Australia: "Nervous Shock - Employer´s Liability - Foreseeability Test" : New South Wales -v- Fahy - High Court Of Australia [2007] HCA20

Last Updated: 26 June 2007
Article by Andrew Adam

Publish Date: May 22, 2007

New South Wales -v- Fahy

[2007] HCA 20

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ

In Brief

  • The High Court has narrowly allowed an employer’s appeal from a unanimous NSW Court of Appeal decision on breach of duty giving rise to psychiatric injury.
  • The majority affirmed the need for preventative measures to be capable of clear description and not to conflict with overriding duties of defendants.
  • The Court declined to re-open the foreseeability test enunciated in Wyong Shire Council v Shirt (1980) 146 CLR 40, although it may have left the door open for a challenge in the future.


  • The plaintiff was a constable in the Police Service of NSW. For the purposes of this litigation, the State was taken to be her employer and to have been vicariously liable for the actions of the plaintiff’s fellow officers.
  • In 1999 the plaintiff and her superior, Senior Constable Evans, attended the scene of a hold-up at a video store. On arriving, they learned that the video store attendant had been injured and was at a nearby medical centre.
  • On arriving at the medical centre, the officers were directed to the room where the victim was being attended to. The plaintiff went into the room but Evans did not. The victim had stab wounds to his chest and left side and was bleeding profusely. While the medical practitioner attended to the chest wound, the plaintiff attempted to stop the bleeding from the wound to the side. The victim feared for his life and gave the plaintiff messages to convey to his wife and children. While the plaintiff was attempting to stem the bleeding of the wound and comfort the victim, she called on her radio, following up the ambulance and relaying to her colleagues descriptions of the offenders.
  • Other officers arrived at the medical centre, but none joined the plaintiff. One senior officer, Inspector Whitten, took one look into the treatment room and turned and walked away. Once the victim was conveyed to the ambulance, Whitten told the plaintiff to put her hat back on as the media was there. On leaving the treatment room, the plaintiff saw a number of fellow officers, apparently doing nothing.
  • Following the incident, while the plaintiff was conveying the victim’s family to hospital, Whitten curtly told the plaintiff to stand down as he was unprepared to authorise any overtime for her simply to remain at the crime scene.
  • The Police Service had an informal practice of assigning officers duties in pairs (the "buddy system"). While the practice was informal, it was taught in police training and was generally followed. While there might be a division of labour between two attending officers during an emergency situation, typically each officer looked out for the other. The practice called on officers to be present in traumatic situations to provide support. Necessarily, the practice was not followed when officers attended to different aspects of a situation.
  • The NSW Ombudsman had, prior to this incident, identified the risk of psychiatric injury posed to police officers by traumatic situations.
  • Following the incident, the Police Service provided to the plaintiff (what was found to be) inadequate follow up to attempt to prevent her developing PTSD.
  • The plaintiff developed post traumatic stress disorder, which psychiatric evidence attributed to the plaintiff's feelings of abandonment.

Decision at Trial

  • The plaintiff sued the State in the District Court of NSW.
  • The trial judge found that there was no operational or other sufficient reason for Evans to have left the plaintiff alone in the treatment room with the victim and the medical practitioner.
  • The trial judge found that the plaintiff was left without support, both during and after a very traumatic incident. In the circumstances, the plaintiff's development of PTSD was clearly foreseeable.
  • The trial judge found that, since there was no reason why any of the other officers could not attend the treating room with the plaintiff, they were negligent in not being there to provide support.
  • Additionally, the trial judge found that the service, while it had a counselling service in place, failed to make this known to the plaintiff. Consequently, she did not access this service. This failure to provide post trauma counselling to the plaintiff was negligent.
  • The trial judge rejected the State’s submission that the plaintiff had not mitigated her loss by seeking appropriate treatment after her PTSD was diagnosed.

Intermediate Appeal

  • The State appealed to the NSW Court of Appeal, constituted by Spigelman CJ, Basten JA and Campbell AJA.
  • Spigelman CJ and Basten JA (Campbell AJA agreeing) found that, although operational reasons and other conflicting duties might prevent an officer's partner supporting her, Evans' failure to support the plaintiff constituted a breach of duty.
  • Spigelman CJ (Campbell AJA agreeing) found that the plaintiff's PTSD arose principally from her treatment of the victim. Once the plaintiff had established this, it was incumbent on the State to establish that she would have suffered PTSD notwithstanding Evans' failure.
  • Basten JA acknowledged that the plaintiff would likely have sustained PTSD notwithstanding Evans' failure. However, her condition would not have been as severe without that failure. It was then incumbent on the State to "unscramble the egg" and show that the plaintiff's condition arose not from Evans' failure but from the trauma of the incident itself. The State did not discharge this onus.
  • The Court of Appeal unanimously reversed the trial judge's finding that the plaintiff had not failed to mitigate her condition by treatment. The Court of Appeal would therefore have remitted the matter back to the District Court to determine the appropriate discount for the plaintiff's failure to mitigate.

Decision in High Court

  • The State appealed to the High Court, arguing that breach of duty of care had not been made out. Additionally, it sought to re-open Shirt insofar as it dealt with foreseeability of harm.
  • The Court found in favour of the State by a 4:3 majority. Gummow, Hayne, Callinan and Heydon JJ found for the State. Gleeson CJ, Kirby and Crennan JJ would have dismissed the State's appeal.

The majority judgments

  • Gummow and Hayne JJ found for the State and joined in allowing the appeal. They considered that it would be unreasonable to impose on police officers a duty to provide support to their partners, for the reasons that:
  • The requirement, as expressed, would require officers working alone to have this support.
  • There will often be situations where, for operational reasons, the two officers need to separate. Indeed, the more traumatic the incident, the more likely that the officers will have different calls on their attention.
  • It was too difficult to give content to "providing psychological support". Some individuals are best supported by the presence of another. Others are better assisted by colleagues maintaining their distance and allowing them to recover their composure. Support may be better expressed by silence than intrusive enquiry as to one's wellbeing.
  • Additionally, Gummow and Hayne JJ found that a requirement that officers remain together would be trumped by the obligations of officers under the Police Service Act 1990. This fell into the class of "conflicting duties", identified in the Shirt calculus.
  • Callinan and Heydon JJ joined in allowing the appeal. They noted the plaintiff had dealt with other stressful incidents without requiring assistance. They questioned whether an accompanying officer would assist in all circumstances. What if the officers did not get on? Additionally, they recognised that police resources are limited and it may not be appropriate to insist on officers being partnered at all times.
  • Finally, Callinan and Heydon JJ held that, given that the police service provided training to reduce and relieve stress and the inevitability of traumatic situations in police work, this negated the requirement for the plaintiff to be buddied.

The minority judgments

  • Gleeson CJ accepted that it would be inappropriate for the courts to require police officers always to have a second officer supporting them when exposed to trauma as there would no doubt be other calls on the second officer's attention. However, there was no such other call on Evans' attention in this matter. His failure to support the plaintiff clearly entailed the foreseeable consequence of psychiatric injury. Evans, and the State vicariously, were negligent in the causation of the plaintiff's condition. He would have dismissed the appeal.
  • Kirby J would have dismissed the appeal. He noted the Ombudsman's report on Officers Under Stress and the identified need for managers within the service to identify and respond to the needs of officers suffering psychological stress. Additionally, he noted the expert evidence at trial that at the time of the incident it was well known within police services that inappropriate police management had negative outcomes on officers' PTSD. He noted the then existing assistance for managing PTSD had not been implemented in the plaintiff's case.
  • He disagreed with Gummow and Hayne JJ that the buddy system was inconsistent with the execution of officers' duties. He noted that the buddy system was not absolute or inflexible. Therefore, it could easily give way to operational requirements that necessitated officers working alone. However, that did not detract from its applicability when there was no competing call on an officer's buddy's attention.
  • He would have found the State negligent, both vicariously for Evans's desertion of the plaintiff and also its direct liability for failing to bring into action its existing counselling programme.
  • Crennan J would have dismissed the appeal. The service had set up the buddy system as a reasonable, obvious and practical measure by which the known risks of traumatic situations could be minimised. She disagreed that the buddy system imposed any unduly onerous burden on the police service or that it would be inconsistent with the effective discharge of officers' statutory duties.

Wyong Shire Council v Shirt

  • The State sought to reopen Wyong Shire Council v Shirt (1980) 146 CLR 40, in as far as it identified the threshold foreseeability of a risk to which a defendant must have regard. Shirt required a defendant to have regard to risks that were not far fetched or fanciful. This part of the decision in Shirt has been subject to a significant criticism outside courts, and some criticism by judges.
  • Gleeson CJ and Crennan J did not directly address this issue.
  • Kirby, Gummow and Hayne JJ would not have re-opened Shirt on the bases that:
  • The decision in Shirt has been a settled part of Australian law for over 25 years.
  • Most of the criticism of the decision was really criticism of misapplication of the decision by trial judges.
  • The Civil Liability Acts of the various States and Territories had generally codified in a modified form, the Shirt test: for example subs 5B(1) of the Civil Liability Act 2002 (NSW). (But see Drinkwater v Howarth [2006] NSWCA 222, in which the Court of Appeal stated that subs 5B(1) might be equivalent to the Shirt test.)
  • As it was unnecessary to their decision, Callinan and Heydon JJ did not re-open Shirt. If they were to consider the issue, they would have replaced it with the test in Caterson v Commissioner for Railways (1973) 128 CLR 99, that the materialisation of a risk is foreseeable only if it is "not unlikely to occur".


  • The High Court has reiterated that steps a defendant ought to have taken to reduce a risk must be capable of clear expression and not inconsistent with the defendant’s other duties.
  • The Court has declined an invitation to refashion the test of foreseeability in Shirt, although two of the five judges who directly addressed this issue would have. There may be some prospect in the future of the High Court reconsidering this issue. However, given the statutory codifications of a test of foreseeability in the Civil Liability Acts, the general importance of such a question (relevant to the High Court’s grant of special leave to appeal) will fall away over time.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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