Wallace v State of New South Wales [2006] NSWCA 359

New South Wales Court of Appeal

CITATION: Wallace v State of New South Wales [2006] NSWCA 359

HEARING DATE(S): 07/12/06

JUDGMENT DATE: 7 December 2006

JUDGMENT OF: Handley JA at 24; Ipp JA at 2; Bryson JA at 27

EX TEMPORE JUDGMENT DATE: 12/07/2006

DECISION: Appeal dismissed with costs.

CATCHWORDS: NEGLIGENCE - police officer suffering post-traumatic stress disorder - duty of care - whether the State of New South Wales breached its duty of care - whether appropriate training was provided - causation. ND

PARTIES: Bernard Joseph Wallace (Appellant) State of New South Wales (Respondent)

FILE NUMBER(S): CA 40140/06

COUNSEL: K W Andrews/M Tanevski (Appellant) P Menzies QC/D Mallon (Respondent)

SOLICITORS: Ens Lawyers (Appellant) I V Knight, Crown Solicitor (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 13457/01

LOWER COURT JUDICIAL OFFICER: Truss DCJ

LOWER COURT DATE OF DECISION: 30/11/05

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40140 of 2006 DC 13457/01

HANDLEY JA IPP JA BRYSON JA

7 DECEMBER 2006 BERNARD JOSEPH WALLACE v STATE OF NEW SOUTH WALES Judgment 1 HANDLEY JA: I will ask Ipp JA to give the first judgment. 2 IPP JA: The issues on this appeal are whether the trial Judge, Truss DCJ, erred in finding that the respondent, the State of New South Wales, did not breach the duty of care it owed the appellant, Mr Wallace, and if it breached that duty, any such breach did not cause Mr Wallace any loss. 3 Mr Wallace was a serving police officer who graduated from the Goulburn Academy on 3 October 1987. He performed general police duties until January 1996 when he joined the Water Police. In April 1998, Mr Wallace was involved in a motor vehicle accident in which he was injured. After that accident, he was diagnosed as suffering from post-traumatic stress disorder ("PTSD"). He brought proceedings against the State on the grounds that the PTSD was caused by the negligence of the police service. The State admitted it owed Mr Wallace a duty of care but denied that it breached that duty. 4 The trial Judge described Mr Wallace's case as follows: "The plaintiff's case is that although the defendant had in place facilities to deal with adverse psychological reactions by police officers to stressful events, in his case it failed to use such facilities and this was causative of his injury." 5 The notice of appeal contains many grounds and the written submissions filed on behalf of Mr Wallace support these grounds and amplify them in considerable detail. In oral argument however, Mr Andrews, who together with Mr Tanevski appeared for Mr Wallace, made it plain that the argument, in essence, on appeal was that the State had breached its duty of care in failing to give Mr Wallace appropriate training in relation to the recognition of PTSD. He contended that the State should have conducted training programs for police officers such as Mr Wallace which would have educated them in the symptoms of PTSD and would have alerted them to the possibility of PTSD upon them experiencing these symptoms. 6 Her Honour made several findings contrary to the case presented by Mr Wallace at trial but, by reason of the way in which the appeal has been argued, it is necessary only to note that her Honour found that Mr Wallace had been given adequate training as a police officer and she rejected his contention to the contrary. 7 Her Honour, pointed out that Mr Wallace himself had failed to recognize what he alleged were the early symptoms of PTSD. His colleagues in the police force had also so failed. He had seen his general practitioner for several years but had not made a complaint of symptoms relating to PTSD until 1998, after the motor car accident. 8 Indeed, Mr Wallace's superior officer who had himself suffered from PTSD and who could be expected to recognize the symptoms himself didn't realise that Mr Wallace was suffering symptoms consistent with PTSD. 9 Mr Andrews referred to material in evidence which indicated that police officers particularly would be reluctant to reveal their physical condition consistent with PTSD to their colleagues or to others. The culture of the police was such that most police officers would rely on their own internal resources in an attempt to cope with their psychological problems. 10 The material on which Mr Andrews relied urged the police to adopt a system of training which would condition police officers more readily to reveal their condition by explaining to them the seriousness or the potential seriousness of what they were experiencing and what was involved. Mr Andrews pointed out that this was particularly important because it might well be, as occurred in this case, that the symptoms of PTSD were, at their inception, experienced first in the home environment and not at work. 11 Mr Andrews submitted that because of the State's failure to give Mr Wallace proper training over a number of years, Mr Wallace, by reason of being exposed to seriously traumatic events, gradually, often by reason of relatively less serious episodes, began to suffer from PTSD, this being unknown to him and to others. 12 In my opinion, however, despite Mr Andrews putting what I really do think is everything that could have been put on behalf of the appellant, I consider that the appeal should fail on the facts. This requires some explanation. 13 The first element in Mr Andrews' argument was that it was reasonable for the police to conduct training courses of the kind for which he contended. The material on which Mr Andrews relied was an internal police report known as the Alpha report and another report by someone who appears to have been a psychiatrist or a psychologist. This other report is known as the Westerink report. These reports did support, in general terms, the proposition that training of the kind for which Mr Andrews contended should be undertaken. 14 There are, however, in my opinion two basic difficulties in this Court accepting that it was reasonable for the police to undertake these courses. 15 Firstly, there was no evidence as to the nature and content of the courses, how long they would take and more importantly, what the cost would be. There was no investigation at the trial of the resources that would be required for these courses to be provided. 16 Secondly, the formal police rules, Instruction 12.03 to which Mr Andrews referred, indicates that it was the policy of the police to provide training, in general terms, regarding the psychological needs of police officers. No reference was made in the police Instructions to the kind of training which formed the basis of the argument presented on Mr Wallace's behalf. This means that the police, as a whole, have not formally adopted the views expressed in the Alpha report and the Westerink report. Of course, it does not follow that the decision of the police not to adopt the reports was reasonable, but this Court, in my view, would require cogent evidence to persuade it that the formal police position on this issue was unreasonable. Cogent evidence of this kind was not presented at the trial. 17 For these reasons, I am not persuaded that it was reasonable for the police to undertake training courses of the kind relied on by Mr Wallace. This is enough to dispose of the appeal but there are other matters which lead to the same conclusion. 18 The next element of the argument is that Mr Wallace did not have the training in question. The evidence established that in 1991 Mr Wallace went on a detectives' course, in 1996 he went on a homicide investigation course, and also in 1996, for three years, he studied for a degree at Charles Sturt University in Bachelor of Policing. It seems that three of the courses for this Bachelor's degree were psychology units. 19 The fact that Mr Wallace undertook these three courses, and their nature, and his comments during cross-examination about them, establish at least a prima facie case, in my view, that Mr Wallace would have been given some education about PTSD and its symptoms. On that basis, it was up to Mr Wallace at trial to explain, in far more precise detail than occurred, the exact nature of the courses he undertook, what he was taught and why the training he obtained during those courses was insufficient for him to be able to recognize PTSD. 20 Next, I should say something about the symptoms that Mr Wallace, in fact, experienced. He experienced symptoms consistent with PTSD in 1993 and these appear to have occurred on an intermittent basis for one or two years. The precise extent and seriousness of these 1993 and 1994 symptoms was not developed in evidence. Mr Wallace did suffer more serious symptoms throughout 1997. It was, however, only after the motor car accident in 1998 that his symptoms were recognized by his general practitioner as being caused by PTSD. He had seen his general practitioner, the same doctor, over many, many years, often twice a month each year and there is no record in the general practitioner's notes of any complaints made by Mr Wallace about symptoms that could be linked with PTSD. This occurs until the accident in April 1998. Immediately, after the accident, one sees that Mr Wallace complains, on a regular basis, of the symptoms in question. 21 The inference that I draw from this is that, while the earlier symptoms were indeed consistent with PTSD, they were not grave enough to cause Mr Wallace even to tell his general practitioner about them, although when one looks at the general practitioner's notes, many of Mr Wallace's complaints at that time could not be regarded as anything particularly serious and were complaints of a relatively minor kind. 22 So I am not persuaded, in the light of the matters to which I have referred, that even had Mr Wallace been given the training in question, he would have realized that what he was experiencing was PTSD. 23 Thus, in respect of all these elements of Mr Wallace's argument I conclude, as I have said, that he fails on the facts. For these reasons I would dismiss the appeal with costs. 24 HANDLEY JA: I agree. I would only add some brief further observations. The Judge found, at para 52 of her judgment, that the plaintiff had never revealed to his superiors that he was experiencing any problems of a psychological nature. He wasn't observed to be displaying any symptoms of psychological disorder and did not give evidence that he was doing this at work. As Ipp JA said, his superior officer at Ryde had himself been diagnosed as suffering from post-traumatic stress disorder and had psychological and psychiatric help prior to their association in the service, but he didn't recognize any of the problems in the plaintiff that he must have recognized in himself. There were no incapacitating symptoms nor lost time until after the motor vehicle accident. 25 The plaintiff, as Ipp JA said, had done courses which included substantial segments on psychology, which ought to have given him insight but failed to do so. Both he and his wife thought that 1997 was a bad year for him but as the Judge found, it was only at the end of that year that she told him that he should seek help and at that stage he declined to do so. 26 In these circumstances there is no support for the view that the sort of training that Mr Andrews relied upon would have given this plaintiff any greater insight than he already had from his courses and studies at Charles Sturt University. 27 BRYSON JA: I agree with the judgments which have been given and with the proposed orders. 28 HANDLEY JA: Those are the orders of the Court. **********