Duty of care owed – Psychological harm – Police Royal Commission (NSW)

Reeves v State of New South Wales [2010] NSWSC 611



  CATCHWORDS : TORTS – negligence – duty of care – police officers – reasonable foreseeability of risk of psychiatric injury – failure to monitor psychological condition after a long career – plaintiff placed in stressful situations – assigning plaintiff a welfare role and duties at the Fraud Enforcement Agency for which he was not trained – failure to provide support in relation to welfare assistance provided to other officers during the Police Royal Commission – role and duties in a Police Service investigation of a Royal Commission witness resulted in adverse attention by Royal Commission and plaintiff’s integrity being called into question – failure to support plaintiff after being adversely named in the Royal Commission – failure to ensure no exposure to harassment as a result – failure to ensure relevant and sufficient information provided to the Police Board – failure to provide debriefing or counselling after plaintiff was threatened by a gun and twice stabbed with a syringe in May 1998, or during the ensuing months of testing – failure to provide support once aware of plaintiff’s psychological condition – failure to provide rehabilitation to allow plaintiff to remain employed in the Police Service – contributory negligence – whether plaintiff failed to take sufficient care for his own mental, emotional and/or behavioural welfare – whether plaintiff failed to monitor his own mental, emotional and/or behavioural status – whether plaintiff failed to seek timely and proper help from the defendant, or any other competent medical practitioner, for any mental, emotional and/or behavioural problems that he may have been experiencing – whether plaintiff failed to take proper and timely advantage of the services of the defendant’s chaplaincy, peer support officers, welfare branch and/or psychology unit that were available to him – whether plaintiff failed to seek counselling in a timely matter – whether plaintiff failed to take all reasonable steps to prevent suffering psychological and/or psychiatric injury – contributory negligence not found – DAMAGES – measure and remoteness of damages in actions for tort – personal injuries – method of assessment – economic loss – loss of earnings and earning capacity – psychological injury is now entrenched – plaintiff’s working life brought to an end – general damages awarded – damage awarded for past and future economic and other losses, calculated to retirement at age 65 – POLICE – internal administration – whether Police Service Rehabilitation policy applied – workers compensation – section 11A of the Workers Compensation Act 1987 – contributor to Police Service Superannuation Fund – Police Regulation (Superannuation) Act 1906 – policy applied – POLICE – tribunals and other authorities – Police Royal Commission – PROCEDURE – leave sought to further amend pleadings – no prejudice – leave granted – DEFAMATION – Intersection between the claimed duty and the law of defamation – no intersection between duty to provide accurate information about how plaintiff came to attention of Royal Commission and law of defamation

Schmidt J

In unusual or novel circumstances psychological harm was suffered by the plaintiff. The question was whether a duty of care was owed. This was answered in affirmative. The novel circumstances were in particular (paragraph 18 summary):

– the duties which he performed at the FEA

– the duties which he performed in the investigation of Mr Haken’s evidence, which had the result that Mr Reeves was brought to the adverse attention of the Royal Commission and his integrity was called into question

– his treatment by other police officers after he came to the adverse attention of the Royal Commission and his integrity was called into question

– the information it provided to the Police Board when Mr Reeves sought promotion to the position of Commander of the LEA when it sought advice as to how Mr Reeves had come to the attention of the Royal Commission.

– the representation which was invited of him, after his promotion was refused

– the support which Police Service policies envisaged Mr Reeves would be provided, but which were withheld from him
– the incidents in which he was involved in 1998

Schmidt J found in the plaintiff’s favour (summary):

19 I have concluded that it was reasonably foreseeable that a breach of these duties would put Mr Reeves at risk of psychological injury and that the steps which the Police Service took to deal with these risks were not reasonable in the circumstances, apart from the steps taken by the Police Service in the aftermath of the two incidents in which Mr Reeves was involved in 1998. I have also concluded that there was no contributory negligence.

Schmidt J’s determination of this duty is worth reading. It will be interesting to see if this matter is appealed.

Brisbane Barrister – David Cormack

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