State of New South Wales v Fahy

Breaches of duty at time of incident 40 Before noting the factual elements said to involve insensitive or dismissive conduct, and lack of support, it is convenient to note one aspect of the plaintiff's own history with the Police Service. At the time of the incident, the plaintiff was 25 years of age. After completing her training, she had some three years operational experience prior to August 1999. According to the trial judge (Judgment, p 8): "During her experience as a police officer she had, on a number of occasions, perhaps a dozen or more, been exposed to quite distressing and perhaps gruesome sights as part of the ordinary discharge of her duties as a police officer. She was apparently, by bad luck, often in that position, or at least perceived to be more often in that position than a number of other officers at Green Valley; the result of her experience being that she had acquired the nickname 'Dr Death'. It appears, on the evidence, that she had, by and large, been able to deal with those distressing circumstances by a combination of professional cool-headedness and the assistance and support of various officers with whom she was paired at the particular times when these events occurred. By the time these events occurred she was an officer with three years operational experience in general duties and had acquired, by then, a reasonable level of experience of traumatic incidents." 41 There were five specific actions which were said to constitute unsupportive, insensitive or dismissive behaviour on the part of more senior officers. First, her "buddy", Senior Constable Evans, left the surgery almost immediately after they had entered, stating that he was going outside. There was some question as to whether he gave a reason at that time, namely that he needed to attend to the crime scene, but his Honour accepted that he did not. This 'abandonment' of the plaintiff by her senior partner was said to be in direct contravention of the principles underlying the buddy system, which required officers to be paired whilst on operational duties, not only to share the activities involved, and to provide physical protection for each other, but also to be supportive in stressful situations. Thus the plaintiff gave evidence that, although Senior Constable Evans had been a close colleague prior to the incident, her feeling of abandonment and the fact that he had not been there to share the trauma, meant that she was unable to discuss her reactions with him after the incident. 42 The other four actions each comprised insensitive or unsupportive behaviour on the part of Inspector Whitten. Thus, the second action involved Inspector Whitten putting his head inside the surgery door, whilst the victim was being treated, surveying the scene and then leaving without inquiring whether the plaintiff needed assistance or asking how she was coping. 43 The third action occurred after the ambulance arrived and the plaintiff came out of the surgery with the victim, without her hat on. Inspector Whitten told her "in a peremptory way" to put her hat on because there were media present. It was at about that time that she sought and obtained permission from the Inspector to take a vehicle and pass on messages to the victim's wife and convey her to the hospital to which her husband had been taken. 44 The fourth action was the direction received from Inspector Whitten, whilst she was breaking the news to the victim's wife and arranging to transport her to the hospital, to return directly to the crime scene. The reason for countermanding the earlier permission was not explained, as Inspector Whitten did not give evidence. Part of the reason may have been that the plaintiff went with another, more junior officer, and not with her partner on the shift, Senior Constable Evans. 45 Fifthly, she complained of Inspector Whitten's refusal to permit her to stay at the crime scene after the completion of her shift. In the words of the trial judge (p 13) "she was summarily or peremptorily dismissed for the evening, with a curt reminder that the Inspector was not prepared to authorised any overtime for her simply to remain at the crime scene". 46 Although Senior Constable Evans was called and gave evidence, Inspector Whitten did not. In relation to the Inspector's behaviour, the trial judge concluded (p 65): "The steps taken, for example, by Inspector Whitten, as I have indicated, are conceivably explicable for proper operational reasons, but his absence from the witness box leads more firmly to the conclusion that his manner was simply grossly insensitive and verging on a deliberate degrading of the situation of the plaintiff who, to his knowledge, had been engaged in what can be described, without hyperbole, as a life and death situation." 47 Similarly, in relation to the conduct of Senior Constable Evans, his Honour concluded that there was no sufficient operational demand which justified him abandoning his junior officer in the surgery. In that regard, his Honour assessed the circumstances relevant to that period of the evening, and concluded (p 36): "There was, in other words, a significant job to be done [in the surgery], and which a second officer in the room might well have done, that is, to relieve the plaintiff of the obligation of having to do two jobs at once while, at the same time, providing not only that measure of practical support but also a measure of emotional support in having the buddy present." 48 Further, his Honour concluded that it would have been open to Senior Constable Evans to return at any time within the 7 to 9 minutes that he was absent in order to inquire how the plaintiff was progressing or to indicate why it was that he needed to remain away from the surgery. The consequence of his 'abandonment' of the plaintiff was, his Honour held, "compounded" by the fact that Inspector Whitten looked into the room observed what was occurring "and left without a word or without seeking any indication from the plaintiff as to whether she was able to deal with the matter on her own": p 37. 49 Given the material available to the trial judge, his Honour's conclusions on the basis of that evidence could not, in my view, be seriously challenged. The real question was to identify the scope of the duty owed by the police officers to the plaintiff and, if that duty had been breached in these circumstances, to determine the effect of the breach on the plaintiff's mental health. 50 Before addressing those questions, it is necessary, however, to identify a further breach of duty relied on by the plaintiff, namely the failure to provide proper and adequate support and counselling in the days immediately succeeding the incident.

Provision of support after incident 51 The second element of the plaintiff's case was that the Police Service had, by 1999, expressly recognised that stress problems could rise from traumatic incidents and had made specific provision for what should be done in the case of "critical incidents". There was a dispute as to whether the events of 25 August 1999 fell within that description, as used in Police Service directions, but his Honour did not treat the scope of the duty as so limited, an approach which was well open to him. His Honour held (at p 39) that "in this case there was a complete or utter failure to implement those procedures". 52 As his Honour later concluded that "the negligent act and omissions of the defendant materially contributed to the on-set of the post-traumatic stress disorder" it is important to identify which acts or omissions were found to be negligent. At pp 61-62, his Honour held: "Thus, the plaintiff was left without support, both during and after what was, on any view of it, a very traumatic event. It is, in my view, clearly foreseeable that such a course of treatment could materially contribute to the on-set of, or the severity of, post-traumatic stress disorder, … . Given the buddy system, and the existence of programs recognising the risk of the development of post-traumatic stress disorder for police officers engaged in traumatic events or incidents, it amounts to a lack of reasonable care on the part of the defendant, both at the scene of the incident on 25 August 1999 and, secondly, in the aftermath, especially in the period between 25 August and early September when the plaintiff went on leave. During the latter time the defendant either knew, or ought to have known, that the plaintiff was expressing an adverse reaction to her experiences on the evening of 25 August 1999, and the absence of any inquiry, information or support during that period, served to exacerbate her perception of a lack of support from her colleagues and superiors engendered by her experiences, both in the surgery itself and around the crime scene, on the evening of 25 August 1999. The defendant through its officers, was negligent in failing to observe and/or act upon the observations, such observations as were made and/or failed to inform her of forms of help available to her in the circumstances." 53 The term "it" in the second paragraph quoted above may reasonably be understood to refer to the lack of support discussed in the previous and subsequent paragraphs. So far as the "aftermath" is concerned, the findings can be divided into two parts: first there was a complaint that assistance which should have been given routinely following a critical incident was not given and, secondly, to the extent that assistance depended on knowledge of the plaintiff's state of health, there was a finding that relevant officers knew or should have been aware of her adverse reaction to the incident. These matters should be dealt with separately. 54 What precisely should have been done immediately following the incident was not identified by his Honour in terms. The evidence contained a report of the Ombudsman of May 1998 which had recommended: "The Police Service should take immediate steps to ensure that Critical Incident Stress Debriefing teams are always used following critical incidents and that the commanders of police involved in critical incidents are appropriately involved in this process."

According to the coverage identified in the report, the present incident would appear to fall within the category of "exposure to gruesome sights" and "extended involvement in an incident with potential danger to people", both of which categories would require the activation of a debriefing team to be "considered". On the other hand, if the incident involved a situation that entailed "prolonged rescue work", or a situation "which would be considered by most people to be unusual and extremely traumatic", then debriefing was mandatory. 55 Given that the Ombudsman's inquiry into welfare arrangements was conducted during 1998 and her report published in June 1999, whereas the medical evidence relied on at trial was given in June 2004 and February 2005, an issue arises as to what steps should reasonably have been required of the Police Service in August 1999 as necessary in fulfilment of a duty to take reasonable care of officers exposed to traumatic incidents, absent specific indications of adverse reactions. His Honour accepted the weight of the medical evidence, that psychological debriefing was now thought generally to be of limited value and potentially harmful in some cases. Other evidence which his Honour accepted involved the provision of more informal "social support" after the event. 56 A second issue concerned the finding that the Police Service was, or should have been, aware of adverse reactions of the plaintiff. As to actual awareness, the plaintiff's roster indicated that she undertook normal duties the following day, then had two days leave and then two further rostered days of normal duties. There followed a rest day and a leave day, then two days of station duties. She then had two rest days and went on annual leave on 2 September 1999. Accordingly, she was only on duty for five days between the date of the incident and her annual leave. At some stage, described in her evidence as "two weeks after the incident", the plaintiff said that she knew she was not coping and went to see two education officers. She stated: "Because I am of Catholic faith, I asked them for the police chaplain's numbers so I could have someone to talk to."

She indicated that she had said nothing by way of explanation other than "things are a bit rough" or something along those lines. 57 In cross-examination the plaintiff was asked: "Q. You didn't tell either of those two officers why you wanted to contact the police chaplain, did you? A. I was too scared I would cry. … Q. The reason why you didn't express the way you felt to anyone at work prior to your going on holidays was because of your desire to put on a brave face. That's right, isn't it? A. I'd always been able to cope with everything. Q. You thought you could get by until you went on holidays, and then you would improve. A. That is what I hoped." 58 There was some discussion as to whether and when she had spoken to the police chaplain whose number she had obtained, probably on 2 or 3 September. She said that the police chaplain came to her house once and she went to her house once: there were two or three discussions, which appear to have occurred after her annual leave commenced on 6 September. However, she telephoned the chaplain before she went away on leave and "had a bit of a chat over the phone". 59 Her parents lived in the Tamworth area and she had a friend in the Police Service at Pilliga. She and her husband visited the friend whilst she was on annual leave. She described the visit in the following terms: "I've walked into his front room, and his dog had run up and jumped up, and had managed to catch me on the chin or my nose or something, and I've started crying and I couldn't stop; I just kept crying. Then he said 'What's wrong? What happened?' I don't know whether I told him or [my husband] told him, but somehow he found out what happened and he rang police welfare. [My husband] and I left Pilliga, and police welfare from in the City rang my mother's house when I was there and said, 'Look, Tamworth, that's a bit far. When you come back to Sydney you get in contact with us and we'll get you some counselling'." 60 That counselling was arranged promptly upon her return to Sydney. She visited a psychologist with the Police Service on 17 September, who referred her to another psychologist, Ms Blows, whom she started seeing on 29 September. 61 The plaintiff was cross-examined about her knowledge of "peer support" officers within the Police Service. She said that she knew of their existence and generally of their function, but did not believe there were any stationed at Green Valley in 1999. 62 There was also a submission that had one of the education officers asked whether her referral to the chaplain was for personal reasons or work-related reasons, the truth might have come out then. On the other hand, a judgment that it was best not to ask, could hardly be described as unreasonable, or a breach of duty. 63 In effect, the plaintiff's case so far as it concerned the "aftermath" depended on a failure to provide counselling services or arrange for contact with a peer support officer, within the eight days immediately after the incident and before her visit to Pilliga, whilst on annual leave. Accordingly, assuming that those failures constituted a breach of a duty of care, the next question to be addressed was the causal connection, if any, between that breach, combined with the lack of supportive conduct on the evening of the incident, and the on-set or severity or duration of the plaintiff's psychiatric condition.

Medical evidence 64 That the plaintiff suffered a severe traumatic experience on 29 August 1999 was not in contention. Nor was the fact that a major cause of the resultant post-traumatic stress disorder and depression was the witnessing of the seriously injured victim and the assistance she gave to the doctor in the surgery. Rather, the two questions discussed in the medical evidence were why, given that she had witnessed a number of serious accidents and fatalities in the past, she developed a serious psychiatric condition as a result of the present incident and, secondly, whether the behaviour of colleagues in the Police Service contributed to that reaction. 65 A separate issue arising from the medical evidence concerned the failure of the plaintiff to take anti-depressant medicine, as prescribed by her treating doctors. That decision on her part led to a separate question as to whether she had taken reasonably available steps to mitigate her injury. 66 The plaintiff tendered reports prepared by Ms Johanna Blows, the clinical psychologist to whom she was referred in September 1999. In her oral evidence, she was questioned by both parties on causation issues. In her evidence in chief she said that the presence of a supportive partner in the surgery "would have prevented an enormous amount of anger and bitterness": Tcpt, 1 June 2004, p 90. She further indicated that the feeling of being betrayed was "a major proportion of" the issues addressed at counselling. She further said (p 92): "I am quite certain that illness wouldn't have been nearly so severe or as long-lasting as what it was. I can't guarantee that there wouldn't have been some traumatic repercussions, such as nightmares and so on, which is quite normal from such input. I just don't think it would have been as profoundly affecting as it has been." 67 The trial judge does not appear to have relied upon Ms Blows' views in relation to questions of causation. 68 The plaintiff obtained a report from a consulting psychiatrist, Dr Andrew Robertson. He first saw the plaintiff on 12 December 2002. In a report following that consultation, he noted: "She has been involved in other frightening events in the course of her work in the Police. However, in every instance before this, she had been prepared for the nature of the event which would confront her. In addition, she felt that the total lack of support or concern, firstly when she was working on the victim, and then subsequently, had had a highly detrimental effect." 69 In evidence in chief, Dr Robertson was invited to expand upon this statement and identify the factors which he believed had contributed to the development of the disorder. He stated (Tcpt, 4 June 2004, p 233): "I think there are a number of factors. The fact that she was unprepared for the severity of the wound of the victim; the fact that she perceived herself to be abandoned by her partner or buddy and was left to deal with it essentially on her own, because although the doctor was there in body, he was saying nothing and not offering her any practical, well, any moral support; and subsequently, I think that these feelings of abandonment were reinforced by the fact that … nothing else was said to her, either by way of comfort or commendation, and that all that was said to her was to 'put your hat on, because the media is here' or words to that effect."

He then expressed the view that it was the "absence of her buddy" that was "the decisive factor", reinforced by what happened in the immediate aftermath. On being invited to assume that support and commendation had been available, he stated: "I think - it's very difficult to be dogmatic on this - but I think that it would be significantly less likely that she would have developed a post-traumatic stress disorder, or had she done so, it would have been a disorder of considerably less severity." 70 This topic was reagitated in cross-examination (Tcpt, 15 June 2004, p 4): Q. Are you suggesting that the cause of PTSD in this case was her partner leaving her alone with a doctor while he went outside? A. I think that this is one of the factors which to a major degree increased the likelihood of her developing PTSD, the fact that she was left to deal with it virtually alone and unsupported, given that the doctor, apart from one statement which I think he made, made no communication with her subsequently. Q. Well would she have suffered PTSD if the partner had remained with her? A. It's not possible to say that with any certainty but it would undoubtedly have lessened the risk substantially of her developing PTSD. There is very good evidence that the so-called buddy system is highly protective in terms of PTSD. Q. On the balance of probabilities then, if you could answer the question on that basis would she have suffered PTSD if the partner had remained with her? A. It would have been less likely. 71 The plaintiff was also seen by a general and forensic psychiatrist, Dr Julian Parmegiani, on behalf of the defendant, on 8 April 2002. In his first report of 10 April 2002, Dr Parmegiani said, in relation to causality: "It is difficult to explain why Ms Fahy was affected by the incident to such a degree. She attended similar situations in the course of her employment as a police officer. Her only explanation was that she was not psychologically prepared for the event, expecting to find a man with minor injuries. Secondly, she perceived her employers not to have been supportive in the immediate aftermath. Nevertheless, the temporal relationship between the incident and the development of her symptoms indicated it was a substantial factor." 72 After seeing her again on 27 February 2003, he expressed the opinion that her symptoms had increased since she had ceased seeing Dr Blows (who had retired) and due to her job insecurity, and that the symptoms "were also exacerbated by frequent medico-legal assessments, which acted as a reminder of the traumatic event of 25 August 1999". 73 In cross-examination, Dr Parmegiani was asked whether the fact that her senior partner left the surgery had affected the plaintiff. He expressed the view that he did not see it as "a major contributor to her distress at the time of the incident", but agreed that it probably made "a minor contribution" in the overall incident, including her subsequent feelings of "no support". 74 His Honour made findings in the following terms (at pp 44-45): "In terms of the causation issue, he indicated that the fact that her senior partner had left in the course of dealing with the injured man was not something that he saw as a major contributor to her distress at the time of the incident but he thought it probably made a minor contribution in the overall incident."

The other actions of Inspector Whitten during the evening were described as "factors in her individual case that had a disadvantageous effect". 75 In addition, his Honour identified Dr Parmegiani as suggesting that psychological intervention in less than three to four weeks after the incident "would be counter-productive and potentially dangerous because that response can medicalize a normal human emotional response": pp 45-46. 76 The defendant also obtained evidence from Professor Richard Bryant, a clinical psychologist at the University of New South Wales, who was the director of the post-traumatic stress disorder clinic at Westmead Hospital. His Honour described Professor Bryant as "an eminent psychologist, certainly in the area of research into post-traumatic stress disorder, but who also has clinical experience". He saw the plaintiff on 10 February 2003. In relation to causality, he stated in his report: "There seems little doubt that the stabbing incident was the cause of her psychological injury. I would add, however, that provision of earlier treatment than what was offered would probably not have altered the course of her condition." 77 In cross-examination, Professor Bryant adhered to the view that what happened at the time of the incident was "far more important" than what happened afterwards (Tcpt, 23 February 2005, p 40). He was then asked (p 42): "Q. Is it true that your view is that the gruesomeness of the scene, as well as the demands placed on her … are the major factors for the development of her condition? A. Yes. Q. The demands placed on her, she complained, I want to suggest to you, were that she was essentially doing the job of two police officers in the room. A. That was part of the demand, yes. Q. That would necessarily make it more difficult for her to cope with what was of required of her. Do you not agree? A. Well, we don't know that. Q. Did she not complain to you about that? A. There were many things that Ms Fahy complained about, and I accept the validity of each of those complaints. Can I draw a distinction, Your Honour, between an individual making a complaint about something … being an attribution made after the event, and it actually being causative in contributing to the outcome. In my assessment of Ms Fahy, what I thought was the primary cause of her PTSD - and one cannot necessarily compartmentalise every five minutes of an experience … the departure of her partner was very stressful, and if the partner had remained I have no doubt that that experience would have been somewhat alleviated. I think that's a logical conclusion. However, I would also add that this is not to say that if the partner had remained, she would not have developed a PTSD and depression that she had, because the primary engagement that she had with that man, of trying to stop the bleeding and communicating to him in a way that was intimate and very distressing, I don't necessarily agree that having a partner there, would have removed her from that particular demand. … Q. The question was, the fact that her partner left her, necessarily made her coping with the activities that were required of her more difficult. A. Yes." 78 Professor Bryant agreed that she was treated insensitively in the immediate aftermath, which would have reinforced her feeling of abandonment at the surgery. The trial judge concluded (at p 59): "In summary, the expert evidence … is that, whilst the confronting experience of having to deal with the severely wounded man was a principal, or the core, factor in the development of post-traumatic stress disorder in this plaintiff, the other factors relied upon by the plaintiff are themselves significant. In Professor Bryant's concession he would accept that the fact that the episode of the partner leaving could be treated as part of the core incident, upon which he relied, and that the social support issues, as he described them, would themselves have made a minor contribution."

He also noted Professor Bryant's view that "the principal cause of the disorder in this case was the attendance at the scene itself, and that the absence of support was not a significant factor": p 48. 79 Doctor Robertson and Dr Parmegiani, his Honour held, regarded the conduct of the partner and the absence of social support afterwards as "significant". His Honour found that both the departure of Senior Constable Evans, the insensitive conduct of Inspector Whitten and the failure to identify the plaintiff as a person in need of counselling, within the two weeks after the event, constituted a failure to take reasonable care for her safety and hence negligence. His Honour held (p 63): "Thus, the negligent acts or omissions of the defendants [sic] here materially contributed to the on-set of post-traumatic stress disorder and depression or anxiety conditions in the plaintiff." 80 These conclusions invite attention to what was meant by saying that "other factors" were "significant" and what Professor Bryant intended by referring to "social support issues" other than the absence of Senior Constable Evans from the surgery, as making a "minor contribution". Did the contribution of Senior Constable Evans' behaviour constitute a "significant" factor absent the other social support issues? Did all of these issues involve breaches of a duty of care and did all or only some of them, contribute materially to the loss suffered?

Breach of duty of care 81 In relation to the conduct of Senior Constable Evans, the plaintiff's case seems to have been that he, as the senior officer on duty with the plaintiff, owed her a duty of care with respect to her welfare, which was breached by his abandonment of her in the doctor's surgery. Of this the trial judge said (at p 35): "It follows then, that, as was submitted, the plaintiff was, during this episode, albeit for only a few minutes left without her buddy, her senior partner, whose responsibility was essentially to look after her welfare." 82 This statement is not to be taken literally: the trial judge was well aware that Senior Constable Evans and the plaintiff shared responsibilities as police officers attending a crime scene. His Honour expressly paid attention to other policing responsibilities placed on Senior Constable Evans, as constituting competing demands on his attention. 83 There is no doubt that the plaintiff was extremely distressed by the events of the evening and, at least in her own mind, attributed her response in a significant degree to her feeling of abandonment by her "buddy". That, however, would not by itself demonstrate a breach of duty of care on his part. The plaintiff called evidence from a Mr O'Connell, who was asked a number of questions concerning the role of Senior Constable Evans. (Although the evidence was called on a voir dire, following objection to the expertise of Mr O'Connell, the evidence was subsequently admitted: Tcpt, 15 June 2004, p 26.) Q. If there was an incident, and let's say it's a hold-up and the first in attendance at the hold-up was a senior constable with maybe four years' more experience than the partner, and the senior officer then makes a judgment call on seeing a badly wounded person being treated by a doctor and says to his partner, 'You [stay] here,' or words to that effect, 'I'm going outside to do something.' or words to that effect. That would not be unusual or untoward in your experience, would it? A. Probably not, except that in situations where you're talking about an urgency, we're talking about life, the delineation of responsibilities doesn't become an issue. What police officers do is just get in and instinctively do what's required, and if, as a supervisor or as an offside, you're in a position where you start to reflect and to make a decision about what ought to happen - that is, you task someone - you clearly do that on the requirement of your broader responsibility." 84 Mr O'Connell gave further evidence (at p 205): Q. Did you see anything wrong with the senior person then leaving the junior officer to assist a qualified medical practitioner and the senior officer then goes out and attends to the crime scene? Do you see anything wrong with that? A. Nothing wrong with that at all, except if there was a difficulty where there was no communication as to what I as the senior officer were doing, there's a reasonable expectation that that would be clear to communicate it. Q. Assuming that had been communicated and the junior officer knew what the senior officer was going out to do, then do you see anything wrong? A. No, that would just be part and parcel of what you would do. … Q. In undertaking those duties, the senior officer has a certain judgment call as to what his priorities are once he attends the crime scene. A. He or she, yes, certainly, and of course it's all about commonsense. Q. Do you know of any rules or directions or policies which are set out by the Police Service which show the apportionment of duties between a senior and a junior officer in attending to a crime scene? A. No, and they're oughtn't be. I think you either have responsibilities or you don't. In fact, it wouldn't make sense actually. 85 The trial judge, apparently referring to this part of the transcript, described Mr O'Connell's evidence as a concession that the conduct of Senior Constable Evans was "justifiable", but said it was "a very qualified" concession and involved a number of assumptions. He then referred to the following evidence of Mr O'Connell: Q. Assuming that there is about 10 minutes between arrival at the doctor's surgery, seeing the victim, and the arrival of the ambulance, and the partner hasn't returned in that 10 minutes after having left early in the piece - do you follow what I'm putting to you? A. I can. Q. There would be nothing unusual about the flow of events outside - preserving the crime scene, talking to the witnesses, ensure that nothing is moved, even perhaps running up some tape, or whatever takes place at a crime scheme - that could take 10 minutes. A. It could. Q. And it could take a lot longer. A. Absolutely. Q. It wouldn't be reasonable for the senior officer to break off during the conversation with, let's say, a witness, or giving a direction to another police officer, or having a conversation over the radio to other police officers involved in the matter. It wouldn't be unusual in those circumstances that he wouldn't return within that 10-minute period to see how his partner was progressing, knowing that the partner was working with a qualified doctor. A. One of many possibilities. 86 His Honour summarised this evidence as supporting the following conclusion: "There were, in other words, in this instance, a number of imperatives which would strongly point to a need for the senior officer of the pair to maintain a measure of contact with the officer working inside in the surgery, even in that relatively short period of time, in order to make it clear that there was support."

This was not a finding that Senior Constable Evans was negligent, nor, with respect, would the evidence of Mr O'Connell have supported such a finding. 87 His Honour then discussed at some length the medical evidence and found (p 60) in relation to Senior Constable Evans: "In this case, I am satisfied, on the balance of probabilities, that Senior Constable Evans left the room without giving any reason to the plaintiff."

His Honour then noted the conduct of Inspector Whitten, which will be discussed below. Taking it all together, he described this as "a course of treatment" which could, in a clearly foreseeable way, materially contribute to the on-set of, or the severity of, the psychiatric injury suffered by the plaintiff. His Honour continued: "Given the buddy system, and the existence of programs recognising the risk of the development of post-traumatic stress disorder for police officers engaged in traumatic events or incidents, it [sic] amount to a lack of reasonable care on the part of the defendant, both at the scene of the incident, on 25 August 1999 and, secondly, in the aftermath … ." 88 Some pages later (p 65) his Honour returned to the conduct of Senior Constable Evans in the following passage: "No operational or economic factors stand in the way of the conclusion that to have dealt properly with the plaintiff, in accordance with the buddy system and in accordance with the recognised risks of stress-related disorders, would have required no more effort, no more resources, on the part of the police, than were available to them on that evening."

His Honour then referred, globally, to "the negligent acts and omissions of the defendant". 89 Putting to one side the evidence of Mr O'Connell, which did not assist the plaintiff on this issue, the trial judge needed to make the following findings:

(1) Senior Constable Evans had a duty to the plaintiff, which included an obligation to provide both physical protection and psychological support, as required by the circumstances;

(2) the circumstances of the horrendous injury suffered by the victim gave rise to the foreseeable risk of psychological harm suffered by a police officer required to staunch the flow of blood in a potentially fatally wounded person;

(3) absent an identified need for Senior Constable Evans to be elsewhere through the period the plaintiff was in the surgery, there was a breach of his duty to stay with her and provide support, in absenting himself from the surgery without explanation and in not returning; and

(4) given the police resources at the scene of the crime during that period, the conduct of Senior Constable Evans constituted a breach of duty, for which the defendant was vicariously liable pursuant to s 8 of the Vicarious Liability Act . 90 Findings were not made in those terms. The extent to which her colleague, Senior Constable Evans, owed the plaintiff a duty of care with respect to her welfare was not in terms addressed in the judgment. Thus, if Senior Constable Evans were the officer for whose negligence the State was said to be liable, it would have been necessary to establish on the evidence that he was, or should reasonably have been, aware of the risk of psychiatric injury, according to the test identified in Koehler v Cerebos (Aust) Ltd (2005) 79 ALJR 845. The case was not expressly presented in that way, no doubt because it was not pleaded in that way. Rather, the real complaint being made by the plaintiff was that her employer had failed to provide an adequate system of work, so as to give her sufficient support both during and in the immediate aftermath of a potentially highly distressing event. On that approach, it was not sufficient simply to put two officers on duty together and tell them to work together in a manner vaguely described as "the buddy system". In the absence of any evidence as to relevant instructions, one would be inclined to infer that "the buddy system" was intended to provide physical protection and backup, which would not have been available if officers patrolled alone. Further, to the extent that the officers witnessed matters which needed to be recorded for the purposes of an investigation and possible criminal proceedings, a second officer would obviously provide a source of corroboration and a check on the accuracy of the observations of the other. On the other hand, if the colleague was expected to provide psychological support in a distressing situation, then each officer would need to have understood that that was part of the particular role envisaged under "the buddy system". There was no evidence to suggest whether or not that was so understood, but the gist of the plaintiff's case in relation to Senior Constable Evans appears to have been that such support was reasonably necessary and was not provided. That appears to be a complaint against the employer directly and the system of work which it put in place, rather than a complaint of breach of duty of care on the part of Senior Constable Evans. 91 The second basis on which the plaintiff presented her case was that there was a breach of duty on the part of Inspector Whitten in respect of the conduct referred to at [42]-[45] above, undertaken in a manner which was insensitive to the traumatic experience which the plaintiff had undergone in the surgery and which tended to exacerbate her feelings of abandonment. 92 Taken in isolation, it was not, in my view, open to the trial judge to find that there was breach of a personal legal duty of care in such conduct. No doubt his Honour was entitled to find that Inspector Whitten's manner was brusque and insensitive, but directing an officer to put her hat on because of the presence of media and the public, directing her to return to the crime scene and thus preventing her taking the victim's wife to the hospital and refusing to authorise overtime, do not, individually or cumulatively, bear any sufficient relationship to a legal duty of care. Nor would such conduct involve any reasonably foreseeable risk of psychological damage. 93 In my view the appropriate complaint against Inspector Whitten was properly viewed as a part of a broader 'conditions of employment' claim, which alleged that the Police Service had an obligation to provide appropriate support to an officer in the circumstances of the plaintiff, and monitor the effects of a potentially traumatic episode. The latter aspect required that she was made aware of appropriate counselling services and given an opportunity for informal debriefing with respect to the events of the evening of 25 August. 94 I accept that there was a duty, so described, owed by the State, as the employer of the plaintiff, in relation to the events in question. I also accept that the risk which materialised was a foreseeable risk of a breach of that duty. The question is whether the conduct of the Police Service was in breach of that duty in the particular circumstances of the case. 95 A troubling aspect of the manner in which his Honour dealt with the evidence was that specific findings were not made before dealing with the medical evidence. There is at least a suggestion that, in this way, questions of causation in relation to harm came to overwhelm consideration of possible breaches of duty. The question of causation was described by his Honour (at p 38) in the following terms, namely: "That the way in which the plaintiff was subsequently treated itself made a material contribution to the on-set of the condition or its seriousness or its severity".

His Honour then noted that the Police Service "recognised the problem of stress arising from traumatic incidents by making specific provision as to what should be done". His Honour stated that "there was a complete or utter failure to implement those procedures": p 39. This finding was followed by the remark that one of the suggested procedures was "mandatory debriefing", a step which, on the clear consensus of the evidence before his Honour, he correctly held was "not an advisable step" because it might encourage rather than diminish the development of a psychiatric disorder. The relevant breach was thus not identified before the medical evidence of causation was discussed. 96 Following that discussion, his Honour referred (at p 62) to the knowledge, or constructive knowledge of the State that she had experienced an adverse reaction to the events of the evening of 25 August, combined with "the absence of any inquiry, information or support" noting that that had "served to exacerbate her perception of a lack of support". His Honour then concluded: "The defendant, through its officers, was negligent in failing to observe and/or act upon the observations, such observations as were made, and/or failed to inform her of forms of help available to her in the circumstances." 97 As noted above, it was important to distinguish the plaintiff's feelings of abandonment from a finding of breach of a legal duty of care. Secondly, the evidence did not support the view that senior officers in the Police Service knew that she was not coping in the period between 25 August and 6 September. Thirdly, his Honour did not at any stage explain why senior officers ought to have known that she was not coping well. Nor is it clear that, if help should have been offered on a routine basis, that should have occurred prior to the time at which she managed, independently, to attend for counselling. Fourthly, there was no finding that an earlier offer of assistance would have made a difference to the outcome. 98 The findings of the trial judge were that Senior Constable Evans was aware of the circumstances in which the plaintiff had been assisting the doctor to stem the victim's bleeding; Inspector Whitten knew that there was a real risk that the victim would die; he further knew that the plaintiff had had contact with the victim's wife and was in the process of taking her to the hospital when she was called back to the crime scene, and if he did not know from his own observation, should have known from Senior Constable Evans, of the circumstances inside the surgery. Those findings support the conclusion that there was a breach of the duty to provide reasonably safe conditions of employment. 99 The lengthy debates before the trial judge as to whether Senior Constable Evans should have stayed with the plaintiff and as to whether Inspector Whitten was justified in behaving in an "insensitive" manner during the course of the evening, miss the point, to a significant extent, although the psychiatric evidence focussed on them. As noted above, the plaintiff should have succeeded in establishing a breach of duty based on unsafe conditions of work. Whether, given her own steps in seeking assistance from a police chaplain and, with the assistance of her friend in the Police Service, contacting the counselling service, that breach caused any loss is a separate question.

Assessment of loss caused by breach 100 The difficulties faced by psychiatrists and psychologists in separating causative influences with respect to a particular psychiatric condition can readily be understood. Each of those who gave evidence was at pains to avoid dogmatic answers and to identify the limits of certainty in which such matters could be expressed. Further, as Professor Bryant pointed out, it may be important to distinguish between matters about which a patient complains and the likely causes of her condition. In such circumstances, it is inevitable that responsible medical opinion will be expressed in terms of possibilities and uncertainty. As the Chief Justice explained in State of New South Wales v Burton [2006] NSWCA 12 at [11]-[23] such evidence may be insufficient to demonstrate on the balance of probabilities that the incidental acts or omissions of police at a crime scene, or shortly thereafter, have materially contributed, in a legal sense, to the traumatic experience of a particular officer. Furthermore, as noted by Hunt AJA in the same case (otherwise agreeing with the Chief Justice) care must be taken in drawing from medical evidence which uses the terms 'caused', 'contributed to' or 'exacerbated', an inference that the legal test was satisfied: at [88]-[91]. Where medical practitioners use terminology which reflects the relevant legal test, it will often be necessary to explore whether they intend their opinions to reflect the relevant legal requirement, and, if so, their understanding of that requirement. 101 This situation is complicated by the fact that, although the State is vicariously liable and is therefore the only defendant, there may be separate acts which are potentially tortious, and which make separate contributions to the injury suffered. If each officer is in fact negligent, and those acts can be seen to have made a material contribution to the injury suffered, the failure to distinguish between them will not matter. In other circumstances, each should be assessed separately. 102 Dealing first with the plaintiff's medical evidence, there was limited assistance which can be gained in terms of causation, from the evidence of Ms Blows and his Honour placed no express reliance upon it. Secondly, there was the evidence of Dr Robertson. His written reports were primarily directed to the plaintiff's prognosis, and hence the extent of her loss. Causation was only addressed in his oral evidence. As noted in the passage set out above, his view was that the absence of Senior Constable Evans "was the decisive factor" in the post-traumatic stress disorder. He explained that, absent such 'abandonment' the on-set of the condition would have been "significantly less likely". In cross-examination, he was pressed on that terminology. It would, he said, have "lessened the risk substantially" of her developing PTSD, a risk which had by that time, of course, eventuated. He was asked then to quantify the lessening of the risk in terms of probabilities and whether, had the partner stayed, he was able to say "on the balance of probabilities" the plaintiff would not have suffered PTSD. He concluded (Tcpt, 15 June 2004, p 5): "I don't think I'm able to answer it with that degree of precision." 103 Dr Robertson's view that if Senior Constable Evans had stayed and been supportive, the disorder would have been of considerably lesser severity was not challenged in cross-examination: Tcpt, 4 June 2004, p 234. 104 Dr Parmegiani was asked about causation in his evidence in chief and stated (Tcpt, 22 February 2005, p 3): Q. Do you still subscribe to the opinion that you expressed in your first report as to the diagnosis and to the cause of the plaintiff's condition? A. From a psychiatric perspective, yes I'm not sure whether that's similar at law but in terms of a psychiatric diagnosis, the event of attending an injured person and its aftermath, meaning the perceived lack of support by her employer caused the post-traumatic stress disorder that I have maintained all along and I sustain that.

That statement was explored in cross-examination, in the manner set out at [73] above. In other words, Senior Constable Evans' contribution was not a major contributor to her distress at the time of the incident and probably made a minor contribution overall. His Honour was incorrect in summarising the psychiatric evidence in identifying Dr Parmegiani's views with those of Dr Robertson: they were significantly different in a critical respect. 105 As already noted, Professor Bryant was of the opinion that the conduct of Senior Constable Evans in leaving the surgery was simply one aspect of the exposure to trauma, which could not be separated in causal terms: Tcpt, 23 February 2005, p 44. He treated the absence of another officer as part of the demands placed on the plaintiff in the surgery, but declined to agree that this made it "more difficult for her to cope with what was required of her": p 42. He saw the subsequent conduct of senior officers as no more than a "minor contribution". 106 So far as the events on the evening of 25 August were concerned, none of the experts was prepared to ascribe more than a "minor contribution" to the conduct of Inspector Whitten, after she had left the surgery. The high point for her case was the view expressed by Dr Robertson: however, once pressed on the question of probabilities, he was not prepared to say that the departure of Senior Constable Evans had, more probably than not, given rise to the disorder. 107 The third area of conduct relied upon by the plaintiff was the failure of senior officers either to make further inquiries as to her need for counselling in the period following the incident, or to make sure that counselling was available to her. 108 The findings made by the trial judge in this respect are unclear. Thus, at p 62, in summarising his findings, his Honour stated, in relation to the period between 25 August and early September when the plaintiff went on leave: "During the latter time the defendant knew, or ought to have known, that the plaintiff was expressing an adverse reaction to her experiences on the evening of 25 August 1999 … . The defendant, through its officers, was negligent in failing to observe and/or act upon the observations, such observations as were made and/or failed to inform her of forms of help available to her in the circumstances." 109 This passage is, with respect, vague as to whether any relevant officer was aware of an adverse reaction, and failed to act upon it, or whether particular officers should have been so aware, but were not. 110 Evidence of actual awareness came from two sources. First, there was evidence from the plaintiff that an officer from Fairfield Police Station, who had heard her on the radio during the incident, had commented later that she sounded distressed. Indeed, so far as the night in question was concerned, it would be reasonable to infer that several of the officers at the incident, including Senior Constable Evans and Inspector Whitten would have been aware of the assistance she gave in the medical room, the state of the victim and the likelihood that she would have been distressed. It was common ground between the parties that the plaintiff had attended a number of serious accidents over the previous three years, was a caring and responsible person, and had no doubt been distressed on each of those occasions. The question was rather whether a normal and expected human reaction failed to diminish over the coming days and became, or was threatening to become, a psychological condition. 111 The other officer who might have been made aware expressly of her distress was Sergeant McEvoy, an education officer, from whom she obtained the name of a chaplain about 10 days later. She did not reveal to him the reason for her request, nor did he ask. However, in a letter dated 13 January 2000, written some four and a half months after the incident, to the Local Area Commander, whilst expressing deep disappointment with the support she had had from other police stated: "The only officer to keep in contact with me throughout this ordeal has been Sgt McEvoy. He has truly been fantastic. I believe that he should be thanked in some way by the Service." 112 The plaintiff's own evidence, that in the two weeks after the incident she was manifesting significant symptoms, not sleeping and spending much time at home sitting on the floor crying, was complemented by the clear impression that she was maintaining a "brave face" at work. His Honour, however, noted that no other police officers were called by the defendant. At p 25, he stated: "Whilst the plaintiff may not have been keen to display those symptoms, she had certainly communicated to [the education officers] information indicating that there might be something observable about her upon closer inspection. The absence of those officers from the witness box, which remains unexplained, is, for that reason, one such that … the court would draw the inference that, if called, they would not have assisted the defendant's case. In addition, of course, there are the named officers who were partners on car duties on the three days before she went on leave and, indeed, presumably, a number of officers who had worked with her on station duties on the two days when she performed those duties before going on leave." 113 The difficulty, from the point of view of the plaintiff, is that she called no evidence to suggest that she had expressed her distress to anyone at Green Valley Police Station, nor that she had behaved in a way which might reasonably have been expected to suggest that she was distressed in a pathological sense. In these circumstances, to criticise the State for not calling witnesses, in 2004, to describe how she had appeared in September 1999, is beside the point. It would seem that the plaintiff's case was, in any event, run on the basis that she should have been actively monitored, given the nature of the incident, and routinely provided with some level of informal counselling or the names of peer support officers, to whom she could turn if she wished. There was, perhaps understandably, a tension in the plaintiff's case between acknowledgement that she had survived a number of traumatic incidents without apparent ill-effects, that over-intrusive inquiries might be neither medically beneficial, nor an appropriate response by an employer operating a disciplined force and, on the other hand, the asserted obligation to "monitor" and offer services routinely, albeit in the knowledge that officers might not readily reveal, or wish to reveal, perceived weakness. These tensions needed to be resolved in order for the plaintiff to demonstrate treatment involving a breach of the duty of care owed by the Police Service to her as an individual officer. 114 In addition, the plaintiff needed to establish that a relevant breach of duty, occurring between 26 August and 6 September, materially contributed, in a legal sense, to her undoubted psychiatric condition. For example, she needed to establish, to the satisfaction of the trial judge, that had she been approached by a peer support officer and offered the opportunity for counselling, she would have done more than she did in relation to the chaplain, prior to going on leave on 6 September. There was no finding to that effect and this Court was not directed to evidence which would have supported such a finding. Further, she needed to establish that such an approach would have materially affected her psychological condition. 115 In this context, it is necessary to bear in mind the evidence of Dr Parmegiani that psychological treatment would be indicated in a case where symptoms continued for longer than three to four weeks. Within four weeks of the incident, the plaintiff had attended the police psychologist and been referred to Ms Blows, whom she first met on 29 September. There was no finding of fact that an earlier referral would have led to a different outcome: nor did the medical evidence expressly support such a finding. 116 This Court did not, of course, have the benefit of hearing the plaintiff's evidence: nevertheless, a reading of the transcript, particularly of her evidence in chief, suggests a level of embitterment with the Police Service, which may have been triggered by the conduct of Senior Constable Evans and Inspector Whitten, on 25 August 1999, but which was overtaken by other events. In his report of 1 December 2003, Dr Parmegiani noted, in relation to a report prepared by a Mr Terry O'Connell, a former police officer who provided services as a consultant in areas of police complaints, discipline and grievances: "The incidents raised by Mr O'Connell identify the causes of Ms Fahy's PTSD. The incident per se could not be considered unusual in the course of police work. Her experiences following the incident however were a source of significant distress to Ms Fahy. Her PTSD became a conduit for expressing her dissatisfaction with management practices within the NSW Police Service. Under the circumstances described by her, intervention by the NSW Police Service by way of debriefing, counselling or other psychological treatment would have been of little use. A medical approach would not have addressed the systemic problems that Ms Fahy and Mr O'Connell identified within the NSW Police Service. I would consider these issues to be industrial matters, not medical ones." 117 An example of this concern may be found in the letter of 13 January 2000, written by the plaintiff to the Local Area Commander, Superintendent Hofer, apparently in response to a call made by him to the plaintiff's mother, about a month earlier. The letter, which covered six handwritten pages, provided a moving account of her experience of abandonment and lack of support from colleagues in the Service generally (with the exception of one or two named officers). On 21 January, Superintendent Hofer replied by way of a letter which was entirely sympathetic in tone, although it did not seek to deal with the specific complaints she had raised. Later, however, whilst working in the exhibits room at Green Valley, she discovered the victim's clothing from the 25 August incident and broke down at work. Some weeks later, she had an interview with the Local Area Commander, at which she said she "felt really intimidated" as he and two other officers "were into me about unexplained periods of absence of more than five minutes". In her words, she "stormed out" at the end of the meeting, refusing an offer of a ride home. 118 When she gave evidence in June 2004, she said of the letter which she had received from the Commander that she did not believe a word of it, it had not been an adequate response to her letter and she asserted, perhaps with some hyperbole, that she had expected him to come round to her house: Tcpt, 1 June 2004, pp 73-74.

Conclusions - assessment of loss 119 At trial the defendant argued that if the condition of post-traumatic stress disorder, or its severity, was multi-factorial in its causation, then the defendant would only be liable to the extent that the on-set of the disorder was made worse by any conduct or omissions on the part of the defendant. His Honour held (p 62-63): "That is, it seems to me, inconsistent with the robust and commonsense approach to the question of causation espoused by the High Court in March v Stramare (1991) 171 CLR 506."

For reasons noted below, the defendant's submissions should have been accepted: see also discussion in State of New South Wales v Burton [2006] NSWCA 12 at [67]-[80]. 120 The concept of "material contribution" is sometimes confused with the separate concept of causation, which is to be approached, not on the basis of abstract logic, but as a pragmatic judgment which takes account of policy considerations. The concept of "material contribution" reflects the related, but different, principle that, in the usual case of multiple causal elements, the law recognises liability for harm of which one cause is tortious, though it is not the sole, or even the dominant, cause. 121 The way in which the legal effect is assessed reflects the purpose of recognising a particular causal relationship. For example, where the particular harm which materialised was that against the risk of which the law imposed a duty to warn, the law may readily accept a causal connection, even though other contributing factors can be identified: see, eg, Chappel v Hart (1998) 195 CLR 232. Similarly, where a tortfeasor creates a situation which injures one person and places a potential rescuer at risk, even of negligent conduct by a subsequent tortfeasor, the law may impose liability for the whole of the rescuer's injury on both tortfeasors: see, eg, Chapman v Hearse (1961) 106 CLR 112. 122 Some categories of case can be put to one side for present purposes. First, this is not a case of independent tortfeasors causing the one injury, as with a passenger in a car which collides with another, both drivers being negligent and responsible for the collision. Nor is it similar to that where two defendants each have a duty (unfulfilled) to clean up an oil spill, in which the plaintiff slipped. 123 The present is one of a class of cases which involve sequential conduct, but these also fall into several subclasses or categories. One such category involves a single defendant whose original conduct causes harm, but not tortiously, but which continues and becomes tortious, causing additional harm: see Middleton v Melbourne Tramway and Omnibus Co Ltd (1913) 16 CLR 572 and Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323. A second similar category encompasses cases involving a pre-existing medical condition which would be likely to have resulted in the same or some part of the injury caused by the defendant's negligence, in any event, absent the conduct of the tortfeasor. In these cases the law requires that, as far as possible, the compensable harm be differentiated from that which is not compensable. My understanding of the relevant principles established on these authorities was set out in State of New South Wales v Burton [2006] NSWCA 12 at [67]-[80]. 124 The present case is one where, on the medical evidence, it is probable that the plaintiff's experience of tending the severely wounded victim would have caused a psychological condition in any event. However, it was also likely that that condition would have been less severe, or not lasted so long, if Senior Constable Evans had stayed in the surgery and if the Police Service had routinely offered support and counselling in the aftermath. 125 Two policy considerations arise in this context. First, if it were established that the additional loss caused by the breach of the employer's duty of care accounted for, say, only 20% of the injury suffered by the plaintiff, it is difficult to identify an underlying policy supporting the imposition on the employer of liability for the whole of the harm suffered. It is true that the harm which materialised was that against which the duty to protect arose, but there is no legal policy which requires an employer to bear responsibility for that which would have eventuated absent its negligence. 126 The more difficult question arises where the effect of the employer's breach cannot readily be calculated. But in that case, according to the principle identified in Purkess v Crittenden (1965) 114 CLR 164 at 168-9, once the likelihood of some level of identifiable harm, avoidance of which was not the responsibility of the defendant, is established by the defendant "with some reasonable measure of precision", the plaintiff bears the burden of showing what additional harm the defendant has caused. This exercise need not involve precise quantification on the plaintiff's part: as with other forms of speculation as to contingencies which are now hypothetical, a broad-brush assessment is justifiable. And because the wrongful conduct of the defendant has been established, the assessment may properly resolve doubt in favour of the injured plaintiff. 127 There is, however, a further distinction which may need to be drawn on the facts. Where injuries are truly divisible, the correct analysis may depend upon findings of causation, with the result that the defendant's negligence may be the cause of one injury, but not the other. It may be that, in days before apportionment legislation, there was a greater inclination to treat harm as divisible: c.f. McHugh J in March v E & M.H. Stramare Pty Ltd (1990-91) 171 CLR 506 at 533-534, in relation to the test of causation. On the other hand, where the injury is not divisible, it is sufficient that the conduct of the defendant materially contributed to the injury taken as a whole. Any level of apportionment takes place not at the causation stage, but in the assessment of damages. It is at that point that the principles established in Malec v J. C. Hutton Pty Ltd (1990) 169 CLR 638 operate, so that the defendant's liability is reduced "to take account of future or hypothetical events" including the possibility that harm would have flowed to some extent, or for some period, absent the tortious conduct. 128 Adopting this approach, the trial judge should have sought to identify a proportion of the harm suffered by the plaintiff which was properly attributable, on the medical and psychological evidence, to the breach or breaches of care for which the defendant was responsible, or if that exercise was not available, to reduce the damages to take account of the possibility that some level of disability would have occurred, absent the tortious conduct for which the defendant was responsible.

Mitigation of loss 129 The defendant raised a number of issues on the appeal, challenging aspects of the assessment of damages at trial. The first was the failure of the plaintiff to take anti-depressant medication prescribed by her psychiatrist. The expert medical evidence was unanimous that the medication would have been beneficial, in the sense that it would have diminished the symptoms of her condition and improved her prognosis. Medication was originally prescribed by Dr Attia-Soliman, who saw the plaintiff on a number of occasions. She was unavailable to give evidence, but a report prepared by her which included reference to the prescription of anti-depressants, was admitted. The doctor noted the plaintiff's resistance but reported that she "finally was able to persuade this stubborn lady to commence anti-depressants after she could not tolerate her deterioration". In fact, as it appeared from the evidence of the plaintiff, Dr Attia-Soliman was misled as to her success in that respect. 130 In her evidence, the plaintiff was asked in chief whether she had been prescribed any medication for her moods and emotions: Tcpt, 31 May 2004, p 22. She replied: "A. The doctor wanted to - Solomon [sic] her surname was - a psychiatrist - she just wouldn't get off it. Every time I went to see her, she was just adamant I had to swallow pills, and my Dad is a pharmacist - been a pharmacist for 45 years - and I valued his opinion over a doctor I met for an hour or two. So I didn't take medication. In the end I said to her that I was taking it, just to shut her up." 131 The matter was briefly confirmed in cross-examination: Tcpt, 1 June 2004, pp 79-80. Q. You have been informed, have you not, that medication would assist your condition, haven't you? A. I think there's been three doctors who have suggested that. But two of them I've met for an hour, and the other one - I mean, she just was trying to force it down my throat. I think I saw her six times, and I've since left seeing her. Q. In any event, the advice given to you by those three doctors is advice that you, for reasons of your own, saw cause not to accept. A. As I said yesterday, my Dad has been a pharmacist for 45 years, and I value his opinion more than someone I've met for an hour, or even six hours' worth of therapy. 132 Doctor Parmegiani gave the following explanation and assessment of the effect of anti-depressant medication: Tcpt, 22 February 2005, pp 17-18. Q. What is the role that anti-depressant medication plays in treating depression and also post-traumatic stress disorder? A. They reduce the frequency and magnitude of symptoms, their sleep improves, nightmares decrease or go away, intrusive memories during the day get less or disappear altogether and one of the main ones is that the emotional lability decreases, in other words, people are able to keep control of their emotions, not burst into tears, not crying when there is a trigger. … Q. If she had been prescribed anti-depressant medication at say the time you saw her, or before you saw her and she had taken it, how would see the effect of that anti-depressant medication on her recovery? A. Possibly, sorry I should weigh my words more carefully. I think she would have a 50 to 70% chance of a significant improvement if not complete resolution of her symptoms. There is a 30 to 40% chance that it wouldn't have a significant effect. To give a ballpark figure 60% versus 40%. Either complete resolution or significant improvement versus a 40% chance that that would make a significant contribution. 133 Dr Robertson gave evidence that anti-depressant medication "would have been most effective", if given earlier, rather than later. He also gave the following evidence (Tcpt, 15 June 2004, p 2): Q. And you consider that she remains depressed, if she would have been compliant with taking anti-depressant medication when it was first prescribed are you able to say whether that would have firstly improved her depressive state? A. Well it's more probable than not that it would have improved her depressive state. Q. What about the PTSD? A. Yes, there's some good evidence that anti-depressant medication can improve the clinical state of people with PTSD quite apart from their depression. The other factor is that there's some good evidence that depression acts as a block to recovery from PTSD. Q. Are you saying then that the medication would remove that block from the recovery of PTSD and as well as treating some of the symptoms of PTSD? A. It's more probable than not that that would be so, yes. 134 The trial judge referred to the evidence given by the plaintiff, noted above and concluded (p 72): "The question is what information the plaintiff had, and, other than an apparently deliberate and fairly forceful effort on the part of Dr Soliman to get her to take medication, the plaintiff does not appear to have had any significant grasp of why it would be that medication of that type might be of particular use to her. … Having regard to her lack of confidence in the treating doctor, and the faith which she reposed in the experienced view of her father, in my view it cannot be said that she has acted unreasonably in declining to take medication." 135 However, his Honour continued (p 73): "She had been actively seeking to live her life with the least restriction, and she took a choice which was not objectively sustainable but which was, in the light of her circumstances and knowledge at the time, a reasonable choice to make, based upon reasonable grounds, albeit the balance of objective medical opinion would be in favour of her having accepted Dr Soliman's opinion, but that is to look at the matter in the light of hindsight which is inappropriate in the application of the relevant principles." 136 The relevant principles were, as his Honour noted, to be found in s 151L of the Workers Compensation Act 1987 (NSW). That provision, so far as relevant, stated: 151L Mitigation of damages (1) In assessing damages, the court must consider the steps that have been taken, and that could reasonably have been or be taken by the injured worker to mitigate those damages. (2) In particular, the court must consider the following matters: (a) whether the injured worker has undergone appropriate medical treatment … . (3) In any proceedings for damages, the person claiming damages has the onus of proving that all reasonable steps to mitigate damages have been taken by the injured worker. 137 His Honour's conclusion that the plaintiff had taken "all reasonable steps to mitigate her damages" involved the implicit conclusion that taking anti-depressant medication, would have been an unreasonable step. The logic of that conclusion was that she did not know why she was being prescribed such medication, but believed that it would merely mask her symptoms and "turn you into a zombie". 138 In considering whether her decision not to take the medication was reasonable, his Honour noted (p 72): "There is no evidence to indicate that she was informed as to precisely what effects that medication might have."

The correctness of that conclusion may depend upon what was meant by "precisely": it was clear from her own evidence that her treating doctor and her psychologist expected her to be calmer and to think more rationally while on medication. On the other hand, there was no evidence as to what advice her father gave her, except that it appears to have supported her view that she should not take the medication. Although she gave evidence that she thought the drugs would merely mask the problem and turn her into a "zombie", she did not say that her father had told her that that would be the effect, nor did she indicate where she had obtained that opinion. 139 This was a matter on which she bore the onus of proof. As his Honour accepted, objectively speaking, Dr Attia-Soliman was correct in prescribing anti-depressant medication, in the sense that it would probably have been beneficial to her condition and accordingly would have lessened her injury. 140 The trial judge relied in part on the principles enunciated in Fazlic v Milingimbi Community Inc (1982) 150 CLR 345. That authority, as his Honour correctly noted, stands for the proposition that the reasonableness of a person's decision to refuse treatment must be judged on the basis of information known to him or her at the time of the decision. However, there are two matters which distinguish the present case from Fazlic and other authorities referred to therein. First, a different conclusion may be drawn in relation to a single event, such as proposed major surgery, as compared with the taking of anti-depressant drugs, which can commence and stop at any time, depending upon the effects of the patient, and where the only suggested adverse effects are temporary and reversible by ceasing to take the medication. Secondly, the common law principle placed the burden of proving a failure to mitigate on the defendant, whereas the statutory provision places the burden on the plaintiff. Even under the general law, the Court noted in Fazlic, at p 350: "No doubt it will be but rarely that an employer does not succeed in establishing that a worker's refusal is unreasonable when the worker has allowed baseless fear to decide his choice, outweighing his knowledge of cogent factors favouring his undergoing an operation." 141 Applying this principle in the statutory context, it was a matter for the plaintiff to prove, by evidence, that she did not have knowledge of cogent factors favouring use of the medication. She gave no evidence to that effect, nor did any other witness. Secondly, given that any fears she held could readily be assessed by commencing a course of medication, she gave no evidence to justify her refusal to commence the medication. 142 In these circumstances, I do not accept that the plaintiff has proved that she took all reasonable steps to mitigate her damages and, accordingly, the loss attributable to the defendant must be reduced in accordance with the medical evidence as to the likely effect of the medication.

Damages: non-economic loss 143 For the purposes of calculating non-economic loss, his Honour assessed the plaintiff's disability at 45% of a most extreme case. The defendant challenged that assessment on the basis that the plaintiff remained fit for a wide variety of employment, other than operational police duties. At trial, the defendant asserted, as his Honour noted in the judgment, that the proper assessment "would not exceed about 35% of such a case": Judgment, p 76. His Honour's conclusion was that a proper assessment was above the range proposed by the defendant, but to a relatively limited extent. His Honour had the benefit of assessing the condition of the plaintiff, which is inevitably to some extent a subjective matter which may be affected by an assessment of the plaintiff in giving evidence. There is no reason to interfere on this basis with the figure adopted by the trial judge. 144 However, the defendant also put its case on a different basis, namely that "the assessment of non-economic loss ought to be based on the difference between the condition that she would have had, if there had been no negligence on the part of the defendant, and the condition which she has as a result of such assumed negligence": pp 76-77. For reasons noted above, that argument should be accepted. Furthermore, and consistently with that approach, the condition to be assessed should be the condition which would have eventuated had she mitigated her loss by taking anti-depressant medication. 145 To determine if this argument is made out, it is necessary to consider the operation of the Workers Compensation Act 1987. That Act was significantly amended by the Workers Compensation Legislation Further Amendment Act 2001 (NSW) ("the 2001 Amendment Act"), Schedule 1. Those amendments applied to injuries received before the commencement of the Act, but not in respect of the recovery of damages if proceedings for their recovery were commenced before the commencement of the amendment: Schedule 4, [14], inserting a new clause 9 in Schedule 6, Part 18C of the principal Act. The amendments introduced by the 2001 Amendment Act, in relation to the Workers Compensation Act, commenced on 27 November 2001. The pleadings in the present case were filed in the District Court on 16 November 2001. The present proceedings were commenced before the 2001 Amendment Act. Accordingly, it is necessary to consider the terms of the Workers Compensation Act 1987 as in force prior to the 2001 Amendment Act. 146 In relation to non-economic loss, s 151G(2) of the Act provided: (2) The amount of damages to be awarded for non-economic loss is to be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.

The reference to non-economic loss in this context should be understood as a reference to non-economic loss attributable to the defendant. Accordingly, the submissions referred to above should be accepted and the proportion of a most extreme case must be calculated by reference to that aspect of the loss attributable to the defendant, after making allowance for the failure to mitigate.

Damages: future medical expenses 147 The trial judge allowed an amount of $25,000 for future medical expenses, which, the defendant notes, represented approximately $25 per week for 52 years. However, that does not appear to be the way in which the trial judge assessed such loss. Whilst noting that the plaintiff had claimed an amount of $100 per week for 52 years, his Honour also noted the defendant's submission that there should be a modest cushion of between $5,000 and $10,000 in respect of treatment in the immediate future: Judgment, p 79. His Honour considered medical evidence as to the cost of continuing visits to a psychologist at a weekly expense of $176, acknowledging that there was some uncertainty as to how long she would require further treatment, taking into account uncertainty as to whether her condition would improve to an extent that no further treatment would be required, or might, on the other hand, deteriorate. I see no reason to interfere with his Honour's assessment which was based on appropriate considerations, arising from the evidence.

Damages: future economic loss 148 The trial judge found that there had been a 50% reduction in her earning capacity which, his Honour assessed at $900 per week: Judgment, p 92. He therefore allowed a sum of $450 per week for 27 years, appropriately discounted, giving a rounded figure of $300,000 for future economic loss. 149 As noted above, the case for the defendant was that the plaintiff retained a capacity to work in a wide variety of occupations, which did not involve operational duties with the Police Force, or any similar occupation, which might expose her to traumatic experiences of the kind which would trigger a deterioration in her psychological condition. 150 The assessment of possible work opportunities appears to have been undertaken at trial largely by reference to her continued placement within the Police Service. She had been given restricted duties within the Service which, with some qualifications, had proved satisfactory. However, there was uncertainty as to her long-term prospects and particularly her opportunities for promotion. 151 It may be that the conclusion reached by the trial judge involved a pessimistic assessment of her future earning capacity, but it depended to a significant extent on his assessment of the plaintiff herself and upon his analysis of the medical evidence, as well as the nature of employment available within the Police Service. I am not persuaded that his assessment fell outside a reasonable range and I would not, accordingly, interfere with his Honour's conclusion in that regard.

Conclusions 152 The appeal by the State must be upheld in part and the matter remitted to the District Court for further consideration in accordance with the judgments of this Court. As each party has had a significant level of success, it is appropriate that each bear its own costs of the appeal. The Respondent is, nevertheless, entitled to a certificate under the Suitors' Fund Act, in accordance with the principles stated in Wyong Shire Council v MCC Energy Pty Ltd (No. 2) [2005] NSWCA 196. 153 I propose the following orders:

(1) Appeal allowed and orders 1 and 2 made by the District Court on 28 February 2005 be set aside.

(2) Remit the matter to the District Court for determination of the loss suffered as a result of the defendant's negligence.

(3) In lieu of the order for the costs of the trial made below, order that the Appellant pay one-half of the plaintiff's costs of the action in the District Court.

(5) The Respondent have a certificate under the Suitors' Fund Act 1951 (NSW). 154 M W CAMPBELL AJA: I agree with the Chief Justice. 155 I add that in my opinion the failure of Inspector Whittten, after looking into the room where the respondent was working, to provide support to her was a relevant breach of duty. 156 His Honour summarised the evidence in cross-examination of Professor Bryant on this aspect as follows (Red 61 C to F): "Thus, he also agreed that the event of the duty officer looking into the room, saying nothing and leaving, would be an important factor reinforcing the plaintiff's idea of abandonment at the scene." 157 The scene in the room was a gruesome and frantic one. It should be inferred that the Inspector observed that to be the case, especially in the absence of any evidence from him. 158 Inspector Whitten left without providing any support for the respondent who was in an extremely stressful and busy situation. The evidence does not show, or even suggest, that he did not have the resources to provide another police officer to support the respondent by his or her presence and to assist her with the multiple tasks upon which she was engaged. There is nothing to suggest that the Inspector did not have the time to enquire how the respondent was coping and whether she needed assistance. **********

15/11/2006 - Typographical error - word left out - Paragraph(s) 99

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