State of New South Wales v Doherty [2011] NSWCA 225

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Doherty [2011] NSWCA 225 Hearing dates: 12 April 2011 Decision date: 05 August 2011 Before: Hodgson JA at 1; Whealy JA at 121; Handley AJA at 122 Decision: (1) Appeal allowed in part. (2) Verdict and judgment for Mr Doherty for $676,486.91 substituted for the verdict and judgment below, to take effect from 20 May 2010. (3) Appeal otherwise dismissed. (4) Cross-appeal dismissed. (5) Each party to pay its own costs of the appeal and cross-appeal, Mr Doherty to have a certificate under the Suitors' Fund Act 1951 in respect of his own costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORT - Negligence - Breach of statutory duty - Post-traumatic stress disorder (PTSD) - Police officer exposed to traumatic crime scenes over many years - Whether his PTSD caused by employer's negligence - Concealment by police officer of symptoms - Contributory negligence - Whether damages should be discounted because of chance that PTSD could have become entrenched in any event. Legislation Cited: Civil Liability Act 2002 s 5D Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Cases Cited: Doherty v State of New South Wales [2010] NSWSC 450 Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Purkess v Crittenden (1965) 114 CLR 164 Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 Watts v Rake (1960) 108 CLR 158 Category: Principal judgment Parties: appellant/ cross-respondent: STATE OF NEW SOUTH WALES respondent/cross-appellant: Barry DOHERTY Representation: appellant/ cross-respondent: P Menzies QC/ Ms J Chapman respondent/ cross-appellant: P J Doherty SC/ M McAuley/ D Morgan appellant/ cross-respondent: McCabe Terrill respondent/ cross-appellant: Walter Madden Jenkins File Number(s): 2008/289267 Decision under appeal Citation: Doherty v State of New South Wales [2010] NSWSC 450 Date of Decision: 2010-05-20 00:00:00 Before: Price J File Number(s): SC 2008/20078