Walsh v State of New South Wales - [2018] NSWSC 1480 - NSWSC 2018 case summary — Zoe

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Walsh v State of New South Wales

[2018] NSWSC 1480

Supreme Court of NSW|2018-05-03

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2018-05-03

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Background

On 12 July 1981, the plaintiff commenced as a trainee with the NSW Police Force. On 9 October 1981, the plaintiff was attested as a constable of police and appointed to the rank of probationary constable.
From October 1981 to 1983, the plaintiff performed general duties at Bankstown police station and Revesby police station. From 1983 to 1986, she performed radio duties in the Police Radio Unit. From 1987 to 1990, the plaintiff performed investigatory duties at Bankstown police station. From 1990 to 1993, she performed investigatory duties at Bass Hill police station.
From 1993 to 1996, the plaintiff performed investigatory duties at Liverpool Internal Affairs Unit. From 1996 until her medical retirement from the NSW Police Force in 2005, she was attached to the regional office at Liverpool police station where she performed investigatory duties similar to that performed in the Liverpool Internal Affairs Unit.
In 2000, the plaintiff pleads that while attached to the regional office at Liverpool police station as a brief manager, she was tasked with investigating the actions of a fellow police officer ("the Detective Senior Constable"). This investigation formed only part of her duties as a brief manager. She was still obliged to work with the Detective Senior Constable and other police officers in the office on other investigations on a daily basis. She was part of a team and this required the building of rapport and trust with her professional colleagues.
In February 2000, she interviewed the Detective Senior Constable about allegations of unlawful and corrupt actions of police officers while on or off duty. The plaintiff alleges that during the course of this interview, the Detective Senior Constable became very angry and left the interview room before the interview had finished. The Detective Senior Constable then took a period of leave. The plaintiff reported the conduct of the Detective Senior Constable to her superiors.
The plaintiff pleads that upon the Detective Senior Constable's return to work and for a number of years after, he engaged in a pattern of conduct which harassed and frightened her leading her to suffer from psychological injury, loss and damage.

[4]

The test for summary dismissal

UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are if the proceedings are frivolous or vexatious, if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the Court.
UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading, firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings; or thirdly, is otherwise an abuse of the process of the Court.
UCPR 14.28(2) provides that the Court may receive evidence on the hearing of an application for an order under subrule (1).
In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal applied the High Court of Australia decision of Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 ("Spencer"). In Spencer, the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth), but the following principles are of general application: 1. On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]); and 2. The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54]). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success.
Powers to summarily terminate proceedings must be exercised with exceptional caution (at [55]; see also French CJ and Gummow J at [24]).
The defendant submitted that there are cases where novel duties of care have been summarily dismissed and referred to Agar v Hyde (2000) 201 CLR 553; [2000] HCA 41 at [64] per Gaudron, McHugh, Gummow and Hayne JJ, referring to Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241; [1997] HCA 8 and Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 9 ("Sullivan").
However, in Contribution Fund of Australia v Hunt (1982) 44 ALR 365, Master Allen in discussing summary judgment applications where the law is ripe for development, stated at 373-374: "…It is not by any means rare in the history of the development of the common law that a high appellate court, in enunciating a novel development in the law, albeit one avowedly based on a miscellany of old cases, has chosen to use general words of imprecise limits in meaning to facilitate the arrival, in later cases, of the final form of the development without the need to overrule what earlier had been stated. That being so I am of opinion that a court at first instance should be particularly astute not to risk stifling that development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie. The risk of injustice to the plaintiff, which summary termination of his claim would entail, is real. One cannot predict, with firm assurance, what the future holds as the final formulation of the new development."
This passage was quoted with approval by Badgery-Parker J in Gibson v Parkes District Hospital (1991) 26 NSWLR 9 at 35.
In response, the defendant referred to The Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307; [2005] QCA 465 ("Page"); and Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 at [30] ("Perera").
In Page, McPherson JA stated at [23]: "It was submitted that the plaintiff's action in negligence should be permitted to go to trial so that the matter in issue can be determined with the full benefit of the 'flavour' that would be imported by findings of fact. Striking it out now would, it was said, prematurely stultify the development of the law. ... But this is not a case in which the facts are, on this application, in any doubt. For present purposes they are, and have been assumed to be, as alleged in the statement of claim."
In Perera, Leeming JA set out the variety of formulations of the applicable test where a defendant applies for the summary judgment. His Honour identified two matters to be distilled from the authorities. At [30] he stated: "30 One is that common to all the various formulations is the need for 'exceptional caution', as was explained in Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] and Spencer at [53]-[55]. The other is that the inquiry is as to the demonstrated certainty of the outcome of the litigation, as opposed to its prospects of success."
In Perera, Leeming JA continued at [38]: "38 It remains the case, as is plain from the principle formulated in New South Wales v Spearpoint itself, … that there are cases when summary dismissal of a novel duty of care is available. In the present case, the primary judge regarded Mr Perera's concededly novel duty of care as being contrary to principle and appellate authority. None of the decisions which had been cited to him was binding, but his Honour evidently and appropriately accorded those decisions considerable weight, being decisions on a pure question of common law: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135]. No aspect of his Honour's reasoning turned upon any issue of fact which might have been illuminated if the matter had gone to trial. I see no error in his Honour taking that course. This was a case where it was open to the trial judge to resolve the underlying issue of law as a matter of principle and authority. Indeed, it is difficult to see how otherwise there would have been compliance with the obligation to seek to give effect to the overriding purpose to facilitate the just, quick and cheap resolution of the proceedings imposed by s 56 of the Civil Procedure Act 2005 (NSW)."
The defendant submitted that these proceedings are not specifically formulated as a novel duty of care although to some extent the second of the duties alleged is novel.

[6]

The statutory obligations under the Police Act

The NSW Police Force is established by s 4 of the Police Act. Section 6 of the Police Act provides that the mission of the NSW Police Force is "... to work with the community to reduce violence, crime and fear". One of the services which is provided by the police is "[t]he protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way" (s 6(3)(b) of the Police Act).
Section 8 of the Police Act reads: "8 Commissioner to Manage and Control NSW Police Force (1) The Commissioner is, subject to the direction of the Minister, responsible for the management and control of the NSW Police Force. (2) The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of the NSW Police Force. (3) The Commissioner may classify the various duties that members of the NSW Police Force are required to perform and allocate the duties to be carried out by each such member. (4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of the NSW Police Force with respect to the management and control of the NSW Police Force."
Section 64 of the Police Act gives to the Police Commissioner the power to appoint all police officers "... whether by way of transfer or promotion or otherwise ...".
Under the Police Act, the Police Commissioner, in addition to his powers in s 8, has the following specific powers: 1. appoint, promote or transfer any member of the NSW Police Force (ss 64, 69, 80, 82A, 82E and 90); 2. investigate police misconduct matters (Part 8A, Divisions 4 and 5); 3. investigate a complaint, institute proceedings in respect of a complaint, take no further action in respect of the complaint of misconduct (s 136, 139 and 140); 4. discipline, including dismissal of any member of the NSW Police Force (ss 173, 181D and 207A); 5. give a direction to any member of the NSW Police Force with respect to their conduct, functions or actions, including putting them in harm's way, with which the member cannot lawfully refuse to comply without committing an offence (s 201); and 6. delegate any of his functions to any other member of the NSW Police Force he chooses (s 31).
In this case, the most relevant power that was being exercised was the power of the Police Commissioner to investigate a complaint under s 136 of the Police Act.

[7]

The pleadings in the PASC

Paragraph [3] to [9] of the PASC set out the defendant's alleged duty of care. They read: "3. At all material times, the Defendant had a duty of care to take reasonable steps to prevent or reduce the risk of harm as part of her work as a police officer. 4. At all material times, the Defendant knew or ought to have known that threats of violence, threats, and intimidating behaviour by one police officer against another may cause harm. 5. At all material times, the defendant knew or ought to have known that a police officer ordered to undertake an investigation into a fellow police officer: a. Ought be provided with a work environment that would enable security of sensitive information; b. Ought not be placed in a situation where the police officer's position with respect to the officer under investigation is compromised by personal conflict deceit or dishonesty; c. Protects the identity of the complainant; d. Provides the investigating officer with independence. 6. The Defendant knew or ought to have known that to: a. Place the investigating officer in close physical proximity provided no relevant security over the information in the investigator's file; b. Place the investigating police officer in a position of unnecessary interpersonal conflict, and may require him or her to engage in deceit, dishonesty and secrecy; c. May place the investigating police officer under unnecessary and increased levels of stress; d. May compromise the efficacy and integrity of the investigation; e. May compromise the security of the investigation; f. May cause unnecessary inter-personal conflict with the officer subject to the investigation including physical harm, harassment, bullying which could otherwise be avoided; g. Would necessarily expose the investigating officer to risk of harm when the investigating officer was ordered to interview the police officer, and in doing so, reveal that while the officers had been working together on other tasks, one had secretly been investigating the other. 7. At all material times, the Defendant had a duty of care to take reasonable steps to provide a safe working environment for the Plaintiff and to take reasonable steps to reduce the risk of harm as a result of her workplace environment. Particulars The harm includes physical and psychiatric injury. 8. At all material times, the Defendant had a duty of care to take reasonable steps to ensure that appropriate measures were taken in response to complaints of inappropriate, intimidating behaviour towards the Plaintiff by another officer. 9. At all material times, the Defendant had a duty of care to take reasonable steps to ensure that appropriate workplace structures were put in place to prevent the continued intimidation, harassment or threatening of the Plaintiff by another police officer."
The particulars of breaches of duty of care are set out in paragraph [65]. They are lengthy and plead: "Particulars of Negligence (a) Allocating the investigation of [the Detective Senior Constable] to the Plaintiff in light of their close adjacent working locations. (a) Failure to provide a safe working environment, including requiring the Plaintiff to conduct an internal investigation into a colleague who worked in close proximity to the plaintiff and who was known to be violent, putting the Plaintiff at risk of intimidating and threatening behaviour in extremely close proximity to her area of work. (b) Ordering the Plaintiff to conduct an internal investigation into [the Detective Senior Constable] when she was also working cooperatively with him on other assignments. (c) Ordering the Plaintiff to investigate [the Detective Senior Constable] in circumstances where she may have to lie, or be deceitful or dishonest with [the Detective Senior Constable] so as to preserve the integrity of the investigation or preserve the secrecy of the identify o the complainant. (d) Ordering the Plaintiff to work with [the Detective Senior Constable] and at the same time investigate him. (e) Ordering the Plaintiff to interview [the Detective Senior Constable] as to serious allegations of attempting to pervert the course of justice and conspiracy to murder after had been working with him on other matters. (f) Ordering the Plaintiff to interview [the Detective Senior Constable] when she had formed the view and advised her superiors that the allegations were without foundation. (g) Ordering the Plaintiff to interview [the Detective Senior Constable] when her superior officer knew that [the Detective Senior Constable] could resort to violence, including the throwing of a chair at her. (h) Failing to order an independent officer to interview [the Detective Senior Constable]. (i) Ordering the Plaintiff to interview [the Detective Senior Constable] in circumstances where, as soon as the interview commenced, [the Detective Senior Constable] was likely to form the view his previous professional dealings with her were based on deceit, secrecy and dishonesty, which may lead to him attempting to injure her physically or psychologically by revenge, harassment, threats or intimidation. (b) Failure to provide a safe working environment for the Plaintiff after the interview, including failure to put in place measures to appropriately deal with inappropriate, threatening and intimidating conduct between the Plaintiff and her colleague such that the Plaintiff was exposed to such behaviour on an on-going, long-term basis. Particulars The Defendant took no steps to ensure that the Plaintiff's workplace was safe enough to facilitate her return from sick leave in or around June 2003 In or around June 2003 Sergeant Hannon informed the Plaintiff that she could not return to work as [the Detective Senior Constable] was still present at Camden Police Station where the Plaintiff had been working and they could not guarantee the Plaintiffs safety. (c) Failing to prevent [the Detective Senior Constable's] ongoing harassment and intimidation of the Plaintiff. (d) Failure to take appropriate steps to address the Plaintiffs concerns regarding [the Detective Senior Constable's] behaviour towards the Plaintiff over a number of years. (e) Failure to counsel [the Detective Senior Constable] so as to cause him to desist from further intimidation or harassment. (f) Failure to discipline [the Detective Senior Constable] so as to deter him from further intimidation or harassment. (g) Failing to transfer [the Detective Senior Constable] or arrange rosters so he would not come into contact with the Plaintiff. (h) The Plaintiff reported to her superiors of [the Detective Senior Constable's] intimidating and threatening behaviour from around February 2000 and despite that report the defendant failed to address the Plaintiff's escalating concerns regarding taking action to control [the Detective Senior Constable] or to remove her from a working environment with [the Detective Senior Constable] on the following dates: Particulars (i) In or around March 2000, when the plaintiff reported [Detective Senior Constable's] behaviour to Detective Senior Sergeant Clark and acting Superintendent Helson. (ii) In or around April 2000 when the Plaintiff again complained of [the Detective Senior Constable's] behaviour to Detective Senior Sergeant Clark. (iii) In or around May 2000, when the Plaintiff made a written report to the Commander at Liverpool Police Station regarding [the Detective Senior Constable's] behaviour. (iv) On or about 2003 the Plaintiff's complaint was emailed to [the Detective Senior Constable]. (v) Doing so was contrary to mandatory protocols to keep the identity of internal complainants confidential. (vi) In or around early 2001 when the Plaintiff contacted Detective A/Inspector Kelly asking him to arrange a meeting to speak with [the Detective Senior Constable] about his behaviour. (vii) On or around 29 May 2003, when the Plaintiff contacted Detective Inspector Rae, Detective Senior Sergeant Clark and Detective Senior Constable Wayne Kelly by telephone and Superintendent Rattenbury by written report of [the Detective Senior Constable's] threatening phone call made that date to the Plaintiff. (c) Failing to ensure [the Detective Senior Constable] had no ongoing contact with the Plaintiff after the interview. (e) Failure to assess the Plaintiff psychologically and psychiatrically when symptoms of the Plaintiff's psychiatric illness became evident. (f) Failing to appropriately discipline [the Detective Senior Constable], including but not limited to serving [the Detective Senior Constable] with a disciplinary notice, officially parading [the Detective Senior Constable] in relation to his actions or issuing [the Detective Senior Constable] with a conduct management plan including, inter alia, to make no contact with the Plaintiff in regards to any issue. (e) Failure to ensure that the Plaintiffs psychological and/or psychiatric health and well-being was regularly assessed or evaluated by a suitable qualified psychologist and/or psychiatrist and/or by psychometric assessment following her prolonged exposure to the behaviour of [the Detective Senior Constable]. (f) Directing the Plaintiff to work in the same office as [the Detective Senior Constable] after the interview. (g) Failing to transfer the Plaintiff to another office after the interview. (h) Ordering the Plaintiff to work on common investigations as [the Detective Senior Constable] before the interview. (i) Ordering the Plaintiff to work on common investigations as [the Detective Senior Constable] after the interview. (j) Failing to transfer [the Detective Senior Constable] to another office after the interview."
The plaintiff alleges that the scope and content of the duty of care of the defendant is that it had a duty of care to take reasonable steps to provide a safe working environment for the plaintiff and to take reasonable steps to reduce the risk of harm as a result of her workplace environment, including physical and psychiatric injury. The plaintiff also alleges that the defendant had a duty of care to take reasonable steps to ensure that appropriate measures were taken in response to complaints of inappropriate and intimidating behaviour towards the plaintiff by another officer. The defendant also had an alleged duty of care to take reasonable steps to ensure that appropriate workplace structures were put in place to prevent the continued intimidation, harassment or threatening of the plaintiff by another police officer.
As I have set out earlier in this judgment, it is pleaded that the plaintiff reported the behaviour of the Detective Senior Constable to her supervising officers both during and after the investigation. However, the defendant failed to regularly assess and/or monitor the plaintiff's psychological health and wellbeing, and where necessary, arrange for her to receive treatment from a suitably qualified psychiatrist or psychologist. The defendant also failed to have the plaintiff's psychological health and wellbeing assessed following her complaints about the Detective Senior Constable.

[10]

Patronis

In Patronis, the brief facts were that on 24 May 2009, Mr Patronis, then aged 17, was arrested for alleged traffic offences. While Mr Patronis was under arrest and in the course of a dispute with police as to whether he was required to hand over the key to his motorbike, he was wrestled to the ground, subdued with the use of a taser and allegedly assaulted. In December 2014, Mr Patronis commenced proceedings against the State of New South Wales seeking damages for negligence, assault and false imprisonment arising out of those events. On 24 April 2017, Mr Patronis committed suicide.
It was alleged that Mr Patronis was detained by police from 3.10 pm until about 6.30 pm. His claim in negligence alleged that upon the police detaining him on the side of the road, the police had exercised direct control over and assumed responsibility for his safety. So long as Mr Patronis was in their custody they owed him a duty of care. It was alleged that the police breached this duty by their zealous and overuse of force. In particular, the alleged breach of duty focused upon the allegations concerning the use of the taser and other force immediately following the confrontation concerning the ignition key to the motorcycle.
The claim in assault was based on the same conduct, alleging that police assaulted Mr Patronis at about 4.00 pm by shooting him twice with the taser, pegging him to the ground and forcing his arm behind his back and up around his head, kneeing him and punching him in the head. The claim in false imprisonment alleged that, once police had issued Mr Patronis with Field Court Attendance Notices (at around 4.00 pm), it was unnecessary to detain him further and that he was thereafter wrongfully detained for a period of two hours between about 4.00 pm and 6.00 pm.
In Patronis, McCallum J stated at [22] and [23]: "22 …The Court held [in Sullivan v Moody] that it would be inconsistent with the proper and effective discharge of the professional and statutory responsibilities of those involved in investigating and reporting upon allegations of sexual abuse for them to be subject to a legal duty to take care to protect persons suspected of being the sources of harm. 23 In reaching that conclusion, the Court had regard to other cases in which a common law duty of care has been alleged in circumstances where the duty would not be compatible with other duties owed by the alleged tortfeasor, including the decision of the House of Lords in Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238; [1989] AC 53. The Court in Sullivan v Moody said at [57]: "In Hill v Chief Constable of West Yorkshire, the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out that the conduct of a police investigation involves a variety of decision on matters of policy and discretion, including decisions as to priorities in the development of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate. …"
Her Honour continued at [25]-[26]: "25 It may be accepted that courts have rejected the existence of a duty of care owed by police in a number of cases. In addition to Hill v Chief Constable of West Yorkshire, [counsel for the defendant] relied on the decisions in Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35, Cran v NSW (2004) 62 NSWLR 95; [2004] NSWCA 92, New South Wales v Klein [2006] NSWCA 295 and New South Wales v Tyszyk [2008] NSWCA 107. 26 The burden of the submission was that there was no reason to regard the present case as "an exception to the proposition that no duty was owed or is owed by a police officer in the execution of ordinary tasks of duty". In my respectful opinion, the submission overstates the effect of the relevant principle. As recently recognised by the House of Lords in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 (at [55]), Hill v Chief Constable of West Yorkshire is "not authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime." On the contrary, the ordinary principles of tortious liability apply to police except in the case of incompatibility with the performance of a professional or statutory duty. The practical effect of that principle may well be that no duty of care will be recognised in the vast majority of cases. But it is wrong, in my respectful opinion, to speak of a principle that no duty is owed by a police officer in the execution of ordinary tasks of duty. …"
In addition to Sullivan and Patronis, counsel for both parties referred to Fahy v New South Wales (2007) 232 CLR 486; [2007] HCA 20 ("Fahy"); State of New South Wales v Briggs [2016] NSWCA 344 ("Briggs"); Cran v State of New South Wales [2004] NSWCA 92 ("Cran"). The defendant also referred to Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 ("Keohler"); Hegarty v Queensland Ambulance Service [2007] QCA 366 ("Hegarty"); and Optus Administration Pty Ltd v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21 ("Optus"). I will set these out in more detail below.

[12]

Briggs

The defendant asserts that the pleadings in the present case suffer from the type of deficiencies discussed by Leeming JA in Briggs. The facts in Briggs is that he was a former police officer, and suffered a psychological injury caused by his exposure to traumatic events in the course of his duties. Mr Briggs claimed his injury was a result of tortious acts of the Commissioner and his officers, for which the State was vicariously liable.
Mr Briggs' claim was at all times treated as a "work injury damages claim" for an award of "modified common law damages" under Part 5 of the Workers Compensation Act 1987 (NSW), and the parties (correctly) proceeded on the basis that the provisions of the Workers Compensation Act applied. Consequently, the Civil Liability Act 2002 (NSW) did not apply: s 3B(1)(f)).
Levy SC DCJ found in favour of Mr Briggs, accepting that the defendant had breached its duty of care owed to the plaintiff to take reasonable care to avoid exposing police officers to the foreseeable risk of psychological injury, thereby causing, aggravating and entrenching his injury. His Honour found that the defendant breached its duty of care in two respects. Firstly, over the period of July 2003 to July 2011, the plaintiff was exposed to "traumatic and gruesome events" in the course of his general duties; and secondly, more specifically, after Mr Briggs told his supervisor he was "struggling" and applied for a theoretical demotion in July 2011.
The State of New South Wales appealed, alleging errors of law in how the primary judge formulated the content of the duty of care, breach, causation and damages, as well as failures in the primary judge's findings of fact.
In Briggs at [140], Leeming JA explained that any duty must be prospective and not based on hindsight. His Honour stated: "[140] … In order for liability to be made out, what was required was the identification of some different, specified system of work which, if it had been implemented and maintained, across the NSW Police Force as a whole, would have been a reasonable response to the foreseeable risk of psychological injury As Hayne J said in Vairy v Wyong Shire Council (2005) 223 CLR 422, [2005] HCA 62 at [124] and [126], in terms which have often been followed: The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk and one of the possible answers to that inquiry must be 'nothing. When a plaintiff sues for damages alleging personal injury has been caused by the defendant's negligence, the inquiry about breach of duty must attempt to identify the reasonable person's response to foresight of the risk of occurrence of the injury which the plaintiff suffered That inquiry must attempt, after the event, to judge what the reasonable person would have done to avoid what is now known to have occurred. Although that judgment must be made after the event it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury."
The appeal was upheld and judgment was entered for the defendant.

[13]

Cran

The facts in Cran were as follows. On 25 March 1998, the 43 year old Mr Cran was arrested near Kings Cross where he was found drinking in a park. He had some paper stickers in his possession. The police thought these stickers were LSD. Mr Cran told the police they were only paper but they did not believe him. Mr Cran was charged with deemed supply of a prohibited drug, an indictable offence and was refused bail and sent to Silverwater Gaol, where he remained for just over nine weeks. During this period of incarceration, Mr Cran was bashed on four occasions, receiving relatively minor physical injuries. He also witnessed both a rape and a murder of other prisoner by other prisoners. On 16 April 1998, when the analyst's report was produced, it cleared him.
Mr Cran alleged that he was in a vulnerable state and that the police and prosecuting authorities had failed to promptly take investigative and prosecutorial steps which would have seen him released from custody on remand much earlier than occurred.
The Court of Appeal per Santow JA, (with Ipp JA and McColl JA agreeing) found the State was not liable for harm by chronic post traumatic stress disorder caused as a result of the unnecessarily prolonged imprisonment.
Santow JA at [52] stated: "52 I turn now to what is nonetheless a recognised exception where a duty of care is allowed on current authority. It arises where the Police or prosecutorial authorities expressly or impliedly assume responsibility, to the person injured, who was entirely dependent on an undertaking so expressed or implied. The responsibility if assumed in the present case, would have been to take reasonable steps to have the analyst's report available on the first court ordered date, via the fast-track which they could readily obtain by completing the form properly or by having the Magistrate request it. Assumption of responsibility by the Police to the plaintiff has been recognised as a narrow exclusion zone where, despite the immunity and policy factors supporting it a duty of care is recognised. But the scope for finding such an assumption where not express but implied is likely to be limited as I later explain. This is for the purpose of attributing civil liability in negligence for breaches of the duty of care so assumed, though it occur in the course of criminal investigation. But such exclusion requires that the conduct in question not invoke another immunity. I refer here to the advocate's immunity. It requires that what is done be in connection with, or ancillary to, the conduct of a case in court or be so intimately connected with such conduct that it can fairly be said to be a preliminary decision affecting the way that case is to be conducted when it comes to a hearing; Keefe v Marks (1989) 16 NSWLR 713 at 719-20 per Gleeson CJ."
Santow JA concluded at [63] and [64]: "63 Regrettably for the appellant in the unfortunate circumstances that were inflicted upon him, I consider that on present authority, the greater public interest accorded unimpeded investigation by Police and, so far as relevant, the DPP in carrying out its prosecutorial function, precludes any duty of care to the appellant. The current state of the law, and the policy which underlies it, gives paramount weight to those considerations even overriding the factors of vulnerability and entire dependency. This is so though the decision is itself ministerial. As Ipp JA explains, there is no bright line between the functions of disclosure and investigation, or between administrative and investigative tasks. Their efficient performance may be put at risk by the very prospect of civil action designed to provide sanctions against inefficiency; that, any rate, is the policy consideration reinforcing the immunity. 64 The precise formulation of the asserted duty of care varied in the course of argument. But, however it is formulated, it is inconsistent with authority. It would create tensions in the law if not impair its coherence. The law recognises custodial liability to a prisoner on the gaoler's part as well as the distinct tort of false imprisonment. But it steadfastly denies civil remedy in relation to the police investigative function, save where there is an assumption of responsibility. I should add, so far as the office of the DPP is concerned, that while I do not suggest there that breach of the prosecutorial guidelines was deliberate, there was clearly a significant breach. One may hope that these unfortunate circumstances lead to greater attention by the authorities to the importance of providing the analyst's report promptly, particularly when delay can so injure the interests of someone in custody like the appellant."
Accordingly, the appeal was dismissed. However, no order as to costs made "due to the uncaring neglect of the police in particular towards the appellant." (Santow JA at [65]).

[14]

Koehler

The short facts are that Ms Koehler was employed three days a week as a merchandising representative of her employer. Ms Koehler could not perform the duties expected of her to her own satisfaction. She repeatedly told management that changes had to be made. She said that the work expected of her had to be changed, or she should have more time in which to do it, or she should have help to do it. No changes were made. Five months after starting this work Ms Koehler fell ill. The District Court Commissioner held that the employer failed in its duty to ensure that all reasonable steps were taken to provide Ms Koehler with a safe system of work.
The employer appealed to the Full Court of the Supreme Court of Western Australia (Malcolm CJ, McKechnie and Hasluck JJ), the Court held that the employer could not reasonably have foreseen that Ms Koehler was exposed to a risk of psychiatric injury as a consequence of her duties at work and the appeal was allowed.
The High Court of Australia (McHugh, Gummow, Hayne, Callinan and Heydon JJ) unanimously dismissed the appeal.
The defendant referred to Koehler at [33], where McHugh, Gummow, Hayne and Heydon JJ quoted from Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 at [16], [61] to [62] and [201] ("Tame"): "33 … whether, in all the circumstances, the risk of a [particular] plaintiff ... sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful."
The defendant also referred to Koehler At [55], where Callinan J (in a separate judgment to the majority) also quoted from Tame at [16] per Gleeson CJ, [199] per Gummow and Kirby JJ: "[55] …The fact ... that a psychiatrist placed in the same position as an employer might have foreseen a risk of psychiatric injury, does not mean that a reasonable employer should be regarded as likely to form the same view."
At [57], Callinan J cited with approval the dissent of Lord Scott of Foscote in Barber v Somerset County Council [2004] 1 WLR 1089 at 1095 [14]; [2004] 2 All ER 385 at 392: "Pressure and stress are part of the system of work under which [people] carry out their daily duties. But they are all adults. They choose their profession. They can, and sometimes do, complain about it to their employers."
In addition, McHugh, Gummow, Hayne and Heydon JJ stated at [21]: "The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions. (This last class may require particular reference not only to industrial instruments but also to statutes of general application such as anti-discrimination legislation). Consideration of those obligations will reveal a number of questions that bear upon whether, as was the appellant's case here, an employer's duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee.…"
The majority continued at [36]: "Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer's obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties. First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job. Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle. Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle. The obligations of the parties are fixed at the time of the contract unless and until they are varied."

[15]

Hegarty

The defendant submitted that where complaints are made, the question remains whether it is foreseeable that the employee is at risk of psychiatric injury b. In support of this proposition, the defendant referred to the Supreme Court of Queensland Court of Appeal's decision of Hegarty per Keane JA (with whom Gerrard JA and Douglas J agreed).
In Hegarty, the short facts are that the plaintiff left his employment as an ambulance officer after 15 years, suffering PTSD and obsessive compulsive disorder. The plaintiff claimed that the defendant, the Queensland Ambulance Service, was negligent by failing to have in place a system where his supervisors were trained to identify signs of dysfunction in personnel regularly exposed to distressing and traumatic experiences, so that referral could be made for clinical psychological assessment and treatment such as cognitive behaviourial therapy.
At [41], Keane JA stated that "special difficulties may attend the proof of cases of negligent infliction of psychiatric injury", citing Gillespie v The Commonwealth (1991) 105 FLR 196 at 202. In the same paragraph, his Honour continued: "[i]n such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension".
Keane JA went on to say at [43] that in determining what a reasonable employer would do in response to a foreseeable risk of psychiatric harm raises important considerations in respect of "[t]he private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer's duty". His Honour further stated at [43]: "…The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiffs problems."
Keane JA continued at [44], [45], [46] and [47]: "[44] The plaintiff's case means that the employer must be concerned, not only with non-performance by the employee as an employee, but also with possible episodes of unhappiness in the employee's private life. It is not self-evidently necessary or desirable that employees' private lives should be subject to an employer's scrutiny... [45] …In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer's intervention and the making of a decision to intervene. An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee's performance of his or her duties at work. [46] Employees may well regard such an intrusion as an invasion of privacy. Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee, even one who is in a supervisory position. If an employee is known to be at risk of psychiatric injury, prospects of promotion may be adversely affected and questions may arise as to the entitlement, or even obligation, of the employer to terminate the employment. Employees who are ambitious, and eager for promotion, and whose signs of dysfunction might equally be signs of frustrated ambition, might rightly be deeply resentful of suggestions which reflect an adverse assessment of the employee's ability or performance and prospects of promotion ... [47] …Further, 'litigious hindsight' must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law's insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee's mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard."
Keane JA stated at [101] and [102]: "[101] The plaintiff's case must fail on the basis that even if the defendant had adopted the system of training advocated by the plaintiff, there is no sufficient basis for a finding that the defendant's supervisors would have concluded from their discussion with the plaintiff and his wife that the only reasonable course was to advise the plaintiff to seek psychological assessment and treatment…it cannot be said that the plaintiff has satisfied the court that the conduct of the defendant caused the loss. [102] The plaintiff's case fails because the likelihood is that, in truth, supervisors trained in accordance with Professor Bryant's evidence would not, in the circumstances of this case, have intervened in the manner required to make good the plaintiff's case of negligence."
His Honour concluded at [106] that the plaintiff did not prove that the defendant caused the plaintiff's injury by a breach of the obligation to ensure the workplace health and safety of the plaintiff. Therefore, the judgment in favour of the plaintiff could not be sustained and the appeal was allowed. (at [107]).

[16]

Optus

In Optus, the plaintiff, Glenn Stuart Wright, claimed damages for psychological injury resulting from an attempt by a co-walker to kill him by throwing him off a balcony. He sued the defendant, Optus Administration Pty Ltd, as the occupier of the premises and the entity conducting the training course on which he was engaged at the time he suffered injury.
Gleeson JA at [206] to [212] (who was in dissent but his statement of principles are not in doubt), stated the following propositions from Wicks v State Rail Authority (NSW) (known as State Rail) (2010) 267 ALR 23; [2010] HCA 22 ("Wicks"), which the defendant asserts as having relevance to the present case: 1. s 32 is cast negatively. Therefore, to establish the statutory duty of care identified by s 32(1), it must be established that the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken (Wicks at [22]); 2. whether the defendant ought to have foreseen mental injury to a person of normal fortitude must be determined with regard to "the circumstances of the case". While some circumstances are identified in s 32(2), s 32 does not prescribe any particular consequence as following from the presence or absence of any or all of those circumstances (Wicks at [23]); 3. s 32 is to be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated by the High Court in Tame. Consistent with Tame, s 32 assumes that foreseeability is the central determinant of the existence of any duty of care. Circumstances of a "shocking event" and the existence and nature of any connection between perpetrator and victim and between plaintiff and defendant, are considerations relevant to foreseeability, although neither is a condition necessary to finding a duty of care (Wicks at [26]); 4. the focus of s 32 is "mental harm" and "a recognised psychiatric illness" (Wicks at [29]). "Sudden shock" in s 32(2)(a) may be understood as referring to an event or a cause. This is different to "mental or nervous shock", which refers to a consequence (Wicks at [30]). The Court emphasised at [30] that the notion of "shock" was central to both expressions, and referred to the following dictionary definition of "shock" in Oxford Dictionary (vol XV, 2nd ed, 1989, Oxford University Press) at 293: ... the sense of a "sudden and disturbing impression on the mind or feelings; usually, one produced by some unwelcome occurrence or perception, by pain, grief, or violent emotion ([occasionally] joy), and tending to occasion lasting depression or loss of composure"; 1. the question of foreseeability must be judged before the relevant incident happened (Wicks at [33]).

[17]

Civil Liability Act 2002 (NSW) - mental harm

The plaintiff's claim is one of psychiatric harm. As such, it is subject to s 32 of the Civil Liability Act.
In terms of foreseeability, while the High Court has held that "normal fortitude" is not a precondition to liability for negligently inflicting psychiatric injury, this remains subject to the provisions of s 32 of the Civil Liability Act as Basten JA identified in Optus at [36]: "36 A general law principle is, however, subject to statutory variation. One effect of s 32 of the Civil Liability Act is to require a particular and separate inquiry into the existence of a duty of care with respect to mental harm. The section imposes a qualification on the test of reasonable foreseeability by specifying three elements that the defendant ought to have foreseen, namely, (a) that "a person of normal fortitude" might (b) "in the circumstances of the case" suffer (c) "a recognised psychiatric illness", if reasonable care were not taken."
Part 3 of the Civil Liability Act is titled "Mental harm" and includes s 32. Section 32 was introduced by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW). Although arguably some of the incidents alleged to have given rise to the injury in these current proceedings occurred before the commencement of those amendments, they extend to civil liability arising before their commencement, in proceedings commenced thereafter: Civil Liability Act, Schedule 1, Part 3, clause 6(1).
Section 32 of the Civil Liability Act reads: "32 Mental harm - duty of care (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. (3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff. (4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff."
The operation of s 32 of the Civil Liability Act and the extent to which it reflected the common law as expressed in Tame were discussed by the High Court in Wicks (as I have set out earlier in this judgment).

[19]

The duty is inconsistent with statutory duties

The defendant submitted that the duty of care is whether the duty of care pleaded by the plaintiff is inconsistent with the statutory duties of the Police Force.
The first duty pleaded is really one particularised to some extent by the second duty pleaded. This second duty is one said to be owed to the plaintiff, but it should properly be pleaded as applying to all internal affairs police investigators of police officers by the Police Force to protect them against the risk of psychological injury occasioned by performing that investigative function. The defendant submitted that the duty does not fit the existing body of law and should therefore be rejected without the need to engage in any fact finding in relation to such a duty.
The defendant referred to Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 34 ("Brookfield") where Gageler J, citing Sullivan at [49], made the following observations in relation to duty of care at [169]: "A duty of care at common law is a duty of a specified person, or a person within a specified class, to exercise reasonable care within a specified area of responsibility to avoid specified loss to another specified person, or to a person within another specified class. Whether or not a particular duty of care should be recognised in a novel category of case is determined on the understanding that "[t]here are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application"."
The Police Commissioner has a statutory duty to deal with police misconduct and to investigate conduct. Therefore, the police investigator's function arises under the Police Act as a delegation from the Police Force Commissioner in respect of his duties under Part 8 of the Act. The defendant submitted that the alleged common law duty of care intrudes, "subverts" or "cuts across" this statutory investigative function by wholly or partly overlapping or subsuming it: see Sullivan [42] and [53]. It is well established that a "common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties": see X (Minors) v Bedfordshire County Council [1995] 2 AC 633; [1995] UKHL 9 at 739; Sullivan at [30] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ. As Leeming JA stated in Perera at [42], "the law of negligence is but one part of the Australian legal system, and is not to be extended so as to obliterate or undercut other principles, which may serve other important values."
If the facts pleaded in this case were accepted as giving rise to a foreseeable duty of care, in particular those concerning the allocation of the investigation to the plaintiff (PASC, particulars of negligence (a) and (b)), it would place the "intolerable burden of potential liability and constrain [the Police Commissioner's] freedom of action" to fulfill his or her statutory task: see Sullivan at [42]. In particular, it would inhibit the discharge by the police of their vital functions of internal investigation and prevention of police misconduct. It would introduce a risk that police would act so as to protect themselves from claims of negligence rather than attend to the significantly more important task of investigating allegations of police misconduct. Accordingly, it cannot be that the law would impose a common law duty on the Police Commissioner to protect police officers conducting an investigation where this would curtail the investigative function.
Counsel for the defendant further submitted that the alleged duty of care gives rise to inconsistent obligations and would offend the well established principle of the need for coherence in the law: see Brookfield per Gageler J at [25]. The situation is similar to public authorities charged with the responsibility of conducting investigations, or exercising powers in the public interest or in the interests of a specified class of persons. The law does not ordinarily subject these investigating authorities to a duty to have regard to the interests of another class of persons where it would impose upon them conflicting claims or obligations. In addition, while the plaintiff asserts that the relationship between herself and New South Wales Police Force is akin to an employment relationship, the plaintiff is in fact an officer of the Crown who is subject to a chain of command. It was in the course of this day to day management of officers and this chain of command that the plaintiff was assigned to investigate the detective senior constable. The plaintiff was the Detective Senior Constable's senior officer. She was also an internal affairs investigator and the investigation of the Detective Senior Constable was assigned to her on the basis that she was the officer most qualified to conduct the investigation.
The defendant also submitted that for the plaintiff to make good the alleged negligence, she must prove foreseeability of the harm when the investigation reached the interview stage. It is alleged that prior to the interview, the supervising officer knew that the Detective Senior Constable was capable of resorting to violence. He was aware that a chair could be thrown at the plaintiff (PASC, Particular (g)) and that the plaintiff was at risk of physical harm, retribution and harassment. However, as the High Court observed in Sullivan at [42]: "…But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results…"

[20]

The duty pleaded is impermissibly retrospective

The defendant submitted that alleged duty of care as pleaded by the plaintiff is impermissibly retrospective. As Leeming JA stated in Briggs at [64], [68] and [96], a duty of care must be formulated prospectively without regard to the breaches alleged. It cannot be formulated by engaging in hindsight analysis of whether the risk of injury could have been reduced or eliminated: see Briggs at [151]-[153].
The defendant also submitted that whether there was a real risk of a recognisable psychological injury to internal affairs investigators within the Police Force in the performance of their investigative tasks, must be considered in light of the nature of the relationship between the parties under the Police Act, together with the common knowledge of what the work of law enforcement may require. The obligations cast on police officers under the Police Act means that if a police officer is lawfully ordered to do something that is stressful, no breach of duty will normally arise in requiring the officer to undertake that stressful task. It is inevitable that police work will involve stressful, unpleasant and dangerous work. Such unpleasantness would accompany investigations of the nature that the plaintiff was required to undertake of her fellow officers.
The defendant further submitted that while it is reasonably foreseeable that the work of investigation is stressful and that investigators may uncover animosity from those they investigate, this does not mean that it is reasonably foreseeable that undertaking the work would cause a recognisable psychiatric injury. Even if the risk was foreseeable, how a reasonable person confronted with the risk of injury would respond to the foresight of the risk of injury is unclear: see Hegarty per Keane JA at [49], [51] and [52]. While stress in the face of animosity is not unusual, it is unclear how the stress that an investigator would encounter as the result of an ongoing investigation could be specifically improved, distinct from any other type of stress that would be encountered by those under investigation or police officers generally. Moreover, it is questionable that stress is a recognisable psychiatric injury. Rather, it is a normal human reaction to a variety of situations, such that, by reason of s 32 of the Civil Liability Act, no duty can arise on this foreseen risk.

[21]

The duty pleaded is particular to the plaintiff

In addition to the duty of care being inconsistent with statutory obligations and impermissibly retrospective, the defendant submitted that it is also pleaded as being particular to the plaintiff.
According to the defendant, the plaintiff does not complain that the specialised work of an investigator was so inherently stressful that she should not have been obliged to undertake that work under certain circumstances, or indeed, any circumstances. Rather, her complaint is isolated to the particular circumstances of the investigation of the Detective Senior Constable. Her allegations as to foreseeability, which are not at all discernible on the pleading, could only be limited to a specific individual. The plaintiff was a police internal affairs investigator from 1993 to 2003. However, nowhere in her pleading had the defendant been able to identify a general pattern of conduct, other than the isolated case of the Detective Senior Constable's investigation. It was this investigation that the plaintiff has pleaded ought to have given rise to the foreseeability of this risk of harm she alleges she encountered. This is said without reference to any of the interwoven considerations concerning the performance of police work.
The defendant says that in order to identify a duty owed by the Police Commissioner to the class of persons to which the plaintiff belonged, it was necessary for the plaintiff to allege that it was reasonably foreseeable that police internal affairs investigators, being persons of normal fortitude and without another injury, might in the course of conducting investigations of inferior police officers find these subjects exhibiting aggressive behaviour of such severity as to cause a recognised psychiatric illness. However, the plaintiff has not done so and, in any event, the plaintiff's case is limited to her interaction with the Detective Senior Constable. It concerns no other investigation subject.
In addition to the issues arising in respect of foreseeability, the plaintiff does not identify what reasonable care the Police Force ought to have taken having foreseen that such behaviour might be encountered. The defendant submitted that the reason for this is because the plaintiff is simply unable to do so. The incident is an isolated one that is unique to the Detective Senior Constable. It is not a peculiar aspect of internal affairs investigations. It is also apparent from the plaintiff's complaint made to her superior officers on 16 June 2003 that a precautionary measure was undertaken. Specifically, where the subject of an investigation exhibits a poor reaction to being investigated, they are referred to be psychologically assessed.
The High Court in Sullivan stated at [42], "[a] defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care". This has to be balanced against the observation of McHugh J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [81] ("Ryan") that "[o]rdinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk". The defendant also referred to Ryan in order to assert that the plaintiff's complaint is related to the deployment of resources to conduct investigations, the allocation of which are essentially political.

[22]

Breach of duty

In addition to the alleged deficiencies in the duty of care, the defendant submitted that the pleading of breach suffers from a number of deficiencies. As a general rule, a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable: s 5B(1)(a) of the Civil Liability Act.
Firstly, the plaintiff has failed to establish that the precautionary measures which ought to have been taken must operate to extend to all police officers tasked with the same investigative work undertaken by the plaintiff. Rather, the particulars (a) to (e) as pleaded fail on this basis as they are peculiar to the plaintiff and the one officer.
Secondly, s 139(2) of the Police Act gives the Police Commissioner power to decide that a complaint does not need to be investigated. The decision in such matters is for the Police Commissioner and his delegates. This represents a fundamental difficulty for the plaintiff's allegation of breach that the Police Commissioner failed to appropriately discipline the Detective Senior Constable.
Thirdly, the asserted allegations do not offend the necessary elements of control and vulnerability of any duty imposed. The plaintiff's complaint does not involve the victimisation of a subordinate officer by a superior where different considerations apply. As Spigelman CJ explained in Hunter Area Health Service v Presland (2005) 63 NSWLR 22; [2005] NSWCA 33 at [19], the concept of vulnerability in this context is a reference to the inability of a particular person to protect himself or herself from the consequences of the conduct alleged to be negligent. The plaintiff was a detective sergeant and was the senior officer making a complaint against an officer of lower rank about his conduct. In the hierarchy of the chain of command, she herself possessed the essential control over her alleged perpetrator and lacked the vulnerability that the law would otherwise require to impose the duty of care alleged or its breach. The defendant referred to State of New South Wales v Rogerson [2007] NSWCA 346 at [34]-[35], where Handley AJA (with McColl JA and Hoeben J agreeing) stated that the Police Commissioner owed no duty of care to prevent a subordinate officer making the remarks he did to his superior. Nor did it have a duty to investigate the plaintiff's complaint about those remarks. His Honour referred at [35] to Sullivan, where the Court said at 581 that a police investigation into criminal conduct: "involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action of tort, was inappropriate."
Fourthly, there is no articulation of how the assessment or monitoring, which the plaintiff alleges was omitted, was to be effectively carried out. The plaintiff does not allege that she sufficiently displayed signs of psychiatric vulnerability such that the Police Commissioner should have taken the necessary precaution of referring her to psychological assessment when she first made the complaint. Bearing in mind the matters discussed by Keane JA in Hegarty, it is also questionable whether the plaintiff could be directed to attend medical professionals. In any event, within 11 days of making the complaint, she was placed on hurt on duty leave for the personal injury in respect of which she has brought her current action. Even putting aside breach, no causation could possibly be made out on these facts.
Accordingly, the defendant submitted that the plaintiff's proceedings should be summarily dismissed.

[23]

The plaintiff's submissions

The plaintiff says that there are causal acts of negligence which led her to suffering psychiatric injury. She alleges that the defendant owes a non-delegable duty as an employer to prevent harm to persons in its employ or more accurately its service, including psychiatric harm. While it is accepted by the plaintiff that the relationship is not, strictly speaking, one of employer and employee, the plaintiff asserts that a similar duty of care applies. The plaintiff submitted that the working environment which required her to investigate the Detective Senior Constable directly led to the risk of harm occurring.
Senior counsel for the plaintiff, in oral submissions, submitted that a factual analysis of the circumstances of the case informs the scope and duty of care, which is then followed by an application of the law. According to the plaintiff, this is not a case in which the claim ought to be dismissed on the basis that it is patently unarguable. (T22.16). The duty in the present case is not solely determined by foreseeability of harm. Rather, there are common law obligations on a person who is employed by, or who serves with, a defendant who has control over the type of work and the giving of directions to identify and manage risk in addition to maintaining security.
The plaintiff submitted that if there is an issue of inconsistent obligations, then there needs to be an assessment as to whether these are truly inconsistent, and the nature and extent of those inconsistencies. These issues need to be based on an assessment of competing statutory obligations and regimes, and the evidence in the individual case. Further, evidence of the allocation of the resources or competing demands upon them need to be demonstrated by evidence. Any positive case that there are constraints regarding resources is a matter for evidence and the circumstances of the case. One cannot compare a case where the DPP or police did not request urgent drug analysis, and so permit a prisoner to languish in gaol to the failure of the defendant to assess and manage risks in the workplace. One cannot have regard only to what the plaintiff has stated in her evidentiary statements as the defendant has done.
The plaintiff submitted that the dispute in Cran was wholly different to the present case. The facts in the present case demonstrate that the risk was posed by the circumstances of service, and it has none of the complexity of prosecutorial duties and immunities. There may be policy considerations that apply to the prosecutorial administration by the DPP and the police, but no such equivalent policy considerations apply to the conditions of service or employment. The policy considerations in the service or "employment" cases are well established.
The plaintiff also submitted that the defendant's arguments do not establish a basis for striking out the statement of claim.

[24]

Conclusion

The defendant's submissions seek to establish that the plaintiff's case does not disclose a reasonable cause of action and these proceedings should therefore be summarily dismissed. It has sought to do so on the basis that there is neither a duty of care, nor a breach of that duty. All of the authorities cited by the defendant involve a contested hearing. While some involve the situation where the plaintiff suffered psychiatric and psychological injuries, none of them were decided summarily. It is trite to say that each case depends upon its facts and circumstances. However, it is not controversial that the defendant owes the plaintiff a duty of care to ensure her workplace health and safety. Exceptional caution must also be exercised in making an order for summary dismissal: see Spencer at [55] and Perera at [30].
In 2000, the police officer in these current proceedings was tasked to investigate a complaint or misconduct against another, more junior police officer. The Police Commissioner had the specific statutory powers (that he can delegate) to investigate police misconduct or a complaint in relation to the police officer pursuant to Part 8A, Divisions 4 and 5, ss 136, 139 and 140 of the Police Act. Unlike Briggs, the factual circumstances differ. This investigation took place over a number of years. It did not involve an immediate judgment call. However, as McCallum J stated in Patronis, ordinary principles of tortious liability apply to police except in the case of incompatibility with the performance of a professional or statutory duty. The practical effect of that principle may well be that no duty of care will be recognised in the vast majority of cases. However, as her Honour says, it is wrong to speak of a principle that no duty is owed by a police officer in the execution of ordinary tasks of duty.
In my view, it is at least arguable that the defendant owed the plaintiff a duty of care which is not incompatible with the performance of a statutory duty while investigating the misconduct of another police officer. The plaintiff complained to officers of the defendant about the conduct of the Detective Senior Constable from 2000 onward. The complaint was dismissed in 2003. The plaintiff suffered psychological damage during and after the period the investigation had been completed. If there is an inconsistency with the statutory investigative function, the court should be given an opportunity to assess the nature and extent of these inconsistencies in a hearing. While the defendant also argues that the duty of care alleged is a personal one, it can be argued that it applies to internal investigating police officers more generally.
It is my view that to determine whether the risk of injury was foreseeable and not one made in retrospect, the facts and circumstances need to be elucidated at trial. It is also my view that the plaintiff's case is arguable. It can be distinguished from the kinds of cases that do not involve an issue of fact to be illuminated at a trial: see Perera per Leeming JA at [38]. Nor do I consider that declining to order a summary dismissal would contravene this court's duty to facilitate the just, quick and cheap resolution of proceedings per s 56 of the Civil Procedure Act. Therefore, caution should be exercised in denying a litigant a trial on its merits. As I have said, it is my view that the plaintiff has an arguable cause. In the exercise of my discretion, I decline to summarily dismiss the proceedings.
The last issue to be determined is whether the plaintiff's cause of action is statute barred.

[25]

Whether the plaintiff's cause of action is statute barred

In oral submissions, counsel for the defendant submitted that the plaintiff's cause of action is statute barred and should be dismissed before the substantive hearing. The defendant asserted that on 21 August 2003, when the plaintiff made her claim for hurt on duty, the time under the limitation period started running. Therefore, the plaintiff's action became statute barred three years after 21 August 2003, being 21 August 2006. The notice of motion seeking an extension of the limitation period was not filed until 23 December 2015, being 12 years out of time.
It is not in dispute that the law providing for the limitation of action is substantive: John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [161]. The onus of satisfying the Court that the discretion to extend time to commence proceedings lies with the plaintiff: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 at 544, 553-554; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 at 164-165 [99], 167 [105].
Section 50C of the Limitation Act 1969 (NSW) relevantly reads: 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. …"
The defendant accepts that generally limitation issues should not be determined on an application for summary dismissal and referred to Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 at 532; Magman International Ltd v Westpac Banking Corporation Ltd [1991] FCA 41; (1991) 32 FCR 1; Kingsley Corporation Ltd v ANZ Banking Group (No 2) (NSWSC, 15 October 1997, unreported); McDonald v Grech [2012] NSWSC 717 at [36]. However, it is submitted that where there is no uncertainty as to the timing of the alleged loss (here September 2005 when the plaintiff was medically discharged). Where a defendant relies upon a limitation defence that has expired, the court may conclude that a statement of claim does not disclose a reasonable cause of action and should be summarily dismissed: Hillebrand v Penrith Council [2000] NSWSC 1058 at [27].
While the defendant referred to a number of cases where the limitation period has been dealt with separately and before the substantive hearing, they are not ones where the plaintiff was under a disability. The plaintiff seeks a declaration that the limitation period be suspended pursuant to s 52 of the Limitation Act from 2004 to 2012, on the basis that she was under a disability.
Section 52 of the Limitation Act reads: "52 Disability (1) Subject to subsections (2) and (3) and subject to section 53, where (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability, in that case: (d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after: (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or (ii) the date of the person's death, (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period. …"
Section 11(3) of the Act defines "person under a disability" as follows: "11(3) For the purposes of this Act a person is under a disability: (a) while the person is under the age of eighteen years, or (b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (i) any disease or any impairment of his or her physical or mental condition..."
The effect of these sections is to suspend the limitation period during the period of disability.
In Kotulski v Attard [1981] 1 NSWLR 115 ("Kotulski"), Slattery J stated at [117] and [118]: "Section 11(3)(b) is concerned with two classes of person: 'One who is incapable' (which conveys the concept of total inability) and the other 'substantially impeded in the management of his affairs in relation to the cause of action ... by reason of disease or impairment or physical or mental condition.' According to the Shorter Oxford Dictionary to "impede" means to obstruct in progress or action; to hinder or to stand in the way of. Substantially", in my view, does not mean trivial or minimal, neither does it mean total: see R v Lloyd [1967] 1 QB 175. "Mental condition" which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings. It seems to me that the expression "mental condition" is meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment. When dealing with the words "unsound mind", which were not defined in the relevant statute, Lord Denning MR in Kirby v Leather [1965] 2 QB 367, at p 383 said: So here it seems to me in this statute a person is "of unsound mind" when he is, by reason of mental illness, incapable of managing his affairs in relation to the accident as a reasonable man would do. I am of opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action... "
The Court of Appeal has approved the principle stated by Slattery J in Kotulski in a number of cases: see State of New South Wales v Bennie [2005] NSWCA 172; New South Wales v Harlum [2007] NSWCA 120; Saunders v Jackson [2009] NSWCA 192; Olive v Johnstone [2006] NSWCA 21 at [61]; and Guthrie v Spence [2009] NSWCA 369 at [144].
The plaintiff relied on the report of Dr Selwyn Smith dated 14 June 2017. Dr Smith has been the plaintiff's treating psychiatrist since 2013. He expressed the following opinion: "1. It is my opinion that as a result of the untoward interactions Ms Walsh experienced from the harassment, intimidation and bullying by [the Detective Senior Constable], as well as the lack of support and protection that she reported was not offered to her, she emotionally decompensated in approximately 2000 to 2003. It is my opinion that she was "disabled" in the sense that she was incapable of or substantially impeded in the management of her affairs in relation to a proposed claim or any other similar claim. This was because of her impaired mental condition. … … Between 2004 and 2012 she, to a large extent, became housebound and dependent on her husband and resorted to increasing consumption of alcohol as a method of coping with her symptoms. She did not wish to have anything to do with the NSW Police Force and was subsequently discharged from the NSW Police Force in 2005. 2. It is my opinion that Ms Walsh is currently not "disabled" in the sense that she is incapable of or substantially impeded in the management of her affairs in relation to her proposed claim or any other similar claim by reason of any impairment in her mental condition. Although she continues to experience significant psychiatric symptomatologies, these do not render her incapable of understanding and considering legal advice. She is also capable of giving instructions to her legal representatives about her claim."
On 23 December 2015, the plaintiff filed a notice of motion seeking orders pursuant to either ss 50C, 60C and 60G of the Limitation Act and sought an order that the extension of time to commence proceedings be extended to eight weeks after the making of the order and that the summons and the substantive matter be heard together. The defendant pointed out that the plaintiff had not moved on that motion prior to this hearing, despite its invitation that she do so.
The plaintiff also seeks that the notice of motion be heard together with the substantive matter for the reasons explained by Dr Selwyn Smith in his report that the plaintiff should not be put through preliminary hearing as to whether the limitation period should be extended. Dr Smith opined: "It is my opinion that the forthcoming hearings are in and of themselves extremely anxiety provoking for Ms Walsh. In having to traverse the previous events involving [the Detective Senior Constable]. This will on a balance of medical probability result in significant emotional distress to her. She continues to experience marked psychological symptomatologies in having to discuss the events that occurred. Accordingly, I would state that it would be most detrimental to Ms Walsh's psychiatric injury to give evidence and be examined on two occasions about the above events. It would be suitably less distressing and harmful to her if she would only have to give evidence and be cross-examined on one occasion. …"
Counsel for the defendant drew my attention to the plaintiff's affidavit and various documents to support the contention that the plaintiff's claim is statute barred based upon the plaintiff's knowledge at certain times.
The plaintiff in her affidavit dated 28 November 2016, stated: "5. On or about 21 August 2003, I made a claim for hurt on duty benefits caused by my injury of post-traumatic stress disorder. … 6. In or about late August 2005, I was advised that I had been medically discharged due to the infirmity of adjustment disorder, generalised anxiety disorder, panic disorder with acrophobic symptoms in partial remission; and superimposed major depressive disorder in partial remission, … 7. In or about early September 2005, the New South Wales Police advised me that the infirmities of adjustment disorder; generalised anxiety disorder; panic disorder with agoraphobic symptoms in partial remission; and a superimposed major depressive disorder in partial remission were hurt on duty. … 8. Between about 2005 in 2012, I did not pursue a lump sum claim pursuant to section 12D of the Act nor an increase in my superannuation allowance. I couldn't deal with thinking about [the Detective Senior Constable] and how my career in the New 'South Wales Police Force had been destroyed. I tried to get well by receiving treatment with Mr Glancey, psychologist and doing voluntary work at my children's school and immersing myself in handicrafts. During the period I kept taking medication and tried to focus on my children and getting well."
However, for the purposes of this application, I accept that the plaintiff in her affidavit dated 28 November 2016 deposed at [62]: "62 On or about 23 July 2015, I received a letter dated 21 July 2015 from Ms Smith enclosing the report of Dr Wright. … This was the first time I understood that if the NSW Police Force (NSWPF) had informed me that how I felt was an injury and early treatment and removing me from working as a police officer while I received treatment would have helped me to get well. After reading Dr Wrights report I understood for the first time I should have been treated earlier and if this had occurred I would have recovered and remained a police officer until my normal retirement age."
Here the plaintiff deposed that it was not until about 23 July 2015, when she read the report of Dr Wright that she understood for the first time that she should have been treated earlier and if this had occurred she would have recovered and remained a police officer until her normal retirement age. The notice of motion seeking an extension of the limitation period was filed on 23 December 2015, five months after the plaintiff became aware of the connection between the personal injury and the defendant's omissions: see s 60I of the Limitation Act.
The plaintiff's application for an extension of time is arguable. She has been under a period of disability and the medical evidence of Dr Smith is that it would be most detrimental to her psychiatric injury to give evidence and be examined on two occasions about the events. Dr Smith is of the opinion that it would be less distressing and harmful to her if she was only to give evidence and be cross examined on one occasion. In these circumstances, it is my view that the plaintiff's application to extend the limitation period should be determined at the same time as the substantive matter. The defendant's application to have the plaintiff's claim dismissed prior to a substantive hearing fails.

Walsh v State of New South Wales

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Judgment (27 paragraphs)

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Legislation Cited (11)

Cases Cited (59)

Cited By (3)