Peter Steven Benic v State of New South Wales [2010] NSWSC 1039

New South Wales Supreme Court

CITATION : Peter Steven Benic v State of New South Wales [2010] NSWSC 1039

HEARING DATE(S) : 5-14 July 2010

JUDGMENT DATE : 30 November 2010

JUDGMENT OF : Garling J

DECISION : Judgment for the defendant.

CATCHWORDS : NEGLIGENCE — Duty of care — Police service — Statutory framework of the NSW Police Force –Commissioner of Police owes non-delegable duty to members of NSW Police Force – Duty owed by Commissioner of Police is 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 – The Crown is liable for conduct of the Commissioner of Police and his delegates – The State of NSW as defendant in proceedings against the Crown. - NEGLIGENCE – Breach of duty – Where the plaintiff was a police officer assigned to providing protection to the Premier of NSW – Where the plaintiff received serious death threats in the course of his duties – Where the superior officers made inquiries of the plaintiff's wellbeing – Where the plaintiff informed his superior officers that he was fine – Where the superior officers did not refer the plaintiff to psychiatric or psychological assessment – Where the plaintiff later developed post traumatic stress disorder (PTSD) – The test under s 5B of the Civil Liability Act 2002 – Whether the superior officers knew or ought to have known of the risk of the plaintiff suffering psychiatric injury – Whether the risk was non insignificant – Whether in the circumstances the superior officers acted in a manner less than was reasonable in failing to refer the plaintiff to psychiatric or psychological assessment. - NEGLIGENCE – Causation – The test under s 5D of the Civil Liability Act 2002 – 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 early 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 – Where there is evidence that the plaintiff would have continued in the NSW Police Force at the rank of an inspector – Whether the plaintiff is fit for other forms of employment outside of personal protection – Assessment of non-economic loss – Assessment of future economic loss under s 13 of the Civil Liability Act 2002. - EVIDENCE – Applicable principles where there has been a lack of cross-examination on disputed facts – Importance of contemporaneous documents and records.