said by Mr Briggs, and that the answer, "That could be correct" is to be regarded as an unequivocal acceptance of his having an obligation to investigate. Even so, the legal question of whether there was an obligation to investigate or explore by discussion is a matter for the Court, which cannot be established by the admission of a witness: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [25], [40], [70]-[71] and [173]; Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 at [66]-[69]. I do not consider that the "concession" materially supports the finding by the primary judge.
His Honour then addressed the "struggling disclosure" extensively: "[482] For the reasons outlined in the preceding paragraphs, that conversation was obviously a difficult one for the plaintiff to have initiated with Inspector Sipos. From the plaintiff's description, which I accept, he intimated to Inspector Sipos that he was 'struggling'. I accept that the plaintiff was intimating that he was struggling with his duties, and he wanted to get 'off the truck'. [483] In my view, in the circumstances, that was a sufficiently direct statement to a supervising officer that could be viewed both literally and metaphorically, but either way, it was a sentinel communication which in my view required exploratory attention by the representatives of the employer in the context of a stressful working environment, especially where the employer's duty of care had to be addressed. [484] In my assessment, this was a moment when Inspector Sipos ought to have become aware, from the fact that the plaintiff was seeking lesser duties, with lesser remuneration, at a level of duty that was below his rank, training and experience, that this raised the question as to why the plaintiff was seeking to pursue such a course. [485] In my view, that conversation with Inspector Sipos ought to have raised a question in the mind of a reasonable employer whose duty it was to consider matters affecting the wellbeing of police officers, as to why the plaintiff was seeking such a change of duties to a lesser role. I consider that such a question ought to have arisen for consideration in the mind of Inspector Sipos as a result of that July 2011 conversation. [486] Furthermore, the question should have been followed-up in the plaintiff's situation because of the particular employment environment that he was in, and where it was a known aspect of the police culture that discussing or disclosing personal matters, or disclosing the effect work stresses were having on the individual, were subjects that were generally avoided as a matter of practice. [487] In my opinion, a reasonable 'man manager' and delegate of the plaintiff's employer at that time would have taken stock of and considered the plaintiff's situation, and would have also looked at the plaintiff's rosters and considered why the plaintiff had been seeking to roster himself off operational duties. Instead, the plaintiff was not questioned as to why he wanted to get 'off the truck' and take an effective demotion. [488] The follow-up questioning of the plaintiff's request for other duties did not necessarily require the convening of a formal meeting for that question to be explored in a managerial way. Simple questions aimed at eliciting the plaintiff's reasons would not have been difficult to initiate, starting, for example, with 'Why?'."
Senior counsel for Mr Briggs clarified that what he contended for, following the "struggling disclosure", was merely some "simple questions", namely, that there was an obligation upon Detective Inspector Sipos to say, "Mate, is something up?" and nothing more. He said that if such a question had been asked, then: "the likelihood is the plaintiff would have told him about his difficulty dealing with members of the public. It goes no further than that but that is a significant warning sign ..."
I cannot agree with this. First, the best evidence of what Mr Briggs would have said, had any more direct inquiry been made, is what he in fact said a few months afterwards, which was to point to other factors, such as the length of his commute and the position with his family (his application dated 2 November 2011 referred to the fact that "my wife fell pregnant unexpectedly with twins", that she had been "admitted to hospital on a number of occasions due to heart problems" and that his being "on average 2 hours away working placed great stress on my wife during the entire pregnancy").
Secondly, let it be supposed, favourably to Mr Briggs, that he had said that he did not wish to deal with members of the public. I do not see how that should have put Detective Inspector Sipos on notice that there was some underlying psychiatric injury which required further investigation. Indeed, it is not apparent from the evidence that any response would have revealed a risk of injury even to a qualified psychologist.
Thirdly, it is to be recalled that a defendant is not negligent merely by failing to take a course of conduct which would have eliminated the risk of harm. Unless it be shown that the defendant was acting unreasonably in failing to take that course, negligence is not established: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [38]. This was part of the ratio of this Court's decision in Shoalhaven City Council v Pender [2013] NSWCA 210 at [52]-[54] (McColl JA), [98] (Barrett JA), [188]-[190] (Ward JA).
Fourthly, despite the protestation in the reasons to the contrary, I cannot but see an element of hindsight reasoning in this portion of the analysis. Was Detective Inspector Sipos really to say, "I know you've got personal issues, and we all encounter some tough moments on the truck. I really think you should have some counselling"? Was he to record a note in Mr Briggs' file saying that he might have psychological issues? Was he to record Mr Briggs' response to the suggestion? Was he to tell Mr Briggs that he was recording it? Was Mr Briggs' response a matter to which he ought to have regard in recommending the outcome of Mr Briggs' application for a transfer which accompanied the "struggling disclosure"? As I have sought to indicate above, these are extremely difficult questions, having regard to Mr Briggs' privacy and dignity and autonomy. Insufficient regard was paid to them by the primary judge.
Senior counsel for the State advanced the following general criticism, in light of the reasons of Keane JA in Hegarty, of the findings made by the primary judge: "His Honour's approach, and I say this with great respect, has got an element of paternalism in it. It tends to treat police officers not as individual agents and people doing a responsible job and holding a commission to do so but as passive victims who have got to be managed in a particular direction, independently of or perhaps even contrary to their own inclinations."
I respectfully agree. I acknowledge that some questions of autonomy are less important in the relationship between employer and employee, as Gummow, Heydon and Crennan JJ noted in CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; [2009] HCA 47 at [38], a result which would apply to officers in the NSW Police Force. But I do not consider that the importance of the matters identified by Keane JA above, squarely directed to the employment relationship, should be downgraded for that reason. To the contrary, I agree with Lord Rodger (who gave the examples of a university lecturer who hoped to make a breakthrough in deciphering an ancient language or unravelling a secret in genetics) that: "there must be situations where, just as an adult cannot be required to undergo medical treatment against his will, he is entitled to continue working at high pressure, even though he runs the risk of damaging his health, whether mental or physical": Barber v Somerset County Council [2004] UKHL 13; [2004] 2 All ER 385 at [29].

[30]

Reasoning of the primary judge

The primary judge was critical of what had occurred after Mr Briggs had returned to work on restricted duties in October 2012, and in particular of the way in which the PSC investigation had been conducted, and formed the view that it caused Mr Briggs to suffer further harm. His reasoning is at [540]-[546]. His Honour said that three matters "served to exacerbate and entrench Mr Briggs' psychological illness". The matters were the scepticism of Mr Briggs' psychological disability, the "insensitive management of the plaintiff's return to work" and "the damaging effect of the intervention of the Professional Standards Command in target testing the plaintiff for drug use, and then proceeding to interview the plaintiff whilst he was ill, psychologically vulnerable, and unfit": at [541].
The notice of contention is confined to the third of those three matters, the conduct of the PSC investigation. About that, the primary judge's reasoning was as follows (at [544]-[546]): "As to the circumstances of requiring the plaintiff to undergo a supervised urine test at work, this had the significantly demoralising effect that further damaged the plaintiff in the psychological sense in that he was made to feel humiliated and for a short time thought of taking his own life, in response to the way in which he was treated, including the challenge to his integrity. Finally, the actions of the Professional Standards Command, in subjecting the plaintiff to an interview whilst he was unfit, in which unsubstantiated allegations were the subject of prolonged questioning, where he was unable to face his accuser and clear himself, had the effect of tipping the balance. The result was the plaintiff's anger levels had increased. He acquired a sense that he had been betrayed and abandoned by his employer. Those events had the effect of completely destroying any remaining goodwill and trust that he had for the police force as an employer. I accept Dr Diamond's opinion that these events caused the plaintiff to suffer further harm: Exhibit "F", p 137. Those events also made the plaintiff unemployable in the police force. This was later recognised in his discharge on medical grounds without a reference that reflected his good and unblemished service as a police officer. In my view, these latter considerations have resulted in a significant loss of earning capacity on the plaintiff's part. In that regard, the plaintiff's circumstances changed from being on sick leave, and in receipt of workers compensation payments in circumstances where there was reason to hope that the police return-to-work and rehabilitation policies could be employed to assist the plaintiff in a return to work, to circumstances where instead, the police force felt it had no further use for his services, and had no place for him, despite its rehabilitation policies. In my view, this latter predicament would not have arisen but for the described intervention of the Professional Standards Command without due sensitivity to the plaintiff's illness, and apparently without regard to Police Complaint Handling Guidelines."
Notwithstanding those findings, the primary judge declined to find any breach of duty in the conduct of the PSC investigation (or for that matter the other events which occurred after 16 November 2011). Mr Briggs maintains that findings of breach should have been made, and seeks to apply the findings of causation (notably, those in the paragraphs reproduced above) to sustain the judgment in his favour.

[31]

Four alleged breaches in the notice of contention

Mr Briggs' written submissions were directed to Guidelines published in May 2008 for the investigation of complaints involving the conduct of a NSW Police Officer. It was submitted that there were four matters in respect of which the primary judge should have been satisfied that the PSC investigation breached the Guidelines: (a) in failing to advise Mr Briggs of the complaint allegation in September 2012, (b) in target testing him in a humiliating manner; (c) in insisting that he attend a directed interview on around Christmas Eve when it was known that he was on sick leave and (d) failing ever to inform Mr Briggs of the results of the target testing or of the investigation (written submissions dated 26 August 2016, par 10). Mr Briggs submitted that those breaches should be "regarded as a breach by the Appellant of its non-delegable duty to the Respondent" (par 11).
It is convenient to observe two matters at the outset. The first is how different this aspect of Mr Briggs' case is from the balance of the appeal. Mr Briggs' case of negligence over the eight years between 2003 and 2011 focusses upon the insufficiency of measures to identify and treat a psychological injury suffered by him, but which was unknown to him and others in the NSW Police Force. In contrast, the notice of contention is based upon the PSC investigation, of which Mr Briggs was notified on 7 November 2012, almost a year after he had ceased work and had been diagnosed with psychological injury. He had been on sick leave for 11 months, and it was on the 4th day after returning to work on 17 October 2012 (his duties were four hours a day one day each week) that he was notified of the inquiry. Plainly enough, substantially different considerations attend to the duty imposed on officers in the NSW Police Force for breach of which the State is vicariously liable, in dealing with an officer who has been identified as psychologically ill and who has just returned to work on highly restricted duties after almost a year's absence, as opposed to failing to identify and treat an officer who, unbeknownst to himself and others in the force, is suffering from mental illness. This difference was starkly illustrated by Box Hill Institute of TAFE v Johnson [2015] VSCA 245, where a claim against a fellow-employee was dismissed because he was not on notice of Mr Johnson's condition (see at [33]), but the employer was liable because of the documents filed with its human resources department. Obviously, the considerations of privacy and autonomy identified by Keane JA in Hegarty apply with much less force where an employee or officer has already supplied medical certificates: see Box Hill Institute of TAFE at [67]-[69].
The second threshold matter is that it is quite plain that the PSC investigation cannot itself have caused Mr Briggs' condition, which had already been diagnosed. And it cannot be the case that the whole of the judgment can be sustained by success on the notice of contention. Most obviously, the claim for past economic loss for periods preceding the investigation cannot stand, even if the notice of contention be upheld.
However, it will not be necessary to address the problems of causation and quantification which would arise if the notice of contention succeeded, because, for the following reasons, I do not consider that any aspect of the award of damages can be sustained by the notice of contention.
As the State submitted, the starting point is statute. Part 8A of the Police Act deals elaborately with complaints and investigations, and it is clear that the Guidelines are applicable to such investigations (for example, the first "Key administrative decision" stated in the Guidelines is "Is the matter a Part 8A complaint?"). Section 145 of the Police Act, which is within Part 8A, provided that: "Conduct of investigation (1) The police officer or police officers carrying out an investigation: (a) must carry out the investigation in a manner that, having regard to the circumstances of the case, is both effective and timely, and (b) in carrying out the investigation, must have regard to any matters specified by the Commissioner or Ombudsman as needing to be examined or taken into consideration."
I will proceed on the assumption, favourable to Mr Briggs, although not established by the evidence, that the procedures in the Guidelines are matters which attract s 145(1)(b). That said, I accept the State's submission that the Guidelines themselves (which are mostly addressed, consistently with their name, in terms which are not mandatory) cannot defeat the statutory obligation to carry out the investigation in a manner that, having regard to the circumstances of the case, is both effective and timely.

[32]

First alleged breach

The first alleged breach is the failure to advise Mr Briggs of the complaint allegation in September 2012. Mr Briggs gave evidence that he was contacted in June 2012 by an officer from internal affairs about his playing football while on sick leave. Mr Briggs said that he made an inquiry with the Professional Standards Command, with an officer whose name he could not recall, about the investigation. He gave this evidence in chief: "Q. What were you told? A. They can't tell me. All they said it was an inspector, he said, "Yes, we need - want to speak to you, do you want to be interviewed?" and I said, "Well, what's it about?" and he said, "I'm not at liberty to say." I said, "Okay, well you're going to have to speak to my doctors." And that's the breadth of the conversation." That statement was not elaborated on in cross‑examination. Putting to one side the testing for anabolic steroids, Mr Briggs was told nothing further about the scope of the investigation until around Christmas Eve.
The Guidelines on which Mr Briggs relies are relevantly in the following terms: "... the subject officer should be: made aware they are the subject of a complaint unless there are valid reasons for withholding this information advised of the complaint allegation, where determined appropriate given an opportunity to respond to the allegation provided with regular updates of the progress of the investigation (timely regular information is essential to minimise officer anxiety) advised of the outcome of the investigation ..."
I am not persuaded that the failure to advise of the nature of the complaint in June 2012 or in the following few months, or otherwise prior to Christmas Eve 2012, was a breach of duty. Mr Briggs was told that there was a question about whether his medical certificate permitted him to play football (he was at the time involved in playing football, including on one occasion with a police force team). He was told of the matters as to which he would be interviewed in advance of the interview itself (see below). The time that elapsed between the conversation referred to above, and the communication around 24 December 2012 is to be assessed in light of the fact that Mr Briggs was either on sick leave, or else on highly restricted duties throughout this period. I would readily infer that of the various investigations being conducted at that time, others would have reasonably been perceived to have been more urgent, and that it was reasonable to await Mr Briggs' return to limited duties before taking the investigation further. It is not established that the delay amounted to a breach of the Guidelines, let alone a breach of duty.

[33]

Second alleged breach

The second aspect of the notice of contention concerns the targeted testing of Mr Briggs for anabolic steroid use. This occurred in December 2012, by a urine test conducted in the women's toilets at the police station, by a female officer. Mr Briggs complained that he felt belittled, embarrassed and shocked by the testing, and drove down towards a suicide spot in Terrigal. Mr Briggs relies on the following passage in the Guidelines: "Subject officers are entitled to have complaints made against them dealt with in a swift, fair, impartial and equitable manner and are entitled to have the complaint handled discreetly."
This aspect of the notice of contention is ill-founded. Section s 211AA(1) in Part 12 of the Act provides that: "An authorised person may require any police officer who is on duty in accordance with a roster to provide a sample of the police officer's urine for the purpose of testing for the presence of steroids. The selection of police officers for testing pursuant to this subsection is to be conducted on a targeted basis, as determined by the Commissioner."
Although the Guidelines apply to complaints under Part 8A, I do not consider that they have application to the targeted testing for anabolic steroids, something which is expressly and specifically authorised by s 211AA. Instead, Divisions 4 and 5 of the Police Regulation 2008 dealt with the appointment of authorised officers and the conduct of testing (see now Police Regulation 2015, Part 5), which further confirms the inapplicability of the Guidelines. To the extent that Mr Briggs complains about a non-compliance with the Guidelines in relation to the testing for anabolic steroids, the claim is ill-founded in law.
That is sufficient to reject this aspect of the notice of contention, but I would add that in any event, although the primary judge was critical of the insensitivity with which this testing was conducted, that falls short of establishing a breach of duty, as his Honour with respect correctly appreciated. It cannot be the case that there is a duty to avoid subjecting officers to indignity and stress in performing targeted testing for drugs of police officers (for example, notice of obtaining samples obviously cannot be given); that would contradict the statute: Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [60]; Hunter and New England Local Health District v McKenna (2014) 253 CLR 270; [2014] HCA 44 at [29].

[34]

Third alleged breach

The third aspect of the notice of contention was the requirement, notified on Christmas Eve 2012, that Mr Briggs attend an interview while he was on sick leave. The interview itself took place in early 2013. The matter of which Mr Briggs complains is being told, on 24 December 2012, that he was required to submit to an internal affairs interview notwithstanding that he was still on sick leave. His evidence was that he asked whether it was a criminal or a departmental matter (in the latter, but not the former, the officer could be directed to answer questions), and was told: "We need to interview you criminally. However, if you don't wish to be interviewed criminally, you will be interviewed under direction departmentally."
Mr Briggs indicated that he would not proceed under a criminal interview, and was told that "Then we will proceed under direction and interview you departmentally".
Mr Briggs asked, and was told, that the interview would be about four matters: inappropriate association, unlawful access and disclosure, use of anabolic steroids and unauthorised secondary employment. Mr Briggs was aware of his right to have a support person at the interview, but declined to have one ("Yeah, I'm sure they told me about it, but I just - I went down for the interview").
Once again, it seems clear that in carrying out an investigation, there can be no duty to avoid all mental harm. The nature of an investigation, and in particular a directed interview, is that it may cause stress. Moreover, it is clear from the Guidelines alone that directed interviews may need to take place while a person is on sick leave. This subject is dealt with in terms at pages 59-61 of the Guidelines under the heading "Interviewing officers on sick leave and suspended from duty".
Mr Briggs did not give any particulars of the portions of the Guidelines alleged to have been breached; instead, his submissions identified the entirety of those pages which deal with the undoubted power to conduct a directed interview while an officer is on sick leave. The gravamen of his complaint was that "it could not possibly be contended that the topics about which he was interviewed were such that great urgency attached to the need, if any, to interview him" (written submissions dated 26 August 2016, par 4). But it is clear that the investigation had, by then, been proceeding for some months, it was clear that the opportunities to interview Mr Briggs at work throughout that time had been limited, and Mr Briggs did not return to work after 12 December 2012, and it was not clear when, if at all, he would do so. There was an obligation (albeit one that was qualified) in the Act for the investigation to be conducted in a timely manner. The Guidelines themselves provide (p 46): "Section 145 of the Police Act requires an officer conducting an investigation to conduct the investigation in a timely and effective manner having regard for the circumstances of the complaint. The NSW Police Force has set a time frame of 90 days for the completion of all CMT managed investigations."
I do not consider that it is shown that there was a breach of the Guidelines, still less a breach of duty, in notifying Mr Briggs that a directed interview would occur while he was on sick leave.
The primary judge was critical of the failure by the State to show that advice had been sought from the Police Medical Officer, in light of the following provision in the Guidelines: "If the officer to be interviewed produces a medical certificate, advice should be sought from the Police Medical Officer"
Contrary to the reasons of the primary judge at [405], that provision appears not to have applied. It applies to "criminal interviews", at which an officer will not be directed to answer questions, and Mr Briggs elected not to subject himself to such an interview. However, similar provision, albeit in less mandatory terms, is made for liaising with an officer's treating doctors in the case of non-criminal interviews.
But in any event, it is for Mr Briggs to make out his case of breach of duty. Insofar as it is alleged that there was noncompliance with the Guidelines by failing to seek advice from the Police Medical Officer, the onus lies with him to demonstrate that. There is no reason to think that a single subpoena would not have sufficed to demonstrate that no such advice was sought. Mr Briggs adduced no evidence to that effect.

[36]

Further issues arising on notice of contention

Had I been of a different view, there would be at least two further matters which confront the notice of contention, as well as the difficulty determining what damages flowed from it.
The first arises from the State's reliance on s 213 of the Police Act, which is in the following terms: "213 Protection from personal liability A member of the NSW Police Force is not liable for any injury or damage caused by any act or omission of the member in the exercise by the member in good faith of a function conferred or imposed by or under this or any other Act or law (whether written or unwritten)."
The State did not rely on that section in its defence, as it should have: UCPR r 14.14 and see Benn v State of New South Wales [2016] NSWCA 314 at [60]-[62]. There was therefore no occasion for Mr Briggs to make the serious allegation that there was an absence of good faith. There is no suggestion that there was a want of good faith, in following up the suggestion by a psychologist that an officer who suffered an episode of road rage and who was physically fit might have been misusing anabolic steroids.
In his written submissions in reply, Mr Briggs did not complain of the failure of the State to plead the section. He submitted that the section "does not absolve the defendant from liability for the negligent acts of its servants or agents, whether such acts were performed in good faith or not". My present view is that that is right, but not for the reasons given in Mr Briggs' submissions. I think it is right because of s 10(2) of the Law Reform (Vicarious Liability) Act 1983 (NSW), which provides that "For the purposes of determining whether or not a person is vicariously liable in respect of a tort committed by another person, any statutory exemption conferred on that other person is to be disregarded:" see Kable v State of New South Wales [2012] NSWCA 243; 293 ALR 719 at [52]‑[54]. In light of the fact that neither party referred to what I presently regard would have been the critical provision, had this point been dispositive, I would have invited further submissions from the parties.
Secondly, even if I be wrong as to breach, the onus then lay upon Mr Briggs to demonstrate that he suffered harm by reason of the way in which the PSC investigation was conducted which would not have been suffered had it been conducted in accordance with duty. That is to say, it would be necessary for him to establish additional harm, over and above the existing mental illness (from which he suffered prior to the PSC investigation), which was caused not by the fact of the PSC investigation, but by the way in which it was conducted in breach of duty (it will be noted that the notice of contention is narrower than the case as particularised). I am doubtful that such a finding is open on the evidence.
The evidence to which the written submissions refer illustrates the difficulty. The passage relied on by the primary judge at [545] (reproduced above) is an opinion that the PSC investigation caused harm. The only evidence to which Mr Briggs points is a slightly later paragraph in Dr Diamond's report, which focusses on the nine hour interview in January 2013. Neither of those matters pick up the breaches alleged in the notice of contention (in particular, no complaint is particularised in the notice of contention as to the length of the interview; instead it is the notification of the interview on Christmas Eve which is criticised), and neither is directed to identifying how the way in which the PSC investigation was conducted, as opposed to the fact that it was conducted, caused injury to Mr Briggs.
Because nothing turns on this, and because these issues were barely addressed in oral submissions, I do not express a concluded view on this question of causation. For the reasons already given, I do not consider that any aspect of the damages awarded in favour of Mr Briggs can be sustained on the basis of the notice of contention.

[38]

Causation

First, as noted in relation to the grounds dealing with the findings of breach, there was material error in the finding that, had a suggestion been made for him to undertake psychological counselling - either at some unspecified period between 2003 and 2011, or at the time he made the "struggling disclosure", Mr Briggs would have availed himself of that opportunity. The finding was based on a misreading of Mr Briggs' testimonial evidence, and failed sufficiently to have regard to the contemporaneous evidence best seen in the letter accompanying Mr Briggs' transfer application later in 2011.
Secondly, the whole of the reasoning of the primary judge in relation to causation for the period from 2003 until July 2011 was at [525]-[527] as follows: "After the plaintiff's exposure to the SIDS incident, between mid-2003 and mid-2011, he also attended upon numerous other work-related stressful events in the ordinary course of policing. Those attendances would have triggered the need for critical incident and EAP interventions of the kind contemplated by the applicable policies in force, and according to knowledge reposed within the management hierarchies of the NSW Police Force: Exhibits 'K' and 'M'. The successive failures of the responsible police management hierarchies to invoke and apply those policies to address the plaintiff's exposure to work-related stressful events over a period of 8 years meant that the plaintiff was not provided with the available means by which to obtain appropriate de-briefing, assessment, counselling or monitoring to cushion him against the potentially damaging effects that could foreseeably and cumulatively arise from the individual stressful circumstances to which he had been exposed over time. In those circumstances, the effect of those stresses continued to accumulate and impact on the plaintiff unabated so as to cause him to become jaded and impaired in his ability to control his emotional reactions. In those circumstances, I find that the changed and jaded behaviours in the plaintiff as were described by him were materially contributed to, and therefore in the legal sense, relevantly caused by those accumulated and unaddressed circumstances that arose from the identified breaches of the duty of care owed to the plaintiff in that period."
In oral submissions, the State emphasised the absence in the expert evidence of opinions as to what outcome would have occurred had intervention taken place earlier. There was said to be no evidence at all of what would have happened had steps been taken in the period between 2003 and 2011. Of course, were there to have been such evidence, it would have been necessary to identify, with some precision, what those steps would have been. There is force in the criticism.
Thirdly, the evidentiary position was different in relation to the "struggling disclosure". There was evidence squarely on point in Dr Diamond's report, which referred to the "struggling disclosure" in terms: "For a Sergeant of Police to choose to alter his role to that extent, one could expect a senior officer to make inquiries about the motivation for such a change. This did not occur according to Mr Briggs. At that stage the history is that Mr Briggs was significantly affected by his underlying psychiatric illness. Nothing was done about it at that point. Failure to act at that point, in my opinion, did materially contribute to his current psychiatric condition."
The primary judge relied on that evidence. The State submitted that that opinion, although unobjected to and uncontroverted, should have been given no weight. I would reject that submission. The opinion was admitted without objection and without cross-examination and where no submission was made to the contrary to the primary judge. It is not illogical or inherently inconsistent; cf Hull v Thompson [2001] NSWCA 359 at [21]. I am also conscious of the need for caution where medical evidence uses the language of causation: State of New South Wales v Burton [2006] NSWCA 12; [2006] Aust Torts Reports 81-826 at [89]-[91]. Even so, I would not accept the State's submission that there was error in relying on this evidence.
However, there is a further problem that arises by reason of the timing of the "struggling disclosure". Suppose a suggestion had been made in July 2011 following the "struggling disclosure", to commence counselling, and Mr Briggs had been amenable to that request. Would he have taken any steps before the birth of his twins? Would he have taken any steps while on family leave? If no to both of those questions, would any steps taken thereafter have had any impact at all, given the facts that Mr Briggs returned to work on 19 October 2011 and the "road rage" incident occurred four weeks later on 16 November 2011? It is not necessary for me to express a concluded view, but the difficulties are obvious.

[39]

Damages

The State made essentially three submissions on damages. First, it criticised the reasoning to the effect that significant aspects of the loss of earning capacity were attributable to the PSC investigation, which was not found to have been a breach of duty. For example, the primary judge had said at [546] that: "[T]he plaintiff's circumstances changed from being on sick leave, and in receipt of workers compensation payments in circumstances where there was reason to hope that the police return-to-work and rehabilitation policies could be employed to assist the plaintiff in a return to work, to circumstances where instead, the police force felt it had no further use for his services, and had no place for him, despite its rehabilitation policies. In my view, this latter predicament would not have arisen but for the described intervention of the Professional Standards Command without due sensitivity to the plaintiff's illness, and apparently without regard to Police Complaint Handling Guidelines."
Secondly, the State criticised the finding of the sudden conversion in earning capacity from a 100% loss to 50% earning capacity precisely one year after judgment ("it is hard to understand how that conversion in earning capacity could have occurred overnight").
Thirdly, the State said that the findings of future earning capacity were unsupported by evidence, and inconsistent with evidence that Mr Briggs had been employed in his wife's business East Coast Surfboards (ECS). For example, it was put that: "There was evidence that Mr Briggs was representing ECS by regularly travelling to visit its manufacturers, and also by demonstrating at trade shows. This travel was intrastate, interstate and even overseas - he went to China ("many times"), Florida ("twice"), Bali ("a few times") and Thailand. ... In early 2013 Mr Briggs had joined with two others to form a syndicate to purchase a hotel. He was a keen surfer and continued to play rugby league while he was off work."
I would reject the State's first submission. Let it be assumed that Mr Briggs' psychological condition was caused by tortious conduct for which the State is vicariously liable, and worsened by subsequent non-tortious conduct. It has not been shown that there was a new intervening event, or that the whole of the damage suffered by the time Mr Briggs was discharged was too remote.
The short answer to the balance of this submission is that the State chose not to cross-examine the expert evidence tendered by Mr Briggs. For example, Dr Robinson rated his employability as "5" for the purposes of Chapter 11 of the Permanent Impairment Guidelines and concluded "In my opinion he is not employable". Dr Peters' opinion was "I don't think Ryan will, in fact, be employable in the foreseeable future". In the light of that evidence, Mr Briggs conceded at trial that he would accept a finding of 50% loss of earning capacity. It was amply open to the primary judge to accept that concession. True it is that there is a measure of arbitrariness in the finding of an initial total loss of earning capacity for one year, but once again I see no appellable error in the primary judge assessing future economic loss on this basis, in light of the concession coupled with the unchallenged opinion evidence of total incapacity referred to above.
These grounds do not arise, but if they did, I would allow the appeal in part based on ground 1 (causation), but dismiss ground 4 (damages). I acknowledge that I have not reached a conclusion on all aspects of the challenge to the findings of causation. However, it is clear that it would be difficult to do so, and having considered the matter in accordance with Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12], I think it is undesirable to attempt to do so without the benefit of submissions on the point.

[40]

Orders

I am conscious that the conclusion I have reached is that a man who was found to have been seriously injured at work through something entirely foreseeable - sustained exposure to traumatic events - is unable to obtain damages. But that merely exposes the difference between Mr Briggs' undoubted entitlement to workers compensation, and the additional hurdles which must be surmounted in order to render the State liable for damages for negligence. In Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 318, Windeyer J (with the agreement of all other members of the High Court) said of injury caused in employment that: "The vigorous assertion of [the obligations to 'maintain a safe system of work' and 'not to subject him to unnecessary risk'] may sometimes obscure for juries the essential simplicity of the issue in a common law action for negligence. It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. That is not so." That proposition - which is both trite and binding - has particular application to psychological illness, which is difficult to detect, difficult to attribute causally to the workplace, and gives rise to serious issues relating to the individuals' autonomy, dignity and privacy of the individual.
Mr Briggs himself was ignorant of the psychological illness which he has been found to have. Of course, with the benefit of hindsight one wishes that he and his colleagues had been more perceptive. But if the question of breach is to be addressed prospectively, as it must, and in relation to the thousands of police officers on general duties in the NSW Police Force such as Mr Briggs, then the answer must be given by reference to (a) a specific system of work or general instruction which should have been put in place in order to address the risk of psychological injury which is inherent and unavoidable in policing and (b) demonstrating that Mr Briggs' undiagnosed injury would more likely than not have been detected had such a system of work or instruction been in place. No such system was formulated by the primary judge, and any such system would have to have had regard to important values of police officers' autonomy, dignity and privacy. That is the essence of my conclusion that the primary judge erred in finding a breach of duty for which the State was liable.
Since writing the above, I have read the judgment of McColl JA. I respectfully disagree with footnote 39. Human dignity, privacy and autonomy are central values in the legal system, and are reflected in many areas of law; Gageler J's observation is a reflection of one aspect in which an employment relationship is informed by an employee's privacy and autonomy.
I do however substantially agree with the concluding paragraph of her Honour's judgment. Personal observations, unsupported by evidence, concerning the manner in which employers should formulate systems of work, are ordinarily unhelpful. But I do not agree with what may be implicit in that paragraph, namely, that the way in which I have concluded that privacy and autonomy inform questions of duty and breach in this case is merely my own personal observation. Those are enduring values within the legal system, manifested in a range of areas of judge-made and statutory law (equitable protection of confidential information and privacy legislation are obvious examples). These values necessarily extend to negligence. As much is obvious from the fact that the law permits licensed clubs to sell alcohol and tobacco and provide poker machines, and is confirmed by parts of the Civil Liability Act 2002 (NSW) (notably, Division 5 of Part 1A concerning recreational activities). As McHugh J said in Perre v Apand (1999) 198 CLR 180; [1999] HCA 36 at [114]: One of the central tenets of the common law is that a person is legally responsible for his or her choices. It is a corollary of that responsibility that a person is entitled to make those choices for him or her self without unjustifiable interference from others. In other words, the common law regards individuals as autonomous beings entitled to make, but responsible for, their own choices."
One way in which these values manifest themselves in the law of torts was explained by McHugh J in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR; [2004] HCA 16 at [78], in relation to the general immunity from liability for foreseeable purely economic loss in circumstances where a person is legitimately protecting his or her social or business interests. McHugh J said, "This particular immunity from liability reflects the common law's concern for the autonomy of the individual and its desire to give effect to the choices of the individual by not burdening his or her freedom of action."
The values of autonomy and privacy are squarely relevant to the working out of the questions of duty and breach in a case such as the present. Here the plaintiff's claim directly intrudes upon those values, but is unaccompanied by anything grounded in evidence to suggest that the intrusion is warranted, let alone to sustain the conclusion that a failure by the plaintiff's superior officers to intrude is unreasonable. My reasoning is not based merely on personal observation. Nor is my reasoning merely based on an application of the reasoning of the Queensland Court of Appeal in Hegarty, although that decision is entitled to the deference stated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135]. My reasons also reflect the fact that the Sisyphean task of achieving coherence in the law requires regard constantly to be had to its central tenets and enduring values, in the same way as may be seen in the judgments of Gageler J and McHugh J to which I have referred.
I propose that the appeal be allowed, orders 1-3 made on 23 October 2015 and 1-7 made on 16 December 2015 be set aside, and in lieu thereof there be a judgment for the defendant. It would appear from order 5 made on 16 December that part of the judgment sum has been paid to Mr Briggs, so there will be a need for repayment. Prima facie, costs should follow the event, although there may be scope for submissions about special costs orders, as well as the possibility of a certificate under the Suitor's Fund Act. The orders I propose will permit the parties to be heard about these matters, and include a facility to apply for further time if that is necessary having regard to the end of term.
The orders I propose are:
Appeal allowed.
Set aside orders 1-3 made on 23 October 2015 and orders 1-7 made on 16 December 2015 and in lieu thereof, there be judgment for the defendant.
Within 7 days, or such longer time as may be granted by a single Judge of Appeal on application by either party, the parties are to file and serve agreed minutes of any further orders, or, in the absence of agreement, the orders which they propose and short submissions in support of those orders, with a view to all remaining issues being dealt with on the papers.

[41]

Endnotes

I would note that in Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 (Tame) (at [276]) Hayne J observed that "the order in which the constituent elements of the tort of negligence are considered at the level of theoretical analysis (first duty, then breach, and only then, damage) is often better inverted when considering a particular claim." His Honour cited cases of psychiatric injury as ones which fell within his statement (with which Gaudron J agreed) in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 (Modbury) (at [105]) that: "[105] In cases … where the extent of the relevant duty is not clear, it is useful to begin by considering the damage which the plaintiff suffered, and the particular want of care which is alleged against the defendant. Asking then whether that damage, caused by that want of care, resulted from the breach of a duty which the defendant owed the plaintiff, may reveal more readily the scope of the duty upon which the plaintiff's allegations of breach and damage must depend." His Honour appears to have moved away from that view when he joined in the plurality's reasons in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 (Koehler), a claim by an employee to recover damages for psychiatric injury (see (at [19] - [21])).
Cf State of New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 (Fahy) (at [60]) per Gummow and Hayne JJ.
Briggs v State of New South Wales [2015] NSWDC 235 (at [428]), referring to Modbury (at [13]) per Gleeson CJ. In a context analogous to the present case (cf Leeming JA (at [50] - [57]), Hayne J expressed the view (Tame at [281]) that "[w]here there is a relationship between plaintiff and defendant, such as that of employee and employer, and psychiatric injury is suffered in consequence of that relationship, it may readily be concluded that the relationship is such that the duties of care owed one to the other include a duty to take reasonable care to avoid inflicting psychiatric injury", while recognising (at [283]) that "[i]n any particular case, there may be real and lively debate about whether an employer ought reasonably to have been aware of the particular fragility of an employee".
Primary judgment (at [429]), referring to S v State of NSW [2009] NSWCA 164 (at [59]), which, in turn, applied Koehler and Fahy.
See [59] per Macfarlan JA (Beazley and Giles JJA agreeing).
Cf Leeming JA (at [121]).
See Leeming JA (at [95] - [97]).
(at [132] - [137]).
Primary judgment (at [452], [454]).
See Fahy (at [69]) per Gummow and Hayne JJ, referred to by Leeming JA (at [137]).
(see [138] - [142]).
Fahy (at [169]) per Kirby J (footnotes omitted).
Tame (at [185]) per Gummow and Kirby JJ.
Ibid.
Ibid (at [170]); see also White v Chief Constable of South Yorkshire Police [1999] 2 AC 455 (White) (at 503) per Lord Hoffmann, speaking of "the ebb and flow of tort liability for psychiatric injury".
King v Philcox (2015) 255 CLR 304; [2015] HCA 19 (at [15]) per French CJ, Kiefel and Gageler JJ, referring to Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 (nervous shock "too remote") and Chester v Council of Municipality of Waverley (1939) 62 CLR 1; [1939] HCA 25 (nervous shock outside the scope of the relevant duty of care).
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 (at 395); [1970] HCA 60 (Mount Isa Mines).
Tame (at [186]) per Gummow and Kirby JJ.
Ibid (at [186], [192]); such mechanisms were also seen to reflect a judicial approach of "cautious pragmatism", being "more or less arbitrary conditions which a plaintiff had to satisfy and which were intended to keep liability within what was regarded as acceptable bounds": White (at 502) per Lord Hoffmann.
Ibid (at [18]) per Gleeson CJ, (at [51]) per Gaudron J, (at [189] - [191] and [196]) per Gummow and Kirby JJ.
Ibid (at [190]).
See Tame (at [183]) per Gummow and Kirby JJ, (at [14]) per Gleeson CJ; see also Morris v KLM Royal Dutch Airlines [2002] 2 AC 628; [2002] UKHL 7 (Morris) (at [47]) per Lord Hope of Craighead (Lord Mackay of Clashfern agreeing) recognising that "the distinction between mental shock and bodily injury was never a scientific one." In Morris (at [49]), Lord Hope accepted that the "branch of medical science … concerned with psychiatric disorders and disturbances is still in the process of development [and] is not yet fully understood"; see also (at [152] - [154]) per Lord Hobhouse of Woodborough (Lord Nicholls of Birkenhead agreeing).
See Morris (at [157]) per Lord Hobhouse of Woodborough. No sensible suggestion could be advanced that Lord Hobhouse's observation is not applicable in this country.
[2010] NSWSC 1039 (at [576] - [597]) (Benic).
(at [122]).
Benic (at [596] - [597]).
Fahy (at [61]).
New South Wales Ombudsman, Special Report to Parliament, Officers Under Stress (June 1999) (Ombudsman's Report), referred to in Fahy (at [61]), in the primary judgment (at [383]) and by Leeming JA (at [113] - [115]).
Ombudsman's Report (at 7).
Ibid (at 8).
Ibid (at 13 - 14).
[2007] QCA 366; [2007] Aust Torts Reports ¶81-919 (Hegarty).
Hegarty (at [20]) per Jerrard JA. One of the allegations in Hegarty was that during the time Mr Hegarty worked for the Queensland Ambulance Service, his supervisors and senior officers did not receive the requisite training and that a properly trained supervisor of him would have recognised his complaints as possible signs of stress, and would have suggested to Mr Hegarty that he approach Priority One or otherwise be assessed professionally: Ibid (at [21]). Like Mr Briggs, however, Mr Hegarty did not communicate critical information which would have revealed unequivocal signs of dysfunction to such properly trained personnel: Ibid (at [26]); see also per Keane JA (at [62], [78]), the latter reference quoting the trial judge. Douglas J described the Priority One system as "a serious attempt to discharge the obligations placed on the defendant as an employer [to exercise reasonable care]": Ibid (at [109]).
Ibid (at [58]) per Keane JA. Professor Bryant's evidence that the Queensland Ambulance Service should have trained its supervisors to identify individuals who were displaying signs of dysfunction, such as avoidance, concentration difficulties, or irritability, was not challenged by the State, which argued, however, that Mr Hegarty had not demonstrated those identifiable signs to his fellow officers or superior officers: Hegarty (at [28]) per Jerrard JA; see also (at [60] - [61]) per Keane JA. Keane JA did say (at [88]) that the State also submitted that no sufficient basis was established to support the conclusion that there was a system, recognised as efficacious, which a reasonable employer would have adopted to train its supervisors. However his Honour determined it was not necessary to resolve that subsidiary argument. The State's appeal was upheld because Keane JA (Jerrard JA and Douglas J agreeing) held that even if the relevant staff had been trained as had been recommended, the plaintiff did not exhibit the "observable and salient indicators" which should have alerted them to intervene: see Hegarty (at [56], [94], [102]).
(at [69]).
(at [44] - [46]).
Leeming JA (at [124] - [128]).
Hegarty (at [43]).
Cf Hegarty (at [44]). The remark Gageler J made in Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 (at [151]) concerning the "contemporary understanding of the employment relationship, which respects the privacy and autonomy of an employee as consistent with continuation of employment" was made in a workers' compensation case in which the question was whether injuries an employee sustained when struck by a falling light fitting while engaged in sexual intercourse during an interlude in an overall work period arose out of, or in course of, the employee's employment. It was expressed at a high level of generality and cannot, in my respectful view, cast light on the discharge of the NSW Police Force's duty of care to police officers.
Second Reading Speech to the Workers Compensation Amendment Bill which became the Workers Compensation Amendment Act 1997 (NSW), New South Wales Legislative Council, Parliamentary Debates (Hansard), 3 December 1996.
See Workers Compensation Act 1987 (NSW), Sch 6 (Savings, transitional and other provisions), Pt 19H (Provisions consequent on enactment of Workers Compensation Legislation Amendment Act 2012), cl 25 and cl 26; see generally WorkPac Pty Ltd v Thearle [2016] NSWCA 303.
Mount Isa Mines (at 396).
Tame (at [194]) per Gummow and Kirby JJ. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2016

State of New South Wales v Briggs

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