State of New South Wales v Fahy [2006] NSWCA 64

Reported Decision : 155 IR 54 (2006) Aust Torts Reports 81-865

New South Wales Court of Appeal

CITATION: State of New South Wales v Fahy [2006] NSWCA 64 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 December 2005

JUDGMENT DATE: 4 April 2006

JUDGMENT OF: Spigelman CJ at 1; Basten JA at 28; Campbell AJA at 154

DECISION: 1 Appeal allowed and Order 1 set aside; 2 Remit the matter to the District Court for determination of the allowance to be made for the Respondent's failure to mitigate; 3 Order the Appellant to pay three-quarters of the Respondent's costs of the appeal

CATCHWORDS: NEGLIGENCE – duty of care - duty of affirmative action between employees – failure to provide safe system of work – police officer leaving other police officer alone during traumatic event – posttraumatic stress disorder - breach of duty of care – past exposure to traumatic events does not prohibit finding of reasonable foreseeability - CAUSATION – tortious conduct a material contribution – whether multiple causes – whether loss divisible - whether injury would have occurred absent the tortious conduct - DAMAGES – assessment of damages for non-economic loss under s151G(2) of the Workers Compensation Act 1987 – refusal to use antidepressant medication prescribed by psychiatrist – failure to mitigate damages

Anti-Discrimination Act 1977 (NSW), s4B Crown Proceedings Act 1988 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW), s6, s8, s9B LEGISLATION CITED: Police Act 1990, s4, s41, s84 Police Legislation Amendment (Civil Liability) Act 2003 (NSW) Workers Compensation Act 1987, s151L, s151G Workers Compensation Legislation Further Amendment Act 2001 (NSW)