State of New South Wales v Fahy [2006] HCATrans 472 (1 September 2006)

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State of New South Wales v Fahy [2006] HCATrans 472 (1 September 2006)

Last Updated: 24 October 2006

[2006] HCATrans 472

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S123 of 2006

B e t w e e n -

STATE OF NEW SOUTH WALES

Applicant

and

GEMMA FAHY

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 SEPTEMBER 2006, AT 10.58 AM

Copyright in the High Court of Australia

MR P. MENZIES, QC: If your Honours please, I appear with my learned friend, MR P.R. STERNBERG, for the applicant. (instructed by Crown Solicitor for New South Wales)

MS S. NORTON, SC: If the Court pleases, I appear with my learned friend, MS E.E.J. WELSH, for the respondent. (instructed by L J Sharpe & Co)

GLEESON CJ: Mr Menzies.

MR MENZIES: Your Honour, this application arises out of some events which took place over about 13 minutes in a doctor’s surgery in Sydney in August 1999. The applicant, as the employer of the respondent, has been found to have breached its duty by allowing the respondent to remain unaccompanied, that is, unaccompanied by another police officer, whilst she assisted the doctor treat an injured man. The significance of the decision for the police service is the potential that it could have in how policing is conducted.

The basis of the judgment in the Court of Appeal was that the police service was in breach of its duty, which was described as the duty to provide emotional support to a police officer, by allowing that police officer to attend to assist a wounded man in circumstances where the other police officer, who was loosely described in the evidence as the buddy, remained outside the doctor’s surgery.

CALLINAN J: Mr Menzies, there are, what, 12 minutes? Is that the period of time that the other officer was not present?

MR MENZIES: Yes, your Honour. The total period was about 12 or 13 minutes. The circumstances were these. The two police officers went to a crime scene.

CALLINAN J: You can take it that we are familiar with that. Was there any explanation as to why that other officer was outside for the 12 minutes or so?

MR MENZIES: None that was found to be satisfactory by the trial judge.

CALLINAN J: What were the explanations offered, briefly?

MR MENZIES: That he was attending the crime scene doing other police work and the trial judge concluded that inasmuch as there were other police officers present who could have done the same thing, then it was effectively inexcusable for him not to have stayed with the injured person.

CALLINAN J: Right, I understand that now. Could I just raise something with you in relation to your notice of appeal at page 170? In ground 6 it seems to me that you may really be trying to re-agitate what the Court decided in Watts v Rake and Purkess v Crittenden.

MR MENZIES: No, your Honour, because the Court of Appeal split on the question of damages, with Justice Basten taking the position that the appropriate resolution was to apply the principles in Malec v Hutton, the Chief Justice taking the position that appropriately this was a case where there had been damage with respect to which the tortious act materially contributed.

CALLINAN J: Why is it not a Watts v Rake case? I think the trial judge says it was common ground that there had been psychiatric consequences of the event, assuming the event to be the absence for 12 minutes, and then there is other evidence that there may have been a psychiatric condition anyway; is that correct? Am I putting that correctly?

MR MENZIES: The plaintiff’s evidence put at its highest was that had the other police officer not remained, then the chances are that the consequences would have been reduced. In other words, that post-traumatic stress disorder was probably caused by a combination of events, one of which was what is asserted to be the tortious event. So that the alternative proposition is the one that Justice Basten developed and which we rely upon, that one can, without offending the principles in Watts v Rake or Purkess v Crittenden, simply split it.

Your Honour, the most significant aspect of this case really goes to two matters: one, the scope of the duty and the other, issues of foreseeability, and the issue of foreseeability is probably the most obvious one. The judgment of the Chief Justice was that the negligence was in the failure of Constable Evans, the offsider, and Inspector Whitten, who was the overall supervisor, first in - - -

CALLINAN J: “Put your hat on and go home”, did he not, the inspector? Is that correct?

MR MENZIES: That was not the part of it that the Chief Justice found was wanting. The part that he found wanting was in the inspector putting his head in the door, seeing what is going on in the surgery and then walking out without saying anything, and that the Chief Justice categorised as one of the aspects of lack of support. Two aspects of lack of support were the ones the Chief Justice relied upon. One was Evans, the offsider, walking out and staying out; two, was that short of Whitten not doing anything, querying what he should have - - -

CALLINAN J: But there was a doctor present throughout, was there?

MR MENZIES: The doctor was present at all times, your Honour. So the simple proposition is this: was it reasonably foreseeable in Evans or Whitten that if they did not remain with the other police officer for 9 or 10 minutes that that other police officer would be likely to develop a psychiatric illness? We would submit, with respect, that that is far-fetched and fanciful. There was no evidence at all, other than the general proposition that police officers are subjected to trauma from time to time and some of them decompensate into that disorder. There was no evidence that the plaintiff was anything other than a perfectly capable police officer and, indeed, she was known amongst her confrères with the fairly unfortunate nickname of Dr Death and that was because in the three years that she had been a police officer - - -

CALLINAN J: She was unlucky. She had been present at a few traumatic events.

MR MENZIES: She had been present at a whole lot of traumatic events. There was nothing to suggest that she was not otherwise perfectly capable of dealing with it.

CALLINAN J: The view might be that those would have hardened her, made her more resilient, more resistant.

MR MENZIES: Maybe so, your Honour.

CALLINAN J: That might be what you would foresee.

MR MENZIES: But there is no evidence one way or another, but it seems an extraordinary proposition that Constable Evans, in that circumstance, would be really expected to foresee that if he walked out the room and did something else, whether it was necessary or not for him to do so, that the police officer who remained might suffer a disorder of that nature. Now, if one steps back from that to consider foreseeability in the context of a systems case, because Justice Basten found negligence in an unsafe system or an unsafe conditions of work and the unsafe conditions of work he enumerates but the only ones with which the Chief Justice agreed were the first two I have described. Justice Basten finds it was an unsafe system or unsafe workplace and should have provided support at all times. Well, the difficulty with that is, if then one considers foreseeability from the context of the employer, one asks rhetorically, “What does the employer do and how does the employer legislate in some way to deal with that sort of circumstance?”

CALLINAN J: Mr Menzies, if you were granted special leave, you might want to make it clear before any appeal, if one were held, whether you wanted to seek leave to challenge anything in Wyong v Shirt.

MR MENZIES: Yes, your Honour, we would indeed do that, your Honour. The other aspect of - - -

CALLINAN J: It would be an alternative. I understand that your present argument may not need to do that, but it might, depending on how things develop.

MR MENZIES: Now, the subsidiary matters in descending order of importance we have dealt with in our submissions. A subsidiary but important matter is the question of the content of the duty itself in circumstances such as this, because if the duty is, as it would seem to be, to have another police officer always present to provide support save and except for those circumstances, which may be very many, where operational requirements do not override, then that creates an entirely impossible position for the employer to ever be able to convey to his employees just what it is that they would do with respect to any particular traumatic circumstance.

GLEESON CJ: We had a rather similar problem in relation to a case against a school in Canberra in which we recently gave a decision.

MR MENZIES: I am not aware of it, your Honour.

GLEESON CJ: I forget the name of the case now, but we held that you could not expect the teachers to be watching all the children all the time because the children might dart off in different directions.

MR MENZIES: Your Honour, the Chief Justice in the course of his judgment referred to the proposition that there was a duty of affirmative action on one employee with respect to another. Now, on one view of it, does that mean if there are two policemen walking the beat and one gets to a kerb and is about to step in the path of an oncoming car that the other policeman is in breach of his duty if he does not hold him back? That seems to be the logical extension of the proposition of that concept of affirmative action. Similarly, if one looks overall at the obligations of the police in an extraordinary variety of circumstances, one could not possibly postulate a system where it was covered on every occasion. It is obviously a discretion as to whether police work together or not and it would be quite inappropriate if that discretion was then fettered in a way that this judgment would tend to create.

CALLINAN J: You would need Clint Eastwood with you all the time, would you not?

MR MENZIES: Indeed, your Honour.

GLEESON CJ: I thought one of the arguments against you was that there is a buddy system and the buddy system broke down in this case.

MR MENZIES: Well, the buddy system was dealt with in Justice Basten’s judgment. Essentially, the evidence of the buddy system in Justice Basten’s determination, which, with respect, we adopt completely, is that the evidence concerning it did not support the plaintiff at all. The expert who was called, who gave evidence about the buddy system, made it perfectly plain that it is a question of discretion in every case and that there are myriad reasons why police officers would not remain together but, importantly, there is no rule or regulation or any formal requirement that they do so. They are sent out to work one with another for the obviously very sensible reason of giving each other support, but one cannot elevate an absence of two police officers together at any particular time into a failure of the system. Those are our submissions, if your Honours please.

GLEESON CJ: Yes, Ms Norton.

MS NORTON: Thank you, your Honour. It is not now, nor ever has been, the case of the respondent that the police officers must go everywhere holding hands. That is not the case at all. This is a case that turns very much on very particular facts of the night and findings that the trial judge made on those facts. Your Honours have read them but, briefly, someone was stabbed and he was in a doctor’s office. The present respondent arrived on the scene with her senior partner first. Within a minute of their arriving two other police officers arrived in another car, then Inspector Whitten arrived about a minute later and then some other police arrived, so there were at least six police officers there.

What the trial judge found was that the respondent and her senior partner, who, it is accepted, has a welfare role with respect to anybody junior than him, went into the surgery where this man was lying bleeding and left her there with the doctor. The argument has always been, to some extent, she had the doctor there, why would she need a partner? But, again, it ignores the facts of this particular case. In this particular case he had more than one wound. One was in his heart which the doctor was attending to and that was taking, obviously, all his attention.

The doctor told the respondent that the victim had been complaining of another pain, I think, on his left side – I cannot remember which side. She opened up his shirt and that is where the large incision was that she could see inside his body and that is when it became apparent that she had to hold that body together while the doctor held his heart together waiting for the ambulance to arrive. Now, while she is doing that and her senior partner is outside talking to the other six police officers, who are also outside doing not much else, she is also calling the ambulance to get there quickly, finding out why it has not arrived yet, making sure it has been ordered, why it has not arrived. She is taking a description of the offenders from the victim and she is making a note of the victim’s last wishes in case he dies.

Now, what the trial judge found was that the respondent in this particular case was in that room doing two jobs. She was doing one job of assisting the medical doctor that was there and doing that as well as she could, but she was also doing a policing job.

GLEESON CJ: Well, rightly or wrongly, the essence of the decision against Mr Menzies’ client was that her senior partner let her down.

MS NORTON: That is right, but not by just not being there – I mean, you know, if she was in the car and he went to buy McDonalds, he is not letting her down by not staying in the car while she waits for him to get the meal. What happened here was it was obvious from walking into that surgery, which he did for a brief time, that, one, they had a victim there which, as the trial judge found, if you want to find out what happened and a victim is still conscious, he is about one of the best people to ask – that is obvious – and there was a doctor there who was treating the medical problems.

Now, the next time it happens is when Inspector Whitten looks in the window and at that time, according to the respondent, she is trying to keep even pressure on this wound at the same time doing all these other things, and Inspector Whitten is not called to say, “Well, I looked in the window and everything looked like it was calm and under control and so therefore I did not foresee that I should offer her some assistance”. He was not called. In fact, they called an Inspector Eggleton who gave some evidence, if he had have been there and seen that happen, he probably would have gone in and asked if she was all right.

So it really is a very specific case on some very unusual facts and in those circumstances not really a vehicle to review the whole Wyong v Shirt calculus of how we calculate negligence. The trial judge found and the Court of Appeal accepted that there was no lack of resources or lack of other people there that required her to be left on her own and the applicant knew that stressful situations could give rise to post-traumatic stress disorder. They had known that for years. That is why they developed the buddy system and welfare officers and debriefing which came in and out of fashion. So it was something that was very foreseeable. If it is foreseeable that being a participant in a traumatic event can give you post-traumatic stress disorder, then it must be that much more foreseeable that participating in that event by yourself without any assistance is much more likely to do it. That is why we say this case is a very specific case.

There was a lot of evidence called about the buddy system and welfare roles of senior officers and the fact was that Evans was her senior officer. He never said when he gave evidence, “Well, when I left her I thought she was fine and I didn’t go back because I knew she could cope with anything and would never get sick.” His reason for not going back was, “I was too busy outside”, which the trial judge did not accept.

CALLINAN J: Did she ask him for assistance when he looked in?

MS NORTON: Whitten?

CALLINAN J: Yes.

MS NORTON: No, Whitten was on the other side of the door and her evidence was she was holding the - - -

CALLINAN J: She did not see him?

MS NORTON: She saw him briefly, but he just turned and walked away, did not get a chance.

CALLINAN J: She did not call out for assistance?

MS NORTON: She did not call out.

CALLINAN J: So the view might have been open that whatever was happening she was on top of?

MS NORTON: Well, as the trial judge pointed out, that view might have been open if – she gave evidence she was not coping and there was some evidence that she had a discussion with another police officer on the night who said, “Was that you on the radio?”, or words to that effect, “You sounded really scared”, and she said, “Yes, I was”.

CALLINAN J: But she did not call out to any police officer to come in from outside the room?

MS NORTON: Well, that would have been a third thing she had to do. I do not know if we went into the - - -

CALLINAN J: The answer is no, she did not. She did not?

MS NORTON: She did not. We do not know the distances between the door or anything like that, but also, as the trial judge found, Inspector Whitten was not called. So if it all looked serene and calm and as if no one needed assistance, then he would have been called to say that, and he was not. What the applicant is trying to do in this case is to turn it into almost a subjective test of foreseeability.

GLEESON CJ: There is a certain awkwardness in applying concepts of reasonable foreseeability to post-traumatic stress syndrome, is there not? I mean, people like your client must be involved in incidents day by day that could cause stress to ordinary members of the community. I mean, your description of what she was doing in the present case indicates a highly stressful circumstance.

MS NORTON: The evidence is, and the evidence from the respondent herself, that she had coped on other occasions because there was somebody there with her, not just for emotional support, but to make sure she was not left to do two jobs.

GLEESON CJ: But that is the problem I am adverting to. When is it reasonably foreseeable that somebody will not cope?

MS NORTON: Well, it depends on the circumstances, but in this case it was reasonably foreseeable because there was obviously a very injured man and he was still conscious, so he was the person best able to give a description of what had happened. So on any view of it there must have been two jobs to be done in that room: one, assisting the doctor who said he needed assistance and, two, getting information out of the person, who may well die, who was best able to give information. Now, how can you do both of those things at once?

CALLINAN J: She was doing them. That was the point. She was doing them and she made no complaint and called out for nobody to come in to help her to say that she could not do them.

MS NORTON: Well, she was attempting to do them, your Honour.

CALLINAN J: There is no suggestion she did not do them, is there?

MS NORTON: No, he survived.

CALLINAN J: She got the best description available and she recollected the person’s last wishes if he were to die.

MS NORTON: That is correct, your Honour.

CALLINAN J: She did them all and she never complained to anybody at the time that she was not coping with them, but after the event, it is now said, that anybody should have foreseen that she could not have been able to cope and that she would have developed a psychiatric illness.

MS NORTON: Well, as Justice Campbell set down in his decision the description of what must have greeted Inspector Whitten when he looked through the window – now, in those circumstances, what could be the reason for not going in and offering assistance?

GLEESON CJ: This is the problem with not coping and foreseeability of not coping. I can cope very well with a table full of barristers but not with a grandchild sometimes.

MS NORTON: That could well be foreseeable, your Honour – I should not have said that, I apologise. Now, your Honour, it is very true that there are traumatic – and, I mean, there three volumes of blue book and three volumes of transcript in this. There was a lot of evidence about the knowledge the police service has about traumatic incidences and its effects on people. It is a specialised area of knowledge and they know a lot about it and because of that they have developed these systems, the buddy system, the welfare officer system, the go and check on people system, and they did not follow it on this night. There was no explanation why the senior police officer, Evans, who admitted he had a welfare responsibility with respect to the respondent, left her and never once went back to check if she was all right.

It is not a matter, with respect, of her calling out for help when she is trying to do two things at once. The systems are there and, as the trial judge found, the systems failed on this day and they failed in circumstances where it was foreseeable to anyone coming on this scene that someone would need help because there were two jobs to be done. That is why it is different from the normal case which is going to come up and we say, “Well, how do we decide when people are to be left alone and when they are not?” Well, the simple answer to that is, if there are two jobs to be done and there are two police officers available who have the time to do it and no other real calls on their time, then in those circumstances there should be two people to do it, because they know that reduces the risk of these kind of disorders developing.

CALLINAN J: Is it said that she developed the stress disorder because she was doing three jobs or because the particular job of trying to hold together the wound was especially distressing?

MS NORTON: The medical evidence ranged, as one would expect, but the evidence was that that event was traumatic in itself, but an also important part was her feeling of abandonment by being left by her partner and by Whitten not coming in to help her and by the fact that she felt stressed that she had to do two jobs at once and so she might not do either of them as well as they needed to be done.

CALLINAN J: Police officers would be doing two jobs at once all the time: driving a motor car while responding to an urgent call, talking on the two-way radio, looking at somebody to make an identification at the same time as trying to apprehend them. You could think of dozens of examples of a multiplicity of tasks to be performed simultaneously.

MS NORTON: They would all depend on their facts, but here we have a life-threatening situation. If this man had have died, it would have been a murder investigation and they may have lost their best chance to get any description from him. So she had to do that job and do it well at the same time as trying to do the job of a paramedic. The other police officers were basically doing nothing, standing outside. When she went with the ambulance, the ambulance came with a trolley, she went through the doors of the medical centre and they were standing there talking to the film crews.

There may well be a lack of resources argument in a number of cases, and the Court of Appeal pointed that out, but in this particular case that is another peculiar fact. There was no lack of resources. There were at least six police officers out there and at least by the time she walked through the door they were not doing anything and none of them, other than Evans, was called to say what they were doing during that time and Evans was not believed when he said he was busy looking at videos and putting out police tape. It is a very factual case.

GLEESON CJ: You may be right about that ultimately, but what is put against you is that the implications of this for the operations of the police force are wide. Is it one of your submissions that if this were regarded as an appropriate case for the grant of special leave, it ought to be on condition that the applicant undertake to pay the costs of the appeal in any event and not to seek to disturb the orders for costs that have been made in the courts below?

MS NORTON: I put that in my written submissions, the first half, and I would very much like to put the second half in as well.

GLEESON CJ: Yes, thank you. Mr Menzies, what about that? Is your application accompanied by an undertaking along those lines?

MR MENZIES: Yes, your Honour.

GLEESON CJ: Very well. On the applicant undertaking to pay the costs of the appeal in any event and not to seek to disturb the orders for costs made in the courts below, there will be a grant of special leave to appeal in this case on grounds 1 to 5 inclusive in the draft notice of appeal that appears on page 170 of the application book and not on ground 6. We will adjourn for a short time to reconstitute.

AT 11.28 AM THE MATTER WAS CONCLUDED