New South Wales v Fahy [2007] HCA 20

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ

STATE OF NEW SOUTH WALES APPELLANT

AND

GEMMA FAHY RESPONDENT

New South Wales v Fahy [2007] HCA 20

22 May 2007

S341/2006

ORDER

1. Appeal allowed. 2. Set aside orders 2 and 3 of the Court of Appeal of the Supreme Court of New South Wales made on 4 April 2006 and in their place order that the order of the District Court of New South Wales made on 28 February 2005 that there be a verdict for the plaintiff be set aside, and in its place order that there be judgment for the defendant. 3. The appellant pay the costs of the respondent of the appeal in this Court.

On appeal from the Supreme Court of New South Wales

Representation

P Menzies QC with P R Sternberg and B McDonald for the appellant (instructed by Crown Solicitor for New South Wales)

I M Barker QC with S Norton SC and E E J Welsh for the respondent (instructed by L J Sharpe & Co)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

New South Wales v Fahy

Negligence – Relationship between the Police Service Act 1990 (NSW) and the nature and extent of the duty of care owed by the "Crown" or Commissioner of Police to the respondent police officer.

Negligence – Respondent police officer assisted a stabbing victim without support from nearby police officers – As a result the respondent suffered post-traumatic stress disorder – Whether the "Crown" or Commissioner of Police breached duty of care owed to the respondent by failing to establish a system of work whereby, when possible, the respondent was supported by another police officer – Whether failure of nearby police officers to provide support to respondent was a breach of duty.

Negligence – Breach of duty – Foreseeability of risk of injury – Whether Wyong Shire Council v Shirt (1980) 146 CLR 40 should be overruled.