Gould v State of NSW [2006] NSWSC 858

New South Wales Supreme Court

CITATION : Gould v State of NSW [2006] NSWSC 858

HEARING DATE(S) : 16 August 2006

JUDGMENT DATE : 24 August 2006

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Harrison

DECISION : (1) Paragraph [20A] of the amended statement of claim should be struck out; (2) The plaintiff is to forward a draft second amended statement of claim to the defendant by 14 September 2006; (3) The amended notice of motion dated 16 August 2006 is stood over to the Registrar's list on 28 September 2006 at 9.00am; (4) Costs are reserved.

CATCHWORDS : Strike out paragrapah of the statement of claim - forseeability of psychiatric harm

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW) - Rule 14.20

Glarvey v State of New South Wales [2006] NSWSC 816 Gould v NSW [2005] NSWSC 1121 CASES CITED : Koehler v Cerebos (Australia) Limited [2005] 214 ALR 355 Priest v State of New South Wales [2006] NSWSC 12 State of New South Wales v Heins [2005] NSWCA 258

PARTIES : Pewter William Gould - Plaintiff State of New South Wales - Defendant

FILE NUMBER(S) : SC 20334/2000

COUNSEL : Ms K Nomchong - Plaintiff Mr G Laughton SC with Mr N Newton - Defendant

SOLICITORS : Marsdens - Plaintiff Crown Solicitors Office - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

THURSDAY, 24 AUGUST 2006

20334/2000 - PETER WILLIAM GOULD v STATE OF NEW SOUTH WALES

JUDGMENT (Strike out paragraph of the statement of claim – forseeability of psychiatric harm) 1 HER HONOUR: The defendant has filed an amended notice of motion dated 16 August 2006 to strike out parts of the plaintiff's amended statement of claim. In an effort to avoid a long and tedious hearing involving most of the paragraphs in the amended statement of claim, after further negotiations between the parties, the plaintiff's Counsel agreed to redraft the amended statement of claim (ASC) as a second amended statement of claim and forward a copy to the defendant for its consideration. The course adopted by the parties is to be commended. The amended notice of motion dated 16 August 2006 is stood over to the Registrar's list at 9.00am on 16 October 2006. While the notices of motion in Reeves and Gould were heard together and the same issues overlap there are some differences so I have written separate judgments. 2 One issue was argued and it is to this issue that this judgment is directed. It is whether the pleading of [20A] of the ASC should be struck out. Paragraph [20A] of the amended statement of claim pleads: "By reason of the stressful and traumatic events occurring in the course of his duty, the Defendant knew or ought to have known that the Plaintiff was vulnerable to a risk of psychiatric injury by further stressors in the course of his employment with the Defendant." 3 Before I turn to the submissions of the parties I must say, I find this a difficult issue to resolve and do justice between the parties. By the very nature of their job, Police Officers will be and have been subject to a number of traumatic events and stressful situations throughout their years of Police service. Sometimes Police Officers suffer serious psychiatric injuries as a result. In order to establish the reasonable foreseeability of psychiatric injury, the Police Officer must plead that their employer became aware or ought to have become aware of the risk of psychiatric injury to him or her. 4 In Koehler v Cerebos (Australia) Limited [2005] 214 ALR 355 at [33] to [35] the High Court in a joint judgment on the topic of foreseeability of a psychiatric injury stated: "[33] In Tame v New South Wales; Annetts v Australian Stations Pty Ltd, the court held that "normal fortitude" was not a precondition to liability for negligently inflicting psychiatric injury. That concept is not now to be reintroduced into the field of liability as between employer and employee. The central inquiry remains whether, in all the circumstances, the risk of a plaintiff (in this case the appellant) sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.