State of New South Wales v Fahy [2006] HCATrans 615 (9 November 2006)

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State of New South Wales v Fahy [2006] HCATrans 615 (9 November 2006)

Last Updated: 9 November 2006

[2006] HCATrans 615

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S341 of 2006

B e t w e e n -

STATE OF NEW SOUTH WALES

Appellant

and

GEMMA FAHY

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 NOVEMBER 2006, AT 10.03 AM

Copyright in the High Court of Australia

MR P. MENZIES, QC: If your Honours please, I appear with my learned friends, MR P.R. STERNBERG and MS B. McDONALD, for the appellant. (instructed by Crown Solicitor for New South Wales)

MR I.M. BARKER, QC: If the Court pleases, I appear with MS S. NORTON, SC and MS E.E.J. WELSH, for the respondent. (instructed by L.J. Sharpe & Co)

GLEESON CJ: Yes, Mr Menzies.

MR MENZIES: Your Honour, the first issue which needs to be disposed of is our summons which was filed on 13 October seeking your Honours’ leave to add to the grounds of appeal a further ground to the effect in paragraph 6 of our draft that the Court of Appeal erred in following the decision in Wyong Shire Council v Shirt and that that decision is wrong and should no longer be followed.

GLEESON CJ: What is your attitude to that amendment, Mr Barker?

MR BARKER: We do not object to the amendment.

GLEESON CJ: Yes, you have that leave.

MR MENZIES: Thank you, your Honour.

GLEESON CJ: You will actually file an amended document?

MR MENZIES: We will, your Honour. I have just noticed that the draft contains an order which we no longer seek. That is order 8 which seeks orders in the alternative and we need to correct that error. Your Honours, if I can deal firstly with the grounds which are other than the Shirt grounds and take your Honours to the relevant parts of the decision in the Court of Appeal to further elaborate on that which appears in our submissions.

May I preface it by saying this, that in our submission the issues which are raised in the appeal are relatively straightforward and relatively simple, save for Shirt. The Chief Justice made it plain in his judgment – and I am at page 1078 – that what was being dealt with was a systems case. He did refer to that on the particular facts one could deal with it equally as a systems case or as a breach of duty by particular officers, but ultimately decided – and it appears at 1078 at line 53:

on the facts of the present case, it is sufficient to focus on the employer’s direct obligation.

There was obviously no issue that the appellant here, the State, owed a duty to provide a safe system of work for the respondent, the State’s employee. Having identified that it was a systems - - -

KIRBY J: Could I just ask you to pause there? What about the Occupational Safety Act? Is that relevant?

MR MENZIES: No, your Honour.

KIRBY J: Not even to informing the content of the common law duty?

MR MENZIES: To that extent it would, save that the Occupational Health and Safety Act of course provides for a statutory obligation which is intractable. That is to say that the employer must ensure safety and a statutory defence is provided which deals with the circumstances where that cannot for one reason or another be - - -

KIRBY J: It is just that parliamentary law is conventionally regarded as above the common law and Parliament has said this. It just seems a little surprising that we should ignore it. Barristers love judges and what we say and I appreciate that, but I mean, if Parliament has spoken that ought to be given some attention.

MR MENZIES: It was certainly never an issue in the proceedings up until your Honour has raised it, and the - - -

KIRBY J: In the old days when you had the Factories and Shops Act and the Scaffolding and Lifts Act, sometimes those statutes were used to inform and give content to the common law quite apart from issues as to whether they separately gave rise to causes of action themselves, but if it has not been litigated I suppose it is a bit late now to be raising the matter in this Court.

MR MENZIES: We certainly submit it is, your Honour.

GLEESON CJ: There was no statutory cause of action. I am just looking at the statement of claim.

MR MENZIES: There was no statutory cause per se.

GLEESON CJ: What they used to call a statutory count.

MR MENZIES: No, there were no statutory counts. The Court of Appeal’s decision proceeded upon the basis that it was a failure in the State system to provide a safe system of work, taking into account the obvious and assumed duty that there is a duty to take reasonable care in the course of employment.

KIRBY J: Why was it only a system case? Why was it not a vicarious liability for Constable Evans for withdrawing his participation and acting as a partner to the plaintiff?

MR MENZIES: The way it was ultimately decided by Justices Spigelman and Campbell - Justice Campbell agreed with Justice Spigelman but added a further factual issue as part of the systems case. It was decided as a systems case. Justice Basten considered it in the context of casual acts of negligence by Evans and Whitten and fairly comprehensively demonstrated why that would not run, essentially, if for no other reasons, that there were no police protocols which might suggest how they should conduct themselves. There was no evidence at all to suggest that Evans and Whitten might reasonably foresee the events that occurred so that when the Court of Appeal came to its decision it was based upon failure in the system.

KIRBY J: I realise that, but I have a bit of a difficulty with that because that assumes that the police officer concerned has to positively ask for assistance whereas the whole point of this type of trauma is that that may be an unreasonable and counterproductive obligation to impose upon the police officer and that the whole point of the system is that ordinarily, leaving aside exceptional circumstances, the partner or buddy should, as it were, be there and not depend on being asked because I could well understand that with a female or a male constable there might be all sorts of cultural or institutional inhibitions upon them for asking, “Stay with me, hold my hand”. I mean it is just not something that would be done.

MR MENZIES: Your Honour, we would join issue on the categorisation of this buddy system. It is something we have dealt with in our submissions. I need to dilate on it a little, much as your Honour has raised it. The expression “buddy system” seems to have its genesis in a statement by one of the doctors. Dr Robertson gave evidence of a “buddy system”, using that expression, but he categorised it as being something which was created essentially for the welfare of the police officers. I will just turn up the passage up, your Honour.

CALLINAN J: Is there any other reference to a buddy system? Is it referred to in any official document?

MR MENZIES: No, your Honour, it is not, not at all.

KIRBY J: But it is referred to in the evidence of a lot of the witnesses though. They sometimes call it “partner” because “buddy” implies a male and therefore they have used a gender neutral word but, I mean, there is a reference to it in a number of witnesses - - -

MR MENZIES: I will come back to that, your Honour, but let me deal with the evidence of Dr Robertson. It appears at 220 - - -

KIRBY J: If this is taking you off the course that you had planned, you could deal with it at some later stage, but I just am anxious about excluding casual acts of negligence and so long as you deal with that somewhere I am content.

MR MENZIES: I am perfectly content to deal with it now, your Honour, and it is something which is generally relevant. At 220 Dr Robertson gave this evidence at line 20. He is talking about the absence of a buddy. He says this in his answer:

I think that the absence of any sort of physical or emotional support from a buddy did not allow her to maintain a sense of professional detachment, which is what protects one when dealing with people like this. It became very much a personal concern of hers, and the whole purpose of a buddy system, as it’s sometimes called, is to share the trauma and to allow those who are working to maintain a sense of professional detachment –

Now, that is where the expression came from. One other witness, I recall - - -

GLEESON CJ: Was he the plaintiff’s treating psychiatrist?

MR MENZIES: No, a qualified medico-legal expert, your Honour. So that what he does by expressing it that way is postulate a system which simply did not exist in the police force, that is, a system the whole purpose of which was to share the trauma and to allow those who are working to maintain a sense of professional detachment. That having been inserted into the evidence, it has really taken a little life of its own which is not supported by the evidence.

KIRBY J: That is contradicted in Mr Barker’s submissions and he gives a whole long list of evidence of others about partners in the plaintiff’s evidence, in Ms Blows’ evidence, in Mr Abbott’s evidence, Mr O’Connell’s evidence and even in Mr Evans’ evidence, Mr Egginton’s evidence, Mr Bryant’s evidence.

MR MENZIES: If one reads all of that material - - -

KIRBY J: Do not let us tarry over the word “buddy” as against “partner”.

MR MENZIES: No, your Honour, what I am tarrying over is the purpose of the system because the system was essentially an operational one insofar as one could – for operational purposes so far as one could call it a system. I say that because there are no protocols in the police force which postulated how police should work from time to time. Having said that, it is obvious and we accept that in the hierarchical structure of the police service where there is always one police officer who is in rank senior to the other, then the senior officer does have some welfare responsibilities. We are not shying away from that. But the responsibilities must be, we would say, the limited nature. Two policemen together, one is the senior; the senior policeman has to do at least two significant things when, if there are two police working together, they get to something where they have to work.

The first thing is that the senior police officer allocates responsibilities, decides who does what about which, and because that senior police officer is senior, then working within a hierarchy he would have some measure of responsibility for the person, as it were, under his command and direction. But it is not inevitably like that. One can readily imagine two constables in a van of roughly the same seniority or two policemen walking down the street. The system is there for the obvious reasons, we would posit, sharing of the burden of the job, making available the opportunity to provide corroboration and simply doing the work that needs to be done.

KIRBY J: But also supporting each other. I mean, even in those post-war black and white British movies we used to see, there were always two constables together, two bobbies walking together - - -

MR MENZIES: Two Plods.

KIRBY J: It is not an unusual configuration. It is just that we have lately become more conscious of the stresses and pressures we put on police officers.

MR MENZIES: But, your Honour, it is not an inevitable concomitant of police work. The obvious example is the policeman on a motorbike.

KIRBY J: Yes, but the bottom line of the problem is what Justice McHugh used to call the theory of the case. The theory of the case that you propound is one that is going to take the pressure off the police service to give support to police officers from the tremendous stresses to which they are subjected, and that is not something I am very sympathetic to, whereas the decision below is one that tends to uphold that and require that of you.

MR MENZIES: Your Honour, the decision below elevates the task or the responsibility to, we would say, an unsustainable level, and one has to look at it in the context of the findings. It was not a finding about simple lack of support expressed generally. It was a finding limited to the more senior police officer not remaining in a room with the junior police officer during a period of about nine or 10 minutes when, after all, the junior police officer was not alone, but was with a medical practitioner.

Now, when this issue was taken up with the respondent at the trial, when she was asked the question, because she raised as one of her complaints the absence of the boss, Inspector Whitten – if I could just remind your Honours, we have about a 10 minute period. There is no doubt it is a tense time. There is no doubt that the police officer might find it upsetting and distressing. I am not suggesting otherwise. But she is there helping a medical practitioner. She is also trying to speak to the victim and communicate what that person says to others.

Just before the ambulance arrived – now, the ambulance arrives after about total, I think, 13 minutes – Inspector Whitten turns up. Inspector Whitten looks in the door, says nothing, and walks out. The respondent complains about this as a failure to provide support. But when it was put to her – and this is at page 80 at the top of the page and she is saying:

I was by myself under heaps of pressure, trying to help him, and I had nobody with me.

Q. You had the doctor.
A. But he never talked to me. He wasn’t a policeman.

So that postulates - - -

KIRBY J: What line is that on, sorry?

MR MENZIES: That is line 8, your Honour, page 80.

KIRBY J: Yes.

MR MENZIES: Now, we submit it is an extraordinary proposition that that moment just before the incident is closed by the ambulance arriving, that one posits a breach of duty in the circumstances that we have just identified. If I can return to your Honour Justice Kirby’s concern about the police department and what it does and does not do, it is plain on the evidence that there existed then in the New South Wales Police, and continues to exist, a fairly well-developed system of support in a general sort of way, that is to say, a welfare section where there are psychologists employed and where police officers who feel themselves troubled can go; a system of officers known as peer support officers who are trained to recognise stress in their colleagues and to be proactive about that stress if they observe it. It was also widely publicised in the police service at that time the existence of these mechanisms.

So it is not as if there was no system at all to try and deal with the acknowledged trauma and stress of the police service. But when one ties it back to the particular circumstances on which this respondent succeeded, they were twofold: (1) that in that nine or 10 minutes period, the other police officer was not present, and (2) in that moment before the incident came to an end, the supervisor came in but did not do something.

Now, one has to tie all of that back to, in this case, whether that bespeaks a failure of some kind, but before that, whether the injury was foreseeable. We say about the first issue plainly not because what one has to consider is not the conduct of the two police officers per se, but a breach of a system. What system, one asks rhetorically, would need to be contemplated? The system would need to be one whereby the default setting, as it were, was that police always travelled together. But importantly for these particular facts, the creator of that system, the reasonable police administrator, has to postulate in his mind, looking prospectively, “What system do I have to create to deal with a situation such as occurred here?”

Now, in our respectful submission, beggars belief that that is something one would foresee. One can plainly foresee in a general sense risk of psychiatric injury from trauma. That is obvious. But the inquiry has to be one which descends down to particularity and deal with what is a system which ought to have been in place, bearing in mind what is it, that can one expect, as I say, an administrator to foresee such an event.

HAYNE J: Then do I understand this branch of your argument insofar as you have put it independent of the particular questions asked of you to run along these lines. The relevant breach is said to be not providing support during the critical period or the relevant event which is to be focused upon is not providing supporting during the relevant period. You work back from that to identify what is the duty that is said to have been broken as evidenced by that not providing support.

The duty postulated seems to be a duty to provide a system of work in which the police service should, what, (a) provide support to every officer at every traumatic event; (b) provide support to some officers at some kinds of traumatic event; or (c) provide support to some or all officers at some or all traumatic events if the exigencies of the service permit it? That seems to be the area for debate, does it not?

MR MENZIES: Yes, your Honour, and - - -

HAYNE J: That is to say the argument seems to hearken back to the analysis I proffered in Modbury v Anzil 205 CLR 254 at 290, particularly at paragraph 105, an analysis where you work back from damage and the particular want of care alleged to then try to identify the scope of duty that is alleged against you; is that right?

MR MENZIES: That is what we sought to do, your Honour.

HAYNE J: What do you understand the Court of Appeal to have identified as the content of the duty that the police service broke?

MR MENZIES: The duty was a duty – I will try and deal with it this way. The Court of Appeal identified - - -

HAYNE J: I know it is safe system of work. I know it is system, but you have to give content to that.

MR MENZIES: The duty, as we understood the Court of Appeal, was a duty to, in circumstances such as occurred here, to ensure that there were two police officers present to provide support.

HAYNE J: In this instance, all instances, all instances of this kind, all instances of this kind if the exigencies of the service permit it? Floating around in the back of all this is the fact that the police service has a particular public function to perform, a public function that seems to involve it engaging in work of a kind which is inherently stressful, always – if not always so nearly always as not to matter.

MR MENZIES: The only way a system could sensibly function would be a system which required police officers to be together at all times. The reason for that is if one seeks to qualify it by giving discretions to individual police officers as to when they should do this, when they should not, that then throws up a whole series of other problems.

HAYNE J: Let me vary the facts of the particular case with which we are dealing. Let it be assumed the two officers come upon the scene immediately after the attempted armed hold up, the victim is injured and the offender is running down the street. Is the asserted duty of care one that requires both officers to remain to attend to the victim? Is the duty of care one that would permit one officer to take off after the person who seems to be the offender?

MR MENZIES: The Court of Appeal contemplated a circumstance where the exigencies of the moment might make a difference. We submit, impermissibly, then concluded that if that exigency was not demonstrated by the police service then there was an evidentiary onus that it should. We say that begs the question. In answer to your Honour’s proposition, if the concern is providing support because there is a risk that if support is not provided a psychiatric injury might arise, then the only system which would function and would protect the police service from liability would be one where police officers remain together under all circumstances.

One can look at it this way, taking your Honour’s example. Assume that two police officers come together, arrive together, the miscreant is fleeing, there is an injured person. They have a plain conflict. Their first obligation is attending to the welfare of the injured person. There is no issue about that. They also have an obligation, because of their role, to pursue the villain, but if their obligation is to provide support, then, necessarily, they must remain together because if they do not and one of the police officers feels unsupported because of the traumatic events that are taking place, then potentially, at least, the police service is liable for any psychiatric injuries that might flow.

GLEESON CJ: This concept of post-traumatic stress disorder originated, as I understand it, from things we have been told in other cases from some American psychiatric diagnostic criteria. Did they ever define the concept of trauma?

MR MENZIES: Yes, your Honour.

GLEESON CJ: And what is that?

MR MENZIES: It varied. It first appeared in the Diagnostic and Statistical Manual of Psychiatric Disorders third edition in about 1988 and it arose out of concern for a psychiatric body of opinion concerned about trauma consequences suffered by Vietnam veterans. The criteria then defined relevant trauma as one where the perceiver of the trauma, or the receiver, has their life threatened, has feelings of helplessness and horror, is in fear of death, and there were a number of other categories, all at, one would say, the high end of in an objective sense what would be traumatic experience. Then in the Diagnostic and Statistical Manual fourth edition, which came out I think in the mid-nineties, the definition was changed to identify relevant trauma is that which the recipient subjectively perceived as being sufficiently distressing to fit within the criteria.

GLEESON CJ: So being called on to go into a house where there is a dead body could be trauma?

MR MENZIES: It could be if the recipient had as a consequence of – I withdraw that. Being called into a house where there is a dead body, no, per se.

KIRBY J: Being called into a house where there, for example, is a dead child, murdered?

MR MENZIES: No, I was just distinguishing between the call and going there. But obviously if one goes into a house where there is a body, a child murdered, a putrefying corpse, anything of that nature, and if the person had feelings of helplessness and horror or revulsion of a sufficient order and that was their subjective response to that event, yes, that would be a trauma caught by the definition.

GLEESON CJ: Thank you.

MR MENZIES: The Diagnostic and Statistical Manual warns in its preface that it is a diagnostic tool principally for the purposes of classification, so that psychiatrists or medical professionals dealing with people with psychiatric disorders can identify basically whether they are talking about the same thing. The manual makes very plain that it should not be understood to be a textbook which describes by way of diagnosis and the like what various mental disorders are. It is simply a classification tool.

KIRBY J: The Court of Appeal did not lay down any general principle about having two police officers. Indeed, they moved back from that and said that that would not be an appropriate principle and they, as I read it, confined themselves very much to the facts of this case which was, of course, what the respondent said on the special leave application that this was a very fact specific case and, normally, leave aside the Shirt question, that would be, would it not, your problem? You have to show error on the part of the primary judge and the Court of Appeal and it is not a question of what we sitting at trial would do in the case. It is a question of whether you can demonstrate that it really was not open on the legal principles to find for the plaintiff in this case - - -

HAYNE J: I thought one of your principal complaints was that the Court of Appeal focused upon the particularity of the case to the exclusion of formulating a duty of care.

MR MENZIES: Indeed it is, your Honour.

HAYNE J: The duty of care, necessarily, is expressed generally and the particular focus demonstrated, you say, the error into which the Court of Appeal fell. That may be right, it may be wrong.

CALLINAN J: Mr Menzies, you said it was a systems case. Is that right?

MR MENZIES: Yes, your Honour.

CALLINAN J: I see there is an allegation which is repeated by the trial judge at 968 in the particulars of negligence which is – this is particular (d):

by its servant or agent leaving the scene of the armed robbery and exposing the plaintiff to the victim by herself -

That is not system, is it?

MR MENZIES: No, your Honour, but ultimately the Court of Appeal’s decision - - -

CALLINAN J: What was the finding about that though, by the trial judge? Was there a finding about that?

MR MENZIES: I will need to turn that up, your Honour.

CALLINAN J: We really need to know because that makes it more than a systems case, possibly, at least at first instance.

MR MENZIES: I can deal with it this way, that if one deals with it as a vicarious liability case then the answer to it is found in Justice Basten’s judgment.

GLEESON CJ: If you dealt with it as a vicarious liability case you would have to look at the duty of care owed to the plaintiff by the other police officer.

MR MENZIES: Indeed, your Honour. What Justice Basten points out is that there was simply an absence of any evidence which would support findings that went to that duty and particularly foreseeability.

CALLINAN J: Thank you. No doubt we will get the reference to that. Could you give me a reference to the trial judge, if the trial judge did do anything about that, at some convenient time?

MR MENZIES: Yes, I will do that.

GLEESON CJ: I noticed, Mr Menzies, that the other two police officers who were in one way or another “blamed”, if I can use that expression, were not defendants in the proceedings.

MR MENZIES: That is right, your Honour.

GLEESON CJ: We have recently seen some New South Wales legislation that provides, I think, that police officers cannot be sued and that the State takes responsibility for them. Was that legislation at least part of the explanation of the absence of those two people from the proceedings?

MR MENZIES: I think the answer to that is no, your Honour. I think that legislation occurred later.

GLEESON CJ: I see.

MR MENZIES: I would need to check that.

GLEESON CJ: In all events, the proceedings were not framed as proceedings against the State and against the individual police officers?

MR MENZIES: That is correct, your Honour.

KIRBY J: That might, of course, be the product of the prohibition in the statute which was designed to protect individual police officers, as the Minister said, from being harassed by individual cases.

MR MENZIES: It may well have been, your Honour. I cannot remember when the statute was amended, but I will check that.

KIRBY J: The Court of Appeal did take some steps to define the duty of care. They pointed out that this was the duty of care owed by an employer, that that is a high duty of care and it is one that does not require simply abstaining from things but positively doing things for the protection of the employee and this by an employer who would be deemed to know and did in fact know of the risks that its employees, such as the plaintiff, faced by being exposed to the tremendous pressures that were described at the crime scene in this instance.

MR MENZIES: Yes, that is so, your Honour.

KIRBY J: As an instance of the type of pressures. It seems to have been the plaintiff’s case that her complaint was that she had to do two things at the one time – attend to her duties as a police officer and hold in the stomach of the victim who was so badly traumatised. One gets an impression, tell me if this is a wrong impression on the facts, that there were male police officers outside, ultimately, I think, six, who were not in any way involving themselves in giving her support but leaving it all to her in the doctor’s room and that that was contrary to proper practice and the practice that should be upheld by the common law.

MR MENZIES: That is the complaint, your Honour, yes, indeed. There were other police officers present and the trial judge found that their explanations for what they were doing was unsatisfactory. As a consequence of that, the Court of Appeal held that in the absence of that satisfactory explanation then the duty was breached. In other words, the Court of Appeal assumed that the duty included a duty to provide physical support by another police officer in those circumstances and that in the absence of an adequate explanation for why that did not happen, then the duty was breached. That was the Court of Appeal’s reasoning.

KIRBY J: But every negligence case is very fact specific, so much so that it is dangerous often to take one case and try to draw inferences for later fact specific cases. So the generality of the duty of care is pretty well known.

MR MENZIES: Indeed, your Honour.

KIRBY J: I do not know that it is all that helpful to give horror stories of policemen in really difficult circumstances where there are only the two of them. Here, there were a number of police officers coming on the scene pretty quickly and the complaint is that basically she was left in there on her own holding the innards of the man in but taking statements as to who did it and what he would like her to tell to his family.

MR MENZIES: Indeed, your Honour, but the assumption is, in the Court of Appeal’s judgment, that if another police officer was not present in those circumstances then that was a breach of duty. Our simple submission is that it was not, that the duty did not require - that support did not require the physical presence of another police officer at all times.

KIRBY J: But if they are there, why would they just stand outside gossiping to each other instead of one of them coming in and being a buddy or helper?

MR MENZIES: One may criticise them for not having done so, but that - - -

KIRBY J: That is what the trial judge said and that is the foundation of the negligence.

MR MENZIES: Your Honour, one may criticise them for not having done so, but it does not follow from that that they were negligent for not having done so. The issue is whether the system required them to be there, and our submission is that one cannot sensibly postulate such a system, because the system has to deal with all circumstances, not just the particular circumstances of the particular event, and the system which is inherent in the Court of Appeal’s judgment was such a system.

GLEESON CJ: It may be slightly more accurate to say the Court of Appeal held that a system of work that did not require a second police officer to be in the room with the doctor as well as the plaintiff was not a safe system.

MR MENZIES: Yes, your Honour. Our submission is that reasonableness does not require the existence of such a system.

KIRBY J: It just occurred to me that senior counsel having juniors in this Court might be a similar sort of sustenance and help to them.

MR MENZIES: Indeed. Mr Barker said it depends upon your junior.

GLEESON CJ: Whether having a buddy is a source of support might depend on the buddy.

MR MENZIES: Mr Barker was in fact a little ahead of you on that, your Honour.

GLEESON CJ: Companionship can sometimes be traumatic itself.

HAYNE J: At some point, not immediately, could the parties supply me with the provisions of the Police Act that were applicable at the time? At least the last reprint would suggest that what Constable Fahy was doing in assisting the injured man was in performance of a function which was a function not simply of the New South Wales Police or police service as it was I think at the time, but a function of a member of the New South Wales Police. I refer in particular to section 6 of the Police Act but it would be useful if I had the statute as it stood at the relevant time.

GUMMOW J: We have had this problem before with these tort cases. The foundation has to be the statute. Now, is there any consideration of the Court of Appeal in formulating what it formulated to the statute?

MR MENZIES: No, your Honour.

HAYNE J: And the Police Service Act 1990 as in force in April 2002 is generally to the same effect, that:

“police services” includes:

. . .

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way,

(c) the provision of essential services in emergencies . . .

(4) A reference in this section to the functions of NSW Police includes a reference to the functions of members of NSW Police.

That would at least on its face suggest what Constable Fahy was doing was not some extra act of benevolence on her part, understandable as that is; rather it was an execution of her functions as a police officer.

MR MENZIES: We accept that, your Honour.

GUMMOW J: These are not private actors.

MR MENZIES: We accept that, your Honour.

GUMMOW J: They are public actors, so we have to look at the public law, particularly the statute under which all this grows.

MR MENZIES: Your Honour, might I try and deal with - - -

GUMMOW J: Otherwise, it is just some sort of ethereal academic debate.

HAYNE J: Limited to 10 minutes in time without regard to the generality of the duty that is posited as the basis for the cause of action.

MR MENZIES: Your Honours, we will hunt out the relevant section and deal with it in a moment. Could I turn to try and deal with Justice Basten on the issue of negligence by the individual actors, Evans and Whitten. Justice Basten identifies at 1107 the findings that the trial judge would have needed to have made to have made a - - -

KIRBY J: What paragraph?

MR MENZIES: Paragraph 89, your Honour. He identifies what were the findings which were needed to be made, of which there were four, and then over the page he points out that no such findings were made. Then he goes on to say in paragraph 90 at 1108:

Thus, if Senior Constable Evans were the officer for whose negligence the State was said to be liable, it would have been necessary to establish on the evidence that he was, or should reasonably have been, aware of the risk of psychiatric injury, according to the test identified in Koehler –

He then goes on to say the case really was not pleaded that way. The real complaint was of a systems complaint. He goes on to say at line 30:

In the absence of any evidence as to relevant instructions, one would be inclined to infer that “the buddy system” was intended to provide physical protection and backup, which would not have been available if officers patrolled alone.

He then deals with corroboration. At line 44:

There was no evidence to suggest whether or not that was so understood –

that is, the role of the buddy system. So there was no evidence that Evans had any knowledge that he was expected to provide psychological support in a distressing situation. So that if one is trying to deal with it upon a basis of acts of negligence by Whitten or Evans, there is just evidence not there to support it.

HEYDON J: You agree with that presumably, Mr Menzies? You would agree with Justice Basten’s characterisation of the case.

MR MENZIES: Yes, your Honour.

HEYDON J: Namely that (a) it was not really put and (b) there were not findings or evidence to support it so that it comes back to a safe system of work case?

MR MENZIES: So it comes back to a system - - -

HEYDON J: The Chief Justice seems to have thought it did not matter which way you approached the case - - -

MR MENZIES: He did, your Honour, but then decided that he would deal with it as a systems case.

CALLINAN J: I take, Mr Menzies, that it is also apparent, is it not, from the trial judge at 976 to 978 that at trial it was conducted as a systems case. I think that is right and Mr Barker may be able to tell us about that.

GLEESON CJ: Who was the highest ranking police officer who gave evidence at the trial?

MR MENZIES: Evans, your Honour.

GLEESON CJ: What was the rank of Evans?

MR MENZIES: Senior Constable.

GLEESON CJ: So presumably we do not have the opportunity of seeing anybody, as it were, addressing in evidence the management issue involved in the proposed or postulated system.

MR MENZIES: No, your Honour. The evidence which dealt - - -

KIRBY J: That is a point made by Mr Barker, of course, that you did not call anybody.

CALLINAN J: The judge seemed to think it relevant. There was a Jones v Dunkel submission, was there not, at the trial?

MR MENZIES: Yes, and that was going to the issue of what inference does one draw from the absence of witnesses with respect to the question of whether there was a good reason why they were not with the plaintiff.

GLEESON CJ: I just wondered whether at any stage in the proceedings up to the present time anyone has formulated in management terms applicable to the operations of the police service generally the kind of system – I have in mind the questions about it asked by Justice Hayne a little earlier – that is postulated.

MR MENZIES: We have tried to express it in terms of – and we have considered this and we have tried to express it in our submissions is it would need to be a system which either required police officers always to travel together, or a system which provided a regime for individual police officers to apply to make a decision in any particular circumstance.

GLEESON CJ: We know police officers do not always travel together. The police who direct traffic do not do it in twos. As you point out in your submissions, the police who ride around on motorcycles do not do it with one sitting on behind the other with his or her arms around the rider’s waist, in circumstances where it is perfectly obvious that policemen are not always in twos and yet are always exposed to the possibility of trauma, I should have thought.

MR MENZIES: Yes, your Honour.

GLEESON CJ: I cannot see why a policeman on point duty is not exposed to the trauma of somebody running him or her over or nearly doing so. Then that is perhaps relevant to the kind of system that is postulated.

MR MENZIES: It is, your Honour. The starting point from that would necessarily be, one assumes, that if a police officer suffers a trauma as a consequence of an event occurring whilst he is alone, he or she – the police department has not been in breach of its duty if there is a psychiatric injury that follows from the event per se, but is if the psychiatric injury occurs in circumstances where there should have been or could have been two police officers together but were not.

So that when one, in management terms, tries to put into place a system which deals with the likely or possible consequences of trauma as experienced by any police officer then what one has is a system which already exists, that is to say a system which provides for counselling, access to psychologists, existence of people who can identify other police officers’ problems, and the widespread dissemination of that information in the police department, but that is not what the complaint is in this case.

If the complaint in this case was that the respondent suffered a psychiatric injury and the police service failed in its duty by not providing all of that more distant in time assistance, that would be one thing and entirely different, but here we have a case where the assertion is that one has to have a system which prevents it – prevents it occurring. The system which is in place in large measure, by all of those measures, obviously deals with it after the event. What must be postulated here is a system which prevents it, nips it in the bud. Now, the system cannot work – no such system can work if there is only one police officer there.

KIRBY J: Yes, but what is wrong with the reasoning that – we will leave the question of what happens when there is only one police officer on point duty or one police officer on a motor bike to a case where a court has to deal with that. We are dealing with this case and we are dealing, therefore, with a case where (a) we did not get any managerial evidence from the police service themselves and (b) we did get evidence that there were a number of police officers present, (c) there was evidence that this system of buddy or partner was one that was known to be useful in reducing post-traumatic stress and yet this system was not proactively put in place to ensure that the police officer who was present came in and gave support. I mean, doing it ex post is not good enough.

MR MENZIES: But, your Honour, that assumes a circumstance where one could foresee in this particular circumstance that there was a requirement that two people be there.

KIRBY J: Well, here is a person holding in the guts of another human being and taking, possibly, dying depositions – I mean it is a highly traumatic circumstance. Some of your submissions would have been much more powerful if they had come out of the lips of a senior police managerial officer rather than out of your lips.

HEYDON J: What was Inspector Egginton’s role in a testimonial way? He seems to have discussed the system to some extent.

MR MENZIES: Yes. He was not part of the factual matrix of the events. He was called to give some systems evidence relating particularly to the issue of just how police worked together and when they could and when they did and when they did not. The gist of the evidence about the police working together was in fact contained in the plaintiff’s expert, Mr O’Connell, who did not say much which really helped the plaintiff in the upshot.

He accepted there were no guidelines, rules, procedures or protocols. His proposition was that the police reacted to the particular circumstances and it was simply, in his words, a matter of common sense. But can I just come back to your Honour Justice Kirby’s express concern.

KIRBY J: You are beginning to sound a little like General Haig of the Somme. We have to ask what a careful employer would do knowing of the traumas to which police officers are exposed and of the assistance that can be given by having another police officer present to give support.

MR MENZIES: Well, I regret if I am sounding like General Haig of the Somme, your Honour. That was the very impression I was not trying to convey. I do need to deal with this proposition though. The failure that was found was a very discrete one; that was a failure to have two people present for a short time in those circumstances. That, in our submission, postulates a system which would require it. That is the point that we are seeking to make.

If I can come back to Justice Heydon’s inquiry about Mr Egginton, at 276, line 23 – Mr Egginton is called by the police service, it is in the course of cross-examination and he accepts that in an ideal world a senior partner would tell the junior partner what he was doing. If I could remind your Honours that the finding of the trial judge was that he did not do that, that is to say he left the respondent where she was without communicating to her where he was going. Mr Egginton concedes that, that it would be in an ideal world the senior partner should tell the junior where he was leaving. He goes on to describe that the incidents are fluid, dynamic, they vary depending upon the circumstances.

We pose the question this way, in answer to your Honour Justice Kirby and hopefully not à la General Haig. Let it be assumed that a system of support in a general sense is a good thing. How could it be said that one could have a sensible system which would postulate that in the circumstances such as occurred here, that is to say, an absence for a few minutes, that would be likely to lead to psychiatric injury? In our respectful submission, that would simply - - -

GLEESON CJ: That was the point of my questions earlier about trauma. How do you know what is likely to lead to psychiatric injury? Some incidents perhaps of an apparently trivial nature, as I understand it, might lead to psychiatric injury, might cause somebody to crack, as they say, whereas sometimes – often, mostly people display what seem to me to be heroic resilience in the face of trauma. Policemen day in and day out do things that I would find horrifying. I am referring in that connection to trauma.

MR MENZIES: Yes, indeed, your Honour.

CALLINAN J: And vulnerability may vary from almost hour to hour perhaps. People are not vulnerable to the same extent at all times and at all places.

MR MENZIES: Indeed. Just taking up further the Chief Justice’s remarks, it is plain that most people are resilient most of the time. It is also plain that people do suffer psychiatric disorder and that it is unpredictable and that it may be, as your Honour the Chief Justice says, as a consequence of finally cracking up but, even if one adopts a procedure which is intended to deal with all of those exigencies, then one is driven to a system which requires all police to always be together at all times to avoid that risk.

GLEESON CJ: I have a problem – and I do not know whether this is in your favour or against you at the moment – relating the concept of foreseeability to psychiatric injury because of the variety of circumstances which can result in such injury and therefore the unpredictability of such injury.

MR MENZIES: We have tried to grapple with that in our submissions on foreseeability that one poses a question: who would have thought it? Who would have thought that - - -

KIRBY J: Surely your experience as a police service with people exposed in much greater number than ordinary citizens to horrific crime scenes would have produced some knowledge beyond common sense that there is a higher exposure and therefore a higher risk and you cannot look after everything and you cannot predict everything, but you have to have a system that tries to deal with the generality of cases. That is what the plaintiff says.

MR MENZIES: Indeed, your Honour.

KIRBY J: You did not have it.

MR MENZIES: But that is our very point, that to have a system which deals with the generality of the cases, taking on board all of that variation would require always to have two police officers travelling together to protect against the risk, albeit unquantifiable and perhaps small, of an event such as this leading to psychiatric injury.

HAYNE J: But it is more than that. In this case there were two crew in the van of which the plaintiff was one. So if the duty was to provide two up in the van, that duty was met. The duty has to be not only do you crew the van with two officers; those officers must never separate. That seems to be the bottom line.

MR MENZIES: Indeed, your Honour, and we postulate - - -

KIRBY J: The plaintiff denies that. The plaintiff accepts that there will be exigent circumstances but says that where those do not exist, you cannot just have the men standing out chattering, they have to give the assistance. That has to be your system and it was not your system. It is time you were told to have that system and to do something except ask them to go and see the chaplain afterwards.

MR MENZIES: Your Honour, being more like General Patton than Haig, one cannot have a system which does not – as postulated by the Court of Appeal, the system would have to require there to be two people together at all times. The practical difficulties of trying to work out when they should be there and when they should not are simply insuperable and the cost of it would be gigantic.

GLEESON CJ: Was it part of the plaintiff’s case that the men deliberately absented themselves from this scene?

MR MENZIES: No, your Honour.

GLEESON CJ: You know what I mean, because it was so nasty?

MR MENZIES: Sub silentio perhaps, your Honour, but no, the evidence was simply that there were men outside and they were not there and then that was sought to be met by evidence from Mr Evans who gave an explanation as to what he was doing and which the trial judge found unsatisfactory and obviously that is a finding we are bound by, but it did not go any further than that, as I recall.

CALLINAN J: Well, I thought the trial judge might have suggested something to the effect that the Chief Justice mentioned. At appeal book 978 about line 48, the respondent had shown “extraordinary resilience” but was treated with “extraordinary insensitivity, or by a deliberate course of conduct”.

MR MENZIES: Your Honour, that was a whole series of findings that the Court of Appeal rejected. What the trial judge found was that there was a miasma, if you like, of unpleasant events which started off with lack of support, followed by Mr Whitten not - - -

CALLINAN J: Why was that not open, having regard to the fact that the trial judge accepted the Jones v Dunkel submission and said that there were available inferences, because the trial judge clearly did that on a number of occasions.

MR MENZIES: Well, there was no evidence at all which could have supported a finding of a deliberate course of conduct which had the effect of breaking down resilience.

GLEESON CJ: Well, what appears on page 978 is a statement of an argument on behalf of the plaintiff.

MR MENZIES: Yes, your Honour.

GLEESON CJ: How did the trial judge deal with that argument?

MR MENZIES: The trial judge found that there had been a whole series of events, starting off – 1023, your Honour.

KIRBY J: He infers at 983, line 10 that the absence of Mr Whitten from the witness box results in the inference that if called his evidence would not have been favourable to your client.

MR MENZIES: We accept that, your Honour.

CALLINAN J: But then there are a whole lot of other inferences about other witnesses from 986 to 988, similar inferences.

MR MENZIES: I am sorry, what page was that?

CALLINAN J: At pages 986 to 988 there a number of similar inferences arising from the absence of various other witnesses. I was just making the point that it was not only Inspector Whitten’s absence that the trial judge thought relevant, that is all.

MR MENZIES: Indeed, your Honour, but there were a number of findings of the trial judge that the Court of Appeal rejected about the conduct which occurred later, telling the respondent to put a hat on, and things of that nature, and so none of those matters then formed any part of the Court of Appeal’s decision. The Court of Appeal narrowed the negligence down to the two aspects of absence of evidence and failure of Whitten to say anything.

Now, having dealt with the simple part of the case, can I now turn to Shirt and I shall not - the rest of what we wish to say is contained in our submissions. My learned junior has reminded me of one matter I have overlooked, your Honour, and that is on the issue of foreseeability of psychiatric injury. We say impermissibly when the Chief Justice was dealing with foreseeability he used some causation evidence, that is the evidence of the medical practitioners, to bolster foreseeability. That is contained at 1081.

In the preceding page the Chief Justice dealt with the other aspects of the allegations of negligence and concluded that they would not pass the far-fetched and fanciful test and it is limited to the two aspects which I have identified. He then turns to foreseeability. He gives, we would submit, a cursory nod to Koehler v Cerebos but distinguishes it upon the basis that it was a different set of circumstances.

The facts are these. This was a plaintiff who had had some experience in the police force, had shown no signs of psychiatric vulnerability, had never complained and had been exposed to trauma. It was not a case like Seedsman in the New South Wales Court of Appeal which was a case about someone who had eventually after many years of working in a highly traumatic area, as it were, cracked and had been given no support or assistance. This is not such a case. This is a case where this particular respondent displayed no characteristic at all from which one would draw the inference that she was susceptible. So there was nothing in that factual background which would give rise in a reasonable employer to consider that she should be particularly considered in any way.

KIRBY J: What is the citation of that case?

MR MENZIES: Koehler v Cerebos or Seedsman? I will provide it in a moment, your Honour, but coming back to our point about foreseeability and the use - - -

HAYNE J: It is [2000] NSWCA 119; 217 ALR 583.

MR MENZIES: Thank you so much, your Honour. At 1081, paragraph - - -

KIRBY J: What is the answer to the suggestion though that that has an assumption that you have to ask for assistance whereas the culture and the nature of the problem is such that that is an unreasonable demand or at least arguably an unreasonable demand to impose on employees and it is the sort of thing that a careful, attentive employer will anticipate, that this might be a build-up of stress and trauma of many incidents?

MR MENZIES: Two responses, your Honour. One is careful employer will disseminate information and the like and make it available for - - -

KIRBY J: It cannot have been very well disseminated because she went looking for the Catholic chaplain instead of looking for the people within the police service and says only one officer ever came near her after the trauma that she was exposed to.

MR MENZIES: The plaintiff did not make out a case along those lines. So, with respect, one cannot conclude, in any event, from the evidence that it was not well disseminated, but coming back to the more important issue and your Honour’s question, no one asked. In fact, what happened in this particular case was that she went on holidays very shortly after the event. She felt unwell before she went on holidays, as I recall it, but was presenting externally as having no problems. If we go into that area, it raises difficult questions which were not really part of this case and that is, well, if she had been asked how would how would she have responded and particularly in the culture that your Honour has identified.

Coming back to foreseeability, the Chief Justice at paragraph 14 at 1081 identifies:

medical evidence accepted by the trial judge which indicated that the failure to provide support to the Respondent made a material contribution to the psychiatric injury she suffered.

By starting off that sentence with “Furthermore” he is clearly linking it to foreseeability. It is trite to say that foreseeability has to be that of the, in the case, reasonable police department. It is not the foreseeability of psychiatric harm in the general sense, but the foreseeability of a, in these circumstances, person suffering psychiatric harm.

In our submission, it simply was not foreseeable that a circumstance such as this – it is not just the trauma, it is the particular trauma – would give rise to a risk of psychiatric injury. I am sorry, I have misstated that. The foreseeability is that the injury arose out of the particular failure to provide physical support in that short period, that is what had to be foreseen. Our simple submission is that it was simply not foreseeable.

KIRBY J: Your answer to this case whether on the Shirt test or on the other test that you have propounded is it is just too hard, there is just nothing we can do about it and they just have to go into these things and there is nothing that we have to do.

MR MENZIES: Not at all, your Honour.

KIRBY J: It would have been better if you had called somebody to say, “We have so many police officers, we have these things happening every day, this is the logistical problem and we have not had all that many cases of people with post-traumatic stress disorder”. Then you could do a Shirt analysis or an analysis under the other authority and you would have some foundation, but instead of that you kept out of the witness box.

MR MENZIES: Your Honour, I am grateful for that because it does raise another matter which I should have come to and did not and that is this, that what the Chief Justice did is - and we are proceeding, applying Shirt – having found breach, and he found breach because of the absence of evidence that explained why a system was not applied which would have kept somebody else there, he then went straight to a finding of negligence without addressing at all the second part of Shirt.

There is nothing in the Chief Justice’s judgment to deal with the questions which arise from the second part of Shirt, that is, the consideration of what should one do if one has found a reasonably foreseeable risk of injury. That is, consider the magnitude of the risk, the likelihood of harm, the cost of meeting the perceived risk – ignored. In our submission, had he followed the Shirt analysis, then having made that decision he would have then moved to the next stage, and if he posed the question, “What would such a system cost?”, that alone would inevitably have produced an answer, “Not calculated but very significant”.

The likelihood of the event occurring, that is, a risk of psychiatric injury arising out of these particular matters, was not dealt with and one cannot use the medical evidence which goes to causation on that issue, which is what his Honour did. So our submission with respect to that is upon that alone the decision was erroneous.

KIRBY J: That sounds like a rehearing point in the Court of Appeal rather than a verdict point.

CALLINAN J: Does what you have just said relate to the finding at 1009 or the matter canvassed at 1009 – Dr Parmegiani, I think it was – about line 45:

he agreed that, in a properly run organisation, those sorts of things should be either noticed or inquired about.

I am a little surprised that Dr Parmegiani was allowed to give that evidence. It seems to go right to one of the issues.

MR MENZIES: You are surprised, your Honour, that he was allowed?

CALLINAN J: That he was allowed to give – that there was not objection to that evidence. It goes right to the issue, does it not?

MR MENZIES: Yes.

CALLINAN J: What should happen in a properly run police service.

MR MENZIES: Would your Honour just take me back to that page.

CALLINAN J: Page 1009, about line 43.

MR MENZIES: The 1009 that I am looking at, your Honour, is part of the judgment of the trial judge.

CALLINAN J: Yes, that is what I am talking about.

MR MENZIES: I see. I have it, thank you, your Honour.

CALLINAN J: It is the second-last paragraph on the page. It seems to be the doctor saying what should happen in a properly run police service. I think it was Dr Parmegiani. You called Dr Parmegiani, did you?

MR MENZIES: Yes, your Honour. I was not there.

HEYDON J: He was called by the plaintiff.

CALLINAN J: No, your side did.

MR MENZIES: Yes, my side did.

HEYDON J: No, he was called by the plaintiff.

MR MENZIES: Was he, your Honour?

HEYDON J: I am looking at page 288.

MR MENZIES: I am sorry, your Honour is quite right. He was called by the plaintiff and cross-examined by the defendant. He was the defendant’s witness. He attended as a result of a requirement for cross-examination by the plaintiff and he was cross-examined by the plaintiff.

CALLINAN J: Yes, so he was your witness.

HEYDON J: He was cross-examined by Mr Sternberg.

MR MENZIES: It is a misprint, your Honour.

CALLINAN J: He was your witness.

MR MENZIES: Yes, your Honour.

HEYDON J: So page 291, line 41 is wrong, is it? It must be wrong because - - -

MR MENZIES: He is called at 288 by Mr Sternberg for the defendant, for the appellant, and gave some short evidence-in-chief and then was cross-examined from 291.

CALLINAN J: In any event, he was allowed to give evidence, presumably without objection, about what should happen in a properly run police service.

CRENNAN J: That was in relation to what should be noticed after the event.

MR MENZIES: It was after the event, your Honour.

CALLINAN J: Afterwards, yes, but that was one of the claims.

MR MENZIES: Yes, which was not a claim on which the plaintiff succeeded.

CALLINAN J: The trial judge seems to have made – I do not know. Would the trial judge still have been entitled to make use of it even if that issue fell away? Would it have been of any relevance then?

MR MENZIES: No, your Honour.

CALLINAN J: I suppose not, no.

MR MENZIES: No. It focused entirely on the events at the time, not what occurred later. Can I now turn to Shirt?

GUMMOW J: I do not see in your submissions dealing with Shirt the threshold question as to whether we should reopen it.

MR MENZIES: I am sorry, your Honour.

GUMMOW J: There are various criteria which we take into account when deciding whether to review an earlier decision.

MR MENZIES: Yes, your Honour.

GLEESON CJ: John v Commissioner of Taxation.??

GUMMOW J: Exactly. Another one is Esso [1999] HCA 67; 201 CLR 49 at 71 where we were dealing with Grant v Downs, you will remember. I do not see where they are canvassed in your written submissions.

MR MENZIES: No, they are not, your Honour, and I have to confess that was a matter which I did not deal with.

GUMMOW J: You assume you are inside the room. You have to get past the door first.

MR MENZIES: Could I identify these matters as the ones which we submit are relevant and I have to confess I have not dealt with those authorities and they are threefold. One is that it is plain that Shirt’s Case has, in more recent times at least, engendered a great deal of critical comment from various Justices of this Court.

GUMMOW J: How many?

MR MENZIES: At least three, your Honour. I think four.

KIRBY J: You did not mention this until it was put to you in the special leave application.

MR MENZIES: No, we did not, your Honour.

KIRBY J: I am not criticising you. It is true that there has been comment on Shirt as there is on many decisions of the Court.

MR MENZIES: Yes, your Honour. Your Honour, we were content to proceed upon the appeal that we sought special leave on. When the matter was raised, we considered it and having considered it thought it was appropriate.

KIRBY J: You said there were three matters that you pointed to. The first were the comments by Justices. You have listed those in your written submissions.

MR MENZIES: Yes, your Honour. The second matter is the changed state of the statute, that is to say the Civil Liability Act, and whether - - -

GUMMOW J: In New South Wales. I know it is a continuing shock to be reminded New South Wales is not Australia.

MR MENZIES: The Civil Liability Act has been reproduced in - - -

GUMMOW J: Not exactly, is it?

MR MENZIES: No, it is not the same in every State, your Honour; we concede that.

GUMMOW J: Exactly.

GLEESON CJ: In what respects in the other States is it different from New South Wales in relation to this question?

MR MENZIES: In Victoria, for example, the definition of – New South Wales uses a definition “not insignificant” to deal with the foreseeability of risk of injury and in Victoria that expression is more broadly defined.

KIRBY J: This is solely in the master/servant type case, or is it more generally?

MR MENZIES: More generally, your Honour, because master/servant cases - - -

KIRBY J: Well, if Parliament has dealt with this more generally, why should we bother changing the law, given that it has been expressed in different ways in different parts of Australia? We express the common law for the whole of the country. It seems a reason for not intervening.

MR MENZIES: Your Honour, the Civil Liability Act has not covered the field, so that master and servant cases are excluded.

KIRBY J: Well, if you are talking about criticism, that Act has also been criticised, including I think by the Chief Justice of New South Wales.

MR MENZIES: Your Honour, I am not here to ask your Honours to adopt what is in the Civil Liability Act.

GLEESON CJ: I was seeking from you information about the extent of the differences throughout the various Australian jurisdictions in relation to this question of liability.

MR MENZIES: Yes, your Honour.

GLEESON CJ: I want to know how different they are.

MR MENZIES: I understand that, your Honour.

GLEESON CJ: You can perhaps answer that question after lunch by simply giving a reference to some statutes and the sections of statutes that we can read for ourselves.

MR MENZIES: Yes, I will do that, your Honour. In fact, we have already done that. Your Honour will find it at footnote 35 of our submissions. It sets out the various statutes. The relevant section on this issue is section 5B of the Civil Liability Act (NSW). We have set that out in our submissions. The other jurisdictions are referred to in our footnote and I simply point out that in Victoria there is a more extensive definition of what “not insignificant” means. Coming back to your Honour Justice Kirby’s comment to me, the problem - - -

GUMMOW J: You said there were three matters. The first is expressions of judicial disquiet. The second is statute. What was the third in the Johns criteria?

MR MENZIES: I am sorry, your Honour, for the moment the third has left me.

GLEESON CJ: How does the common law of Australia as expressed in Shirt differ, if at all, from the common law in England or the common law in New Zealand or the common law in Canada?

MR MENZIES: None of the other jurisdictions seem to deal with the separation in the way that it is a separation to a two-stage test which is enunciated in Shirt. We have also looked at the United States position and we have provided to your Honours – but I do not wish to take your Honours particularly to it – some notes as to what the position with respect to this issue is in the United States, which takes a much broader generalised approach - - -

GLEESON CJ: Let me put the question slightly differently. In Australia what was new about Shirt?

MR MENZIES: What was new about Shirt was the separation in the creation of a two-stage test specifically enunciated by Chief Justice Mason and before Shirt then the law was, we would submit, as enunciated by Sir Cyril Walsh sitting in the Supreme Court in R.W. Miller v Overseas Tankship – and the reference to that is contained in our submissions – which essentially was that a foreseeable risk of injury is one that a reasonable man would consider was such that attention had to be given to it, consideration had to be given to, or, put another way, one which could not be safely ignored.

GLEESON CJ: Applying that test, bearing in mind all that we now know about post-traumatic stress disorder and the variety of circumstances in which psychiatric injury may be caused, if you have an employer who has failed to provide a safe system of work and as a fact it is demonstrated that that failure was a cause of psychiatric injury, why is not such injury reasonably foreseeable?

MR MENZIES: Because one needs to at that point deal with the issue of likelihood, so that when one comes to consider a reasonable foreseeability, reasonableness has to have some work to do and that work is in the consideration of the likelihood.

GLEESON CJ: But if Ms Fahy had suffered a broken finger as a result of some failure to provide a safe system of work, nobody would doubt, I presume, that she would succeed on a foreseeability issue. Knowing what we now know about psychiatric injury, what is the difference?

MR MENZIES: Your Honour, I think we have to go back to the particular risk that arose - - -

GLEESON CJ: One of the reasons why there used to be what was called a control mechanism in the form of the concept of the normally robust person, or whatever exactly the expression was, was because the risk of psychiatric injury is so foreseeable. The argument used to run, if you do not limit it to risk of injury to someone who is normally robust, then you are going to end up with an oppressively extensive responsibility because there are all sorts of people walking around with eggshell psyches – not that I am suggesting for a moment that that is what Ms Fahy would need to suffer psychiatric injury in these circumstances.

MR MENZIES: That is what gave rise to the abandonment of the person of reasonable fortitude concept but the retention of it at the point of foreseeability, as I understand it.

GLEESON CJ: Reasonable foreseeability.

MR MENZIES: Reasonable foreseeability, yes, your Honour.

CALLINAN J: Mr Menzies, on the question of reopening, one of the considerations that I referred to in the Discovery Case was the question whether people would have organised their affairs upon the basis of a particular decision. It is difficult to imagine that people are doing or not doing things by reason of Wyong v Shirt.

MR MENZIES: This is not one of those circumstances, your Honour, where one would imagine a different organisation of affairs.

CALLINAN J: Could you say that Wyong v Shirt was a principle that had been worked out carefully over a long series of cases, which is one of Justice Gibbs’ considerations in John?

MR MENZIES: I am sorry, your Honour, do we say that?

CALLINAN J: I want to know what you say about that.

MR MENZIES: Yes, it has, save that what one continually sees and with respect to which the complaint is frequently reiterated – and Justice Spigelman’s speech which we have referred to is one of them, that is, that the difficulty with the Shirt analysis is the frequency with which it is not applied and, indeed, one of the reasons given in the second reading speech for the passage of the Civil Liability Act seems to at least give a nod to that. That is to say that far too often what trial judges do is come to a decision having decided reasonable foreseeability on the basis of the satisfaction of the undemanding test and then do not go to the next step which is once having made that decision, then seek to consider all the alternatives, cost and the like. Of course, this is what we say was the very thing that the Court of Appeal did in this case.

HAYNE J: Just going back a moment to the question of reliance and whether Shirt has been relied on. Why is it not right to say that Shirt has been relied on since its decision as the basis for settlement and trial and decision of innumerable actions, insurance arrangements that have underpinned that, expenditures made and not made, that have gone on since Shirt was decided in, when, 1980?

MR MENZIES: Yes, your Honour.

HAYNE J: A quarter of a century of decision making and expenditure of money.

MR MENZIES: We obviously have to concede that but - - -

CALLINAN J: I do not know about insurance. I just do not know about that. Premiums may or may not have gone up as a result of it. In any event, premiums are done on an annual basis. They are fixed on an annual basis on the whole.

MR MENZIES: Your Honour, I cannot demur from the proposition that there has been long reliance upon it in a general sense.

CALLINAN J: Attempts with some difficulties of application, as you have already said, immense difficulties of application.

MR MENZIES: Our essential point is that, your Honour, that if one is looking for a sign of something which needs correction, a very powerful sign is that it is continually misapplied. There are frequent judicial statements pointing that out.

GLEESON CJ: When did people start referring to it as a calculus?

MR MENZIES: I am glad your Honour asked that question because the answer is from about 1947 when in a - - -

GLEESON CJ: Shirt.

MR MENZIES: No, the use of the expression “calculus”, your Honour asked.

GLEESON CJ: Yes, but they were not referring to Shirt as a calculus in 1947.

MR MENZIES: No, your Honour, but the expression “a calculus” was taken up in – why was it used in Shirt and when first?

GLEESON CJ: Was it used in Shirt?

MR MENZIES: No, your Honour, not that I – I can answer your Honour’s question as to where the expression “calculus” came from. It comes from the United States and it goes back to 1947 and its genesis is in a decision or article of Judge Learned Hand. I will provide your Honours with the decision. When it was first used in Australia we have not identified. Your Honour’s comment – and I have to confess I cannot recall where your Honour mentioned it.

GLEESON CJ: Vairy, I think, one of those cases where there was an injury to somebody who had dived into something.

MR MENZIES: Yes, and your Honour then criticised the use of the expression as a calculus. Your Honour’s comment reflects the US statements which are to similar effect, that if one uses the word “calculus”, then it tends to give rise to a mechanical application rather than the application of judgment to any particular set of facts.

KIRBY J: But it is difficult, if I can say so, to get the Court to re-express the law in this respect where (a) the test has lasted for 26 years; (b) it has been applied every day in trial courts and applied many times by this Court; (c) where Parliament has, where it has seen fit to do so, altered the expression of the law performing its function on the assumption that Shirt states the common law; and (d) where in this case the plaintiff says that whether you apply the Shirt test or the test you propound, it would not make a difference in the outcome of this case, that therefore this is not a good vehicle to confront the issue.

MR MENZIES: Your Honour, as to (d) our response, unsurprisingly, is that it is a good vehicle because this is a case where - - -

KIRBY J: What, you accept that if the Shirt test is applied, the plaintiff succeeds?

MR MENZIES: No, your Honour, that we ought succeed whether one applies Shirt or not.

KIRBY J: So you do not even really need it on your submission?

MR MENZIES: No, your Honour.

KIRBY J: Well, why are you pressing it on us?

MR MENZIES: For two reasons: one, your Honour, is that consideration of it was invited of us, and second, if we have two good points why limit ourselves to those two, or if we have two good points why limit it to only one of them?

CALLINAN J: You might lose on one. You might lose on the first one.

MR MENZIES: And I might lose on one and be up on the other, so that is why we took it on, as it were.

KIRBY J: Yes, that is entirely proper that you should do so, but there are some practical reasons in the usual criteria that we apply that stand against the Court re-opening the issue.

MR MENZIES: Indeed, your Honour, we accept that. But can I deal with your Honour’s comment about the Civil Liability Act?

KIRBY J: Of New South Wales?

MR MENZIES: Of New South Wales, replicated for practical purposes - - -

KIRBY J: There is a certain sensitivity in the Court about this. We just have to be careful.

MR MENZIES: I am so sorry, your Honour – replicated in the other States of the Commonwealth, your Honour.

KIRBY J: Yes, but with differences, and that is the point of parliamentary public law.

MR MENZIES: For practical purposes on this issue, absence of difference, section 5B is repeated in the other statutes, but the significance of it is this, that the Civil Liability Act (NSW) and all the other States does not operate as a code. It does not cover the field, and in New South Wales, for example, there are significant carve-outs so that the common law remains, and they include workplace accidents, dust diseases, smoking litigation, claims of negligence arising out of injuries by smoking. So it is a significant area which is still controlled by the common law. So it is not as if it is a circumstance where it is now only of academic interest.

The other significant part of that is this, that on one view of it, there are now two tests to deal with this issue, the one under the Civil Liability Act and the common law. What we were seeking to do by our submissions was to propose in fact four alternatives, all of which would promote rather than detract from coherence without the need for a restating of the common law so that it conformed necessarily with the Civil Liability Acts in the various States, but so that essentially a coherent test could be applied whether the Civil Liability Act was being applied or not. Now, that, in our respectful submission, is - - -

KIRBY J: That sounds very like the argument that was advanced in the Esso Case on the question of legal professional privilege and which did not find favour in the Court. Parliaments have to do what they think is right in the public law, the Court has to express the common law, and factors such as reducing green slip premiums and so on and interstate rivalry of getting business investment are things that Parliament can take into account, but they are not necessarily matters that affect the courts.

MR MENZIES: Your Honour, we would accept in a general sense that it would be not consistent with principle for your Honours to retrospectively, as it were, state the common law in a way which is consistent with later legislation merely for that reason, but one could still, we submit, formulate a test which was consistent with, not necessarily, as it were, slavishly adopting, not at all doing that, but consistent with the Civil Liability Act which would then promote rather than detract from coherence. Those are our submissions, if your Honours please.

HAYNE J: Just before you sit down, I would ask you to give consideration to the relevant provisions of the Police Service Act. Would you also give consideration in particular to the provisions of section 201 of that Act. Section 201 of that Act provides that it is a criminal offence for a police officer to neglect or refuse “to obey any lawful order or carry out any lawful duty as a police officer”.

I know that the litigation thus far seems to have been conducted with supreme disregard of the provisions of the legislation which I would have thought properly are the starting point, but the duty of care that is posited is one that I would have thought has to be accommodated, the fact that the legislature prescribes that a police officer shall on pain of penalty obey any lawful order. That at once shifts attention to what is the content of a lawful order. A point to which reference has to be made then is section 6 and the identification of the functions of a police officer and the duty of care then has to march somehow in step with those provisions. At some point judgments have to be written and judgments have to be written at least acknowledging that Parliament has spoken.

GUMMOW J: You cannot work out what is a safe system of work unless you know what the work is. The work is performance of statutory functions and duties. If you do not start at the right spot you are going to end up in the creek.

MR MENZIES: We understand that, your Honour.

GUMMOW J: The fact that this seems not to have been put to the Court of Appeal is a matter of some worry, but we have to decide matters in a thorough fashion.

MR MENZIES: We will take the opportunity over lunch to further deal with that issue if we may.

GLEESON CJ: Thank you, Mr Menzies. Yes, Mr Barker.

MR BARKER: Your Honours, could I deal very briefly with Shirt. We have in our written submission dealt with it. It is a touch ironic that the government instructing my learned friend was the government that introduced the Civil Liability Act which specifically excluded from its reach cases of the nature which is now before the Court. This case was governed by the Workers Compensation Act 1987 (NSW) which I think is attached to our submissions. Division 3 relates to modified common law damages and governs the award of damages as was applied in this case.

If one goes to the Civil Liability Act, the significant amendment which was accomplished by Act No 92 of 2002, it by section 3B(1)(f) specifically excluded from the Civil Liability Act:

civil liability relating to an award to which Division 3 of Part 5 of the Workers Compensation Act 1987 applies –

So if the government of New South Wales wants to bring the common law into line with its statutes it has the capacity to do so.

KIRBY J: What does that mean – 3B(1)f? Does that mean that if you can get an award under the Workers’ Compensation Act for compensation liability, that you had no entitlement to damages?

MR BARKER: No. Sorry, you are looking at 3B(1)f of the?

KIRBY J: Of the Civil Liability Act.

MR BARKER: Civil Liability Act. No, it simply leaves the matter open to adjudication according to the common law.

KIRBY J: I see. So your point is that the government which instructs the appellant has elected not to intrude into this area - - -

MR BARKER: Yes, specifically. It is one of the carve-outs - - -

KIRBY J: - - - of employment liability?

MR BARKER: Yes. So that the definitions or the attempt to give some definition to “negligence” in 5B simply does not apply to this case, yet the government here is complaining that the common law is discordant with the statute, it itself having specifically excluded this case and others of the same nature from its reach.

CALLINAN J: Mr Barker, correct me if I am wrong, but there is also a special or separate provision for workers’ compensation as opposed to damages for police officers.

MR BARKER: Yes.

CALLINAN J: That is section 216, I think - is that right - of the Police Act. I think that is right.

MR BARKER: Your Honour Justice - - -

CALLINAN J: Which would be consistent with what you have just put, I think.

MR BARKER: Yes. Your Honour Justice Hayne is perfectly right that this was not given any attention in the Court of Appeal or on trial but there is no question, of course, that the respondent was on duty as a police officer obliged to do what she was doing. See, she went there to investigate or assist in investigating an armed robbery and that led her to the horrible situation in the doctor’s surgery.

KIRBY J: I think there is a knife in that particular napkin and the knife is the suggestion that if the police officers have other duties in accordance with the Act, they have to attend to them under pain of criminal liability and not attend to the sensitivities of a colleague.

MR BARKER: But that is just what he did not do and nobody, with respect, would suggest as a matter of law that because a police officer is obliged to do something he or she is left without protection in the course of the system of work then ordained. Now, my learned friend on several occasions said the plaintiff, or the respondent here, postulated a system of work and the Court of Appeal postulated a system of work. It was a system which was proved on the evidence and whether or not it was the subject of specific rules laid down in some protocol, in my submission, is immaterial. It was a system which was understood widely by police officers and we have dealt with it – I will just give you the reference without taking you to everything, but on page 4 of our submissions we have set out what we say is the duty of care, Part V, and I will come back to that in a moment.

Then at page 6 we tried to give you every bit of evidence we could see conceivably relevant to the issue which demonstrates there was in fact a system of work in force. A lot of that came from the plaintiff herself, but it is, nonetheless, good evidence, I submit, of the sort of system which required - when it was practicable it required one police officer to have regard to the welfare of another. What we say about all this is that the duty was to provide the support that I have set out in the written submissions but it comes down to a duty, we submit, to provide support to the extent it can reasonably be provided according to the exigencies of the situation.

Now, the two were together to give each other support. Evans was in charge because he was the senior officer. She followed the line of blood, went into the surgery and there was confronted with this horrific sight. She thought the man was dying. Not only did she do her best to save his life she took from him what she believed to be his dying depositions, as Justice Kirby referred to, a description of the assailant and his wishes concerning his wife and children. She was radioing for an ambulance. The ambulance did not turn up for a while and she fretted about that and radioed further. All this crammed into 10 minutes.

All we know of Mr Evans is that he left immediately they went in the room and did nothing thereafter, and all we know of the duty officer is he looked in and must have seen the awful situation and did nothing and nobody there gave her the slightest bit of assistance and there was no reason why it could not have been given to her.

The second part of the Shirt analysis does not depend upon a whole training regime for police officers to act appropriately when one of their fellows is under stress.

HAYNE J: Is not this to fall into the ex post era that was identified in the diving cases. You have to look at these things ex ante. You have to look at these things as what would the reasonable employer do before the event occurs.

MR BARKER: Yes, your Honour is quite right.

HAYNE J: Now, showing that Evans had no good reason is forensically important and forensically powerful but what should the employer have done before the event that it did not do?

MR BARKER: Adopting the language of Mount Isa v Pusey the employer was - somebody standing in the shoes of an employer here, that is, a police officer equipped with the knowledge the police service has and there is a great deal of evidence about this which I submit goes to foreseeability. It is summarised in the submissions - - -

HAYNE J: I know there is a lot of evidence about the exposure of officers to trauma and what consequences can happen, but what should the employer have done before the event that it did not?

MR BARKER: If this police constable was going to be exposed to the traumas to which she was exposed, it should have ensured that if reasonably possible she would have the assistance of another police officer. That is what Evans was there for.

HAYNE J: So by instruction it should instruct officers on patrol, “If reasonably possible do not separate”.

MR BARKER: That is the evidence, you can draw that - - -

HAYNE J: I am not doubting it. I just want to understand what your proposition is. Is that the bottom line?

MR BARKER: That is it, your Honour. That is how it was dealt with by Chief Justice Spigelman on page 1082, line 20:

The critical issue in the present case was whether or not the failure on the part of the officers of the Appellant to provide support in the course of the traumatic incident was a breach of duty. It can readily be accepted, as the Appellant submitted, that the Court should be slow to require the police to generally have a second officer supporting another in the course of exposure to the trauma of victims of crime. Pressure and stress are part of the system of work which police officers must be prepared to carry out. There are numerous occasions on which one of two officers operating under the buddy system would reasonably leave the other to perform functions on his or her own. Indeed, it must often be the case that it is necessary to do so. In the usual case it would not take much in the way of evidence to satisfy a court that the performance by a police officer of his or her primary duties was such that any failure to offer support for another police officer did not constitute a breach of duty.

However, in the present case the plaintiff established a proper basis for an inference that there was no such call of other duties which made it reasonable not to take steps to support the Respondent. In particular the presence of other police officers on the scene was such as to support a conclusion that the attendance of Constable Evans to other tasks was not such as to render reasonable, in all of the circumstances, his failure to support the Respondent. The Appellant acquired an evidentiary burden to prove that performance of the other tasks by Constable Evans was consistent with his duty of care to Constable Fahy. It did not discharge that onus.

GLEESON CJ: That is talking about Evans’ duty of care, is it?

MR BARKER: That is talking about Evans’ duty of care, but the point of what his Honour said between lines 20 to 40 is that this system is by no means inflexible and it was never the plaintiff’s case that it was inflexible so that one partner could never leave the other’s side no matter what the circumstances. Had Evans’ been busily engaged in investigating the armed robbery or the crime scene, as his Honour said, that would have been a reason for his not giving attention to the situation of Constable Fahy.

GLEESON CJ: But was the decision based on the finding of a breach by Evans of Evans’ duty of care to Ms Fahy for which the State was vicariously responsible, or was it based upon a breach by the police service of its obligation to provide a safe system of work for Constable - - -

MR BARKER: The latter. His Honour the Chief Justice said it did not matter. The system was there. It could only be effected by the agents of the police force, that is, the police officers themselves. So we say that what the evidence shows is that each police officer owed a duty to each other police officer with whom he or she was working at the time.

GLEESON CJ: That would be differently expressed, but perhaps in a way that is not materially different for your case, by saying, could it not, that the system of work ought to have been such that Evans was in breach of his employment responsibilities by absenting himself without good reason.

MR BARKER: Yes, your Honour. I had not thought of that myself but I accept it as meeting the situation.

KIRBY J: Is there a knife in that particular napkin that - we are talking here of 11 minutes, so Mr Menzies keeps reminding us, and we are talking now, as we now know, in the context of a statutory obligation on individual police officers to do their duty. It is a crime scene, lead of blood, need to put out police markers and other things. Looking at it ex ante, without knowing exactly what Mr Evans did, can we say that it is unreasonable to impose on the police service an obligation that there should be a duty to stick with another colleague when the statutory duty imposed by Parliament is the duty to attend to crime and so on?

MR BARKER: Within the statutory duty, the system of work flourishes. It is not taken away by the statutory duty. The police service owes a duty of care. Now, the evidence is that the senior of the two had a responsibility - - -

KIRBY J: That was Mr Whitten?

MR BARKER: No, Mr Evans was the partner.

KIRBY J: Mr Evans? Mr Evans was disbelieved by the primary judge, was he not?

MR BARKER: He was disbelieved about what he was doing in this 10 minutes and the primary judge found he was not attending the crime scene; he did not seem to have been doing anything much. A lot of the Crown’s submissions in this case assume that Mr Evans was out busily attending the crime scene pursuant to his duties as a police senior constable, but he was doing nothing of the sort.

The evidence is that the senior partner had a duty to organise things and give directions to the junior partner, and the primary duty at this sort of scene was to attend to the injured, in this case, the man they thought was dying. But Evans told her nothing, gave her no direction, no assistance, no advice, simply left her, and Inspector Whitten, as his Honour found, must have been aware of the situation that she was in. It is a fact specific case, but in my submission there is ample evidence to support the proposition that the service failed her because of the failure of her fellow police officers to give her the support which the system contemplated.

KIRBY J: Given that the State did not call a lot of senior police officers to explain the system and how it had done evaluations of this, did your case elicit evidence relevant to the New South Wales police service that revealed that the police service would be on notice of the fact that this is a vulnerability, that this is a particular condition, that to face up to this condition you have to give support, and that if you do not, and do not do it in a timely fashion, you are going to pay a price later in sufficient numbers that should require a careful employer to take proactive steps?

MR BARKER: Yes, your Honour, you may draw that from the evidence which we have summarised, starting at page 6. The evidence is that - - -

KIRBY J: Is there any senior police officer who gave that type of evidence?

MR BARKER: There was a man called O’Connell who had been a police officer.

KIRBY J: What was his rank when he gave evidence? He was no longer a police officer, but what had been his rank?

MR BARKER: I think Inspector. Professor Bryant called by the State was aware of the buddy system and how the senior partner was in charge so I will not take your Honours’ time to go through all that evidence unless you want me to.

GLEESON CJ: Presumably, Mr Barker, the primary judge and the majority in the Court of Appeal found that if Constable Evans had been in the room with the doctor and Ms Fahy, she would have been all right?

MR BARKER: Yes, there would have been no complaint if he had been in there helping her.

GLEESON CJ: Having regard to the propensities that you attribute to Constable Evans, why is that conclusion reached?

MR BARKER: I have to take it further and say that he would have been - - -

GLEESON CJ: He does not sound like a tower of strength on your case.

MR BARKER: No, he was not. We must presume that if he was in the room he would have been doing something to help her, not just watching, saying nothing.

KIRBY J: He might have been holding the guts in. That might have been the type of thing he could do well.

MR BARKER: It might have helped.

GLEESON CJ: So he should not have just been there, he should have been actually helping with the physical work.

MR BARKER: He is there taking some of the stress away from her while she tries to deal with these multitasks.

GLEESON CJ: I understand that, but one’s experience of life is that companions do not always take stress away.

MR BARKER: I think I know that, your Honour. In fact, I am one of those companions who probably causes it as much as I receive it, but what we are saying is that it is not just a matter of him being in the room looking on. He was there. He would have been there giving her support and assistance. That is what the duty of care demanded and that is what she did not get. Your Honour the Chief Justice asked Mr Menzies about - - -

HAYNE J: Can I just follow that out a moment. Does it rise higher than Dr Robertson’s evidence at page 220? That was the passage of evidence to which we were taken earlier. The sense of abandonment was proffered as one of several factors which led to the development of the disorder.

MR BARKER: There is other medical evidence to that effect.

HAYNE J: But does it rise higher than this point? Can I tell you where I am going so that you may focus the answer more carefully? At the moment the argument has gone forward as though bare presence in the room, that is, absence of separation of the two officers is the critical fact, yet now we seem to have injected into the debate, “Not only be there, but be there doing something”. Now, again, how is that to be fed back into this duty of care that the employer owes? If the duty is, as you earlier suggested, “If reasonably possible do not separate” - the duty seems to be rather more sophisticated than that. “If reasonably possible do not separate and offer support in the form of comforting words or the like”. Where are we heading?

MR BARKER: All the system required was assistance if it was reasonably practicable to render it. Now, Evans himself in evidence said that it was the duty of the senior partner to look after the welfare of the junior partner, and this is why I submit, with respect, that one can – there would be no purpose in requiring a policeman simply to be sitting around in a traumatic situation doing nothing at all while his junior was exposed to such trauma. So the system required reasonably practical assistance to get through the stressful period - - -

HAYNE J: Look, you have a doctor working on a patient. The doctor is working trying to keep the heart together. He has an assistant there, the police officer, Constable Fahy, who assumedly is told, “Hold that bit of the body together while I work up here”. You have a practical situation happening. What is the other man going to do?

MR BARKER: It was hard to hold the body together while she was using the radio. She says she had to let go. She had to bring it all back together again. She got covered in blood. She had to keep on using the radio several times. She was not only holding the wound, she was listening to what he was saying and trying to – she also tried to convey that by radio, what he told her about the assailant. These are matters about which she should have been given help, instead of which nothing is done at all when it could have been. That is what we say is where the defendant - - -

HAYNE J: That is ex post and ex ante. The instruction to the officers must take a particular form.

MR BARKER: Yes, your Honour, and the instructions would surely, by the hypothetical reasonable police officer possessed of all this knowledge, have been, “You go in there and make sure she is not left doing all this by herself unless you are pressingly required to do other things”. We do not say the system was inflexible but it was completely ignored on that night, and that is the failure.

GUMMOW J: Do we know how it was that the doctor was available in the surgery at this time of night?

MR BARKER: No, there is no evidence about that, your Honour.

GUMMOW J: Whether he was open for business.

MR BARKER: No evidence at all. There is evidence the receptionist was there, so apparently he was open for business.

GUMMOW J: That is what I wondered. Were there other patients there?

MR BARKER: As far as I know, the evidence is silent about that. I was going to say your Honour the Chief Justice asked about post-traumatic stress disorder. There is material at page 347 where it is defined, but I do not think it takes it any further than Mr Menzies’ exposition - just under line 10.

GLEESON CJ: Thank you.

MR BARKER: One of the traumatic events referred to is serious injury to self or others. Your Honour the Chief Justice also said how do you know what will lead to psychiatric injury which, of course, is tied to the question of foreseeability. This is a problem wrestled with by this Court in New South Wales v Tame, New South Wales v Annetts and in Koehler’s Case. Also, it was given an examination back in Pusey’s Case [1970] HCA 60; 125 CLR 383, if I could just briefly take you to that. You remember that the cause of action was psychiatric injury arising from a worker having seen a horrible burning of two other workers. If I could take you to page 390, Sir Garfield Barwick said, near the top of the page:

But the appellant points to evidence of medical practitioners in the case which says that the particular injury of the respondent was a rare consequence or reaction to follow emotional excitement or stress. Indeed an experienced psychiatrist had seen only one other like case to that of the respondent in his eighteen years of practice as a specialist. However, the practitioner insisted that, though unusual, a reaction such as that of the respondent to such an experience as he had had, was not “unexpected”.

But the rarity of such an injury in the circumstances does not in my opinion deny the foreseeability of an injury of the class of which it forms one. That it is sufficient that the class of injury as distinct from the particular injury ought to be foreseen as a possible consequence of particular conduct in order to establish liability for damages for the particular injury is well established.

Justice Windeyer at page 403, about a third of the way down the page, said:

The medical witnesses agree that such a chronic pathological condition is a rare consequence of such a shock. But it is not unknown: and reasonable foreseeability is not measured by statistical probability.

It is beyond argument that the law recognises in relevant circumstances that an employer owes a duty to an employee to guard him or her from the risk of psychiatric injury. Officers of the police service are so peculiarly vulnerable to long-term psychiatric illnesses which you will find in the documents and the evidence we have summarised that the hypothetical police officer was one possessed of the knowledge that here was a member of a service which was frighteningly vulnerable to psychiatric harm arising from trauma and, therefore, the final sad result of all this was reasonably foreseeable.

KIRBY J: That sounds the sort of thing that could well convince a trial judge. It sounds common sense, but one would feel a bit more comfortable about it if there were some expert evidence or police forces internationally recognised this or police forces interstate do this or police forces have a higher than the national average case of post-traumatic stress and therefore this is a well-known thing.

MR BARKER: I had perhaps better take you to some of that evidence, your Honour, because it does go to that.

KIRBY J: I do not want to go to all the evidence. It may be Mr O’Connell is enough. Was that sort of case clearly established before the primary judge?

MR BARKER: Yes, I think I am safe in saying that. There is a report by a psychologist called Jeannie Higgins and if one goes to 349, line 10:

However, we know that potentially traumatising events are frequently seen as extremely stressful by many police across studies and countries. Even very inexperienced police are frequently exposed to potentially traumatising events and police do not seem to readily seek professional psychological assistance.

You get the same thing, only more so, on page 350 at line 10:

There is an extraordinarily high rate of police retired as medically unfit with a psychiatric diagnosis. There is also evidence for the relationship between police stress and increased risk of domestic violence, family disruption, substance abuse, depression and anxiety . . .

We cannot prevent police being exposed to traumatic events but some current intervention programmes may simply further numb police to their feelings, perpetuate existing difficulties, and cost a lot.

The point is that all of this was recognised. What happened in this case was recognised as being something which could well happen to any police officer, in my submission. That is the tenor of all that evidence. The evidence also is that past traumatic experiences, as this woman had, do not necessarily harden the constable against further such experiences. They can make the officer more vulnerable. I have set out the references to that at page 400, line 40 and 401, and particularly at page 481, line 5 where it is said under the heading “Cumulative Trauma”:

Cumulative trauma occurs when an officer is exposed to a number of traumatic situations. Previous traumatic exposures increases an officer’s vulnerability and places them at risk of developing PTSD on subsequent exposure to trauma.

That would have been known to the hypothetical policeman standing in the shoes of the employer. In fact, quite a lot was tried to be made of it going the other way, that she had experienced so many horrible situations that nothing much would worry her, but that is contrary to the evidence.

KIRBY J: Is it reasonable to infer anything from the fact that the police service did not call any senior officer? I realise you have to make out your case but if they do not call somebody to say, “These are the operational problems and this is the expense problem” or “This is the necessity in this particular case”, then the inference seems to be available that the failure to call witnesses was because any such witnesses would not have helped their case.

MR BARKER: Exactly, and that is the inference his Honour drew.

CALLINAN J: Mr Barker, an Inspector Egginton gave evidence, is that right?

MR BARKER: Yes, he was called by the appellant.

CALLINAN J: Called by the appellant, yes. I think his evidence was received over objection. There was a voir dire, was there not?

MR BARKER: Yes.

CALLINAN J: There was no appeal against the reception of his evidence in the Court of Appeal?

MR BARKER: No. In fact it was used to support the respondent.

CALLINAN J: I will come to that. You will be able to assist me about that then. There is written evidence of his at 901, paragraph 5, about what you do when a doctor is treating a seriously injured victim. That is his written report and I think he is cross-examined about a number of issues.

MR BARKER: He was.

CALLINAN J: I think probably that one also about 260 to 280, somewhere about there, I think. I will have to check that. But he does say in paragraph 5 in effect, I think, that officers, not surprisingly, are left to perform duty by themselves from time to time.

MR BARKER: Yes.

CALLINAN J: Was that a subject of any cross-examination on that? You may not want to answer it now. You may want to look at it at lunchtime.

MR BARKER: I do think so, but it is consistent with the plaintiff’s case, as found by the Chief Justice, that the partner system is not inflexible. What he is assuming there, of course, is that Evans is going to do something useful or urgent at the crime scene, but he did not.

CALLINAN J: I do not know about that.

MR BARKER: The evidence is he did not. That is the basis upon which we say that part of the Shirt synthesis that requires the reasonable hypothetical police officer to stand back and consider what he is going to do and whether the risk was of such a magnitude that he should do something and was there some reason why he could not do something, and there was not any reason at all.

GLEESON CJ: Was it put to Constable Evans that it suited him well to keep away from this messy situation and leave it to Ms Fahy?

MR BARKER: It was certainly put to him that he did nothing. I am not sure whether the motive was put to him.

KIRBY J: Exactly what was the primary judge’s finding here because he saw this – Mr Evans did front the witness box.

MR BARKER: He did.

KIRBY J: So exactly what did the primary judge find that he was doing out there when he was waiting outside?

MR BARKER: He just found his evidence unsatisfactory and accepted Ms Fahy’s evidence that the man said nothing and walked out and there was no reason why he could not have helped. That is the gist of it. I am reminded that Mr Egginton was cross-examined about that part of the evidence that your Honour Justice Callinan took me to, and that is at 276, line 10.

GLEESON CJ: Is that a convenient time, Mr Barker?

MR BARKER: Yes, your Honour.

GLEESON CJ: We will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: Yes, Mr Barker.

MR BARKER: Your Honours, if I may, I would like to take you to some short extracts from the transcript to do with both the partner system and the events of the night, commencing at page 19 of the plaintiff’s evidence. She had given evidence about previous traumatic episodes and at about line 15 she was asked:

had you any particular emotional difficulty dealing with those events?
A. No, never before; my partner had always been there.

Then she was asked about partners and she said:

There’s always the senior person in the truck, and they are in charge of decision-making, et cetera; and besides whether you were the junior or the senior, you had to look after who you were working with. So if I was the senior on the car and went to a fatal car accident, for example, I would say, you know, “You do this duty or that duty,” and they would report back to me if they could or they couldn’t do it. But I’d have to constantly keep an eye on them because I’m the senior person, I’m responsible for them.

Then she said Mr Evans was the senior person. Then if I could go to page 25 which deals with – I do not quite know how it got into this order, but page 25, line 30 deals with the end of the episode in the medical centre. She said:

I had to open big double doors to the medical centre, because there was only one side open so I had to unlatch. As I was doing that I looked out and there was about five police just standing there looking at me doing this. I opened the door, and--

Q. I’m sorry doing what?
A. Doing nothing – the police, they were standing looking at me.

One of them – at line 40, near line 50 – was Steve Evans. On pages 50 to 51 she gave evidence again about previous episodes and on page 51, line 20:

I had to half let him fall apart again, just so I could use the radio.

Q. Have you been at scenes before, where you have a partner, where the tasks are divided amongst the partner and the--
A. I mean, there’s clear ones, especially for car accident victims. It would either be me in the car, holding the person’s head, offering support, while the other one is on the radio or directing traffic, or just coordinating outside. One person concentrates on the victim and the other person worries about everything else.

She said at line 40:

I hardly spoke to the doctor. I realise now it was because this guy was stabbed through the heart and he had his blood spurting out –

Then she talked about passing information over the radio. On page 52:

George –

that is the victim –

would tell me things, then he’d have to have a rest and in that rest period I would get on the radio then and communicate what he’d told me to them, but I couldn’t document anything at all until I came back after and sat in the police truck and wrote it all down . . .

Q. One assumes you had a partner with you in the room. I take it that could have been done by the partner rather than you.
A. Absolutely, and they could have done the radio contact so I could have kept continuous pressure on George and not felt – like I felt like I just had no control over the situation.

Page 54, line 30:

There was always a partner there, and one would have the radio and the other one would be helping the victim - - -

GLEESON CJ: Mr Barker, was your complaint that there was a failure to comply with an established system or was it that there was a failure to institute?

MR BARKER: No, there was a failure to comply with an established system. You get the system from all the evidence that we have summarised and this is part of it. Finally in this bracket of evidence, page 68, line 20:

Duty Officer Whitton arrived at the scene of this incident and walked to the door . . . and then walked away.

And they did not speak to each other. That is only part of the evidence but, in my submission, it all points the one way, that there was a system which was known to the police and on this occasion it failed. Could I give your Honours copies of sections 15, 16 and 19 of the Occupational Health and Safety Act 1983 which was in force at the time.

GLEESON CJ: Thank you.

MR BARKER: It was not pleaded as a statutory claim, but it did find its way into the evidence through Mr O’Connell at page 858. I am sorry, could I start at page 743, line 10, under the heading “SAFE SYSTEM OF WORK FOR POLICE”. He says:

In New South Wales, section 15(1) of the Occupational Health and Safety Act 1983 (OHS Act) states:

(1) Every employer shall ensure the health, safety and welfare at work of the employer’s employees.

Over the last twenty years, there has been a significant amount of research into the impact of stress in policing, within Australia and internationally. In 1982, Steven Albert wrote in the NSW Police News . . . in the context of a study he had undertaken into occupational stress in the NSW Police Force (as it was then) that:

“It is generally accepted by the medical profession that some occupations are more likely than others to cause stress-related maladies leading to disorders such as coronary heart disease, gastrointestinal malfunctions, dermatological problems, severe nervous conditions, neuroses, etc. Police work is one such occupation, so hazardous that it even exceeds the formidable stressors encountered by air traffic controllers. In terms of emotional problems, police have significantly higher levels of suicide, divorce and alcoholism than the general population and the majority of other occupational groups”

Well, that is another important piece of important information within the knowledge of the reasonable hypothetical policeman standing in the shoes of the employer. But could I then take you to the Act itself? Section 15 is really a restatement of the common law in respect of employers. Perhaps more importantly, section 19 casts a duty on employees:

Every employee while at work:

(a) shall take reasonable care for the health and safety of persons who are at his or her place of work and who may be affected by his or her acts or omissions at work, and

(b) shall, as regards any requirement imposed in the interests of health, safety and welfare on his or her employer or any other person by or under this Act or the associated occupational health and safety legislation, co-operate with the employer or that other person so far as is necessary to enable that requirement to be complied with.

That is a statutory duty which sits alongside the statutory duties cast upon the police officers under the Police Service Act. That was a duty, we say, that the man standing in the shoes of the police commissioner or the police service was obliged to comply with.

KIRBY J: Are there any cases in the Court of Appeal on the use that can be made of these general duties for the purpose of elaborating or giving the parameters for common law obligations that you are aware of?

MR BARKER: I am sorry, no, I cannot answer that, your Honour.

KIRBY J: Maybe that could be looked at after. It would be surprising if, given that for years, maybe for a century, barristers were drafting particulars
which gave as a particular of negligence the statutory elaborations that were useful or relevant.

MR BARKER: Could we be given a little time to supply the Court with those cases. Your Honours, this is a classical relationship case. In my respectful submission, it is no less of a case than Annetts v Australian Stations and the appeal should be dismissed. I am indebted to the Court.

GLEESON CJ: Thank you, Mr Barker. Yes, Mr Menzies.

MR MENZIES: Your Honours, may I respond and as part of the response take up some of the matters that have been raised with me by your Honours. In answer to Justice Callinan’s inquiry about the findings by the trial judge on negligence, they are at 1024, 40 and 1025, 10. The trial judge seems to have found, so far as what one can understand from those findings, that he was dealing with a systems case. At the foot of 1024 in the last line:

Given the buddy system, and the existence of programs recognising the risk of the development of posttraumatic stress disorder for police officers engaged in traumatic events or incidents, it amounted to a lack of reasonable care on the part of the defendant –

and the “it” was the whole catalogue of things that the trial judge had found.

If I can put a little more flesh on the bones of our submission with respect to other jurisdictions in further response to your Honour the Chief Justice, we have provided a compendium, which I do not seek to take your Honours to, dealing with the US situation. In Canada the most recent authority that we found was a decision of the Supreme Court of Canada, Mayfield Investments v Stewart 121 DLR 4^th 222. We have copies to provide your Honours with if I may do that. The short point is that Canada does not seem to deal with the issue in the same way, that is to say the two-stage process. I do not particularly take your Honours to any part of it but simply draw your Honours’ attention to it.

In the United Kingdom our research indicated a similar position with continual references back to Bolton v Stone and Wagon Mound itself, but again not with the - - -

KIRBY J: I am not hearing you, Mr Menzies. If you would lift your voice a bit, please.

MR MENZIES: Certainly, your Honour. In the United Kingdom the position would seem to be again, like Canada, no adoption of a Shirt-like approach and continual reference in the cases back to Bolton v Stone and The Wagon Mound itself. There is one - - -

KIRBY J: See, the Canadians, like the British and the Singaporeans, the Malaysians, the Fijians and everyone else, approaches it through the Anns or Caparo approach. That is their formula.

MR MENZIES: Indeed, your Honour. The latest decision that we could find in the English authorities which may touch upon the question is Tomlinson v Congleton Borough - - -

GUMMOW J: Well, that is a diving case, is it not?

MR MENZIES: Yes, it is, your Honour.

GLEESON CJ: We are not dealing here with the question of a duty of care; we are dealing with a question of breach, are we not?

MR MENZIES: Yes, your Honour, but the assistance we were trying to provide was seeking what occurred in other instances and in other jurisdictions on the application of a formula similar to Shirt. That was the only reason I am raising it.

GLEESON CJ: There is no argument, as I understand it in this case, that the employer had a duty to take reasonable care to prevent injury to the employee.

MR MENZIES: Indeed, your Honour.

GLEESON CJ: And that it also more specifically had an obligation to institute and maintain a safe system of work.

MR MENZIES: Yes, your Honour. That is conceded, your Honour. That is not in issue.

GLEESON CJ: Well, I understand the relevance to a question whether there was a breach of that duty of the decision in Wyong Shire Council v Shirt, but the Canadian and UK authorities in which we would be interested would be the authorities dealing with the question of breach, would they not?

MR MENZIES: Yes, your Honour. We could find none which dealt with the issue in the way that the issue is dealt with here.

GLEESON CJ: Is there any material difference between the approach taken by Lord Reid in Bolton v Stone and the approach that he took in the Wagon Mound?

MR MENZIES: No. The difference in the Wagon Mound was that there Lord Reid was trying to deal with a circumstance where the risk may have been small but the result may have been catastrophic.

GLEESON CJ: Somebody who got hit in the head by a cricket ball might not think the result was favourable.

MR MENZIES: No, your Honour.

GLEESON CJ: But what they did in Bolton v Stone, as I understand it, was to say if you had stopped to think about it you would have realised it was foreseeable in that sense that a cricket ball that went over the fence into the surrounding residential area might hit somebody on the head and if it hit them on the head it would do them no good, but there was such a small risk of that that you could be pardoned for not thinking about it.

MR MENZIES: Indeed.

KIRBY J: A decision very protective of the game of cricket.

MR MENZIES: Indeed.

GLEESON CJ: Or if you thought about it, for deciding not to do anything about it.

MR MENZIES: Indeed.

GLEESON CJ: Which is only another way of saying let the passers by wear the risk.

MR MENZIES: Yes. The difference of approach in the Wagon Mound of Lord Reid would seem to put that proposition to one of insignificance – “insignificance” is a bad word – and to emphasise in the Wagon Mound that even though the risk was small the result was, as we say, significant or serious.

GLEESON CJ: I understand Mr Barker’s case. It is not that the negligence consisted in a failure to institute a new and different system of work. It is that there was a perfectly good system of work, the failure re the breach of duty consisted in a failure to observe it.

MR MENZIES: The breach, as identified in the Court of Appeal, was the failure to adopt a system of work which dealt with the particular circumstances presented then. It is not a question of a system failing. It is a failure to institute a system.

GLEESON CJ: That is what I am not clear about, because Ms Fahy in the witness box seems to have been complaining about the conduct of her fellow officers measured by existing standards that she understood to apply to them.

MR MENZIES: But that is not what the Court of Appeal found. The Court of Appeal found a failure in having a system which would have required, in those circumstances, the level of support that the medical practitioners ultimately decided, the absence of which was one of the contributing factors to the injury. It is a different proposition.

Can I just deal with the managerial evidence further and to clarify an exchange between my learned friend – I am sorry. Egginton was a witness called on behalf of the police department and was cross-examined. His report went in. There was an over objection. There was a short voir dire of half a page. O’Connell was the witness called by the plaintiff. His report also went in over objection. There was an objection based upon absence of expertise.

At 195, O’Connell, the plaintiff’s expert, was being asked in cross-examination about the responsibilities of one police officer with respect to another. When asked about attending in an emergency upon the assumption the badly wounded person being treated by a doctor, the proposition was put to him it would not be unusual for the circumstance to proceed the way it did. He said:

Probably not, except that in situations where you’re talking about an urgency, we’re talking about life, the delineation of responsibilities doesn’t become an issue. What police officers do is just get in and instinctively do what’s required, and if, as a supervisor or as an offsider, you’re in a position where you start to reflect and to make a decision about what ought to happen – that is, you task someone – you clearly do that on the requirement of your broader responsibility.

Then he continues at line 45 when he is asked about the responsibilities to helping a wounded person which is a question going to the responsibilities under the Police Act, although obviously not specifically averted to – the question was:

Because that’s the primary object that the police attend to upon arrival at a scene and seeing a wounded person; that is, look after the person first and then attend to the crime scene, if I can put it that way?
A. It goes to the heart of oath of office of a constable.

So that the primary object of the police officers arriving at the scene is to deal with the first problem and that is dealing with the wounded person. Then at 197 he is asked again about an emergent situation and about the roles – this appears between lines 10 and 20 – and how the roles are delineated. The response is:

I guess those arrangements tend to work themselves out, because when you’re dealing with an emergent situation, the delineation between roles often isn’t quite as clear as we imagine. In fact you do what you can do.

Now, that plainly was what was happening during this evening. He is asked at the foot of that same page - - -

KIRBY J: The following sentence is not irrelevant.

MR MENZIES: Indeed, your Honour. At some stage a senior person takes charge.

KIRBY J: Depend on what is happening.

MR MENZIES: He goes on to say:

It may involve a range of other activities such as preservation of the crime scene.

Comes back to the various duties that the police officers have at the scene. Then at the foot of 197, he is asked whether it is simply a “judgment call” to use the question’s expression:

as to what his priorities are once he attends the crime scene.
A. He or she, yes, certainly, and of course it’s all about commonsense.

At 198 he is asked whether there are any sets of rules or directions and the response is no. He further answers the question by saying:

No, and [there] oughtn’t be. I think you either have responsibilities or you don’t. In fact, it wouldn’t make sense actually -

which is consistent with our proposition that one cannot legislate in some sort of way in the preparation of - - -

CALLINAN J: Mr Menzies, that seems to be something like what the Chief Justice said in the Court of Appeal, but I am having a little difficulty in ascertaining precisely what his Honour said the duty was. It seems to be, in paragraphs 17 and 18 on page 1082, his Honour accepts that there have to be exceptions to a rule of constant support but he uses the word “necessary” and the way in which his Honour deals with - the way in which the matter should be resolved, that is by evidence from a respondent, seems to suggest that his Honour is saying that there should be always an officer in support unless it is necessary that another officer be somewhere else, in effect. He uses the word “necessary”.

MR MENZIES: It seems to us, with respect, that that is precisely what he is saying. I used the expression earlier, “the default setting”. In other words, you must have two police officers present unless you can explain why they are not there.

CALLINAN J: An explanation that does not satisfy the court that it was necessary for a police officer to be alone will not suffice. Unless you can demonstrate that it was necessary for the police officer to be alone, the defendant loses.

MR MENZIES: That is right, your Honour. That, in our respectful submission, reverses the onus.

GLEESON CJ: But words like “present” and “alone” simply require you to identify the level of abstraction at which you are identifying the place. There are plenty of police officers in the area, in the vicinity. If what was found against Constable Evans was that he was there all right, he just was not giving the plaintiff the backup that the existing system entitled her to receive, the matter can be resolved at a purely factual level, can it not? It does not really raise any issues about differing ways of identifying a breach of duty. Constable Evans, on the approach that Mr Barker contends for, did the wrong thing. He was there all right but he was sitting on his hands.

MR MENZIES: But, your Honour, that proceeds upon an assumption that the existing system required him to be present, and it does not.

GLEESON CJ: He was present, but he was not doing anything.

MR MENZIES: Physically present with the - - -

GLEESON CJ: Yes, it would be a very surprising system that drew fine distinctions between which side of the door you were on, whether you are present in the doctor’s surgery or standing outside the doctor’s surgery. He was in a position where, if he had wanted to help her, he could have helped her.

MR MENZIES: Yes, but that assumes that part of his duty was to do so.

GLEESON CJ: To help her.

MR MENZIES: Well, to be there, and physically be there and provide the support because of his physical presence because it was that support that – or the absence of that support which was said to have been the breach of the duty. So it still comes back to the proposition that the system must have required them both to be present before the duty is discharged. In our submission, the evidence just does not show that. Certainly it shows that in a general sense there is a risk of psychiatric injury. Certainly it shows in a general sense that that may be lessened by support, whatever that might be, but that was not how the Court of Appeal decided it.

Could I move to the managerial evidence of Mr Egginton? Mr Egginton was an inspector called by the police service. At 272 he was asked about what should have happened. Importantly, he identifies a circumstance which would require further support, and that was something which was defined as a critical incident, and a critical incident by definition was something where the police officer himself or herself was subject to attack – they were threatened or injured. In those circumstances, a certain procedure would follow, but this was not one of them.

This was a circumstance where there were a multiplicity of duties. The respondent was performing some and the other police officers had other duties to perform. Whether or not they were performing those duties or not is, in our submission, not to the point.

I need to turn to one matter finally about Mr Egginton’s evidence. His report appears at the beginning of 895. At 900 in 3, in answer to question number 3 at line 40, he is asked what the roles and responsibilities are and he sets them out. The significance of that is that there are different people obliged to perform different functions, which of course is consistent with their obligations, so that what was occurring on this occasion was nothing unusual in response to their respective duties, taking into account their obligations to do those duties under the Police Act. If I could just move from that, your Honour, to three other matters.

So far as Mr Egginton was concerned, it was never put to Evans that he should have remained. The live issue with respect to Evans was whether or not he told the plaintiff what he was doing or why he was leaving. The plaintiff’s complaint was that he did not tell her what he was doing. Most
of the evidence-in-chief and the cross-examination of Mr Evans dealt with that issue alone.

Now, if I can move from that. Mount Isa Mines v Pusey is a case about foreseeability in respect of the existence or otherwise of a duty, not foreseeability at this point and finally, if I can deal with the statutory duty under the Police Service Act. Plainly, if there was a statutory duty to carry out certain activities, if it is an offence or a crime not to perform those duties, then any duty to take reasonable care has to take into account those statutory obligations.

Whilst the duty to take reasonable care obviously still continues it must continue circumscribed by what other statutory duties the police officer had so that if one of the police officers is performing a duty of preserving life, as the plaintiff was, and some other police officer is doing something else, then their statutory obligations require them to do that and it cannot follow from that that there is a breach of duty of their employment responsibilities. Those are our further submission, if your Honours please.

GLEESON CJ: Thank you, Mr Menzies. We will reserve our decision in this matter. We will adjourn until 9.30 am tomorrow in Melbourne and 9.30 am tomorrow in Sydney.

AT 2.52 PM THE MATTER WAS ADJOURNED