Express law No. 54

28 May 2007

The nature and extent of the duty of care owed by the
Crown to employees involved in work entailing risk of psychiatric
injury

The High Court by a majority of 4:3 has overturned
a decision awarding damages to a constable in the NSW
Police Service as a result of psychiatric injury she
received after experiencing highly traumatic events in
the aftermath of a stabbing. The High Court's decision
has important implications for Australian Government
departments and agencies that employ staff required to
undertake work that entails the risk of psychiatric injury
because of its potentially dangerous or traumatic nature
and/or involves responsibilities which potentially conflict
with the safety of employees.

New South Wales v Fahy

High Court of Australia, 22 May 2007
[2007] HCA 16

In August 1999 the plaintiff was a constable in the New
South Wales Police Service. She had joined the service
in February 1996 and in the course of her duties had attended
many traumatic incidents, including a number of fatalities.
On 25 August 1999 she was on patrol in a police truck with
another officer who was senior to her (Senior Constable
Evans). At about 9:00pm Constable Fahy and Senior Constable
Evans were directed to investigate a hold-up alarm at a
shopping centre. When they arrived they were told that
there had been a hold-up and that someone had been injured.
Constable Fahy and Senior Constable Evans were told that
the victim had walked to the medical centre about 50 metres
away. There was a trail of blood on the footpath.

At the medical centre the receptionist directed the officers
to a treatment room where a doctor was attending to the
victim. Constable Fahy went into the room but Senior Constable
Evans did not. The doctor was dealing with a stab wound
to the victim's chest. Constable Fahy asked the doctor
what she could do to help and was told to look at the victim's
left side. Constable Fahy discovered that the victim had
suffered another very deep laceration which extended from
his left armpit to his waist. He was bleeding profusely
and his ribs were exposed. Constable Fahy tried to stop
the bleeding by first applying dressings and then holding
the wound together whilst at the same time trying to comfort
the victim, determine where the ambulance was, concentrate
on the victim's description of the offenders, relay
that via her radio and listen to what the victim (who was
evidently fearing death) was telling Constable Fahy about
his wife and children.

NSW had admitted that 'an employer owes a duty to
its employees to take reasonable care for the employee's
safety.' The case was therefore primarily concerned
with whether it had breached this duty of care. The primary
basis for Constable Fahy's claim that it had breached
its duty of care was that she had been left alone in the
treatment room with the doctor and the wounded victim when
her immediate superior had no operational or other sufficient
reason which required him to leave her alone. A psychiatrist
called to give evidence at the trial spoke of Constable
Fahy's perceiving herself 'to be abandoned
by her partner or buddy' and said that 'the
absence of her buddy' was 'the decisive factor' in
the development of a post-traumatic stress disorder.

The NSW District Court found for Constable Fahy on this
basis, awarding $469,893 in damages. Its decision in relation
to liability was upheld unanimously in the NSW Court of
Appeal (per Spigelman CJ, Basten JA and MW Campbell AJA).
NSW was granted special leave to appeal to the High Court
on the condition that the orders for costs in favour of
Constable Fahy made at trial and in the Court of Appeal
were not to be disturbed and that NSW should pay her costs
of the appeal to the High Court.

The High Court's decision

Gummow and Hayne JJ, and Callinan and Heydon JJ wrote
joint judgments. Gleeson CJ, Kirby and Crennan JJ each
wrote dissenting judgments.

Each dissenting judgment suggested that it was open to
the trial judge on the available evidence to find that
Senior Constable Evans' conduct in leaving Constable
Fahy alone in the doctor's room and therefore exposing
her to the trauma of the victim without any help from her
partner was, in the absence of a good reason for doing
so, both negligent and a cause of her psychiatric injuries.

Both majority joint judgments suggested that such a conclusion
failed to take proper account of the statutory framework1 for
the performance of police duties and the special nature
of police work. What seemed to be the most important factor
militating against a conclusion that NSW had breached a
duty of care to Constable Fahy was the tension between
fulfilling the police force's functions and protecting
police officers.

Gummow and Hayne JJ stated (at [76]) that:

  • the effect of a finding of negligence against NSW
    would be that the protection of fellow officers was more
    important than the performance of duties imposed on police
    officers
  • to require officers to choose between attending to
    their duties or staying to support a colleague would
    seek to qualify the statutory responsibilities imposed
    upon police officers, and
  • neither of these outcomes was appropriate.

Callinan and Heydon JJ also stated that a number of the
special aspects of police work militated against a finding
that the defendant had breached the duty of care. These
included:

  • that police officers could be expected to, and did,
    not infrequently, encounter a need to deal alone with
    events of the kind that occurred in this matter (at [209])
  • events might call for the carrying out of several
    tasks simultaneously by a police officer (at [209])
  • exposure to danger and stress were almost as necessary
    concomitants of civil law enforcement as they were of
    military service (at [209])
  • perhaps most importantly, the fact that police resources
    were finite, and the deployment at or about a place of
    criminal activity, and elsewhere as a consequence of
    it, was a matter for decision and adaptability at the
    time and in the circumstances prevailing (at [210]),
  • Constable Fahy's experience as a police officer
    could reasonably be expected to have enabled her to perform
    alone the task that she did without suffering psychiatric
    illness (at [210]).

The High Court's decision in Shirt was not overruled

In the course of NSW's special leave application,
the High Court invited it to amend its notice of appeal
to request the High Court to overrule its previous decision
in Wyong Shire Council v Shirt (1980) 146 CLR 40
(Shirt). Shirt has for over 25 years authoritatively stated
how a Court or Tribunal must set about deciding whether
there has been a breach of duty of care.2

Despite Callinan and Heydon JJ's statement that
the justification for overruling Shirt was very strong
(see [224–225]) they held that it was not necessary
for the decision of the case to do so. The other judges
indicated that Shirt should not be overruled. However,
the High Court's decision included a number of comments
suggesting that the test in Shirt had been improperly applied
in the past. This is best summarised by Gleeson CJ's
statement (at [7]) that:

There have been occasions when judges appear to have
forgotten that the response of prudent and reasonable
people to many of life's hazards is to do nothing.
If were otherwise, we would live in a forest of warning
signs. That, however, does not warrant reconsideration
in this case of what was said by Mason J (in setting
out the Shirt test).

These and other similar comments could prove useful to
the Commonwealth in defending claims for personal injuries.

Voluntary assumption of risk

Interestingly, Gummow and Hayne JJ suggested that the
fact that police officers must confront traumatic incidents
in the course of their duties and the nature of their work
entails the risk of psychiatric injury occasioned by such
traumatic incidents raises the question of whether Constable
Fahy had voluntarily assumed the risk of such injury but
this had not been raised by NSW in defence of Constable
Fahy's claim. Voluntary assumption of risk is a basis
for denying a duty of care is owed. Such comments might
be thought to raise questions of whether the Commonwealth
should give consideration to pleading voluntary assumption
of risk in defending claims brought by employees whose
work places them in dangerous situations or gives rise
to a strong risk of witnessing traumatic events. However,
Kirby J poured very cold water on such an idea, stating
as follows ([at 88]):

Various other issues, or potential issues, can likewise
be ignored. Thus, no one until the proceedings reached
this Court ever suggested the possibility that a police
constable might be excluded from recovery on the basis
of negligence by reference to the notion of voluntary
assumption of risk (volenti).3 If we
have reached a stage in the law of employment and quasi-employment
in Australia that this nineteenth century concept is
to be revived for this purpose, notwithstanding all the
legal reasoning that argues to the contrary,4 specifically
in the case of police5 and like employment,6 a
specific argument to that effect would be necessary.
Unsurprisingly, in my view, no such argument was advanced
in this appeal.

Implications

In Sullivan v Moody (2001) 207 CLR 562 the High
Court held that a duty of care should not be imposed where
to do so would be inconsistent with other competing considerations
(see in particular [62–64]).7 However,
Australian Government departments and agencies will normally
be found to owe a duty of care to its employees to take
reasonable care for their safety. The major precedent value
of the High Court's decision in Fahy therefore
appears to be that such competing considerations can provide
a strong basis for denying that any such duty of care has
been breached.

This principle provides important guidance for Australian
Government departments and agencies, with functions comparable
to those of the NSW Police Force, that face the prospect
of negligence actions by employees who have suffered personal
or psychiatric injury. Departments and agencies responsible
for providing defence, security and/or intelligence or
law enforcement functions appear to be those most likely
to be involved in cases where these issues arise.

Text of the decision is available at:
http://www.austlii.edu.au/au/cases/cth/high_ct/2007/20.html

For further information please contact:

Andrew Berger
General Counsel
T 02 6253 7405 F 02 6253 7384
mailto:andrew.berger@ags.gov.au


Notes

  1. Set out in the Police Service Act 1990 (NSW).
  2. What has become known as 'the Shirt calculus' directs
    Court or Tribunal to ask two questions: (1) Would a reasonable
    person in the defendant's position have foreseen
    that the conduct postulated involved a risk of injury
    to the plaintiff or a class of persons including the
    plaintiff?; and (2) if so, what would a reasonable person
    do by way of a response to such a risk? The perception
    of that response calls for a consideration of the magnitude
    of the risk and the degree of the probability of its
    occurrence, along with the expense, difficulty and inconvenience
    of taking alleviating action in any other conflicting
    authorities which a defendant may have. The test of foreseeability,
    in the context of breach of duty, has been described
    as 'undemanding' (see Shirt v Wyong Shire
    Council [1978] 1 NSWLR 631 at 641 and Mason J in Shirt (1980)
    146 CLR 40 at 44). In recent years Justices McHugh, Callinan
    and Heydon have been highly critical of this basis for
    determining negligence and suggested that it should be
    revisited by the High Court.
  3. Cf. reasons of Gummow and Hayne JJ at [71]; Koehler
    v Cerebos (Australia) Ltd (2005) 222 CLR 44 at
    58–59 [40], 65 [57].
  4. See eg Bowater v Rowley Regis Corp [1944] KB
    476 at 481; Burnett v British Waterways Board [1972]
    1 WLR 1329; [1972] 2 All ER 1353; Blackburn, '"Volenti
    Non Fit Injuria" and the Duty of Care', (1951)
    24 Australian Law Journal 351.
  5. Attorney-General for Ontario v Keller (1978)
    86 DLR (3d) 426.
  6. Ogwo v Taylor [1988] AC 431 (fire service).
  7. This principle has been followed in a number of subsequent
    decisions – see for example Tame v State of
    New South Wales (2002) 211 CLR 317 at 335 [25]–[27]; State
    of New South Wales v Paige [2002] NSWCA 235 and SB
    (by her litigation guardian) v NSW [2004] VSC 513.

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may be prepared by AGS. The material should not be
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