and
"Ultimately her anxiety is an unusual but nonetheless very distressing presentation of Post Traumatic Stress Disorder in which she effectively relives years of exposure experiencing emotions which at the time she had successfully disassociated or repressed. It should be borne in mind that of all traumatic experiences injuries to children are the most difficult to cope with as they tap into our deepest protective instinct. This is particularly so in situations in which such exposure is coupled with a sense of utter helplessness and overwhelming anger against the perpetrator."
57 It does not appear that Dr Canaris based his diagnosis only on the period in the Child Mistreatment Unit.
58 Neither the pleadings, nor the manner in which the case was conducted, nor his Honour's judgment, justify the approach in the submissions in this Court on the part of the Appellant that the Court should confine itself to the state of knowledge in the period of the early to mid-1980's.
59 The Appellant appeared to accept that there was a change in the relevant state of knowledge during the course of the Respondent's occupation. This could give rise to difficult issues of proof if it were necessary to distinguish the effect of exposure at different periods, only some of which may have involved negligent acts or omissions. The appeal was not conducted on this basis.
60 The Appellant submitted that the issue of foreseeability had to be related exclusively to police work. Evidence with respect to other workers who had frequent contact with abused and injured children was not relevant. In my opinion, this submission should be rejected. The law of negligence is concerned with human beings. It is not concerned with specific occupations. Where employees in two occupations have exposures to similar risks, employers in one occupation can reasonably be expected to have regard to the experiences of employers in the other occupation.
61 The manner in which this submission was put by the Appellant was to the effect that there were no studies, at what it said was the relevant time, which established any relationship between police investigative work of any kind, including of the character conducted by the Respondent, and a major psychiatric illness such as Post-Traumatic Stress Disorder. In my opinion, to postulate the relevant inquiry in so specific a manner is unduly restrictive. Whether or not studies expressly directed to police forces existed is a relevant consideration, but it is not determinative.
62 There are many characteristics of police work which raise particular issues with respect to the issue of the provision of a safe system of work. Exposure to stress which may lead to psychiatric disorder does, it may be accepted, occur for police in situations which may be more intensive and, in some respects, even unique. That does not justify an approach which ignores relevant analogies and knowledge derived from other occupations.
63 The Appellant also sought to restrict the scope of the material to which the Court may have regard on the issue of breach of duty to that expressly concerned with police. It submitted that, in the absence of studies showing a link between police investigations of child abuse and serious psychiatric illness, the Court could not infer fault on the part of the Appellant for failing to take any particular steps. This submission should also be rejected as too restrictive.
64 Dr Neil Adams, a psychologist, gave evidence on problems of occupational stress in the early 1980's and the prevalence of training support systems and various forms of protection available to persons in counselling roles involving significant stress. His Honour accepted the evidence that there was a general awareness of the need for such measures in occupations in which workers were engaged in what could be called "counselling" situations. The Appellant submitted that there was no evidence on which the Court could act because there was no evidence that any person considered police as being involved in "counselling" in the early 1980's. Nevertheless, his Honour did find as a fact that there were analogies between the two functions:
· "It was her function to comfort and reassure these children and to support them and prepare them to give evidence at committal hearings and trials …".
· "The male police officers who had worked in the Child Mistreatment Unit recognised that police were seen as a support to victims and their families …".
· "The Plaintiff and other female witnesses gave the impression that the police role, as they saw it, was more of a combination of criminal investigation and victim support role."
65 The Appellant's submissions in this regard should be rejected. The issue is not to be determined by the approach only of police forces, or persons associated with them, at the relevant time. The issue is not what police actually did at that time, but what they ought to have done. The analogies, suggested in the evidence of both Dr Adams and Ms Lam, between counselling roles and the functions of a specialist unit such as the Child Mistreatment Unit are sufficiently close for the contemporary experience of persons and organisations involved in other forms of contact with abused children to have been regarded as relevant by those responsible for these matters in the police. They should have understood that the way these matters were conducted in those areas was a relevant source of information for the police force.
66 Accordingly, when Dr Adams identified in his evidence a number of steps which an employer in the 1980's ought to have implemented, this was of direct relevance to an employer of police. This included, as his Honour accepted, the need for a period of training, including training on counselling techniques; regular case management and debriefing sessions and other forms of support; a system of early identification of symptoms of stress or "burnout" or incipient "burnout" and appropriate support systems and relief mechanisms. Dr Adams indicated that, from his training as a counsellor in the early 1960's, recommendations of this general character "would be considered as fairly basic and common knowledge in counselling work or any related service dealing with persons, particularly children, in stressed, social/interpersonal circumstances". He emphasised that the relevant knowledge and skills were available in the early 1980's and earlier.
67 The Child Mistreatment Unit had been set up at Bankstown in the early 1980's by a Mr Rope, who at the time he gave evidence before his Honour had retired from the police force. He indicated that even in the early 1980's when the Unit was set up he understood the term "burnout" to refer to persons who "could not cope with carrying out the function which they were supposed to be doing at the time". He was aware prior to 1980 that police did experience stress. He gave evidence of a report prepared by Dr Sutton on the psychological affects of people working in the Child Mistreatment Unit which he had commissioned on her suggestion. He acknowledged in his evidence that he did so because he was "concerned" about "whether or not there were psychological effects". On his recollection, the investigation of that report started in 1986.
68 Ms R Lam, who was employed as a social worker in Child Protection from 1984, was called as a witness. She gave evidence as to the system of work that was established at her hospital in 1984 which included an orientation period, support systems which occurred on a weekly basis and the provision of reading material on child protection. She gave evidence as to the similarity of some of the functions that she performed and those performed by the Respondent in the Child Protection Unit. She referred to one article which was amongst a considerable volume of reading material with which she was provided as part of her orientation. The article was entitled "The Psycho Dynamics of Child Abuse and their Relationship to the Battered Professional Syndrome". The author of the article said:
"I believe that anyone who becomes involved with the problem of child abuse is 'at risk' - the risk is, of being caught up in an abusing system where the worker is battered and responds by battering. This I call the 'battered professional syndrome'."
69 In 1992, a detailed investigation and report was undertaken by the NSW Police Service with respect to the risks of policing. Chapter 1 of that report is on the subject "Police Officer Stress". That chapter begins with the following passage:
"This chapter reviews the recent research literature on the special hazards and stresses of policing, and on responses of police officers to these stresses. Since the mid 1970's, there has been a 'veritable flood of publications on police stress' (Sewell et al 1988 p94)."
70 The authors go on to list a number of studies. The internal quotation about a "veritable flood" comes from a 1988 article in the United States, the author of which had himself published articles on the subject as early as 1981.
71 It is instructive to read this 1992 study, which the Appellant submitted was the first occasion on which foreseeability of post-traumatic stress disorder would reasonably have been foreseen as a consequence of the Respondent's work, noting the dates of the studies upon which the report relied.
72 The authors of the report note that studies that related stress and emotional problems have included studies which looked at rates of suicide. Studies in the United States which appear to suggest a higher suicide rate for police, to which the authors make mention, include studies published in 1984 and 1989.
73 The 1992 report also makes reference to 1981 and 1983 studies in the United States which listed twenty-five events which police officers identified as the most stressful to which they were subject. Included on this list was "answering a call to a scene involving violent non-accidental death of a child".
74 His Honour also made reference to other United States literature. This included an articled published in 1979 which referred specifically to the development in the United States of "Police Stress Programmes" which it described as "aimed at reducing stress and its consequences". Under the subheading of "Compensation for Disabilities Due to Stress" the authors of this 1979 article said:
"In the past compensation has been applied mainly to easily verifiable work injuries such as crushed hand or death in a fall, rather than to long term chronic diseases whose causes may be hard to establish. Now, however, through concepts such a 'cumulative trauma', compensation is being extended to cover a wide range of physical and mental conditions . These trends have also been extended to police work where occupational stress is viewed as a valid cause for disability compensation.
Disability compensation is increasingly being awarded for a wide range of stress related disorders including 'alcoholism, nervous exhaustion and even some neurotic and psychotic diagnosis such as depression or paranoia when they have been attributed to stresses of the job.' (Reiser "Stress Distress and Adaptation in Police Work" (1976) 44 The Police Chief 24). Leedy (ed) C ompensation in Psychiatric Disability and Rehabilitation 1971 also cites a number of examples in which compensation has been awarded to persons suffering job related psychiatric disturbances ." (Emphasis added)
75 The authors went on to note that, notwithstanding the special characteristics of police work, studies of occupational stress in other forms of employment were material for determining the related issues in the police context.
76 An extract from a 1981 book by L Territo and H Vetter published in the United States on Stress and Police Personnel was contained in the appeal papers. In the foreword of the book the authors comment:
"In the stress field the working environment of a police officer, peer group identification serves an important defensive function …If the peer support group is disrupted by promotion, transfer, death or other reasons, however, the results are likely to be depression, alienation, lowered morale and severely strained friendships and family relations.
Stress affects us physically, emotionally and interpersonally.
………
Emotional reactions to stress include confusion, anxiety, fear, anger, cynicism and even hysteria. … The end result of continued exposure to high stress situations, if left untreated, are alcoholism, divorce and even suicide. Numerous studies have reported the existence of these stress syndromes among police officers."
77 In the preface to the book the authors indicate:
"The first section, The Nature of Stress , provides the reader with an orientation and introduction to the general topic of stress and some of its principle, psychological , physiological, and social consequences.
………
The second section, Stress and the Police Officer , examines job stress and some of its more destructive manifestations, namely alcoholism, divorce and other family problems, and suicide."
78 Other parts of the book identify stress control programs and counselling services available in police forces in various States of the United States.
79 Goldring DCJ referred to this book in the following terms:
"This book, which states it was designed as a handbook for active police, was held at the Australian Institute of Criminology Library in 1982, and it is surprising that the largest police service in Australia was not generally aware of the proposition that police work in general was likely to produce stress in police officers to the extent that they might develop psychiatric disorders as a result of stress. It contains chapters dealing specifically with stress in female police and a section on programmes and techniques for alleviating stress in police." (32)
80 This passage makes it clear that his Honour was not focussing his attention merely on stress but was concerned to answer the relevant question for these proceedings, namely the consequences of stress as a mechanism which brings about a relevant psychiatric illness.
81 The trial judge placed particular reliance on the evidence of Sergeant O'Connell who was stationed at Wagga Wagga where there was a Child Mistreatment Unit from the mid 1980's. His Honour said of Sergeant O'Connell:
"He was personally aware of the experience of a young female police officer who had been assigned to this Child Mistreatment Unit and who suffered extreme stress to the extent that she was transferred to other duties.
Before this, in 1982 or 1983, because of his experience Sergeant O'Connell organised a voluntary course for police on methods of coping with occupational stress. This was organised in Wagga, with instruction from outside experts. It seemed to be successful. The course was reported in the Sydney newspapers, and as a result Sergeant O'Connell was reprimanded by the Inspector then in charge of police welfare. This is clear evidence that senior police were aware in 1982 that some New South Wales police officers thought that stress appeared to be a problem, yet the reaction appeared to be a total denial that police had any responsibility to deal with this.
In 1989, Sergeant O'Connell made a submission of eleven single space, typed pages to the District Commander of Wagga, dealing with "adequate support and training for police personnel attached to Child Mistreatment Units throughout the State." This document reviewed the literature and made specific recommendations to improve training. … The 1989 submission is useful in setting out what appears to be common knowledge about stress management and some ways police might benefit from it. However, in my view, it is less relevant to this case than the fact that a senior police officer had responded negatively to Sergeant O'Connell's 1982 initiative, which is clear evidence that senior police were aware that stress was in fact a problem with police in New South Wales. This would itself be evidence that the police ought to have been aware of the potential danger of stress, and of psychiatric illness resulting from stress , in the police working environment at that time." (32-33 Emphasis added)
82 The trial judge found in favour of the Respondent on the issue of foreseeability on the basis of a considerable body of evidence, including keenly contested oral evidence. There was material from which his Honour could draw the ultimate inference. To a substantive extent it turned on oral testimony. This Court should not interfere.