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District Court 31 July 2023

Paul v State of New South Wales

[2023] NSWDC 277

Other
PROPOSAL ENDORSED BY HIS SUPERVISORS CAUSATION LIKELY DATE FOR RETIREMENT

Citation: Paul v State of New South Wales [2023] NSWDC 277
Court: District Court of New South Wales
Date: 31 July 2023
Judge: Gibson DCJ

Background

The plaintiff was a police officer who served as Team Leader of a six-person unit investigating one of the 57 case studies forming part of the Royal Commission into Institutional Responses to Child Sexual Abuse. What began as a small inquiry involving a handful of victims rapidly expanded to more than 70 victims and 11 alleged perpetrators. The plaintiff led the investigation from its establishment through to the completion of the Royal Commission's report and subsequent criminal trials in 2019.

Early in the investigation, the plaintiff's wife, herself a police officer participating in the NSW Police Force's "WellCheck" welfare program, noticed significant changes in her husband's behaviour and encouraged him to seek support. The plaintiff formally proposed to his supervisors that he and his team be enrolled in WellCheck for the duration of the Royal Commission work. His supervisors endorsed the proposal, but WellCheck was never put in place. Critically, the plaintiff was not told this had occurred. He received only ad hoc counselling on three or four occasions over the first two years, after which even that ceased.

The plaintiff eventually ceased work as a police officer for health reasons and was diagnosed with Chronic Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder, and Substance Abuse Disorder involving alcohol. His claim against the State of New South Wales, brought under the Crown Proceedings Act 1988 (NSW), alleged that the State's negligence in failing to provide a safe system of work caused or materially contributed to those psychiatric conditions.

  • Whether the State owed the plaintiff a non-delegable duty of care, analogous to an employer's duty, to take reasonable care to avoid exposing him to foreseeable psychiatric injury.
  • Whether the State breached that duty under section 5B of the Civil Liability Act 2002 (NSW) by failing to provide appropriate psychiatric or psychological support, including the WellCheck program that had been proposed and endorsed.
  • Whether that breach caused the plaintiff's PTSD and associated conditions under section 5D of the Civil Liability Act 2002 (NSW), including whether earlier intervention would have prevented or limited the injury.
  • Whether contributory negligence under section 5R applied, for example because the plaintiff had at times indicated he was coping or failed to seek assistance from a chaplain, peer support officers, or the police counselling service.
  • The appropriate assessment of damages, including past and future economic loss, loss of promotion prospects, and superannuation entitlements.

Decision

Duty of Care and Breach

The District Court accepted that the State owed the plaintiff a duty of care analogous to an employer's duty, consistent with the established position that the relationship between NSW Police and its officers is analogous to employer and employee (following State of New South Wales v Briggs). The court found that the State breached that duty. The plaintiff's supervisors had endorsed his WellCheck proposal, creating a reasonable expectation that the program would be implemented. When it was not, and when the plaintiff was not informed, the supervisors knew or ought to have known of the foreseeable risk of psychiatric injury. In those circumstances, the court found the failure to refer the plaintiff for appropriate psychiatric or psychological assessment and ongoing counselling fell below the standard of reasonable care.

Causation

The court was satisfied on the balance of probabilities that, but for the State's failure to provide proper support, the plaintiff would not have developed PTSD in its present chronic form. The medical evidence established that earlier intervention would, on the balance of probabilities, have prevented or significantly limited the severity of the plaintiff's condition.

Contributory Negligence

The court considered whether the plaintiff bore any responsibility for his own injury, including arguments that he had at times told superiors he was fine, or had failed to seek assistance from available resources such as a chaplain or peer support officers. The court's findings on contributory negligence were ultimately resolved in favour of the plaintiff, and no reduction in damages was applied on this basis.

Damages

Past economic loss was agreed between the parties at $388,259, with past superannuation calculated at 11 per cent of that figure. Future economic loss was assessed using a net weekly figure of $2,033 over a multiplier period to retirement age, discounted by 15 per cent for vicissitudes, yielding $1,060,849. The court accepted the plaintiff's submission that, given the scale and significance of the Strike Force Bilvo investigation and subsequent prosecutions, he would likely have been promoted and would have retired on a substantially higher salary. A buffer of $150,000 was awarded for loss of promotion, overtime, and shift allowances over a projected 19-year career. The total judgment was $1,828,862.

Orders Made

  • Judgment for the plaintiff in the sum of $1,828,862, with liberty to apply in relation to any application for interest.
  • The defendant is to pay the plaintiff's costs, with liberty to apply.
  • Exhibits retained until further order.

Key Takeaways

  • The District Court confirmed that the State of New South Wales owes police officers a duty of care analogous to an employer's duty, including a duty to provide a safe system of work that guards against foreseeable psychiatric injury arising from the nature of policing duties.
  • Where a proposal for ongoing welfare support is formally made and endorsed by supervisors, and that support is then not implemented, the failure to inform the officer or to substitute an adequate alternative can constitute a breach of duty under section 5B of the Civil Liability Act 2002 (NSW).
  • Causation was established through medical evidence that earlier psychiatric intervention would, on the balance of probabilities, have prevented the chronic severity of the plaintiff's PTSD, applying the section 5D framework.
  • A police officer's intermittent statements to supervisors that he is coping, or his failure to independently seek out all available welfare resources, does not automatically trigger a contributory negligence finding where the systemic failure by supervisors to refer him for formal assessment was the dominant factor.
  • Loss of promotion prospects can be included in a damages award as a buffer where the evidence supports a finding that the plaintiff, but for the injury, would likely have advanced in rank and retired on a higher salary.

Legislation and Cases Referenced

Legislation
- Civil Liability Act 2002 (NSW), ss 5B, 5D, 5R
- Workers Compensation Act 1987 (NSW), ss 151D, 151E, 151F, 151H, 151M
- Crown Proceedings Act 1988 (NSW), s 5
- Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 318

Cases
- Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12
- Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15
- State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344
- Sills v State of New South Wales [2019] NSWCA 4
- Benic v New South Wales [2010] NSWSC 1039
- Michael v State of New South Wales [2011] NSWSC 231
- Doherty v State of New South Wales [2010] NSWSC 450
- Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
- Browne v Dunn (1894) 6 R 67