New South Wales v Fahy [2007] HCA 20

Fahy was a Police officer with the New South Wales Police Service who alleged that she suffered a psychiatric injury in the course of her employment.  Fahy and her Police partner Evans had attended a hold up at a shopping centre and after following a trail of blood found the victim in the medical centre being attended to by a doctor.  Fahy went to the assistance of the doctor and the victim who was suffering multiple stab wounds.  As the doctor was attending to the victim’s chest wound Fahy found that the victim had a separate severe knife wound that extended from the armpit to the waist.  She tried to assist by stemming the bleeding and juggled her police radio giving details of the attacker to the Police, throughout this she was unaccompanied by her police partner or “buddy”.

Fahy alleged that she suffered post traumatic stress disorder as she had been left by her buddy.  Fahy stated that it was Police practice that your buddy would look out for you and stay with you.  Medical evidence was led which stated that the absence of her buddy was the decisive factor in her development of a post traumatic stress disorder.  In addition to this she also alleged that her employer had failed to provide adequate support to her after the event.  The Plaintiff had not pleaded a breach of the Occupational Health and Safety Act 1983 (NSW), but had been successful in the first instance and at the New South Wales Court of Appeal.  The Court of Appeal examined the duty owed at common law to persons engaged in relationships of employment.

The critical issue was whether the failure of Evans to stay with Fahy and provide support in the course of the traumatic incident was a breach of the duty of care owed by the police to Fahy.

Issues

1. Was there are breach of the duty of care?
2. Can a police officer be excluded from recovering on the basis of negligence by reference to the notice of voluntary assumption of risk?
3. Did the principles of Wyong Shire Council v Shirt need to be revised?

Held

This was an appeal on liability, the State of New South Wales was ultimately successful.  The High Court determined that there was no reason to revisit the principles of Wyong Shire Council v Shirt.

Summary

A number of interesting points arise from this case, firstly there is a statutory duty which overrides any duty at common law, in this case the Plaintiff’s employment was governed by the Police Service Act that act imposes duties and responsibilities on police officers.  The court noted that police officers are required to undertake tasks that few, if any, commercial employers would ask of their employees.  This means that the contract of employment under which she was engaged was regulated by statutory responsibilities; this “trumped the other considerations which would ordinarily be put into the balancing exercise spoken of in Shirt.”

Secondly although it was reasonably foreseeable that someone such as the plaintiff could suffer risk of trauma in the course of her employment the duties of Police officers as outlined in the Police Services Act, to define the ambit of the duty of care owed by the employer to the employee must start with the statutory provisions which govern the relationship.

Thirdly the High Court did not consider that it was necessary to revisit the principles espoused in Wyong Shire Council v Shirt

The Wyong principle is
“The tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.  If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk.  The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

The court did however state that this test should not focus only upon how the particular injury happened but requires one to look forward to identify what a reasonable person would have done, rather than with the wisdom of hindsight.

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