Paul v State of New South Wales [2023] NSWDC 277

District Court New South Wales

Medium Neutral Citation: Paul v State of New South Wales [2023] NSWDC 277 Hearing dates: 29 May - 2 June, 7 June - 9 June 2023 Date of orders: 31 July 2023 Decision date: 31 July 2023 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Judgment for the Plaintiff for $1,828,862, with liberty to apply in relation to any application for interest. (2) Defendant to pay Plaintiff's costs, with liberty to apply. (3) Exhibits retained until further order. Catchwords: NEGLIGENCE — Duty of care — Police service —non-delegable duty to members of NSW Police Force in the nature of an employer's duty in common law – Duty to provide safe system of work for members of the NSW Police Force – Plaintiff appointed as Team Leader (of five other officers) for an inquiry forming part of The Royal Commission into Institutional Responses to Child Sex Abuse – Inquiry initially to consist of a handful of victims but rapidly escalated to over 70 victims of 11 alleged perpetrators - Plaintiff's wife, a sex crimes police officer participating in the Defendant's "WellCheck" program, and who had observed her husband's rapidly changing behaviour, suggests the Plaintiff seek to join WellCheck – Plaintiff puts a proposal to his superior that he and his team of five officers join the WellCheck program – proposal endorsed by his supervisors – WellCheck program not put in place but Plaintiff is not informed of this – ad hoc counselling on three or four occasions is provided for first two years of Commission work but then ceases – Plaintiff's other attempts to deal with work load and stress – whether the Plaintiff informed his superior officers at any stage that he was fine or otherwise would not or did not comply with counselling – superior officers did not refer the plaintiff for continuing or additional psychiatric or psychological assessment – whether Plaintiff should have consulted the chaplain and/or peer support officers and/or the police counselling service for further assistance for himself and/or his team – Royal Commission report and trials completed in 2019 and Plaintiff ceases work as a police officer for health reasons – when and in what circumstances the Plaintiff developed post-traumatic stress disorder (PTSD). BREACH OF DUTY – s 5B of the Civil Liability Act 2002 (NSW) – Whether the superior officers knew or ought to have known of the risk of the Plaintiff suffering psychiatric injury in circumstances where he had sought counselling through WellCheck for the duration of the Royal Commission and this had not been provided – Whether in the circumstances the superior officers acted in a manner less than was reasonable in failing to refer the Plaintiff for appropriate psychiatric or psychological assessment and/or counselling. NEGLIGENCE – Causation – s 5D of the Civil Liability Act 2002 (NSW) – Whether the Plaintiff would have developed PTSD but for the failure of his superior officers to refer him for psychiatric or psychological assessment – Whether the evidence establishes that earlier intervention in the treatment for PTSD in the Plaintiff would, on the balance of probabilities, have prevented his present injury. DAMAGES – Assessment of damages for personal injury – Plaintiff's residual capacity for employment – likely date for retirement - whether, considering the magnitude of the Royal Commission investigation and the subsequent prosecutions, the Plaintiff would have been likely to be promoted had he remained working. Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5D, 5R, 13, 26B, 26BA, 31 Civil Procedure Act 2005 (NSW), s 56 Crown Proceedings Act 1988 (NSW), s 5 Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190 Occupational Health and Safety Regulations 2001 (NSW) Uniform Civil Procedure Rules 2005 (NSW), Pt 14 r 14 Work Health and Safety Regulations 2011 (NSW) Workers Compensation Act 1987 (NSW), ss 37, 151D, 151E, 151F, 151G, 151H, 151IA, 151J, 151M Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 318 Cases Cited: Ali v Caton & Anor [2013] EWHC 1730 (QB) Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327 Benic v New South Wales [2010] NSWSC 1039 Bersee v State of Victoria [2022] VSCA 231 Bridge Printery Pty Ltd v Mestre [1999] NSWCA 342 Browne v Dunn (1894) 6 R 67 Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726 Digi-Tech (Australia) v Brand [2004] NSWCA 58 Doherty v State of New South Wales [2010] NSWSC 450 DP (a pseudonym) v Bird [2021] VSC 850 Galea v Bagtrans Pty Ltd [2010] NSWCA 350 George Mkari by his Next Friend Youssef Mkari v Daniel Meza [2005] NSWCA 136 Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323 Horne v J K Williams Contracting Pty Ltd [2023] NSWCA 58 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12 Kubovic v HMS Management Pty Ltd [2015] NSWCA 315 McKay v Palmers Removalist Storage Pty Ltd [2010] NSWCA 83 Michael v State of New South Wales [2011] NSWSC 231 New South Wales v Fahy (2007) 232 CLR 486 Paper Coaters Pty Ltd v Jessop [2009] NSWCA 1 Rader v Haines [2021] NSWDC 610 S v State of New South Wales [2009] NSWCA 164 Siegel v Pummell [2014] EWHC 4309 (QB) Sills v State of New South Wales [2018] NSWDC 119 Sills v State of New South Wales [2019] NSWCA 4 State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 State of New South Wales v Seedsman [2000] 217 ALR 583 State of NSW v Coffey [2002] NSWCA 361 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 Thorn v Monteleone; Thorn v Kelly [2021] NSWCA 319 Unver v Liftronic Pty Limited [1999] NSWCA 275 Valentine v R [2023] NSWCCA 43 Various Claimants v Barclays Bank plc [2020] AC 973; [2020] UKSC 13 Texts Cited: Nil Category: Principal judgment Parties: Timothy Paul (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Mr J Morris SC with Mr E O'Neill (Plaintiff) Mr D Baran (Defendant)