State of New South Wales v Skinner

1. [1]

   BASTEN JA: From 1993 until February 2010 the respondent, Kristen Skinner, was a member of the NSW Police Force. In February 2010 she was discharged on medical grounds. In March 2017 she commenced proceedings in the District Court, seeking work injury damages from the State as her employer. (It is convenient to refer to Ms Skinner as “the plaintiff”.) There was no dispute that, by the time of her discharge, she was suffering from two psychiatric conditions, being a major depressive disorder and post-traumatic stress disorder (PTSD). Although proceedings were not commenced until March 2017, a notice of intention to make a claim had been given in April 2012. The application for an extension of time was not dealt with until the final hearing, which commenced on 8 February 2021. The trial judge, Abadee DCJ, granted the extension of time and gave reasons for that decision in the principal judgment. [1] There was no challenge to that order.

2. [2]

   Following an eight day hearing in February 2021, the trial judge gave judgment with admirable expedition on 5 March 2021. The findings made in that judgment were as follows: [2]

3. [3]

   Final orders were dealt with in a further judgment delivered on 9 April 2021. [3] The claim, though not subject to the provisions of the Civil Liability Act 2002 (NSW), [4] being a claim for work injury damages, was limited to the heads of economic loss permitted by the Workers Compensation Act 1987 (NSW), s 151G. The parties agreed that the various components of loss totalled some $1.9 million. The judge assessed, for reasons which will be addressed below, that there should be a 40% reduction for vicissitudes and a further 10% reduction for contributory negligence. From the balance so calculated, the claimant was required to repay workers compensation payments. The result was a judgment in her favour for $743,780.

4. [4]

   Both the scope of the finding of liability and the reduction for vicissitudes required a disentangling of her psychiatric conditions. Thus, while it was accepted that both psychiatric conditions from which the plaintiff suffered were caused, or at least contributed to, by her employment, the judge concluded that only the major depressive disorder was caused by tortious conduct on the part of her employer, the State. [5] The disentangling of the two conditions resulted in a global assessment of damages, which was reduced by 40% by way of vicissitudes, that is, in effect assessing that proportion of her injury to the non-tortious PTSD, and a pre-existing disposition to depression and anxiety.

5. [5]

   Two factors were left to be resolved, namely a claim for interest on the award of damages and the proper order as to costs. In Skinner (No 3) the judge rejected the claim for interest and determined that each party should bear her and its own costs of the proceedings.

6. [6]

   Both parties appealed. The State appealed the finding of liability; Ms Skinner cross-appealed on the basis that (i) the State’s breach of duty should have extended to a finding of causation that included the post-traumatic stress disorder; (ii) the finding of contributory negligence was erroneous; (iii) the reduction of the damages by 40% for contingencies was excessive, and (iv) there should have been an award of pre-judgment interest. There was no challenge to the failure to award costs, but she claimed her costs of the trial, on the basis that the cross-appeal would succeed on all or some of the grounds.

Nature of claims at trial

1. [7]

   In the last 15 years, the principles governing the tortious liability of the Police Force for psychiatric injury suffered by officers in the course of their employment have been clarified. The principles were crystallised in two recent decisions of this Court, namely State of New South Wales v Briggs [6] (Briggs) and Sills v State of New South Wales [7] (Sills). As pithily summarised by the trial judge, there are two main categories of such cases:

2. [8]

   Clearly the two categories are not entirely independent of each other and do not cover the field. However, relevantly for present purposes, the plaintiff’s case fell within the latter category illustrated by Sills. As the trial judge noted:

3. [9]

   The trial judge identified the content of the duty of care, which was said to have been breached in the following terms:

4. [10]

   The trial judge dealt with the allegations of breach of duty according to the following headings:

5. [11]

   The division into these categories was, as the judge explained, not entirely satisfactory. Paragraphs (a) and (b) identified intentional conduct of an administrative kind which may or may not have caused stress, but was not demonstrative of negligence.

6. [12]

   Paragraph (c) related to a transfer from Morisset Police Station (under the Waratah Command) to Lake Macquarie. The plaintiff had been examined by the police medical officer in April, May, June and August 2002. The failure to pass on the reports of the medical examinations when the plaintiff was transferred to Lake Macquarie Command was found by the trial judge to involve negligence. [8] That in turn required an assessment of the incidents which had occurred prior to April 2003 which involved direct or vicarious trauma.

7. [13]

   With respect to par (d), the judge rejected the plaintiff’s contention that there was a breach of duty by her superior, Commander Clarke, in not assigning her to a foreshadowed role as station manager and directing her “back on the truck”, that is performing operational duties on the street (general duties). Accepting that there were operational reasons for that change of plan, the plaintiff did not establish that the change constituted a breach of the duty of care owed to her. That finding was not challenged and in any event was, as the trial judge noted, of limited significance when compared with other events which took place shortly thereafter in 2007. That was because the decision to return her to general duties, though taken in May 2007, was not effected until October 2007. The manner of giving effect to the decision from May to October 2007 was critical to the plaintiff’s case.

8. [14]

   In these circumstances, it is convenient to consider the critical events in periods, being (i) prior to May 2003; (ii) 2005; (iii) April 2006 (when the plaintiff suffered a back injury) – January 2007, and (iv) 2007-2008.

First period – 1992 to May 2003

1. [15]

   Before she had completed her training, the plaintiff spent time on duty at Newcastle Police Station. In October 1992, when she was 20 years old, the vehicle in which she was a passenger (and then unarmed) was approached by a man in Navy uniform, who fired a rifle in the air. She was concerned he would shoot at the police vehicle; he eventually turned the gun on himself. She was involved in dealing with the body with its shattered face.

2. [16]

   When the plaintiff returned to the Goulburn Academy to continue her training, she started a silly joke with some friends which came to the attention of the Academy psychologist. The psychologist thought her odd behaviour was due to post-traumatic stress because she was having psychotic delusions after the Newcastle incident. The plaintiff was referred to a psychiatrist who apparently dismissed the suggestion that she was having psychotic delusions. There is no evidence as to what the psychiatrist considered in relation to possible PTSD. The psychologist at the Goulburn Academy apologised but the plaintiff described in her first statement the “witch hunt” she was put through at the Academy. The incident demonstrated the fine line between psychological support and intrusive interventions which may be resented and treated as evidence of victimisation.

3. [17]

   In her first statement the plaintiff referred to completing her training and then moving to North Sydney for three months before being transferred to Mona Vale, Hornsby and then Mayfield.

4. [18]

   The first statement (Ex A), although typed on solicitor’s letterhead, was clearly prepared by the plaintiff without the assistance of a solicitor. It was 50 pages in length and was accompanied by 57 annexures. The evidence revealed that it may have been prepared in August 2019, although it was undated. A second statement (Ex B) prepared as an “evidentiary statement” was in fact dated 16 August 2019 and contained much of the material contained in the closely typed statement prepared by the plaintiff (Ex A).

5. [19]

   Her second statement identified an event whilst at North Sydney Police Station, her first placement after leaving the Academy. She described attending on a 19-year-old girl who had committed suicide in a hotel by taking pills and wrapping a plastic bag around her head. Two years later (1995) she attended another suicide (by hanging) at Hornsby Heights when she was stationed at Hornsby Police Station. She also recounted attending a third suicide in Newcastle in the “mid to late 1990s”. Although each of the events had occurred more than two decades earlier, the plaintiff was able to include harrowing details of the occasions, including dealing with members of the deceaseds’ families.

6. [20]

   In March 1998 the plaintiff was referred by her general practitioner to Dr F R Spruce for a psychiatric consultation. The history elicited at that time was one of anger and distress at the break-up of a personal relationship and difficulties in her relationship with her mother. She also informed Dr Spruce that her father had suffered from depression and erratic behaviour. Dr Spruce noted in his report of 2 March 1998:

7. [21]

   Dr Spruce prepared a second report in February 2003 at the request of solicitors in Newcastle apparently acting for the plaintiff in relation to a compensation claim. The further report repeated his findings of 1998.

8. [22]

   The issue on which the plaintiff had apparently sought legal assistance related to stress caused by the handling of a complaint she had made about Sergeant and Acting Inspector Dave Matthews. She described in her statement Mr Matthews using sexually suggestive gestures and language towards another female police officer which the plaintiff had found offensive and highly inappropriate. Her reporting of the incidents to her immediate supervisor, Sergeant Neil Robertson, appears to have resulted in an investigation which continued until mid-2000.

9. [23]

   A team involving two psychologists undertook an investigation which resulted in a “stress” assessment report. The dates on the report are confusing, but the report was probably prepared in February 2002, after a referral in January 2002. It described an incident on 26 August 2001 where, in the course of a shift, the plaintiff had been asked to do something she thought was a low priority task and had become extremely distressed. She had attended a doctor on 29 August 2001 and, according to the psychologists, had not returned to work by the date of their interview with her, apparently in February 2002. Under the heading “Brief medical history”, the report, referring to the plaintiff’s account, read:

10. [24]

    On 30 October 2001 Dr Murray Wright, consultant psychiatrist, reported to the referring general practitioner that the plaintiff presented to him “with symptoms of depression arising in the context of work-related stresses.” Dr Wright reported:

11. [25]

    On 28 June 2002 Dr Wright signed a WorkCover medical certificate stating that she was fit for half-time full operational duties. On 24 June 2002 a police medical officer, Dr Chern, had assessed the plaintiff as fit for return to full duties. [9] However, Dr Chern recommended that she work for no longer than the 19 hours per week she was currently working, unless an extension were to be advised by Dr Wright, and that she work with another officer when carrying out operational duties. Dr Chern also noted the possibility of “psychological counselling via EAP” to assist her deal with her anger and depression.

12. [26]

    The term “EAP” referred to an “Employee Assistance Program” through which counselling was available to members of NSW Police and immediate family. Although records showed that the plaintiff later engaged in EAP sessions in 2007 and 2008, the possibility raised by Dr Chern in 2002 appears not to have been pursued.

13. [27]

    To summarise the state of the plaintiff’s psychological health in May 2003, two points stand out. First, it was true that the plaintiff had, over a 10-year period, been involved in at least four traumatic incidents involving death and, on at least two occasions, had dealings with family members of the deceased in highly distressing circumstances. There was, however, no evidence that she had experienced distress or depression as a result of those events. She had reported none, although she had seen general practitioners, psychiatrists and psychologists in relation to other issues.

14. [28]

    Secondly, there was no doubt that she had suffered disabling distress and depression which, in 2001-2002, had resulted in a lengthy period of sick leave. However, there was no evidence that, although the stress was employment related, it resulted from any breach of duty owed to her by superior officers in the NSW Police Force.

Second period – 2003-2005

1. [29]

   The next step in the inquiry is to address the circumstances of the plaintiff’s transfer to Lake Macquarie Command in the second quarter of 2003. The trial judge made the following findings in respect of the circumstances at the time the plaintiff was transferred to Lake Macquarie Command in April 2003:

2. [30]

   Curiously, in the period up to August 2002, as appears from a complaint made by the plaintiff on 25 August 2002, her concerns at that stage were that she had been cleared by her treating doctor to work “full duties but on restricted hours”, which she said Commander Lee Shearer of the Waratah Local Area Command obstructed. She complained about a referral by Commander Shearer to the police medical officer seeking a further assessment.

3. [31]

   It is clear that the plaintiff clashed with Commander Shearer, but there was no indication that there was inadequate medical assessment at that time. The resolution of the problem lay in a transfer of the plaintiff to the neighbouring area command, Lake Macquarie. The Commander at Lake Macquarie was Superintendent Michael Kenny. There was an exchange of emails between Shearer and Kenny seeking to organise a swap of officers. On 14 March 2003, Ms Shearer emailed Mr Kenny in the following terms:

4. [32]

   It is reasonably clear from the exchange of emails and other communications within the regional command that senior officers at Lake Macquarie were aware of the fact that the plaintiff was undergoing rehabilitation, having been on sick leave and was working full duties, but subject to restrictions. It is possible that Lake Macquarie Command did not have her medical file, but the evidence as to what files were held (and where) was sparse and was not the subject of any particular finding by the trial judge. Further, it is unclear that there was any causal connection between this finding of breach of duty and the plaintiff’s subsequent psychiatric conditions. In considering causation, the trial judge identified the relevant finding as that set out in [499] above, namely “omitting to review the plaintiff’s capacity in April 2003”. [10] The judge concluded that there was no causal connection in relation to that omission, [11] explaining:

(a) the fatal motor vehicle accident (Garland)

1. [33]

   The plaintiff encountered two traumatic events in 2005. In June 2005 she attended a motor vehicle accident with Senior Constable Richardson. She entered the vehicle from the passenger side and clambered into the wrecked vehicle to reach across to the driver. She stated that she tried to pull the driver upright and was “still trying to reposition him when the ambulance arrived.” The ambulance officers placed a monitor on his chest and found no response. They were unable to revive him.

2. [34]

   The officers were also required to locate the next of kin of the deceased (Peter Garland), who were the parents. In her statement, the plaintiff recounted in detail meeting the young man’s mother and telling her about the accident. The officers stayed with the family for about two hours until the father arrived home. [12] The officer in charge of the station directed the plaintiff and Constable Richardson to prepare the death notices.

3. [35]

   There is no doubt that the plaintiff performed admirably in difficult circumstances and received letters of appreciation from both the Commander at Lake Macquarie and the Commissioner, after the parents wrote a letter to the Commissioner commending the work of the officers. [13]

4. [36]

   The trial judge found that there had been a breach of duty on the part of her senior officers (presumably Sergeant Sharman) in failing to activate a “critical incident team” in accordance with guidelines in a report prepared by the New South Wales Ombudsman in 1999. One circumstance in which such a step was required was where an officer had been exposed to “prolonged rescue work.” [14] Accordingly, there was a breach of duty in failing to organise a “critical incident debriefing”. [15] The judge found there was no breach of duty in Sergeant Sharman directing the plaintiff and Senior Constable Richardson to prepare and deliver death notices to family members of the deceased. [16]

5. [37]

   Before turning to the consequences of the breach that was established, it is convenient to deal with a second event which occurred in October 2005 and was dealt with by the judge in combined findings with the motor vehicle accident.

(b) decomposing corpse (Danny)

1. [38]

   In October 2005, bushwalkers had reported seeing a deceased person in Watagan Forest. The plaintiff and Constable Richardson discovered the body hanging from a tree and extensively decomposed. It was undoubtedly an horrific experience: the man’s flesh was rotting and the plaintiff described “the stench” as “unbearable”. She and Constable Richardson assisted the rescue squad in pulling the body down and removing his wallet. The body had to be placed in two bags given the extent of the decomposition. They recovered the car keys from his pocket and searched his nearby car.

2. [39]

   Over the ensuing days the plaintiff spent some time cleaning the contents of the deceased’s wallet so that his personal effects could be returned to the family. She was relieved of the duty of preparing the death statements and contacting the family face-to-face. She obtained no counselling to cope with the emotional stress and, although aware of the employee assistance program, was not encouraged to use it, and did not at that time.

3. [40]

   The 1999 Ombudsman report specified that one of the mandatory circumstances in which debriefing should be offered to officers was after “exposure to gruesome sights”. [17] The judge found that there was a breach of duty in not activating a critical incident team in the circumstances in October 2005. There remained, however, an issue as to the consequences of failure to provide any form of debriefing or counselling in June and October 2005.

4. [41]

   It will be necessary in due course, in the context of the cross-appeal, to address the expert medical evidence and the manner in which the trial judge dealt with aspects of it. It is convenient at this stage to note the careful reasoning with respect to the failure to conduct debriefings in 2005. The essence of the judge’s reasoning was as follows:

5. [42]

   There was no challenge to any part of that reasoning, either by the State or by the plaintiff in her cross-appeal. It is, in any event, persuasive.

April 2006 – January 2007 (back injury)

1. [43]

   The plaintiff suffered an injury to her back whilst arresting a large man involved in a fight. The precise extent of the injury is unclear from the contemporaneous medical report of Dr Isaacs, an orthopaedic surgeon. However, Dr Isaacs stated that the plaintiff was suffering from “a chronic strain to her lower back with referred pain to the right leg” and advised that she should not continue to wear the appointments (being the belt containing a radio, gun and other equipment and weighing 6-7kg). [18] The judge noted that the plaintiff was away from work for about four weeks and did not perform general duties again. Rather, she was restricted to clerical work in the station at Morisset and, from October 2007, the station at Toronto. [19]

2. [44]

   In October 2006 a “Proposed Return to Work Plan No 1” was prepared, listing the injury as “back pain” and proposing a return to “pre-injury duties” by 4 December 2006. That date was later put back to 29 January 2007. In January 2007 the plaintiff’s father died and she took compassionate leave for what was described as “an extended period” in a further return to work progress report of 12 February 2007. The progress report stated:

3. [45]

   On 7 April 2007 her general practitioner, Dr Benney, signed a WorkCover medical certificate referring to “ongoing back pain”.

Fourth period – May-December 2007

1. [46]

   The plaintiff had a history of conflict with fellow officers and supervisors. The trial judge set out parts of that history for the period from 2006 to 2008. [20] The judge noted that between “22 May and 6 June 2007 the plaintiff was again on sick leave due to what was described as ‘situational stress’”: at [198]. On 16 May 2007 she consulted an EAP counsellor, who completed a “client call record” as follows:

2. [47]

   On 28 June 2007 an officer in the plaintiff’s team at Morisset, Sergeant Ian Muir, committed suicide by hanging himself at home. Some two months later, another colleague and a friend, Leading Senior Constable Scott Gray, committed suicide. It is clear from the emotional tone of her written evidence that the plaintiff was not only greatly distressed by the death of a colleague and friend, but was also deeply concerned at what she considered was the failure of the police force to identify officers who were at risk. During 2007, the plaintiff spoke to an EAP counsellor on three occasions, namely 16 May (noted above), 21 August and 4 October 2007.

3. [48]

   In September 2007 the plaintiff was treated for a broken finger, an injury which had occurred outside her work environment, whilst riding a horse. She also spoke to a psychologist, Dr Ross Leembruggen, on 5 October 2007. She saw the psychologist in early September 2007 and again in October 2007. She said that she was “extremely upset and angry in both meetings.” The aftermath of one meeting resulted in the plaintiff being uncontrollably distressed and an exchange with the sergeant at Morisset as to whether she needed to complete her shift. She advised the duty officer that she was “a mess and didn’t want to hang around in tears at Toronto anymore because it brought up too many emotions. Scott [Gray] and Ian Muir were from Toronto Station when they committed suicide.”

4. [49]

   On 15 October 2007 the plaintiff was advised that Commander Alan Clarke was proposing to transfer her from station manager at Morisset to general duties at Toronto. Commander Clarke responded the following day seeking to arrange a time to speak with her.

5. [50]

   On 16 October 2007 she referred Commander Clarke to the fact that her doctor had placed her on restricted duties for a further month due to the injury to her finger. (The finger required surgical correction.) She also sought a statement of reasons for her transfer to Toronto. Commander Clarke responded with an explanation for the decision on Monday 22 October 2007 and asked to see her on the following morning.

6. [51]

   After speaking with Commander Clarke, and apparently being dissatisfied with the outcome of the conference, the plaintiff completed an “accident/incident notification” identifying “anxiety/depression due to work-related issues including the suicide of two work colleagues and other matters”, with the date being given as “prior to 25/10/2007”. She then went on leave.

Events of 2008

1. [52]

   It appears that the plaintiff was on leave for the greater part of 2008. She sought to join the mounted police in January 2008 and was interviewed and assessed by a psychologist, Diane Hanna. The application was unsuccessful, but the State relied on the record of that interview as evidence that she did not avail herself of an opportunity to raise with a police psychologist any difficulties she had with a return to general duties, which was work required of mounted police.

2. [53]

   The plaintiff consulted her psychiatrist, Dr Spruce, on several occasions in the course of 2008. There were various interviews with welfare personnel, with the plaintiff maintaining that she wished to return to police duties. The trial judge stated that “[b]y September 2008, the plaintiff resumed at Toronto, to assist the supervisor, performing restricted duties.” [21] On 3 September she had sought “special sick leave” which was granted for the period to 15 December 2008. [22] After two months on “special sick leave”, in November 2008 a new commander (Commander Rae, who had replaced Commander Clarke) indicated that the period of sick leave would end. After the cancellation of the special sick leave in November 2008, she may have returned to work on 10 November 2008. [23] (The judge noted that police records indicated that that was her last day of work. [24] ) There were further appointments with psychologists and psychiatrists over the ensuing 14 months. She was medically discharged on 18 February 2010. [25]

Evidence of breach of duty

1. [54]

   In discussing the systems of work operating in the Police Force between 2000 and 2008, following the release of the report by the New South Wales Ombudsman, “Officers Under Stress” in June 1999, the trial judge outlined the lay evidence and the expert psychiatric and psychological evidence in some detail. The evidence covered both the circumstances of the plaintiff and the facilities available, and those which should have been available, in the Police Force. It is not necessary to repeat the careful summary given by the trial judge of the evidence. However, two qualifications should be noted.

2. [55]

   First, the judge stated that the joint expert report of the psychiatrists did not address the systems of work in place at the time of the plaintiff’s service. [26] However, when the experts gave concurrent evidence the questioning was directed to “the adequacy of the Police Force’s response to certain events, on the basis of limited assumptions said to be borne out by the facts.” As the judge rightly understood, the relevance of that evidence turned upon whether the factual findings supported the assumptions. [27] In addition to noting that the assumptions were “narrowly framed” by the plaintiff, the judge noted some general issues:

3. [56]

   It will be appropriate to turn shortly to the findings of breach accepted by the trial judge. At this stage it is convenient to note the evidence of the two experts preferred by the trial judge. In terms of general factors, the judge noted that the psychiatrists giving evidence concurrently often deferred to the views of Professor McFarlane, whose experience and expertise were undoubted. [28] Secondly, the judge noted that in relation to the individual circumstances of the plaintiff, Professor McFarlane gave weight to the views of her treating psychiatrists, Dr Murray and, to a lesser extent, Dr Spruce. [29] However, Dr Murray, whilst having on average three consultations a month with the plaintiff from September 2012 until December 2015 (being the date of his report), was first consulted on 10 September 2012, that is some four years after the plaintiff effectively ceased working as an officer. There were in evidence earlier medical reports, more nearly contemporaneous with the events which caused the illnesses.

4. [57]

   In February 2002 the plaintiff’s general practitioner at the time, Dr Lawrence Moses, saw the plaintiff, diagnosed “depression and anxiety” and prescribed an antidepressant, Cipramil. [30] Dr Moses referred the plaintiff to Dr Wright, consultant psychiatrist. The source of the plaintiff’s problems at that time was identified as internal dissension at the workplace and an internal affairs investigation into her complaint against another officer. In a report dated 30 October 2001 Dr Wright noted:

5. [58]

   Dr Wright saw the plaintiff again in January 2002. The plaintiff indicated that her depressive illness had improved but Dr Wright thought that she “remained unfit for work” and sought to review her progress in February. [31] There was no further report from Dr Wright.

6. [59]

   Dr Spruce first saw the plaintiff on 24 February 1998, and then some 10 years later in 2008, on three occasions in May 2008 and again in June, July, October and November 2008. For the purposes of preparing a report, he saw her again in July, August and September 2009. Noting that her first appointment related to her relationship with her then boyfriend, Dr Spruce stated that when she returned in May 2008 “she presented with depressive symptoms that she attributed to difficulties she had experienced at work over the previous decade.” [32] She gave a history of moving to Morisset in 2003, where her co-workers were “generally suspicious of her, and then she had a series of confrontations with another constable after Ms Skinner had criticised her performance.” The confrontations (with Constable Michelle McSweeney) came to a head not long before she went off work and attended Dr Spruce. She recounted other difficulties, including hurting her back, attendance at a fatal accident and dealing with a decomposing corpse. She also reported the suicide of a fellow officer in 2007. Dr Spruce stated:

7. [60]

   Of the earlier incidents, Dr Spruce identified the consequences in terms of inter-personal isolation. After referring to the fatal accident, and the decomposing corpse, Dr Spruce stated:

8. [61]

   The evidence contained written reports from Dr Spruce to the plaintiff’s general practitioner, Dr Graham Benney, of 2 March 1998, 9 May 2008, 23 May 2008, 30 May 2008, 13 June 2008 and 25 September 2009.

Grounds 1 and 2 – Duty and breach

1. [62]

   The State accepted that the judge correctly formulated the duty of care owed by the Police Force, as an employer of the plaintiff, in the following passage:

2. [63]

   However, the State submitted that the judge fell into error in applying those principles. The error was succinctly stated in ground 1 as finding breach in the State’s “failure to conduct a thorough mental health assessment [of the plaintiff] from May 2007 and beyond October 2007”. The error was said to lie in the following part of the judge’s reasoning:

3. [64]

   In one sense, the impugned reasoning was no more than an application of the general principles to which no objection was taken. The function of the court in a case where the challenge is not to the adequacy of systems used by the employer, but their engagement in a particular case is not to focus on broad principles, but rather to determine whether a duty of care, according to a standard of reasonableness, has been satisfied. However, it is not clear that this was an application case, rather than an adequacy of systems case. The two possibilities remain open on the reasoning set out above. Thus, at [524] there appears to be a finding that the plaintiff’s response to the prospect of returning to general duties should have been sufficient to trigger the requirement for a full mental health assessment. By contrast, at [525] the judge left open the possibility that the real problem was the lack of a “functioning system” for the dissemination of medical information within the Police Force. The latter approach is consistent with the statement, at [526], that the breach was to be found in a failure to identify officers at risk of suffering, or suffering, psychological harm (as described in [448(a)]). Nevertheless, there was an absence of evidence as to the record-keeping systems of the Police Force and no detailed consideration of what records were available to the Local Area Commander.

4. [65]

   Nor was there any express finding as to what Commander Clarke in fact knew. He was unable to recall the detail of conversations he had had with the plaintiff. The plaintiff gave evidence as to what she had said to him on occasion, including in the following circumstances, as noted in the judgment:

5. [66]

   The family problems may well have continued. When the plaintiff saw Dr Spruce on 28 May 2008, she reported that her sister had attempted suicide two weeks earlier. [33] Her father had died in January 2007. [34]

6. [67]

   Whether Commander Clarke ought to have inferred from her resistance to going back to general duties that she feared suffering further traumatic assaults might be open to question. Her motivation may well have been to retain the position of station manager in which she was then acting and which she hoped would become permanent. Further, the finding that her reaction was “highly insensitive” and “bordering on insubordination” may have been consistent with her history of aggravating personal relationships within the Police Force. A full account of the evidence reveals that she clashed at some stage with many of her superior officers. If her reaction was “a clear indication that she was not mentally well”, it did not follow that she was not capable of performing general duties without a high risk of psychological injury.

7. [68]

   On the other hand, it may have been sufficient that Commander Clarke “knew that the respondent was suffering psychiatric or psychological harm”, whatever the cause, the assumption being that such a person would then be at risk of suffering an exacerbation of the condition in the performance of general police duties.

8. [69]

   The State submitted that the trial judge had failed to address the scope and content of the duty owed to the plaintiff in accordance with the principles articulated by Leeming JA in State of New South Wales v Briggs. [35] Subject to two qualifications, Leeming JA accepted that the duty of care owed by the State to police officers was equivalent to that owed by an employer to employees. The first qualification was that the State was in effect a deemed employer and vicariously liable for tortious conduct by police officers; the second was that the equivalence arose where the duty was framed at a high level of generality. [36] Leeming JA continued:

9. [70]

   The State’s complaint was that the duty must be expressed in terms which are apt to apply across the NSW Police Force as a whole. [37] That conclusion, however, referred to a claim that there should have been a different and specific system of work implemented and maintained, across the NSW Police Force as a whole. That was not this case. In this case the system was not challenged; rather the question was whether it should have been engaged, but was not. As noted above, there was no direct challenge to the statement of the duty identified by the trial judge at [448]. That duty was expressed in terms which were relevant to the harm suffered by the plaintiff, but expressed at a level of generality sufficient to cover the relevant harm, without relying upon hindsight. That aspect of the challenge raised by ground 1 of the appeal should be rejected.

10. [71]

    More specifically, the appellant’s challenge to the findings as to breach of duty relied on four factual propositions, namely:

11. [72]

    In addition to the chronology of events set out above, the State relied upon a medical assessment undertaken by Ms Diane Hanna, a psychologist in the Police Medical Office. The assessment was described as “rigorous” and resulted in the plaintiff being certified fit to resume full-time general duties.

12. [73]

    These submissions did not adequately engage with the proposition that Commander Clarke knew, or should have known, of the plaintiff’s fragile mental condition. It is true that, since April 2006, her sick leave and restricted duties were largely a function of her back injury. It is also true that aspects of her mental fragility were a function of personal difficulties, including her relationship with her boyfriend and the dual diagnoses of cancer of her sister and father, and her father’s death in February 2007. However, the question was not whether her depressive condition was due to workplace issues, but rather the fact that she had a depressive condition.

13. [74]

    Further, although it was true that Commander Clarke and those under him appreciated the need for psychological help when two officers committed suicide within a short period, it was also true that the assistance provided was not directed specifically to the plaintiff’s circumstances. That did not matter if the assistance was appropriate and sufficient; the problem was that whatever assistance the plaintiff obtained either from seeing a psychologist, or from using the EAP counsellors, both of which she did, no report as to her mental condition was obtained by Commander Clarke.

14. [75]

    While the issue is finely balanced, I am not persuaded that the trial judge erred in finding a breach of duty on a limited basis. It was true that the plaintiff was not, from 2005-2008, directed to be assessed by a police medical officer. Despite an attempt to join the mounted police in early 2008, she was resistant to resuming general duties. It was right to conclude that this resistance required investigation in her own interests.

Ground 2 – foreseeable injury

1. [76]

   The State challenged the finding of the judge at [524], [38] that the plaintiff telling her commanding officer that she had “had enough” of psychological injury and was resisting returning to general duties should have put Commander Clarke on notice of a high risk of psychological harm. The State challenged that finding on four grounds: [39]

2. [77]

   In response, the plaintiff submitted that the trial judge had correctly identified the correct legal principle by reference to the following passage in the reasons of Gummow and Hayne JJ in State of New South Wales v Fahy: [40]

3. [78]

   It does not follow that all officers are always at risk of suffering psychiatric harm. However, the plaintiff’s history of traumatic incidents is sufficient to demonstrate that such events are largely unavoidable when performing general duties and, at least in a person suffering from a depressive condition, will render further psychological harm readily foreseeable for an officer carrying out such duties.

4. [79]

   Further, the test of foreseeability is an objective test which, whilst it will turn upon an assessment of particular circumstances, did not require a finding that Commander Clarke actually foresaw such a risk, or should have done so. Nor did the assessment of risk properly require a finding as to the interactions between the plaintiff and Commander Clarke.

5. [80]

   Ground 2 of the appeal should be rejected.

Ground 3 – Harm and causation

1. [81]

   Having determined that a “full assessment” of her mental health was required, the judge further found that, pending such an assessment, the plaintiff should have been told “from May and up to October 2007, that no transfer to [general duties] would occur unless and until she received full assessment.” [41] How the assessment would be undertaken and what might be reported was critical to determining the extent of any harm which was suffered as a result of a failure to refer the plaintiff for assessment at that stage and, to the extent that her condition thereafter deteriorated, the causal connection between that factor and the harm suffered.

2. [82]

   After referring to the need to advise her there would be no transfer until the assessment occurred, the judge continued: [42]

3. [83]

   The identification of two possible courses required resolution. The judge was conscious of this fact and continued: [43]

4. [84]

   As noted above at [46], the plaintiff consulted an EAP counsellor on 16 May 2007, there being a note of the consultation. As the trial judge noted, the record was available to illuminate her condition at the time and how it may have been exacerbated by subsequent events throughout 2007. [44]

5. [85]

   Whilst not critical of the service provided by the EAP facility, the trial judge observed that it did not serve the purpose of informing the Commander as to the psychological state of the plaintiff. [45] The communications were intended to be, and were, kept confidential. The counsellors were private psychological consultants, contracted to provide services to police officers in distress.

6. [86]

   As noted above, in June and September two officers from the Toronto Station committed suicide, one of whom was a friend of the plaintiff. The judge noted that those events carried a high risk of aggravating the plaintiff’s pre-existing psychological condition. [46] That was no doubt so, but the events did not constitute breaches of duty in themselves. The question was, rather, whether further steps were required to be taken by the Commander in the light of those events. The judge was somewhat dismissive of the steps taken, stating:

7. [87]

   The evidential basis for the last conclusion is not apparent. It tended to elide the evidence of Senior Constable Richardson that the assistance rendered was “generic” and that there were queues lining up to see the psychologists, with an absence of any similar evidence as to the situation which the plaintiff encountered. She did not give evidence that the distress she suffered as a result of the consultation on 5 October resulted from it being generic in kind.

8. [88]

   In considering the question of causation, the judge accepted that, had the plaintiff been referred for a psychiatric assessment, she would have consented and the assessment would have disclosed that she was suffering depression. [47] The steps in the reasoning were as follows:

9. [89]

   The judge concluded:

10. [90]

    The trial judge did not, however, find that the omission to have the plaintiff psychiatrically assessed in 2007 materially contributed to her PTSD, stating:

11. [91]

    The plaintiff’s cross-appeal challenged the last finding and will be addressed below.

12. [92]

    The fact that the plaintiff had not (with a few immaterial exceptions) undertaken general duties since April 2006 meant that the contribution of the negligence to her depressive condition was founded entirely upon the prospect of being returned to general duties. That is not to say she was not exposed to further trauma in 2007: the suicide deaths of two colleagues in three months were undoubtedly distressing. However, as the State submitted, Commander Clarke organised for the attendance of a psychologist at the police station and the event with the Black Dog Institute.

13. [93]

    The judge’s finding as to causation commenced with the following reasoning:

14. [94]

    The judge carefully considered each of the three findings, but rejected a causal link between any breach involved in (a) and (b) and the harm suffered. Thus, with respect to (a), the judge was not persuaded of the necessary causal connection, [48] and therefore “not persuaded that the breach of duty in April 2003 caused the plaintiff psychological injury.” [49]

15. [95]

    With respect to par (b), the judge found:

16. [96]

    On the other hand, the judge did accept that, had critical incident debriefings occurred, there would have been a record of the plaintiff’s responses to the incidents, which would have been available to a practitioner considering her mental health in 2007.

17. [97]

    With respect to the failure to assess her fitness for general duties from May to October 2007, the judge identified a number of steps leading to the conclusion that the failure contributed to her later condition. First, he concluded that the plaintiff would have consented to a psychological assessment. [50] Secondly, he concluded that she would have disclosed to the practitioner relevant information as to her state of mind and past history. The evidence supported a conclusion that there would have been a diagnosis of depressive illness. [51]

18. [98]

    Thirdly, the judge turned to the consequences of such a diagnosis, [52] concluding:

19. [99]

    Further, the judge accepted that the consequence of such an assessment would have been that, if the command was unable to accommodate an officer who was not able to perform general duties, she would have been discharged for medical reasons. [53]

20. [100]

    That, however, was the consequence she was seeking to avoid in 2007. In her written statement (Ex B), the plaintiff said with respect to sick leave taken in March 2007:

21. [101]

    The trial judge was undoubtedly correct to find that the plaintiff was in a state of “apprehension and dread” from May through October 2007 and that that exacerbated her depressive condition. What is less clear is whether her unwillingness to claim that she had been hurt on duty would have prevailed had she been required to undertake a formal psychiatric assessment. Although the State submitted there was “no evidence” of any such apprehension and dread exacerbating a pre–existing depression, that submission should not be accepted. [54] The State also submitted that such a finding was inconsistent with “her express desire to resume normal duties … in October 2006 and her application to join the mounted police in January 2007.” [55]

22. [102]

    The reference to events in 2006 is unpersuasive. She was at the time acting as station manager at Morisset and was cleared by her general practitioner, Dr Benney, to commence full duties in that position. However, wearing the appointments belt aggravated her back. Nevertheless, in 2006 she was hopeful that she would obtain a permanent position as station manager.

23. [103]

    Reliance on the assessment by Ms Hanna is also unpersuasive. First, the assessment was not conducted in 2007, but in January 2008. Secondly, the judge accepted expert evidence disputing that Ms Hanna had undertaken an adequate assessment of a mental illness. The judge concluded:

24. [104]

    In any event, it would have been unsafe to assume that the outcome of a referral for assessment in the context of a proposed (undesired) return to frontline duties would have been the same as in the context of a (desired) transfer to the mounted police. On the other hand, the following matters, taken together, provide a substantial basis for his Honour’s conclusion that her pre-existing susceptibility to depression was aggravated in the latter part of 2007: namely, (i) the plaintiff’s notification of psychological injury due to work-related stress on 25 October 2007; (ii) Mr Folwell’s report of 19 March 2008 referring to the plaintiff experiencing symptoms of depression “in late 2007”, notwithstanding her attempts to work through to February 2008; and (iii) Dr Spruce’s diagnosis in May 2008 that she had major depressive disorder.

25. [105]

    The State also took issue with the conclusion that the injury suffered was the exacerbation of a pre-existing condition. The State submitted that this was “reminiscent of the language of a loss of chance of a better outcome.” [56] This issue had been identified at trial, and was identified by the trial judge in the following passage:

26. [106]

    The judge did not accept the State’s reasoning in this respect. Rather, he concluded that a plaintiff could recover for the exacerbation of an existing condition, or for a failure to ameliorate an existing condition, if the adverse outcome were established on the balance of probabilities. That, the judge concluded, was consistent with the reasoning of the High Court in Tabet v Gett, [57] and of this Court in Coote v Kelly [58] and Carangelo v State of New South Wales. [59] The challenge to this conclusion was not developed in oral submissions and should be rejected.

27. [107]

    For these reasons, the trial judge’s assessment of causation should be upheld and ground 3 rejected.

Cross-appeal – ground 1: post-traumatic stress disorder

1. [108]

   The expert evidence established that, by the time of her discharge in 2010, the plaintiff was suffering from both a major depressive disorder and post-traumatic stress disorder. It was common ground that the PTSD was a consequence of exposure to traumatic incidents in the course of the plaintiff’s employment in the Police Force.

2. [109]

   The trial judge found at [609] [60] that in 2008 the plaintiff had been diagnosed with depression by Dr Spruce and by a psychologist, Mr Peters, “without express reference to traumatic symptoms.” After reasoning that the breach of duty had materially contributed to the plaintiff’s major depressive disorder, the judge continued:

3. [110]

   The plaintiff’s submissions in support of her cross-appeal tended to elide two propositions. One was that the plaintiff in fact had PTSD by mid-2007 and therefore the failure to carry out a mental health assessment exacerbated that condition. The second was that, had there been a mental health assessment in mid-2007, there would have been a diagnosis of PTSD.

4. [111]

   Both complaints confront the difficulty that, while there was evidence of traumatic events in the course of the plaintiff’s work as a police officer, there is limited contemporaneous evidence as to her response to those events. (There was no suggestion that the level of exposure to such events was unusual for general duties officers.) The trial judge identified the problem in those terms at [622]. The contemporaneous records are those of her treating doctors and her applications for sick leave or Workcover compensation. The basis of the diagnosis by Professor McFarlane and Dr Murray, whom the trial judge found to be impressive witnesses, did not purport to rely upon contemporaneous information. Professor McFarlane saw the trigger event for PTSD as the back injury in April 2006. However, the contemporaneous records did not demonstrate a basis for concluding that the plaintiff saw that as a traumatic experience, rather than the source of a physical disability, nor, importantly, that her superior officers should have so seen it.

5. [112]

   So far as the likelihood of diagnosis in 2007 was concerned, the judge set out in some detail the numerous reports of Dr Spruce, whom the plaintiff saw throughout 2008. Neither her general practitioner, Dr Benney, nor Dr Spruce was called by the plaintiff. In these circumstances, the weight of the evidence did not support the view that, had she been medically assessed in 2007 in the way proposed by the trial judge, her PTSD would have been diagnosed. It may have been: but the evidence did not support the view that such a diagnosis was probable.

6. [113]

   There was a separate question as to whether that matters. If in fact the failure to obtain a mental health assessment led to an exacerbation of her condition, it might follow that, so long as that exacerbation was foreseeable, it was a compensable consequence of the negligence. On the other hand, if the failure to obtain a diagnosis, and the prospect of possibly returning to general duties were together sufficient to aggravate PTSD, that would provide a different form of causal connection from the mere absence of treatment.

7. [114]

   In the passage at [619], the judge appeared to reject the possibility that the failure to diagnose PTSD in 2007 would have increased the chronicity or severity of that disorder. That finding was based on the observation that there were no further traumatic incidents suffered in or following 2007. However, having returned to the question as to whether a diagnosis of PTSD was likely in 2007 and not being so satisfied, the judge concluded that it was therefore “unnecessary to assess the vexed question of whether any negligence of the Police Force … increased the risk or the severity or chronicity of her suffering PTSD”: at [624]. The plaintiff submitted that the judge was in error in eschewing that exercise. That submission may be accepted, but the consequence is that this Court must make that assessment.

8. [115]

   The plaintiff relied in this Court on evidence given by Professor McFarlane in response to a question from the judge towards the end of the joint evidence given by the psychiatrists: [61]

9. [116]

   In response, the State submitted that the question (and the judge’s finding) was that Commander Clarke had given her to believe that there was a “prospect” of returning to general duties, whilst Professor McFarlane spoke of a “probability” of future exposure. The plaintiff contended that Professor McFarlane was referring to her belief “that she would be returned to general duties”, not to actual exposure to traumatic events. [62] That may be accepted; however, the plaintiff then contended that her “apprehension of returning to operation duties precisely satisfies Professor McFarlane’s concept of probability.” The latter proposition sidesteps the issue as to the strength of her belief, which would require reference to some evidence she gave. None was identified.

10. [117]

    There appears to have been no other evidence addressing the issue. To the extent that the matter was not decided by the trial judge, the plaintiff would need to persuade this Court that the mere prospect of returning to general duties would, of itself, affect the severity of whatever symptoms of PTSD she was then suffering. Given the range of traumatic events, the most recent being the suicide of two officers, one being a close friend and the other a senior officer in her team, it is difficult to know whether a return to general duties would be necessary to trigger symptoms of PTSD. Further, the serious traumatic events of her career numbered no more than five over a period of some 14 years. In my view, the evidence is insufficient to persuade the Court that the holding out of a prospect of returning to general duties would have materially adversely affected the chronicity or severity of her PTSD.

11. [118]

    That being so, the failure of the plaintiff to persuade the judge that a proper mental health assessment in mid-2007 would have led to a diagnosis of PTSD meant that no adverse effect was established on the balance of probabilities. In my view that finding should be upheld. It follows that the principal challenge in the cross-appeal must be rejected.

Appeal grounds 4 and 5; cross-appeal ground 4 – effect of co-morbidities

1. [119]

   Ground 4 raised by the State alleged that the trial judge erred in failing to have regard to the plaintiff’s “comorbid non-tortious psychiatric conditions of post-traumatic stress disorder and major depressive disorder in assessing damages”. Ground 5 alleged a failure to make an assessment of the extent to which the same non-tortious conditions contributed to the plaintiff’s psychiatric conditions. The two grounds appeared in their terms to address the same issue and were dealt with together in the appellant’s submissions. They appear to have been alternative propositions. On one view, the plaintiff was found to have been totally incapacitated from November 2008 by reason of PTSD and therefore the whole of the injury could be attributed to the non-tortious condition; in the alternative, the conditions needed to be disentangled and relative contributions attributed to each.

2. [120]

   The trial judge dealt with the issue under the heading, “Deduction on DC v State of NSW principles”. [63] The principle which was derived from DC [64] was the endorsement by Ward JA of a statement by Professor Luntz in Assessment of Damages for Personal Injury and Death (4th ed). It is appropriate now to refer to the statement in the current edition, which is as follows: [65]

3. [121]

   The extent to which this principle is generally applicable is not entirely clear. DC, upon which the trial judge relied, involved a question as to the liability of the State for psychiatric injury suffered by two sisters as a result of abuse by their stepfather. The liability of the State applied only with respect to harm caused after the abuse had been reported. Self-evidently harm was caused by ongoing abuse before any report was made. Ward JA adopted Professor Luntz’ reasoning and accepted that a reduction on account of contingencies was appropriate. [70] However, the other member of the majority, Sackville AJA, declined to address the issue as it was not necessary in order to dispose of the appeal. [71]

4. [122]

   As explained in Luntz and Harder, there are various categories into which the relevant cases may fall. One such category involves a distinction between divisible and indivisible loss. However, where the loss is truly divisible the issue is unlikely to arise. The problem is where there are two or more causal contributors to a particular disability or loss of earning capacity.

5. [123]

   There will be different circumstances in which that problem will arise. For example, a plaintiff may have (i) an innate susceptibility (sometimes described as an eggshell skull or eggshell psyche); (ii) suffered an injury as a result of the conduct of a third person; (iii) suffered injury as a result of the tortfeasor’s conduct, but where only part of the conduct was tortious; or (iv) suffered conduct of two separate tortfeasors contemporaneously. An example of both tortious and non-tortious harm caused by a single employer is found in the English case of Bonnington Castings Ltd v Wardlaw. [72] The plaintiff developed a disease from exposure to silica dust at the defendant’s factory; part of the exposure was tortious and part not. The House of Lords held that the plaintiff was entitled to recover the full amount of his loss having established that the tortious exposure contributed materially to the disease. As Luntz and Harder explain, [73] the reasoning of the High Court in Malec v JC Hutton Pty Ltd would require an evaluation of the extent to which the harm would have been suffered in any event as a result of non-tortious exposure and reduction of the damages accordingly.

6. [124]

   The plaintiff challenged the application of the principle in the present case because she submitted there was “no independent non-tortious cause to the respondent’s injury (the appellant having caused the respondent to suffer PTSD and major depression)”. [74] That reasoning might be based on the approach adopted in Bonnington Castings. However, accepting that there was a real chance that the plaintiff’s earning capacity would have been adversely impacted in any event by the non-tortious injury, the principled application of Malec requires that fact to be taken into account in assessing the appropriate deduction for contingencies. As explained by Brennan and Dawson JJ in Malec what is required is “an evaluation of the plaintiff’s earning capacity which was destroyed in consequence of the defendant’s negligence.” [75] This principle is fundamental and does not depend upon whether the alternative cause of the disability was the result of conduct of the same employer or not.

7. [125]

   It is possible that the plaintiff intended the term “independent” to refer, not to an injury sustained independently of the employer, but to a discrete and separate injury suffered in the course of the one employment. Thus, if the two sources of loss of earning capacity were a tortiously-caused depressive illness and a back injury sustained in the course of carrying out an arrest (for which the employer was not liable in negligence), an exercise in apportionment would be required. Unfortunately, because the submission was first briefly identified in those terms in reply and in writing, it is not possible to be sure of the precise scope of the intended constraint on apportionment. However, neither authority nor principle supports such an approach.

8. [126]

   For these reasons, the trial judge was correct to apportion liability so as to increase the usual figure for vicissitudes to allow for the very real possibility (verging on a probability) that the plaintiff would have been disabled as a result of non-tortious exposure to traumatic events causing PTSD and the continuing sequelae of her back injury. On that basis, there was no separate challenge to the figure resolved on by the trial judge of 40%. It was, in any event, a reasonable reduction in the circumstances.

9. [127]

   It follows that grounds 4 and 5 in the appeal and ground 4 in the cross-appeal must be rejected.

Cross-appeal – ground 3 – contributory negligence

1. [128]

   In its defence, the State pleaded that any loss or damage was caused or contributed to by the plaintiff’s own negligence. The relevant particulars were a failure to report or disclose her psychological symptoms to her supervisors when first she became aware, or ought to have been aware, of the symptoms.

2. [129]

   The judge did not accept that the plaintiff concealed her psychological issues from her superiors: rather, in May 2007 she told Commander Clarke “that she could not cope.” [76] Nor did she fail to seek medical assistance for herself, availing herself of the EAP facility, speaking to a chaplain, and speaking to a psychologist on two occasions in 2007. The judge’s conclusion that there was a level of contributory negligence was expressed in the following terms:

3. [130]

   The contributory negligence so found occurred in January 2008. It arose in a context of the plaintiff seeking an alternative position within the Police Force, namely with the mounted police. In other respects, the judge dismissed the findings of the psychologist, Ms Hanna, as of little weight because she failed to inquire further into aspects of what she was indeed told. It is difficult to place responsibility on the plaintiff for the omissions of the psychologist. How much information she volunteered is difficult to know from Ms Hanna’s one-page report. What is known is that the plaintiff did not tick ‘yes’ or ‘no’ on a form inquiring whether she was suffering symptoms of PTSD. She said in her evidence that she did not tick either box because she did not know what the symptoms were. [77] A competent psychologist would have sought to clarify that. The plaintiff did, however, reveal her depressive illness and the fact that she was taking Cipramil for it.

4. [131]

   In those circumstances, the finding of contributory negligence cannot be supported. To that extent, the plaintiff’s cross-appeal should be upheld.

Cross-appeal – ground 5 – interest on damages

1. [132]

   A plaintiff’s entitlement to recover pre-judgment interest on an award of damages is conditioned by s 151M of the Workers Compensation Act, which relevantly provides:

2. [133]

   It is (and was at the date of the trial) more than 10 years since the plaintiff was medically discharged from the Police Force and some 14 years since her successful cause of action accrued. It is clear that the matters to be considered under s 151M require attention to the procedural history of the claim. Yet neither party filed a chronology in this Court which extended beyond the date of medical discharge in February 2010.

3. [134]

   The trial judge dealt with the question of interest in a further judgment, Skinner (No 3), delivered on 9 April 2021. The judge considered the relevant procedural history, including an offer made by the defendant in the course of a mediation. The judge was satisfied that the State was then able to make a properly informed assessment of the case and made an offer in an amount of $425,000, “clear of workers compensation payments, plus costs”. [78] The mediation took place on 11 November 2016. The reference to the addition on account of costs is significant, given that the statutory scheme for work injury damages required that generally the parties must bear their own costs of the proceedings. [79] No estimate of the costs then incurred was provided.

4. [135]

   The judge noted that, although the plaintiff bore the burden of establishing that the offer was “unreasonable”, her submissions were largely limited to the proposition that the State had not made any offer of settlement which qualified for the purposes of s 151M(4). [80] The State, on the other hand, had submitted that the offer was not unreasonable in circumstances where:

5. [136]

   The claim for costs was in an amount of $585,500.

6. [137]

   The operation of the statutory scheme precludes an award of interest, subject to three exceptions. The first two in subs (4)(a), cover cases where the defendant has not made an offer (or a revised offer), having had a reasonable opportunity to do so. Subparagraph (iii) contains two cumulative elements, each involving the defendant having made an offer of settlement. The first is engaged where the defendant has made an offer but the award of damages is more than 20% higher; the second is engaged where the offer is “unreasonable” having regard to the information available to the defendant when the offer was made. It was not in doubt that the award was more than 20% higher than the offer, the offer being under $620,000. Two points should be noted in this respect. First, because there is no indication as to the likely costs incurred by the plaintiff as at the date of the offer, it is not clear what the monetary value of the offer was, but it was clearly above $425,000. Secondly, the first limb of subpar (iii) takes into account the actual award of damages, while the second limb requires a prospective assessment of reasonableness at the date of the offer. To the extent that the trial judge approached the matter on that basis, [81] the approach is not challenged.

7. [138]

   The key passages in the judge’s reasoning were as follows:

8. [139]

   Two further matters were taken into account, but given lesser weight:

9. [140]

   The plaintiff’s challenge to the judge’s finding, as identified in her written submissions, raised six points. The first related to the consideration at [24] as to the generality of the pleading and the complexity of the issues, both as to liability and as to damages. The plaintiff submitted that the judge erred in finding that her case on liability was “so complex that the appellant could not have made a reasonable assessment” of her full entitlements. [82] However, that did not fairly encapsulate the judge’s finding. Rather, the difficulty faced by the plaintiff in establishing that the specific offer was unreasonable lay in the level of complexity and imprecision which effectively expanded the range of possible outcomes and thus the range below which an offer would be unreasonable. The particulars of negligence contained 29 paragraphs together with a direction to “see expert report of Mr Cockbain”, which was not relied upon and the contents of which are not known to this Court, and the report of Professor McFarlane, particularly at pages 23-27.

10. [141]

    The plaintiff alleges that the fact that Mr Cockbain’s report was not ultimately relied upon was not a relevant factor to be taken into account. However, the fact that it was not relied upon permits an inference that there were other particulars of negligence asserted (and known to the defendant at the time it made its offer) which were subsequently abandoned. If those aspects of the plaintiff’s case were untenable, the defendant would have taken that into account. It might also be inferred that they were more precise than the 29 tabulated particulars.

11. [142]

    The second alleged error was that the judge gave no consideration to the fact that the expert reports of Professor McFarlane of 2015 and 2016 and the reports of Dr Murray had been served. It may be true that he did not give that material consideration in this context, but he was not asked to. Apart from the statement that the reports “set out in detail the events lead up to [sic] the total incapacity of [the plaintiff] due to major depression and PTSD”, it is not clear what inference this Court should draw as to the range of possible outcomes of the trial, in reassessing the claim for interest based on that material. The submissions did not provide further assistance in that regard.

12. [143]

    The third complaint was that the judge considered the question of reasonableness “retrospectively as opposed to prospectively.” However, a fair reading of the reasons set out above is not consistent with that conclusion: the judge did refer to subsequent findings and events, but identified them as supportive of the prospective approach. The passage in the second half of [24] relied upon by the plaintiff expressly stated, “[s]ome of what I have said, so far, is in retrospect. But the matters referred to underscore and therefore support the defendant’s contention, viewed prospectively at the time that it made its offer, about the complexity of the case on liability.” That passage did not reveal error.

13. [144]

    It may also be noted that the plaintiff’s submissions as to the operation of s 151M commenced by referring to a judgment of Dunford J concluding that “a judgment sum that is more than 50% in excess of the effective value of the defendant’s offer is prima facie unreasonable in all the circumstances.” [83] In relying on that statement, the plaintiff herself resorted to retrospective reasoning.

14. [145]

    The fourth alleged error was in accepting the State’s contention “that it could not have estimated the quantum with reasonable precision on account of contingencies.” The submission continued:

15. [146]

    This complaint is misconceived. It appears to assume that the only reasonable approach available to the State in making an offer was to determine a reasonable figure by way of quantum of damages and then discount for contingencies. That was not so. The State was entitled to have regard to the fact that there was an unresolved issue as to whether the case could proceed at all, having been commenced out of time, and the likelihood of any liability being established. There was no reason for the judge to find that a particular discount in excess of 40% would have been unreasonable, nor that the State adopted such an approach.

16. [147]

    The fifth alleged error was that the plaintiff’s offer was “disproportionate to the claim”. It was said that the judge in that respect at [26] was “assessing the matter retrospectively by reference to the judgment sum.” That was not so: the judge was merely noting the disparity between the respective offers and the disproportion between the offers and the ultimate judgment.

17. [148]

    Finally, error was alleged with respect to the consideration at [27] as to the need for leave to commence the proceedings out of time. Obviously limited weight was given to that consideration: but the plaintiff asserted the issue was simply irrelevant, except for answering the question as to whether it was reasonable for the State to make an offer at all. That proposition cannot be accepted. The question of an extension of time was one of the unresolved contingencies affecting the likelihood of the plaintiff’s success. It was not unreasonable for the State to have taken that into account, nor for the judge to have accepted its (limited) relevance in assessing the unreasonableness of the offer.

18. [149]

    In submissions in reply, the plaintiff contended for a further error, referring to a statement in [23] of the judge’s reasons to the effect that in November 2016 “it would not have been easy for the defendant to confidently predict the quantum of the discounts.” The plaintiff submitted that s 151M(4)(b) did not require the defendant to be able to confidently predict the quantum of the discount. The plaintiff submitted that the “standard deduction is 15%.”

19. [150]

    The judge’s reasoning at [23] was directed to the wording of s 151M(4)(a)(iii), not par (b). The judge did not conclude that the State was not able to make a reasonable assessment of the plaintiff’s entitlement: rather, he concluded that the offer made was not “unreasonable” for the purposes of par (a)(iii). The reasoning as to complexity and uncertainty might have allowed a finding to be made in the terms of par (b), but it was not made in those terms, nor is there any notice of contention supporting such a conclusion. Further, if an inference is sought to be drawn that the State could reasonably only have relied upon the standard deduction of 15%, that inference should not be accepted. There were factors in play which patently warranted a higher deduction.

20. [151]

    None of these specific challenges is made out.

21. [152]

    The assessment of whether an offer made before the trial and before the commencement of proceedings was “unreasonable” involves an evaluative judgment as to which minds may undoubtedly differ. It is a judgment which is easily affected by hindsight reasoning (which may not be entirely irrelevant), and by ignorance as to what the defendant knew and took into account, other than the material supplied by the plaintiff by way of pleadings and witness statements, and in relation to the latter, in so far as that material was before the judge, usually because it had been relied on at the trial. In circumstances where the plaintiff has failed to establish any patent error in the judge’s reasoning, this Court is left with the question as to whether, on the information available to it, it would have reached a different conclusion. The plaintiff’s case is not made easier by the unchallenged assumption that she bore the onus of demonstrating the unreasonableness of the offer at the time it was made.

22. [153]

    Further, care must be taken in attributing error to the trial judge’s findings in circumstances where the plaintiff failed to present an affirmative case on the assumption that an offer had been made. She did not even seek to establish the one matter which was clearly within her knowledge, namely the value of the offer to pay costs, in circumstances where, generally, costs are not available even to a successful plaintiff.

23. [154]

    Ground 5 in the cross-appeal must be rejected.

Conclusions

1. [155]

   The State has been unsuccessful in respect of each element in its appeal: the appeal must be dismissed.

2. [156]

   The plaintiff has been unsuccessful in respect of the bulk of her cross-appeal, but has succeeded in setting aside the reduction of the judgment on account of contributory negligence. She is entitled to a variation of the judgment by removing the deduction of $114,168. The amount of the judgment must be varied to $857,948.

Costs

1. [157]

   Somewhat curiously, both the notice of appeal and notice of cross-appeal sought orders in the usual form with respect to the costs of the proceedings both in this Court and in the trial court. However, there was no reference to costs in the written submissions. In oral submissions, senior counsel for the plaintiff acknowledged that there was a “statutory restriction on the ability to obtain costs even on appeal”. [84] However, counsel for both parties sought that, once judgment was delivered, each should have the opportunity to provide a “one page submission” to the Court.

2. [158]

   There are exceptions to the restrictions on the award of costs, but the general rule is that “the parties to court proceedings for work injury damages are to bear their own costs.” [85] This Court has held that the rule applies with respect to an appeal from a judgment for work injury damages. [86]

3. [159]

   The reservation by counsel with respect to further submissions may have been based on the possibility that the result would permit one of the exceptions to apply. That does not appear to be the case, but liberty to each party to apply within 14 days of judgment being delivered should be reserved. At the present time it is appropriate for the Court to make no order as to costs, on the assumption that, if no application is forthcoming, that position will prevail, in accordance with the Regulation.

Final orders

1. [160]

   The same liberty was sought with respect to the making of final orders. Although the amount of damages will be resolved by this judgment, the Court was advised that there was in effect a consensual stay of the judgment below, with the plaintiff continuing to receive worker’s compensation payments whilst her entitlement to damages was resolved. In the event that the plaintiff retained her entitlement to damages, it was foreshadowed that there might be some adjustment required to account for the further payments of compensation.

2. [161]

   On the other hand, the preferable course is to set aside the judgment entered on 9 April 2021 in the District Court and give judgment in favour of the plaintiff for the greater amount identified in this proceeding, the judgment to take effect from 9 April 2021. The effect of such an order is that interest will run in favour of the plaintiff from that time and any subsequent payments can be dealt with by arrangement between the parties, without the need to come back to the Court. Accordingly, I propose the following orders:

   1. (1)

      Dismiss the appeal by the State of New South Wales filed on 4 June 2021.

   2. (2)

      With respect to the cross-appeal filed by Kristen Skinner on 9 July 2021:

3. [162]

   BRERETON JA: I agree with Basten JA.

4. [163]

   McCALLUM JA: I agree with the orders proposed by Basten JA. Subject to one minor qualification, I agree with his Honour’s reasons. The qualification is that I do not share his Honour’s disapproval at [87] of the primary judge’s conclusion at [539]. However, my disagreement on that issue does not affect the result of the appeal.