Walsh v State of New South Wales

1. [1]

   HER HONOUR: There are two notices of motion before this Court.

2. [2]

   By amended notice of motion filed 3 May 2018, the plaintiff seeks firstly, an order that pursuant to ss 50F, 52, 58, 60G and/or 60C and/or 50C of the Limitation Act 1969 (NSW) that leave be granted to commence proceedings against the defendant and the time to commence proceedings be extended to eight weeks after the making of this order; secondly, a declaration that the limitation period was suspended pursuant to s 52 of the Limitation Act; and thirdly, the summons and substantive matter be heard together.

3. [3]

   By amended notice of motion filed 10 July 2017, the defendant seeks an order that the plaintiff’s statement of claim filed 23 December 2015 be dismissed pursuant to 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

4. [4]

   The plaintiff is Wendy Walsh. The defendant is the State of New South Wales. The plaintiff relied upon her affidavits dated 28 November 2016 and 29 November 2017, and two affidavits of her solicitor, Kim Howard Smith, dated 14 August 2017 and 1 December 2017. The defendant did not rely upon any affidavit evidence.

5. [5]

   For the purposes of the summary judgment application, I have taken the plaintiff’s case at its highest. Hence, I will consider whether the pleading in the proposed amended statement of claim (“PASC”) should be summarily dismissed. The defendant submitted that the amendments to the PASC do not cure the deficiencies in the statement of claim. Overall, the defendant submitted that although the defendant owes a duty of care to the plaintiff, it does not owe the plaintiff the scope and content of the duty of care alleged in the PASC; and the plaintiff’s cause of action is statute barred.

Background

1. [6]

   On 12 July 1981, the plaintiff commenced as a trainee with the NSW Police Force. On 9 October 1981, the plaintiff was attested as a constable of police and appointed to the rank of probationary constable.

2. [7]

   From October 1981 to 1983, the plaintiff performed general duties at Bankstown police station and Revesby police station. From 1983 to 1986, she performed radio duties in the Police Radio Unit. From 1987 to 1990, the plaintiff performed investigatory duties at Bankstown police station. From 1990 to 1993, she performed investigatory duties at Bass Hill police station.

3. [8]

   From 1993 to 1996, the plaintiff performed investigatory duties at Liverpool Internal Affairs Unit. From 1996 until her medical retirement from the NSW Police Force in 2005, she was attached to the regional office at Liverpool police station where she performed investigatory duties similar to that performed in the Liverpool Internal Affairs Unit.

4. [9]

   In 2000, the plaintiff pleads that while attached to the regional office at Liverpool police station as a brief manager, she was tasked with investigating the actions of a fellow police officer (“the Detective Senior Constable”). This investigation formed only part of her duties as a brief manager. She was still obliged to work with the Detective Senior Constable and other police officers in the office on other investigations on a daily basis. She was part of a team and this required the building of rapport and trust with her professional colleagues.

5. [10]

   In February 2000, she interviewed the Detective Senior Constable about allegations of unlawful and corrupt actions of police officers while on or off duty. The plaintiff alleges that during the course of this interview, the Detective Senior Constable became very angry and left the interview room before the interview had finished. The Detective Senior Constable then took a period of leave. The plaintiff reported the conduct of the Detective Senior Constable to her superiors.

6. [11]

   The plaintiff pleads that upon the Detective Senior Constable’s return to work and for a number of years after, he engaged in a pattern of conduct which harassed and frightened her leading her to suffer from psychological injury, loss and damage.

7. [12]

   In 2003, the plaintiff reported off work on sick leave and was medically discharged from the NSW Police Force due to the certified infirmities of adjustment disorder, generalised anxiety disorder, panic disorder with agoraphobic symptoms in partial remission, and a superimposed major depressive disorder in partial remission.

8. [13]

   The NSW Police Force Commissioner (“the Police Commissioner”) accepted that these conditions were caused by the plaintiff being hurt on duty on 27 June 2003. On 2 September 2005, the plaintiff was medically discharged as a result of those conditions.

Legal principles concerning leave to amend

1. [14]

   These general principles are not in dispute.

2. [15]

   Section 64 of the Civil Procedure Act 2005 (NSW) applies to amendments generally. It relevantly reads:

3. [16]

   As I understand it, if the defendant’s arguments fail and the statement of claim is not dismissed, leave should be granted to the plaintiff to file the PASC.

4. [17]

   UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are if the proceedings are frivolous or vexatious, if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the Court.

5. [18]

   UCPR 14.28(1) provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading, firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings; or thirdly, is otherwise an abuse of the process of the Court.

6. [19]

   UCPR 14.28(2) provides that the Court may receive evidence on the hearing of an application for an order under subrule (1).

7. [20]

   In O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the Court of Appeal applied the High Court of Australia decision of Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 (“Spencer”). In Spencer, the High Court was concerned with s 31A(2) of the Federal Court Act 1976 (Cth), but the following principles are of general application:

8. [21]

   Powers to summarily terminate proceedings must be exercised with exceptional caution (at [55]; see also French CJ and Gummow J at [24]).

9. [22]

   The defendant submitted that there are cases where novel duties of care have been summarily dismissed and referred to Agar v Hyde (2000) 201 CLR 553; [2000] HCA 41 at [64] per Gaudron, McHugh, Gummow and Hayne JJ, referring to Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241; [1997] HCA 8 and Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 9 (“Sullivan”).

10. [23]

    However, in Contribution Fund of Australia v Hunt (1982) 44 ALR 365, Master Allen in discussing summary judgment applications where the law is ripe for development, stated at 373-374:

11. [24]

    This passage was quoted with approval by Badgery-Parker J in Gibson v Parkes District Hospital (1991) 26 NSWLR 9 at 35.

12. [25]

    In response, the defendant referred to The Beach Club Port Douglas Pty Ltd v Page [2006] 1 Qd R 307; [2005] QCA 465 (“Page”); and Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 at [30] (“Perera”).

13. [26]

    In Page, McPherson JA stated at [23]:

14. [27]

    In Perera, Leeming JA set out the variety of formulations of the applicable test where a defendant applies for the summary judgment. His Honour identified two matters to be distilled from the authorities. At [30] he stated:

15. [28]

    In Perera, Leeming JA continued at [38]:

16. [29]

    The defendant submitted that these proceedings are not specifically formulated as a novel duty of care although to some extent the second of the duties alleged is novel.

The alleged duty of care

1. [30]

   The parties agree that the plaintiff is entitled to the benefit of a duty of care informed by its statutory obligations under the Police Act 1990 (NSW). The defendant accepts that the Police Commissioner owes police officers under his command the duty to take reasonable care to avoid exposing them to unnecessary risks of injury.

2. [31]

   The NSW Police Force is established by s 4 of the Police Act. Section 6 of the Police Act provides that the mission of the NSW Police Force is “... to work with the community to reduce violence, crime and fear". One of the services which is provided by the police is “[t]he protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way” (s 6(3)(b) of the Police Act).

3. [32]

   Section 8 of the Police Act reads:

4. [33]

   Section 64 of the Police Act gives to the Police Commissioner the power to appoint all police officers “... whether by way of transfer or promotion or otherwise ...”.

5. [34]

   Under the Police Act, the Police Commissioner, in addition to his powers in s 8, has the following specific powers:

6. [35]

   In this case, the most relevant power that was being exercised was the power of the Police Commissioner to investigate a complaint under s 136 of the Police Act.

7. [36]

   Paragraph [3] to [9] of the PASC set out the defendant’s alleged duty of care. They read:

8. [37]

   The particulars of breaches of duty of care are set out in paragraph [65]. They are lengthy and plead:

9. [38]

   The plaintiff alleges that the scope and content of the duty of care of the defendant is that it had a duty of care to take reasonable steps to provide a safe working environment for the plaintiff and to take reasonable steps to reduce the risk of harm as a result of her workplace environment, including physical and psychiatric injury. The plaintiff also alleges that the defendant had a duty of care to take reasonable steps to ensure that appropriate measures were taken in response to complaints of inappropriate and intimidating behaviour towards the plaintiff by another officer. The defendant also had an alleged duty of care to take reasonable steps to ensure that appropriate workplace structures were put in place to prevent the continued intimidation, harassment or threatening of the plaintiff by another police officer.

10. [39]

    As I have set out earlier in this judgment, it is pleaded that the plaintiff reported the behaviour of the Detective Senior Constable to her supervising officers both during and after the investigation. However, the defendant failed to regularly assess and/or monitor the plaintiff’s psychological health and wellbeing, and where necessary, arrange for her to receive treatment from a suitably qualified psychiatrist or psychologist. The defendant also failed to have the plaintiff’s psychological health and wellbeing assessed following her complaints about the Detective Senior Constable.

11. [40]

    Counsel for the defendant referred to various authorities to establish what are the generally well known legal principles relating to duty of care. I have attempted to put them in context by referring to the factual circumstances in each case and then set out the passages of the authorities quoted by the defendant.

12. [41]

    The appropriate starting point is Sullivan and the more recent case of Patronis v State of New South Wales [2018] NSWSC 516 (“Patronis”), where McCallum J referred to the High Court’s findings in Sullivan at [22] and [23].

13. [42]

    Both parties referred to the well known decision of Sullivan.

14. [43]

    In Sullivan, a claim in negligence was brought against a medical practitioner, Dr Moody, who had formed the view that a patient she had assessed had been sexually assaulted by her father, Mr Sullivan.

15. [44]

    The High Court at [57] referred to the statement of Lord Keith of Kinkel in Hill v Chief Constable of West Yorkshire [1932] AC 562 at 577 that “police investigation into criminal conduct involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate.”

16. [45]

    In Patronis, the brief facts were that on 24 May 2009, Mr Patronis, then aged 17, was arrested for alleged traffic offences. While Mr Patronis was under arrest and in the course of a dispute with police as to whether he was required to hand over the key to his motorbike, he was wrestled to the ground, subdued with the use of a taser and allegedly assaulted. In December 2014, Mr Patronis commenced proceedings against the State of New South Wales seeking damages for negligence, assault and false imprisonment arising out of those events. On 24 April 2017, Mr Patronis committed suicide.

17. [46]

    It was alleged that Mr Patronis was detained by police from 3.10 pm until about 6.30 pm. His claim in negligence alleged that upon the police detaining him on the side of the road, the police had exercised direct control over and assumed responsibility for his safety. So long as Mr Patronis was in their custody they owed him a duty of care. It was alleged that the police breached this duty by their zealous and overuse of force. In particular, the alleged breach of duty focused upon the allegations concerning the use of the taser and other force immediately following the confrontation concerning the ignition key to the motorcycle.

18. [47]

    The claim in assault was based on the same conduct, alleging that police assaulted Mr Patronis at about 4.00 pm by shooting him twice with the taser, pegging him to the ground and forcing his arm behind his back and up around his head, kneeing him and punching him in the head. The claim in false imprisonment alleged that, once police had issued Mr Patronis with Field Court Attendance Notices (at around 4.00 pm), it was unnecessary to detain him further and that he was thereafter wrongfully detained for a period of two hours between about 4.00 pm and 6.00 pm.

19. [48]

    In Patronis, McCallum J stated at [22] and [23]:

20. [49]

    Her Honour continued at [25]-[26]:

21. [50]

    In addition to Sullivan and Patronis, counsel for both parties referred to Fahy v New South Wales (2007) 232 CLR 486; [2007] HCA 20 (“Fahy”); State of New South Wales v Briggs [2016] NSWCA 344 (“Briggs”); Cran v State of New South Wales [2004] NSWCA 92 (“Cran”). The defendant also referred to Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 (“Keohler”); Hegarty v Queensland Ambulance Service [2007] QCA 366 (“Hegarty”); and Optus Administration Pty Ltd v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21 (“Optus”). I will set these out in more detail below.

22. [51]

    Fahy concerned an appeal from the New South Wales Court of Appeal. The facts were as follows. Two police officers attended a violent armed robbery. One of these officers, Constable Fahy, suffered post traumatic stress disorder as a result of the event. The other officer on duty, Constable Evans, had left Constable Fahy unattended at the hospital with the result that she was required to assist the doctor with treating a person suffering serious injuries, while also attending to other operational tasks.

23. [52]

    Constable Fahy’s complaint was directed towards what she alleged the Police Service should have required of its other officers. Specifically, it concerned the system of work that was prescribed by the Police Force.

24. [53]

    The majority of the High Court (Gummow, Hayne, Callinan and Heydon JJ with Glesson CJ, Kirby and Crennan JJ dissenting) concluded that in these circumstances, the Police Service did not owe Constable Fahy a duty of care (at [21]). Accordingly, the appeal was allowed and the orders of the New South Wales Court of Appeal set aside.

25. [54]

    In discussing the Police Service Act, Gummow and Hayne JJ stated at [21] in their separate judgment the purpose of the legislation as follows:

26. [55]

    The plaintiff submitted that the circumstances of these current proceedings can be factually distinguished from Fahy as the investigation of the Detective Senior Constable involves an ongoing operation as opposed to a situation where the conduct of the other officer involved, required an immediate judgment call.

27. [56]

    The defendant asserts that the pleadings in the present case suffer from the type of deficiencies discussed by Leeming JA in Briggs. The facts in Briggs is that he was a former police officer, and suffered a psychological injury caused by his exposure to traumatic events in the course of his duties. Mr Briggs claimed his injury was a result of tortious acts of the Commissioner and his officers, for which the State was vicariously liable.

28. [57]

    Mr Briggs’ claim was at all times treated as a “work injury damages claim” for an award of “modified common law damages” under Part 5 of the Workers Compensation Act 1987 (NSW), and the parties (correctly) proceeded on the basis that the provisions of the Workers Compensation Act applied. Consequently, the Civil Liability Act 2002 (NSW) did not apply: s 3B(1)(f)).

29. [58]

    Levy SC DCJ found in favour of Mr Briggs, accepting that the defendant had breached its duty of care owed to the plaintiff to take reasonable care to avoid exposing police officers to the foreseeable risk of psychological injury, thereby causing, aggravating and entrenching his injury. His Honour found that the defendant breached its duty of care in two respects. Firstly, over the period of July 2003 to July 2011, the plaintiff was exposed to “traumatic and gruesome events” in the course of his general duties; and secondly, more specifically, after Mr Briggs told his supervisor he was “struggling” and applied for a theoretical demotion in July 2011.

30. [59]

    The State of New South Wales appealed, alleging errors of law in how the primary judge formulated the content of the duty of care, breach, causation and damages, as well as failures in the primary judge’s findings of fact.

31. [60]

    In Briggs at [140], Leeming JA explained that any duty must be prospective and not based on hindsight. His Honour stated:

32. [61]

    The appeal was upheld and judgment was entered for the defendant.

33. [62]

    The facts in Cran were as follows. On 25 March 1998, the 43 year old Mr Cran was arrested near Kings Cross where he was found drinking in a park. He had some paper stickers in his possession. The police thought these stickers were LSD. Mr Cran told the police they were only paper but they did not believe him. Mr Cran was charged with deemed supply of a prohibited drug, an indictable offence and was refused bail and sent to Silverwater Gaol, where he remained for just over nine weeks. During this period of incarceration, Mr Cran was bashed on four occasions, receiving relatively minor physical injuries. He also witnessed both a rape and a murder of other prisoner by other prisoners. On 16 April 1998, when the analyst’s report was produced, it cleared him.

34. [63]

    Mr Cran alleged that he was in a vulnerable state and that the police and prosecuting authorities had failed to promptly take investigative and prosecutorial steps which would have seen him released from custody on remand much earlier than occurred.

35. [64]

    The Court of Appeal per Santow JA, (with Ipp JA and McColl JA agreeing) found the State was not liable for harm by chronic post traumatic stress disorder caused as a result of the unnecessarily prolonged imprisonment.

36. [65]

    Santow JA at [52] stated:

37. [66]

    Santow JA concluded at [63] and [64]:

38. [67]

    Accordingly, the appeal was dismissed. However, no order as to costs made “due to the uncaring neglect of the police in particular towards the appellant.” (Santow JA at [65]).

39. [68]

    The short facts are that Ms Koehler was employed three days a week as a merchandising representative of her employer. Ms Koehler could not perform the duties expected of her to her own satisfaction. She repeatedly told management that changes had to be made. She said that the work expected of her had to be changed, or she should have more time in which to do it, or she should have help to do it. No changes were made. Five months after starting this work Ms Koehler fell ill. The District Court Commissioner held that the employer failed in its duty to ensure that all reasonable steps were taken to provide Ms Koehler with a safe system of work.

40. [69]

    The employer appealed to the Full Court of the Supreme Court of Western Australia (Malcolm CJ, McKechnie and Hasluck JJ), the Court held that the employer could not reasonably have foreseen that Ms Koehler was exposed to a risk of psychiatric injury as a consequence of her duties at work and the appeal was allowed.

41. [70]

    The High Court of Australia (McHugh, Gummow, Hayne, Callinan and Heydon JJ) unanimously dismissed the appeal.

42. [71]

    The defendant referred to Koehler at [33], where McHugh, Gummow, Hayne and Heydon JJ quoted from Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 at [16], [61] to [62] and [201] (“Tame”):

43. [72]

    The defendant also referred to Koehler At [55], where Callinan J (in a separate judgment to the majority) also quoted from Tame at [16] per Gleeson CJ, [199] per Gummow and Kirby JJ:

44. [73]

    At [57], Callinan J cited with approval the dissent of Lord Scott of Foscote in Barber v Somerset County Council [2004] 1 WLR 1089 at 1095 [14]; [2004] 2 All ER 385 at 392:

45. [74]

    In addition, McHugh, Gummow, Hayne and Heydon JJ stated at [21]:

46. [75]

    The majority continued at [36]:

47. [76]

    The defendant submitted that where complaints are made, the question remains whether it is foreseeable that the employee is at risk of psychiatric injury b. In support of this proposition, the defendant referred to the Supreme Court of Queensland Court of Appeal’s decision of Hegarty per Keane JA (with whom Gerrard JA and Douglas J agreed).

48. [77]

    In Hegarty, the short facts are that the plaintiff left his employment as an ambulance officer after 15 years, suffering PTSD and obsessive compulsive disorder. The plaintiff claimed that the defendant, the Queensland Ambulance Service, was negligent by failing to have in place a system where his supervisors were trained to identify signs of dysfunction in personnel regularly exposed to distressing and traumatic experiences, so that referral could be made for clinical psychological assessment and treatment such as cognitive behaviourial therapy.

49. [78]

    At [41], Keane JA stated that “special difficulties may attend the proof of cases of negligent infliction of psychiatric injury”, citing Gillespie v The Commonwealth (1991) 105 FLR 196 at 202. In the same paragraph, his Honour continued: “[i]n such cases, the risk of injury may be less apparent than in cases of physical injury. Whether a risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension”.

50. [79]

    Keane JA went on to say at [43] that in determining what a reasonable employer would do in response to a foreseeable risk of psychiatric harm raises important considerations in respect of “[t]he private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employer’s duty”. His Honour further stated at [43]:

51. [80]

    Keane JA continued at [44], [45], [46] and [47]:

52. [81]

    Keane JA stated at [101] and [102]:

53. [82]

    His Honour concluded at [106] that the plaintiff did not prove that the defendant caused the plaintiff’s injury by a breach of the obligation to ensure the workplace health and safety of the plaintiff. Therefore, the judgment in favour of the plaintiff could not be sustained and the appeal was allowed. (at [107]).

54. [83]

    In Optus, the plaintiff, Glenn Stuart Wright, claimed damages for psychological injury resulting from an attempt by a co-walker to kill him by throwing him off a balcony. He sued the defendant, Optus Administration Pty Ltd, as the occupier of the premises and the entity conducting the training course on which he was engaged at the time he suffered injury.

55. [84]

    Gleeson JA at [206] to [212] (who was in dissent but his statement of principles are not in doubt), stated the following propositions from Wicks v State Rail Authority (NSW) (known as State Rail) (2010) 267 ALR 23; [2010] HCA 22 (“Wicks”), which the defendant asserts as having relevance to the present case:

56. [85]

    The plaintiff’s claim is one of psychiatric harm. As such, it is subject to s 32 of the Civil Liability Act.

57. [86]

    In terms of foreseeability, while the High Court has held that “normal fortitude” is not a precondition to liability for negligently inflicting psychiatric injury, this remains subject to the provisions of s 32 of the Civil Liability Act as Basten JA identified in Optus at [36]:

58. [87]

    Part 3 of the Civil Liability Act is titled “Mental harm” and includes s 32. Section 32 was introduced by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW). Although arguably some of the incidents alleged to have given rise to the injury in these current proceedings occurred before the commencement of those amendments, they extend to civil liability arising before their commencement, in proceedings commenced thereafter: Civil Liability Act, Schedule 1, Part 3, clause 6(1).

59. [88]

    Section 32 of the Civil Liability Act reads:

60. [89]

    The operation of s 32 of the Civil Liability Act and the extent to which it reflected the common law as expressed in Tame were discussed by the High Court in Wicks (as I have set out earlier in this judgment).

The defendant’s submissions

1. [90]

   The defendant submitted that the proceedings should be dismissed on three grounds. First, the duty of care pleaded is inconsistent with the statutory duties; second, it is a personal duty owed to the plaintiff only; and finally, it is impermissibly retrospective and so it is doomed to fail.

2. [91]

   The defendant submitted that the duty of care is whether the duty of care pleaded by the plaintiff is inconsistent with the statutory duties of the Police Force.

3. [92]

   The first duty pleaded is really one particularised to some extent by the second duty pleaded. This second duty is one said to be owed to the plaintiff, but it should properly be pleaded as applying to all internal affairs police investigators of police officers by the Police Force to protect them against the risk of psychological injury occasioned by performing that investigative function. The defendant submitted that the duty does not fit the existing body of law and should therefore be rejected without the need to engage in any fact finding in relation to such a duty.

4. [93]

   The defendant referred to Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 34 (“Brookfield”) where Gageler J, citing Sullivan at [49], made the following observations in relation to duty of care at [169]:

5. [94]

   The Police Commissioner has a statutory duty to deal with police misconduct and to investigate conduct. Therefore, the police investigator’s function arises under the Police Act as a delegation from the Police Force Commissioner in respect of his duties under Part 8 of the Act. The defendant submitted that the alleged common law duty of care intrudes, “subverts” or “cuts across” this statutory investigative function by wholly or partly overlapping or subsuming it: see Sullivan [42] and [53]. It is well established that a “common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties”: see X (Minors) v Bedfordshire County Council [1995] 2 AC 633; [1995] UKHL 9 at 739; Sullivan at [30] per Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ. As Leeming JA stated in Perera at [42], “the law of negligence is but one part of the Australian legal system, and is not to be extended so as to obliterate or undercut other principles, which may serve other important values.”

6. [95]

   If the facts pleaded in this case were accepted as giving rise to a foreseeable duty of care, in particular those concerning the allocation of the investigation to the plaintiff (PASC, particulars of negligence (a) and (b)), it would place the “intolerable burden of potential liability and constrain [the Police Commissioner’s] freedom of action” to fulfill his or her statutory task: see Sullivan at [42]. In particular, it would inhibit the discharge by the police of their vital functions of internal investigation and prevention of police misconduct. It would introduce a risk that police would act so as to protect themselves from claims of negligence rather than attend to the significantly more important task of investigating allegations of police misconduct. Accordingly, it cannot be that the law would impose a common law duty on the Police Commissioner to protect police officers conducting an investigation where this would curtail the investigative function.

7. [96]

   Counsel for the defendant further submitted that the alleged duty of care gives rise to inconsistent obligations and would offend the well established principle of the need for coherence in the law: see Brookfield per Gageler J at [25]. The situation is similar to public authorities charged with the responsibility of conducting investigations, or exercising powers in the public interest or in the interests of a specified class of persons. The law does not ordinarily subject these investigating authorities to a duty to have regard to the interests of another class of persons where it would impose upon them conflicting claims or obligations. In addition, while the plaintiff asserts that the relationship between herself and New South Wales Police Force is akin to an employment relationship, the plaintiff is in fact an officer of the Crown who is subject to a chain of command. It was in the course of this day to day management of officers and this chain of command that the plaintiff was assigned to investigate the detective senior constable. The plaintiff was the Detective Senior Constable’s senior officer. She was also an internal affairs investigator and the investigation of the Detective Senior Constable was assigned to her on the basis that she was the officer most qualified to conduct the investigation.

8. [97]

   The defendant also submitted that for the plaintiff to make good the alleged negligence, she must prove foreseeability of the harm when the investigation reached the interview stage. It is alleged that prior to the interview, the supervising officer knew that the Detective Senior Constable was capable of resorting to violence. He was aware that a chair could be thrown at the plaintiff (PASC, Particular (g)) and that the plaintiff was at risk of physical harm, retribution and harassment. However, as the High Court observed in Sullivan at [42]:

9. [98]

   The defendant submitted that alleged duty of care as pleaded by the plaintiff is impermissibly retrospective. As Leeming JA stated in Briggs at [64], [68] and [96], a duty of care must be formulated prospectively without regard to the breaches alleged. It cannot be formulated by engaging in hindsight analysis of whether the risk of injury could have been reduced or eliminated: see Briggs at [151]-[153].

10. [99]

    The defendant also submitted that whether there was a real risk of a recognisable psychological injury to internal affairs investigators within the Police Force in the performance of their investigative tasks, must be considered in light of the nature of the relationship between the parties under the Police Act, together with the common knowledge of what the work of law enforcement may require. The obligations cast on police officers under the Police Act means that if a police officer is lawfully ordered to do something that is stressful, no breach of duty will normally arise in requiring the officer to undertake that stressful task. It is inevitable that police work will involve stressful, unpleasant and dangerous work. Such unpleasantness would accompany investigations of the nature that the plaintiff was required to undertake of her fellow officers.

11. [100]

    The defendant further submitted that while it is reasonably foreseeable that the work of investigation is stressful and that investigators may uncover animosity from those they investigate, this does not mean that it is reasonably foreseeable that undertaking the work would cause a recognisable psychiatric injury. Even if the risk was foreseeable, how a reasonable person confronted with the risk of injury would respond to the foresight of the risk of injury is unclear: see Hegarty per Keane JA at [49], [51] and [52]. While stress in the face of animosity is not unusual, it is unclear how the stress that an investigator would encounter as the result of an ongoing investigation could be specifically improved, distinct from any other type of stress that would be encountered by those under investigation or police officers generally. Moreover, it is questionable that stress is a recognisable psychiatric injury. Rather, it is a normal human reaction to a variety of situations, such that, by reason of s 32 of the Civil Liability Act, no duty can arise on this foreseen risk.

12. [101]

    In addition to the duty of care being inconsistent with statutory obligations and impermissibly retrospective, the defendant submitted that it is also pleaded as being particular to the plaintiff.

13. [102]

    According to the defendant, the plaintiff does not complain that the specialised work of an investigator was so inherently stressful that she should not have been obliged to undertake that work under certain circumstances, or indeed, any circumstances. Rather, her complaint is isolated to the particular circumstances of the investigation of the Detective Senior Constable. Her allegations as to foreseeability, which are not at all discernible on the pleading, could only be limited to a specific individual. The plaintiff was a police internal affairs investigator from 1993 to 2003. However, nowhere in her pleading had the defendant been able to identify a general pattern of conduct, other than the isolated case of the Detective Senior Constable’s investigation. It was this investigation that the plaintiff has pleaded ought to have given rise to the foreseeability of this risk of harm she alleges she encountered. This is said without reference to any of the interwoven considerations concerning the performance of police work.

14. [103]

    The defendant says that in order to identify a duty owed by the Police Commissioner to the class of persons to which the plaintiff belonged, it was necessary for the plaintiff to allege that it was reasonably foreseeable that police internal affairs investigators, being persons of normal fortitude and without another injury, might in the course of conducting investigations of inferior police officers find these subjects exhibiting aggressive behaviour of such severity as to cause a recognised psychiatric illness. However, the plaintiff has not done so and, in any event, the plaintiff’s case is limited to her interaction with the Detective Senior Constable. It concerns no other investigation subject.

15. [104]

    In addition to the issues arising in respect of foreseeability, the plaintiff does not identify what reasonable care the Police Force ought to have taken having foreseen that such behaviour might be encountered. The defendant submitted that the reason for this is because the plaintiff is simply unable to do so. The incident is an isolated one that is unique to the Detective Senior Constable. It is not a peculiar aspect of internal affairs investigations. It is also apparent from the plaintiff’s complaint made to her superior officers on 16 June 2003 that a precautionary measure was undertaken. Specifically, where the subject of an investigation exhibits a poor reaction to being investigated, they are referred to be psychologically assessed.

16. [105]

    The High Court in Sullivan stated at [42], “[a] defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care”. This has to be balanced against the observation of McHugh J in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [81] (“Ryan”) that “[o]rdinarily, the common law does not impose a duty of care on a person to protect another from the risk of harm unless that person has created the risk”. The defendant also referred to Ryan in order to assert that the plaintiff’s complaint is related to the deployment of resources to conduct investigations, the allocation of which are essentially political.

17. [106]

    In addition to the alleged deficiencies in the duty of care, the defendant submitted that the pleading of breach suffers from a number of deficiencies. As a general rule, a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable: s 5B(1)(a) of the Civil Liability Act.

18. [107]

    Firstly, the plaintiff has failed to establish that the precautionary measures which ought to have been taken must operate to extend to all police officers tasked with the same investigative work undertaken by the plaintiff. Rather, the particulars (a) to (e) as pleaded fail on this basis as they are peculiar to the plaintiff and the one officer.

19. [108]

    Secondly, s 139(2) of the Police Act gives the Police Commissioner power to decide that a complaint does not need to be investigated. The decision in such matters is for the Police Commissioner and his delegates. This represents a fundamental difficulty for the plaintiff’s allegation of breach that the Police Commissioner failed to appropriately discipline the Detective Senior Constable.

20. [109]

    Thirdly, the asserted allegations do not offend the necessary elements of control and vulnerability of any duty imposed. The plaintiff’s complaint does not involve the victimisation of a subordinate officer by a superior where different considerations apply. As Spigelman CJ explained in Hunter Area Health Service v Presland (2005) 63 NSWLR 22; [2005] NSWCA 33 at [19], the concept of vulnerability in this context is a reference to the inability of a particular person to protect himself or herself from the consequences of the conduct alleged to be negligent. The plaintiff was a detective sergeant and was the senior officer making a complaint against an officer of lower rank about his conduct. In the hierarchy of the chain of command, she herself possessed the essential control over her alleged perpetrator and lacked the vulnerability that the law would otherwise require to impose the duty of care alleged or its breach. The defendant referred to State of New South Wales v Rogerson [2007] NSWCA 346 at [34]-[35], where Handley AJA (with McColl JA and Hoeben J agreeing) stated that the Police Commissioner owed no duty of care to prevent a subordinate officer making the remarks he did to his superior. Nor did it have a duty to investigate the plaintiff’s complaint about those remarks. His Honour referred at [35] to Sullivan, where the Court said at 581 that a police investigation into criminal conduct:

21. [110]

    Fourthly, there is no articulation of how the assessment or monitoring, which the plaintiff alleges was omitted, was to be effectively carried out. The plaintiff does not allege that she sufficiently displayed signs of psychiatric vulnerability such that the Police Commissioner should have taken the necessary precaution of referring her to psychological assessment when she first made the complaint. Bearing in mind the matters discussed by Keane JA in Hegarty, it is also questionable whether the plaintiff could be directed to attend medical professionals. In any event, within 11 days of making the complaint, she was placed on hurt on duty leave for the personal injury in respect of which she has brought her current action. Even putting aside breach, no causation could possibly be made out on these facts.

22. [111]

    Accordingly, the defendant submitted that the plaintiff’s proceedings should be summarily dismissed.

The plaintiff’s submissions

1. [112]

   The plaintiff says that there are causal acts of negligence which led her to suffering psychiatric injury. She alleges that the defendant owes a non-delegable duty as an employer to prevent harm to persons in its employ or more accurately its service, including psychiatric harm. While it is accepted by the plaintiff that the relationship is not, strictly speaking, one of employer and employee, the plaintiff asserts that a similar duty of care applies. The plaintiff submitted that the working environment which required her to investigate the Detective Senior Constable directly led to the risk of harm occurring.

2. [113]

   Senior counsel for the plaintiff, in oral submissions, submitted that a factual analysis of the circumstances of the case informs the scope and duty of care, which is then followed by an application of the law. According to the plaintiff, this is not a case in which the claim ought to be dismissed on the basis that it is patently unarguable. (T22.16). The duty in the present case is not solely determined by foreseeability of harm. Rather, there are common law obligations on a person who is employed by, or who serves with, a defendant who has control over the type of work and the giving of directions to identify and manage risk in addition to maintaining security.

3. [114]

   The plaintiff submitted that if there is an issue of inconsistent obligations, then there needs to be an assessment as to whether these are truly inconsistent, and the nature and extent of those inconsistencies. These issues need to be based on an assessment of competing statutory obligations and regimes, and the evidence in the individual case. Further, evidence of the allocation of the resources or competing demands upon them need to be demonstrated by evidence. Any positive case that there are constraints regarding resources is a matter for evidence and the circumstances of the case. One cannot compare a case where the DPP or police did not request urgent drug analysis, and so permit a prisoner to languish in gaol to the failure of the defendant to assess and manage risks in the workplace. One cannot have regard only to what the plaintiff has stated in her evidentiary statements as the defendant has done.

4. [115]

   The plaintiff submitted that the dispute in Cran was wholly different to the present case. The facts in the present case demonstrate that the risk was posed by the circumstances of service, and it has none of the complexity of prosecutorial duties and immunities. There may be policy considerations that apply to the prosecutorial administration by the DPP and the police, but no such equivalent policy considerations apply to the conditions of service or employment. The policy considerations in the service or “employment” cases are well established.

5. [116]

   The plaintiff also submitted that the defendant’s arguments do not establish a basis for striking out the statement of claim.

Conclusion

1. [117]

   The defendant’s submissions seek to establish that the plaintiff’s case does not disclose a reasonable cause of action and these proceedings should therefore be summarily dismissed. It has sought to do so on the basis that there is neither a duty of care, nor a breach of that duty. All of the authorities cited by the defendant involve a contested hearing. While some involve the situation where the plaintiff suffered psychiatric and psychological injuries, none of them were decided summarily. It is trite to say that each case depends upon its facts and circumstances. However, it is not controversial that the defendant owes the plaintiff a duty of care to ensure her workplace health and safety. Exceptional caution must also be exercised in making an order for summary dismissal: see Spencer at [55] and Perera at [30].

2. [118]

   In 2000, the police officer in these current proceedings was tasked to investigate a complaint or misconduct against another, more junior police officer. The Police Commissioner had the specific statutory powers (that he can delegate) to investigate police misconduct or a complaint in relation to the police officer pursuant to Part 8A, Divisions 4 and 5, ss 136, 139 and 140 of the Police Act. Unlike Briggs, the factual circumstances differ. This investigation took place over a number of years. It did not involve an immediate judgment call. However, as McCallum J stated in Patronis, ordinary principles of tortious liability apply to police except in the case of incompatibility with the performance of a professional or statutory duty. The practical effect of that principle may well be that no duty of care will be recognised in the vast majority of cases. However, as her Honour says, it is wrong to speak of a principle that no duty is owed by a police officer in the execution of ordinary tasks of duty.

3. [119]

   In my view, it is at least arguable that the defendant owed the plaintiff a duty of care which is not incompatible with the performance of a statutory duty while investigating the misconduct of another police officer. The plaintiff complained to officers of the defendant about the conduct of the Detective Senior Constable from 2000 onward. The complaint was dismissed in 2003. The plaintiff suffered psychological damage during and after the period the investigation had been completed. If there is an inconsistency with the statutory investigative function, the court should be given an opportunity to assess the nature and extent of these inconsistencies in a hearing. While the defendant also argues that the duty of care alleged is a personal one, it can be argued that it applies to internal investigating police officers more generally.

4. [120]

   It is my view that to determine whether the risk of injury was foreseeable and not one made in retrospect, the facts and circumstances need to be elucidated at trial. It is also my view that the plaintiff’s case is arguable. It can be distinguished from the kinds of cases that do not involve an issue of fact to be illuminated at a trial: see Perera per Leeming JA at [38]. Nor do I consider that declining to order a summary dismissal would contravene this court’s duty to facilitate the just, quick and cheap resolution of proceedings per s 56 of the Civil Procedure Act. Therefore, caution should be exercised in denying a litigant a trial on its merits. As I have said, it is my view that the plaintiff has an arguable cause. In the exercise of my discretion, I decline to summarily dismiss the proceedings.

5. [121]

   The last issue to be determined is whether the plaintiff’s cause of action is statute barred.

Whether the plaintiff’s cause of action is statute barred

1. [122]

   In oral submissions, counsel for the defendant submitted that the plaintiff’s cause of action is statute barred and should be dismissed before the substantive hearing. The defendant asserted that on 21 August 2003, when the plaintiff made her claim for hurt on duty, the time under the limitation period started running. Therefore, the plaintiff’s action became statute barred three years after 21 August 2003, being 21 August 2006. The notice of motion seeking an extension of the limitation period was not filed until 23 December 2015, being 12 years out of time.

2. [123]

   It is not in dispute that the law providing for the limitation of action is substantive: John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; [2000] HCA 36 at [161]. The onus of satisfying the Court that the discretion to extend time to commence proceedings lies with the plaintiff: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 at 544, 553-554; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 at 164-165 [99], 167 [105].

3. [124]

   Section 50C of the Limitation Act 1969 (NSW) relevantly reads:

4. [125]

   The defendant accepts that generally limitation issues should not be determined on an application for summary dismissal and referred to Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55 at 532; Magman International Ltd v Westpac Banking Corporation Ltd [1991] FCA 41; (1991) 32 FCR 1; Kingsley Corporation Ltd v ANZ Banking Group (No 2) (NSWSC, 15 October 1997, unreported); McDonald v Grech [2012] NSWSC 717 at [36]. However, it is submitted that where there is no uncertainty as to the timing of the alleged loss (here September 2005 when the plaintiff was medically discharged). Where a defendant relies upon a limitation defence that has expired, the court may conclude that a statement of claim does not disclose a reasonable cause of action and should be summarily dismissed: Hillebrand v Penrith Council [2000] NSWSC 1058 at [27].

5. [126]

   While the defendant referred to a number of cases where the limitation period has been dealt with separately and before the substantive hearing, they are not ones where the plaintiff was under a disability. The plaintiff seeks a declaration that the limitation period be suspended pursuant to s 52 of the Limitation Act from 2004 to 2012, on the basis that she was under a disability.

6. [127]

   Section 52 of the Limitation Act reads:

7. [128]

   Section 11(3) of the Act defines “person under a disability” as follows:

8. [129]

   The effect of these sections is to suspend the limitation period during the period of disability.

9. [130]

   In Kotulski v Attard [1981] 1 NSWLR 115 (“Kotulski”), Slattery J stated at [117] and [118]:

10. [131]

    The Court of Appeal has approved the principle stated by Slattery J in Kotulski in a number of cases: see State of New South Wales v Bennie [2005] NSWCA 172; New South Wales v Harlum [2007] NSWCA 120; Saunders v Jackson [2009] NSWCA 192; Olive v Johnstone [2006] NSWCA 21 at [61]; and Guthrie v Spence [2009] NSWCA 369 at [144].

11. [132]

    The plaintiff relied on the report of Dr Selwyn Smith dated 14 June 2017. Dr Smith has been the plaintiff’s treating psychiatrist since 2013. He expressed the following opinion:

12. [133]

    On 23 December 2015, the plaintiff filed a notice of motion seeking orders pursuant to either ss 50C, 60C and 60G of the Limitation Act and sought an order that the extension of time to commence proceedings be extended to eight weeks after the making of the order and that the summons and the substantive matter be heard together. The defendant pointed out that the plaintiff had not moved on that motion prior to this hearing, despite its invitation that she do so.

13. [134]

    The plaintiff also seeks that the notice of motion be heard together with the substantive matter for the reasons explained by Dr Selwyn Smith in his report that the plaintiff should not be put through preliminary hearing as to whether the limitation period should be extended. Dr Smith opined:

14. [135]

    Counsel for the defendant drew my attention to the plaintiff’s affidavit and various documents to support the contention that the plaintiff’s claim is statute barred based upon the plaintiff’s knowledge at certain times.

15. [136]

    The plaintiff in her affidavit dated 28 November 2016, stated:

16. [137]

    However, for the purposes of this application, I accept that the plaintiff in her affidavit dated 28 November 2016 deposed at [62]:

17. [138]

    Here the plaintiff deposed that it was not until about 23 July 2015, when she read the report of Dr Wright that she understood for the first time that she should have been treated earlier and if this had occurred she would have recovered and remained a police officer until her normal retirement age. The notice of motion seeking an extension of the limitation period was filed on 23 December 2015, five months after the plaintiff became aware of the connection between the personal injury and the defendant’s omissions: see s 60I of the Limitation Act.

18. [139]

    The plaintiff’s application for an extension of time is arguable. She has been under a period of disability and the medical evidence of Dr Smith is that it would be most detrimental to her psychiatric injury to give evidence and be examined on two occasions about the events. Dr Smith is of the opinion that it would be less distressing and harmful to her if she was only to give evidence and be cross examined on one occasion. In these circumstances, it is my view that the plaintiff’s application to extend the limitation period should be determined at the same time as the substantive matter. The defendant’s application to have the plaintiff’s claim dismissed prior to a substantive hearing fails.

Disposition

1. [140]

   The result is that the defendant’s application for summary judgment of these proceedings fails. I make an order in accordance with paragraph 3 of the plaintiff’s amended notice of motion filed 3 May 2018, namely that the summons and substantive matter be heard together. The defendant’s amended notice of motion filed 10 July 2017 is dismissed.

2. [141]

   Costs are discretionary. Costs usually follow the event. The defendant is to pay the plaintiff’s costs of both motions on an ordinary basis.