Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Carangelo v State of New South Wales [2016] NSWCA 126 Hearing dates: 3 February 2016 Date of orders: 27 May 2016 Decision date: 27 May 2016 Before: Macfarlan JA at [1]; Gleeson JA at [3]; Emmett AJA at [4] Decision: Appeal dismissed with costs Catchwords: TORTS – negligence – duty of care – breach of duty – failure of Commissioner of Police to take reasonable precautions against the officer's risk of suffering psychiatric injury – whether primary judge erred in applying s 5D of the Civil Liability Act 2002 (NSW) TORTS – negligence – factual causation - "but for" test of causation not applicable in this case – causation must be established by reference to s 5D(2) as an "exceptional case" – where factual circumstances do not indicate this is an exceptional case Legislation Cited: Civil Liability Act 2002 (NSW), s 5D Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 Police Act 1990 (NSW), ss 8, 181D Police Regulation (Superannuation) Act 1906 (NSW), s10B(3)(a) Cases Cited: Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 Tabet v Gett [2010] HCA 12; 240 CLR 537 Texts Cited: Review of the Law of Negligence Report (2002) Category: Principal judgment Parties: Benjamin Carangelo (Appellant) State of New South Wales (Respondent) Representation: Counsel: T Ower / K Balendra (Appellant) P Menzies QC / B Nolan (Respondent) Solicitors: Slater & Gordon (Appellant) McCabes Lawyers Pty Ltd (Respondent) File Number(s): 2015/183148 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2015] NSWSC 655 Date of Decision: 29 May 2015 Before: Adamson J File Number(s): 2011/229639 [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.] HEADNOTE [This headnote is not to be read as part of the judgment] Mr Carangelo, the appellant, suffered psychiatric injury whilst employed as a police officer in the New South Wales Police Force, being under the ultimate control and management of the Commissioner of Police (the Commissioner). Mr Carangelo complained that, in breach of a duty of care owed to him by the Commissioner (for whose actions the State of New South Wales, the respondent, was vicariously liable), the Commissioner failed to take reasonable precautions against the risk of his suffering psychiatric injury at two significant points in the course of his service. He claimed that if the Commissioner had taken appropriate steps at both points, specifically in offering pastoral care and support, and/or recommending him to a private psychiatrist, he would not have suffered Chronic Adjustment Disorder, anxious and depressed moods and other psychiatric disorders (the Psychiatric Injury). Mr Carangelo commenced proceedings against the State in 2011 alleging breach of the aforementioned duty. The primary judge on 29 May 2015 entered judgment for the State. Whilst the primary judge found that though there were breaches of the relevant duty of care by the Commissioner at the two times identified, Mr Carangelo had failed to establish that the Commissioner's breaches had caused or contributed to the Psychiatric Injury, which was instead caused by the experiences of Mr Carangelo as a police officer. Mr Carangelo appealed from the primary judge's orders, bringing three grounds of appeal contending misapplication of s 5D of the Civil Liability Act 2002 (NSW), regarding the finding of no causation having been established. The respondent filed a notice of contention seeking to support the orders made by the primary judge on the basis that her Honour erred in finding that there were breaches of duty on the part of the Commissioner. Held, per Emmett AJA (Macfarlan and Gleeson JJA agreeing at [1] and [3] respectively), dismissing the appeal: In relation to grounds 1 and 2: (1) Causation pursuant to s 5D requires proof by the person seeking compensation that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm. In that context "more probable" means no more than that, upon the balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood. It does not require certainty. [68] Tabet v Gett [2010] HCA 12; 240 CLR 537 (2) Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury. [2], [71] Amaca Pty Limited v Booth [2011] HCA 53; 246 CLR 36 (3) The "but for" criterion of causation can be troublesome in different situations in which multiple acts or events lead to injury of a plaintiff. It is sufficient for the plaintiff to prove that the negligence of the defendant caused or materially contributed to the injury. What must be established is that the defendant's conduct was responsible for an adverse difference in the plaintiff's condition and its negligence was a cause of that difference. [2], [72] Amaca Pty Limited v Booth [2011] HCA 53; 246 CLR 36 (4) In some cases, although the relative contribution of two more factors to the particular harm can be determined, it may be that each factor is part of a set of conditions necessary to the occurrence of that harm. The limitations of the "but for" analysis of factual causation include cases in which there is more than one sufficient condition to the occurrence of the plaintiff's injuries. Under the common law, each sufficient condition may be treated as an independent cause of the injuries. [74] Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 (5) The evidence of the medical experts did not support the conclusion that it was more likely than not that there would have been a different outcome had the breaches of duty not occurred. The evidence clearly established that the Psychiatric Injury was caused by the severe stressors that Mr Carangelo experienced during his time in the police force. [80], [94] (6) The question, with respect to the events of 1999, was whether the Psychiatric Injury would have been prevented or, possibly, alleviated to a significant degree, by referral to a police medical officer and private psychiatrist in 1999. [1], [81] (7) The question, with respect to the events of 2005, was whether it is more likely than not that, had Mr Carangelo been afforded forewarning, and appropriate support when the stress of PIC investigation arose, his Psychiatric Injury would have been avoided or would have been less serious. [1], [87] (8) The evidence did not support a finding, on the balance of probabilities, that such actions would have resulted in a relevant difference so far as Mr Carangelo's Psychiatric Injury is concerned. It indicated no more than Mr Carangelo may have lost a chance of avoiding or ameliorating the Psychiatric Injury. That being the conclusion of the primary judge, there was no error on her Honour's part in reaching that conclusion and in entering judgment for the State. [1], [81], [89], [91] In relation to ground 3: (9) Negligent conduct that materially contributes to a plaintiff's harm, but which cannot be shown to be a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation, subject to the normative considerations to which s 5D(2) requires that attention be directed. [73] (10) This is not a case where there were various factors all of which may have, in some way, contributed to the Psychiatric Injury. The evidence is clear that the Psychiatric Injury was caused by the various stressors to which Mr Carangelo was subjected in the course of the performance of his duties as a police officer over many years. Section 5D(2) cannot be called in aid simply because there is no evidence to support a contention as to the causation of injury. [81] (11) This is not an exceptional case, such that responsibility for the harm suffered by Mr Carangelo should be imposed upon the State as vicariously liable for the conduct of the Commissioner. [2], [95] In relation to the notice of contention: (12) While there may be some substance in the State's contentions regarding whether there was a breach of duty in 1999, it is not necessary to express a firm or concluded view as to whether or not there was a breach of duty on the part of the Commissioner in 1999 or 2005. [82], [96] Judgment 1. MACFARLAN JA: I agree with the judgment of Emmett AJA. In particular, I agree that the primary judge correctly asked herself whether Mr Carangelo had established that the actions that the Commissioner's representatives allegedly failed to take in 1999 and 2005 would, if taken, as a matter of probability have prevented Mr Carangelo's condition arising, or at least reduced its severity. For the reasons that Emmett AJA gives, there was no error in her Honour giving a negative answer to this question. 2. As Tabet v Gett [2010] HCA 12; 240 CLR 537 demonstrates, in a tort action for damages arising out of personal injuries, proof that a defendant's negligent conduct has increased the prospect of the plaintiff suffering injury is not, without more, compensable (see also Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36 at [41] per French CJ). Rather, as I have indicated, what must be established is that the defendant's conduct was responsible for an adverse difference in the plaintiff's condition and its negligence was "a cause of that difference" (at [66] per Hayne and Bell JJ). Section 5D(2) of the Civil Liability Act 2002 (NSW) may give rise to exceptions to these propositions but, as Emmett AJA concludes, the subsection is inapplicable in the present case. 3. GLEESON JA: I agree with Emmett AJA. I also agree with the additional comments of Macfarlan JA. 4. EMMETT AJA: The question in this appeal is whether the respondent, the State of New South Wales (the State), is liable to the appellant, Mr Benjamin Carangelo (Mr Carangelo), in respect of psychiatric injury suffered by Mr Carangelo in the course of performing his duties as a police officer in the New South Wales Police Force. Under s 8 of the Police Act 1990 (NSW), the New South Wales Police Force is under the ultimate control and management of the Commissioner of Police (the Commissioner). Section 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW) provides that the State is vicariously liable for the tortious acts of the Commissioner and his officers. 5. Mr Carangelo complained that, in breach of a duty of care owed to him by the Commissioner, the Commissioner failed to take reasonable precautions against the risk of his suffering psychiatric injury at two significant points in the course of his service. The first point was in 1999, when he asked to be transferred from Flemington Police Station, where he was working as a detective sergeant, to Kogarah Police Station, so that he could work in general duties. The second point was in 2005, when his conduct was the subject of an investigation by the Police Integrity Commission (the PIC). He claimed that if appropriate steps had been taken by the Commissioner at the first or second points, he would not have suffered Chronic Adjustment Disorder and anxious and depressed moods, psychiatric disorders from which he now suffers (the Psychiatric Injury). 6. Mr Carangelo commenced proceedings in the Common Law Division against the State in June 2011, alleging breach of the aforementioned duty of care by the Commissioner. The State contended that there had been no breach of any such duty at either time and that, even if the Commissioner were found to have been negligent, the negligence could not be shown to have caused the Psychiatric Injury or to have affected the seriousness of the Psychiatric Injury. Rather, the State contended, the Psychiatric Injury was caused by the experiences of Mr Carangelo as a police officer and the stress resulting from the investigation by the PIC. It was common ground that neither of those factors gave rise to a cause of action against the State. 7. After a trial before a judge of the Common Law Division (the primary judge), judgment was entered for the State on 29 May 2015. Her Honour ordered that the proceedings be dismissed with costs. While the primary judge found thatthere were breaches of the duty of care owed by the Commissioner at the two relevant times, her Honour concluded that Mr Carangelo had failed to establish that the Commissioner's breaches had caused or contributed to the Psychiatric Injury. By notice of appeal filed on 18 August 2015, Mr Carangelo appealed from the orders made by the primary judge. By notice of contention filed on 7 September 2015, the State seeks to support the orders made by her Honour on the basis that her Honour erred in finding that there were breaches of duty on the part of the Commissioner. Factual Background 1. Mr Carangelo commenced training at the Police Academy in Redfern in 1974. He started as a probationary constable on general duties at Newtown Police Station and was confirmed as a constable in 1975. For 7 years from 1978, he worked as a plainclothes constable performing criminal investigatory duties in various locations including Newtown, Balmain, Glebe and Annandale. In 1983 he was promoted to the rank of Senior Constable and in 1985 he was transferred to the Internal Affairs Branch of the NSW Police Force, where he remained until 1986. Subsequently, Mr Carangelo was transferred to the Campsie/Bankstown Local Area Command as a detective, before being promoted to the rank of Sergeant in 1990. 2. Towards the end of 1994, Mr Carangelo was transferred from the Campsie/Bankstown LAC to Flemington Police Station where his duties as a detective included investigating serious crimes. Silverwater Gaol was within the local area and he was called to deal with six inmates who had hanged themselves in their cells. He found the scenes to be particularly distressing, in part because he felt that the deaths could have been prevented. He was also called to the gaol to investigate an attempted suicide. 3. By 1997 Mr Carangelo was relieving Chief of Detectives at Flemington. At one time, there had been a staff of 28 detectives but over the years the numbers had diminished. That diminution increased the pressure on those who remained. Mr Carangelo complained to Detective Inspector Lorenzutta (DI Lorenzutta), who was in charge of the Minor Crime Squad. He was instructed to cease pursuing some of the cases that he was working on; something he found difficult to comply with as he regarded all of the matters he was investigating as serious. 4. In April 1998, Mr Carangelo submitted an expression of interest for assessment for the position of Operational Supervisor/Investigative Supervisor, which carried the rank of Inspector. In order to be considered for such a promotion, he had to be assessed at a centre established for the purpose of appraising the competence and behaviour of candidates for certain roles. Mr Carangelo was assessed as having need for development in certain categories and was judged not to have met a satisfactory level of effectiveness for the role. As a consequence, he was ineligible to be considered for a position with the rank of Inspector. 5. Some time later, Mr Carangelo spoke to DI Lorenzutta again about the stress of his work occasioned by the hangings at the gaol and his inability to cope due to a reduction in staff numbers. He also informed DI Lorenzutta of his view that the investigation of serious crime was being compromised as a result of the lack of experienced staff. He sought more staff. He was told by DI Lorenzutta not to worry and that he would be alright. Mr Carangelo became depressed and demoralised by that response. 6. In 1999, Mr Carangelo applied for a transfer to general duties at Kogarah, telling DI Lorenzutta that he was not coping and that the transfer would offer him a quieter experience. DI Lorenzutta advised him to put in a form expressing the reason for the transfer as being to work closer to home, so as "not to create waves". In September 1999, Mr Carangelo started on general duties at the St George Local Area Command at Kogarah. 7. In 2001, Mr Carangelo again applied for promotion to the rank of Inspector and was, accordingly, required to undergo another assessment. Although his results in individual categories were better than those that he had achieved in 1998, he still did not meet the required standard. Notwithstanding his actual results, he was informed, wrongly, that he had passed. In April 2001, he was told that a mistake had been made and that he had in fact failed. In turn, he was informed of his true results and notified that he could not be considered for promotion to the rank of Inspector. 8. In September 2005, Mr Andrew Baxter, an investigator with the PIC, was required to conduct an investigation into an allegation against Mr Carangelo. Mr Baxter informed Superintendent Murdoch, Mr Carangelo's then commander, that the PIC was investigating Mr Carangelo's conduct, although Supt Murdoch was not informed of the subject matter of the investigation, which remained confidential. Mr Carangelo was served with a notice requiring the production of documents to the PIC. The notice contained a statement to the effect that it was an offence to disclose information about the notice which was likely to prejudice the investigation to which it related. Mr Baxter informed Mr Carangelo of the existence of a legal representation office, which provided free legal advice to police officers who are the subject of investigation by the PIC. Mr Carangelo obtained legal advice and was represented throughout the investigation by the PIC. 9. In February 2006, Supt Peter McErlain replaced Supt Murdoch. Although Supt Murdoch conducted a detailed handover he omitted to inform Supt McErlain that Mr Carangelo was being investigated by the PIC. Had Supt McErlain been aware of the investigation he would have taken steps to provide some support for Mr Carangelo since he appreciated that such an investigation would be a stressful experience and could give rise to feelings of helplessness, anger and isolation on the part of the officer who was the subject of the investigation. 10. In August 2006, Mr Carangelo was served with a summons to appear and give evidence before the PIC, which he did. He found the experience of being questioned for a day and a half, in what he regarded as an aggressive way, very stressful. He was so upset by the experience that he was unable to return to work. He went on sick leave from 31 August 2006. He did not return to work. 11. On 30 March 2007, the PIC wrote to an Assistant Commissioner of the Professional Standards Command to inform her that the PIC had concluded its investigation and recommended that consideration be given to the taking of disciplinary action against Mr Carangelo. On 21 May 2007, Supt McErlain told Mr Carangelo that the PIC was no longer investigating the matter and that it had been referred to the Professional Standards Command of the Police Force to determine whether any further action should be been taken. 12. On 13 June 2007, Supt McErlain told Mr Carangelo that the PIC investigation had concluded, with the recommendation that he be served with a notice under s 181D of the Police Act. Section 181D relevantly provided that a Commissioner may remove a police officer from the Police Force if the Commissioner does not have confidence in the police officer's suitability to continue in his or her line of duty, having regard to the subject's competence, integrity, performance and/or conduct. Before taking such a step, the Commissioner was obliged to give the officer notice setting out the grounds on which the Commissioner lacked confidence in the officer's suitability to continue as a police officer. Supt McErlain told Mr Carangelo that he would be on the Commissioner's advisory panel that considered whether action under s 181D would be taken against him. He also informed Mr Carangelo that, after consideration by the advisory panel, the matter may also be considered by an internal review panel. 13. On 16 October 2007, Supt McErlain told Mr Carangelo that the Commissioner's advisory panel had met and that the matter was finalised. On 12 December 2007, Mr Carangelo was formally told that the investigation was complete and that there were no adverse findings against him. His reaction was that it was "too little too late" and felt that his career had been ruined by an unreasonable inquiry that had gone for far too long. 14. Prior to November 2006, Mr Carangelo signed a claim for "hurt on duty" benefits (HOD benefits). The injury identified in the claim was "stress, depression and hypertension". In response to the question as to how the injury occurred, the claim answered: As a result of [inquiry] which is still current and not prepared to disclose anything further at this stage except it's being conducted in a harassing and discriminating manner. 1. On 24 February 2007, Mr Carangelo prepared a document in which he set out details in support of his application for HOD benefits. He said that he was the subject of a PIC Inquiry, in the course of which his wife and elderly parents had been visited by PIC officers. He said that he attended to give evidence but had not been released from his summons. He complained about the way in which the Inquiry had been conducted and, in particular, that his parents and wife had been contacted, and that he had not been informed of developments. 2. In August 2007, Supt McErlain informed Mr Carangelo that his HOD benefits claim had been declined. In September 2007, Mr Carangelo consulted solicitors with a view to challenging the rejection of his HOD benefits claim in proceedings in the District Court. 3. On 26 February 2008, Mr Carangelo applied for a medical discharge from the Police Force. On 18 December 2008, the Police Superannuation Advisory Committee certified that Mr Carangelo was incapable of discharging the duties of his office by reason of the infirmities of: Chronic Adjustment Disorder with a depressed and anxious mood, currently in remission. 1. On 20 January 2009, a determination was made under s 10B(3)(a) of the Police Regulation (Superannuation) Act 1906 (NSW) that Mr Carangelo's infirmity was not caused by his being hurt on duty. A statement of claim challenging that decision was filed in the District Court on 8 April 2009. In the statement of claim, Mr Carangelo alleged that, during his service in the New South Wales Police Force, he attended many traumatic incidents that were causative of his infirmity. The statement of claim also contained allegations concerning the mistaken results of his assessment for promotion to the rank of Inspector in 2001 as well as his PIC Inquiry. 2. On 2 April 2009, Mr Carangelo asked for the removal of the words "currently in remission" from the Certificate of Incapacity provided by the Police Superannuation Advisory Committee. On 14 October 2009 he was informed by the Commissioner's delegate that the words had been removed. However, the findings that the infirmity was not caused by his being hurt on duty remained. Findings of the primary judge 1. The primary judge found that the Commissioner knew or ought to have known each of the following matters: * Mr Carangelo had been a serving police officer since 1974. * There was a foreseeable risk that repeated exposure to graphic scenes of natural disasters, accidents, injury and death could cause psychological stress and impaired emotional responses, as well as other psychological injuries. * The prospects of "burnout" and abnormal stress increase with length of service. * Mr Carangelo had been exposed to numerous traumatic circumstances, including the Granville train disaster, an incident involving a dead baby, the discovery of a deceased young woman whose body was found in bushland, a fire in Brighton Le Sands and the murder of 16 year old boy. Additionally, there were several occasions when his life had been put at risk in the line of service. * Although there were educational materials and seminars available to police officers that addressed the issue of stress arising from trauma, police officers were notoriously reluctant to seek assistance for stress related matters because of a fear of exposing vulnerability and thereby jeopardising their chances of promotion. * Police officers were disinclined to reveal stress related difficulties to the psychologists employed by the police force because of the well-founded perception that such disclosures would not necessarily remain confidential. * Timely treatment of the symptoms of adjustment disorder or Post Traumatic Stress Disorder (PTSD) increased the prospect of recovery and improvement. * Although there may be several reasons why a detective may wish to transfer to general duties, one plausible explanation is that an officer was finding it difficult to cope with the traumatic events to which detectives were regularly exposed, and was prepared to forego the status of being a detective in return for a modicum of relief from these events. * The real reason that Mr Carangelo wanted a transfer to general duties was, as he revealed to DI Lorenzutta, that he felt that he could no longer cope with the workload and nature of detective duties at his Flemington post, such as the traumatic events at Silverwater Gaol, and that he hoped that the transfer would provide for less onerous general duties. * Flemington Local Area Command was particularly challenging for police officers because of its responsibility for Silverwater Gaol; notably with the requirement that they attend to cut down inmates who had committed suicide and investigate such matters without the genuine co-operation of other inmates or prison officers. * Lack of resources at Flemington LAC meant that potentially invidious decisions had to be made as to which of several serious crimes would be investigated to a level that would permit charges to be laid and that such decisions could cause concern and distress to investigating officers, who might be called upon to explain to victims why apparently criminal conduct went unpunished. * The Commanding Officer had the power to direct any police officer under his or her charge to attend a police medical officer for assessment and treatment, with the police officer being obliged to comply. * A police medical officer could refer a police officer to a psychiatrist in private practice for assessment and treatment. * A police officer might be more willing to reveal difficulties to a practitioner in private practice than to a psychologist employed by the police force in their psychology or health unit. 1. The primary judge considered that, in the context of the matters listed above, the Commissioner either knew or ought to have known that a reasonable person in his position, acting through DI Lorenzutta, would have taken the precaution of referring Mr Carangelo to a police medical officer for assessment and treatment. Her Honour considered that a police medical officer, consistent with the requirements of reasonable care, would have referred Mr Carangelo to a psychiatrist in private practice. Her Honour was satisfied that the Commissioner's failure to refer Mr Carangelo for psychiatric assessment and treatment in 1999, when he applied for a transfer to general duties, was negligent. 2. The primary judge found that Supt McErlain believed that a PIC investigation was a particularly stressful time for a police officer. The requirement of secrecy imposed by the relevant legislation would tend to increase the officer's anxiety and additional stress might be occasioned where the officer's family was also to be involved or investigated, as in the case of Mr Carangelo. The State accepted that the failure of Supt Murdoch or Supt McErlain to speak to Mr Carangelo at the outset of the PIC investigation was an error that should not have occurred. Her Honour considered that the Commissioner's usual practice of having the Commanding Officer approach the officer concerned showed that the Commissioner appreciated that some action was called for but recognised the stress to which an officer would be subjected. The primary judge held that, had the Commissioner been exercising reasonable care for Mr Carangelo, Supt Murdoch would have forewarned him of the impending PIC Inquiry, advised him to obtain some support, reminded him of the services available to him and provided him with some reassurance from the fact that many police officers who remained in the Police Force had previously been the subject of PIC Inquiries. 3. Her Honour found that, had Supt McErlain been made aware of the PIC Inquiry at the time when he became Mr Carangelo's Commanding Officer in October 2005, he would have offered similar support to Mr Carangelo. Her Honour considered that those precautions were both reasonable and reasonably required, and was satisfied that the Commissioner's failure to forewarn Mr Carangelo of the impending PIC Inquiry and to provide him with the support of his Commanding Officer, on the basis summarised above, was negligent. The Medical Evidence 1. The question of causation before the primary judge was whether, if Mr Carangelo had been referred to a police medical officer and private psychiatrist in 1999, it is more likely than not that he would not now suffer from the Psychiatric Injury, or would suffer from it to a lesser degree. That is a question of fact to be determined on the evidence before her Honour. Before dealing with the conclusions of the primary judge as to the lack of causation between the breaches of duty found and the Psychiatric Injury, it is necessary to pay some attention to the medical evidence before her Honour. As I understand the position, the terms 'psychiatric', 'psychological' and 'emotional' may carry distinct and different connotations in medicine. However, the terms tended to be used interchangeably by witnesses in the course of giving evidence. In dealing with the medical evidence, I have used the terms as they were employed by the witnesses in their evidence. 2. Her Honour had written reports and heard oral evidence from Dr Selwyn Smith, Mr Carangelo's treating psychiatrist, and Dr Michael Diamond, Mr Carangelo's medico-legal psychiatrist. Evidence was also given by Dr Alex Apler, a medico-legal psychiatrist retained on behalf of the State. All three met in conclave and prepared a joint report. They also gave concurrent oral evidence at the hearing, in which they reiterated the opinions they had expressed in both their initial reports and in the joint report. 3. The primary judge accepted that the position of a treating doctor is different from an independent expert, in that the former is either obliged, or tends, to accept the patient's view of the world, as Dr Smith appeared to her Honour to do. Nevertheless, her Honour found that the evidence of Dr Smith was of assistance and, within that context, reliable. Her Honour also found Dr Diamond's answers to questions, particularly in the course of concurrent evidence, to be careful and given without regard to their forensic consequences. She rejected the submission that Dr Diamond was an advocate for Mr Carangelo's cause rather than an independent witness. 4. The primary judge did not accept Dr Apler's opinion that Mr Carangelo was not suffering from the Psychiatric Injury, or the nascent symptoms thereof, prior to the PIC investigation. Further, her Honour did not accept Dr Apler's opinion that Mr Carangelo had recovered from the Psychiatric Injury. Rather, her Honour considered that it was likely that the symptoms of the Psychiatric Injury had been ameliorated by the medication prescribed by Dr Smith. In effect, her Honour preferred the opinions of Dr Smith and Dr Diamond to those of Dr Apler. There is no challenge to that preference. Accordingly, it is unnecessary to consider the evidence of Dr Apler in dealing with the question of the causal connection between the finding of breach made by her Honour on the one hand, and the Psychiatric Injury on the other. 5. Dr Smith expressed the opinion that, because of Mr Carangelo's exposure to a multiplicity of distressing and traumatic events, the Commissioner should have known that he was vulnerable to any risk of psychiatric injury if he were to be exposed to further stressors as a result of his work as a police officer. He said that, by the early 1990s, a sufficient body of psychiatric literature had emerged establishing the nature of treatment that an individual police officer or other workers exposed to traumatic incidents should be provided with, and expressed the opinion that the Commissioner had sufficient knowledge to prevent or reduce the severity of PTSD from occurring. Furthermore, he suggested that reduction in the severity of PTSD before it arises may occur when members of the police service who are at risk of developing psychiatric injury are identified with the implementation of suitable screening processes. He also suggested that appropriate psychiatric or psychological therapy should be prescribed to those who have been identified at screening to be in need of assistance and that such a practice would likely prevent or reduce the severity of PTSD symptoms before they present. 6. Dr Smith expressed the opinion that all members of the Police Force, given the nature of their tasks, are at risk of developing psychiatric injury and in particular PTSD, and that those in high stress occupations with repeated exposure to situations of death and violence are particularly vulnerable. 7. Dr Smith said that there are several excellent screening tools available to test those deemed to be at risk for developing psychiatric injury. He referred to forms of psychotherapy that have been advocated for trauma related problems such as PTSD. He also described various types of "interventions" and expressed the opinion that if the principles of interventions are not undertaken, the magnitude of the impact or the effect of each exposure to a traumatic event is increased. He said that the ultimate delay of effective intervention will increase the probability of an individual sustaining psychiatric symptomology and that, once established, it is more likely than not that the psychiatric disorder will have a greater duration and severity. 8. Dr Smith then expressed the opinion that a failure to institute the interventions described by him can materially contribute to the development of a police officer's PTSD or the emergence of other psychiatric conditions. He said that reducing an individual's prolonged exposure to trauma will assist in reducing the kindling of distress that gives rise to symptoms of psychiatric injury and, eventually, disorders. Dr Smith's opinion was that the failure of the Commissioner to initially "diagnose" Mr Carangelo's psychiatric condition and arrange immediate treatment of a specialist kind materially contributed to the development of Mr Carangelo's Psychiatric Injury. Dr Smith said that ongoing exposure to further traumatic and distressing events compounded the psychological symptomologies that Mr Carangelo experienced and that constant exposure, in the absence of such treatment, and failure to move him away from his work environment, substantially contributed to the Psychiatric Injury. 9. In a later written report, Dr Smith, after he had seen Dr Diamond's initial report, said that his opinion accorded closely with that of Dr Diamond and that the PIC Inquiry was not the cause of Mr Carangelo's psychological condition. Rather, he said, the psychological condition was caused by his exposure to a multiplicity of distressing and traumatic events that occurred prior to the PIC Inquiry. Dr Smith said that the PIC Inquiry was certainly a distressing experience for Mr Carangelo, but that it was more closely related to the manner in which the investigation was conducted, as the intrusion into his family was most upsetting. Dr Smith said that it was significant that Mr Carangelo received little support from the Police Force, either prior to or subsequent to the PIC investigation, and that failure compounded the emotional decomposition that Mr Carangelo experienced following the PIC investigation. 10. Dr Diamond was asked whether, in his view, if in 1999 the Police Force were able to identify properly the psychological difficulties experienced by Mr Carangelo and had protected him and acted in a pre-emptive way, that would have stopped the worsening of his condition so as to prevent him from becoming psychologically damaged to a point from which he could no longer recover. Dr Diamond expressed the view that, had Mr Carangelo come forward to report the evolving Psychiatric Injury at that time and the Commissioner had responded to that notification, or if the Commissioner had approached Mr Carangelo to investigate his work related difficulties at the time and Mr Carangelo had agreed to pursue assessment and possible treatment, Mr Carangelo's prognosis would have been improved significantly. 11. Dr Diamond considered that it was an accurate statement to say that Mr Carangelo's medical condition had deteriorated to such a degree that, by the time of the PIC Inquiry and investigations, his psychological condition was such that he was unable to cope any further. He expressed the opinion that, although Mr Carangelo became severely ill and incapacitated because of the events related to the PIC Inquiry and the subsequent hardship that ensued, his illness was not caused by his appearance before the PIC. Dr Diamond said that it was clear that Mr Carangelo developed psychiatric symptoms when he became overwhelmed in the workplace in attempting to run the detective office at Flemington, as he was repeatedly placed in positions where he felt conflicted and helpless. The organisation that he trusted, and the organisation that he believed was there to protect public interest and pursue criminals to conviction, appeared to him to be compromised. Dr Diamond said that, in that environment, he was often at odds with authority figures, his position was not supported and his communications were not acknowledged or recognised as coming from a distressed and psychologically symptomatic individual. 12. Dr Diamond said that Mr Carangelo took matters into his own hands by requesting a transfer away from the detective role to that of a general duties sergeant and team leader at Kogarah, a quieter station. He said that such a decision, although not entirely uncommon, was often a signal that the individual is attempting to relieve stress related illness by changing work roles. Dr Diamond considered that Mr Carangelo was a significantly impaired and psychiatrically unwell individual by the time he became swept up in the PIC investigation. He said that the result of being subjected to that investigation (particularly in having his wife and parents drawn into it and having his self-respect, credibility and belief in an organisation destroyed) was that his psychiatric illness, which was already present, became overt, acutely symptomatic and permanently disabling. 13. The joint report of Drs Smith, Diamond and Apler recorded that Dr Smith and Dr Diamond agreed that speaking to a senior officer and getting help would have reduced the risk of adjustment disorder. They also agreed that it would have been materially reduced if Mr Carangelo was in an environment where he experienced support and appreciation of his work as a detective. They also agreed that he should have received psychological assistance before, during and after the PIC Inquiry and that he would have benefited from provision of a support person who understood the system, but was instead provided with no support at all. They considered that the Inquiry was daunting for Mr Carangelo and that he could not cope. 14. In giving concurrent oral evidence, Dr Smith expressed the view that provision to Mr Carangelo of appropriate psychological support and perhaps psychiatric intervention would have ameliorated the symptoms he was experiencing. He said that it may not have completely cured his condition, but it would have given him some appreciation that his employer was sensitive to what he was experiencing, and may have gone some way to preventing him from eventually being discharged from the Police Force. Dr Smith considered that with the conclusion of the PIC Inquiry resulting in no adverse findings, Mr Carangelo may well have gone back to the Police Force and continued serving if he had access to psychiatric support during the course of the PIC Inquiry. 15. Dr Smith was asked whether Mr Carangelo's Psychiatric Injury could have been prevented if he had been referred to a police medical officer for evaluation when he was particularly distressed by having to cut down prisoners who had committed suicide. Dr Smith said that it would have gone a long way towards acknowledging that he had a problem, and that he would have been given a forum in which he could "tell the tale" of the difficulties he was experiencing and "it could have opened the door for him" to access appropriate psychological assistance. 16. Dr Smith said that he would have liked Mr Carangelo to have had the opportunity of appealing to a confidant whilst at Flemington, giving him the chance to introspectively talk about his plight with a view to ameliorating it. Dr Smith said that he thought that Mr Carangelo should have been offered that opportunity but was not. 17. Dr Diamond was asked what the Police Force ought reasonably to have done at the time of the conversation between Mr Carangelo and DI Lorenzutta that would have mitigated the cause of psychiatric injury. Dr Diamond said that, if Mr Carangelo had been seen as somebody who was overwhelmed and had a health problem, rather than as a trouble maker because of his complaining, "that would have sent him down a different pathway". Dr Diamond did not agree that assisting Mr Carangelo's transfer was really an appropriate step. Rather, it would have been appropriate to question his motives for applying for the transfer. 18. Dr Diamond was asked what the Commissioner should have done to avert the risk of harm in the future for Mr Carangelo, in circumstances where he was not dealing with trauma in an appropriate way. Dr Diamond suggested pastoral care, as well as addressing comments about Mr Carangelo's general health at the time. He said a police medical officer would have seen the symptoms as having been of the nature of a stress related illness. Dr Diamond also suggested that counselling may have benefitted Mr Carangelo. When asked whether such an approach actually worked, Dr Diamond responded in the affirmative. 19. Dr Smith was asked what the Police Force could reasonably have done at the time of the PIC investigation to protect the confidentiality of the investigation on the one hand, but also help and support Mr Carangelo so that he was not "tipped over the edge" (as Dr Smith described it). Dr Diamond said that very simple measures could have been taken to meet with Mr Carangelo, and ask him whether he was aware of any health providers, such as a General Practitioner, who could have assisted him. He also said that Mr Carangelo could have been told that it was not contrary to the PIC directions for him to talk confidentially with a medical practitioner. 20. Dr Diamond was then asked whether, if that happened, and Mr Carangelo had been in to see Dr Smith 18 months earlier than he did, that would have been enough to provide a protective mechanism and enable him to work to his expected retirement age of 60. Dr Diamond said that it was harder to "project" all the way to retirement age of 60, but thought that Mr Carangelo would have stood a better chance of dealing with the PIC Inquiry had he had access to a competent mental health practitioner, who could have assisted him in dealing with whatever emotions presented at the time, as well as recommended therapy and/or medication as appropriate. He said that a medical practitioner may even have had an opportunity at that stage to diagnose the pre-existing illness, which would have "contributed significantly to a better outcome". He thought that the "cascade of events" made it very difficult for Mr Carangelo to continue after the PIC Inquiry because he then had to effectuate a s 181D Notice to Show Cause. Dr Diamond said that there was no way that Mr Carangelo could feel supported by an organisation that he perceived had betrayed him or had harmed him to that extent. Causation 1. Having concluded that the Commissioner had been in breach of his duty of care to Mr Carangelo in two respects, the primary judge then considered whether the psychiatric condition complained of by Mr Carangelo was caused by either of those breaches of duty. First, her Honour considered the negligence in December 1999, when the Commissioner failed to direct Mr Carangelo to attend a police medical officer for assessment. Second, her Honour considered the negligence in 2005 – 2006, when the Commissioner failed to forewarn Mr Carangelo of the impending PIC Inquiry before service of the s 181D Notice in September 2005, or to support him through the Inquiry and the subsequent action under s 181D. Assessment by the Police Medical Officer in 1999 1. To answer the question as to whether the Commissioner's failure to direct Mr Carangelo to attend a police medical officer for assessment in 1999 caused the Psychiatric Injury, it is necessary to consider what would have been likely to happen had he been directed to attend a police medical officer at that time and to take account of what he would have done in that event. The primary judge was satisfied that had Mr Carangelo been referred to a police medical officer in 1999, he would have at least disclosed that he wanted to be transferred to general duties because he was not coping with the exposure to suicides at Silverwater Gaol and the excessive workload. Her Honour concluded that had reasonable care been taken, a police medical officer would have referred Mr Carangelo to a private psychiatrist for assessment and treatment. Her Honour considered that he would have divulged his continued anxiety about the various traumatic events that he persisted in recounting to his closest associates. 2. The primary judge was satisfied that a private psychiatrist, such as Dr Diamond, to whom Mr Carangelo was ultimately directed, would have asked questions to facilitate relevant disclosures. Her Honour was satisfied that Mr Carangelo would have co-operated with Dr Diamond or another psychiatrist and would have given a sufficient history of the events which troubled him and the difficulties that he was having to enable him to be treated. Her Honour accepted the evidence of Dr Smith, Mr Carangelo's treating psychiatrist; and Dr Diamond, his forensic psychiatrist; that had he been referred, the risk of his suffering the Psychiatric Injury would have been materially reduced. Accordingly, her Honour found, the Commissioner's negligent failure to intervene deprived Mr Carangelo of the chance of a better outcome of not suffering from the Psychiatric Injury. Her Honour considered that, if she could be satisfied that it was probable that, had the Commissioner taken the reasonable precautions that her Honour found were required to discharge its duty, Mr Carangelo would not have suffered adjustment disorder, the State would be liable for that failure. 3. However, her Honour did not consider that there was evidence that would enable her to put the prospect as high as a probability. Her Honour was not satisfied, that had the Commissioner done what was reasonable in 1999, Mr Carangelo would not have suffered the Psychiatric Injury or that the Psychiatric Injury would have remained chronic. Her Honour found that, by the time of the hypothetical consultation, Mr Carangelo had been in the Police Force for almost 25 years. He had been subjected, in the ordinary course of his duties, first as a constable and later as a detective sergeant, to numerous stressful events with which he had tried to come to terms in an informal way by working hard, putting on a brave front to his superiors, and divulging his distress only to a few close colleagues who had their own traumas which they, too, shared with each other, possibly to the determent of all. Her Honour concluded that Mr Carangelo had failed to establish factual causation of the Psychiatric Injury with respect to the Commissioner's negligence in 1999. Similarly, her Honour was not persuaded that responsibility for the Psychiatric Injury should be imposed on the State notwithstanding the Commissioner's negligent failure to refer Mr Carangelo to a police medical officer and a private psychiatrist in 1999. PIC Inquiry 1. The primary judge considered that in order to determine what, if any harm, was caused by the Commissioner's negligent failure to forewarn Mr Carangelo of the impending PIC Inquiry before service of the Notice in September 2005, or to support him through the Inquiry and the subsequent action under s 181D, it was necessary to subtract the harm caused by the PIC Inquiry itself and any harm occasioned by the subsequent action under s 181D. It was common ground that none of the harm caused by those Inquiries was compensable. 2. The primary judge considered that the evidence established the devastating effect on Mr Carangelo of the PIC Inquiry and the manner in which it was conducted. Her Honour found that he stood to lose all that being a police officer meant to him, including his status and the good opinion of his colleagues and superiors. Moreover, her Honour found, it rendered his marriage irretrievable and also made him suspicious of the police generally, and of the authorities, and led him to engage in conspiracy theories tinged with paranoia regarding his experience in 2001 at the Assessment Centre. 3. It was a further blow that he was prohibited by statute from disclosing to anyone the details of what was being alleged against him in the PIC. In those circumstances, her Honour did not accept that Mr Carangelo suffered any material harm from the Commissioner's failure to forewarn him or offer support before or during the first year of the PIC Inquiry. Her Honour did not consider that the Commissioner's failure was causative of the Psychiatric Injury or any material aggravation of it. Her Honour described it as "but another blow, but not a material blow". Her Honour considered that it was possible that Mr Carangelo might have felt less isolated had Supt Murdoch or Supt McErlain taken him aside to express support and remind him of the services available. Nevertheless, her Honour concluded that Mr Carangelo may well have rejected such advances on the grounds that they were a cynical attempt to go through the motions required, rather than a genuine indication that the Officers concerned cared about his welfare (not dissimilar to Mr Carangelo's reaction to offers made in 2007). The pervading sense of isolation that Mr Carangelo experienced was, in her Honour's view, a result of the processes of the PIC itself, which required and enforced the utmost confidentiality, rather than the failure of his commanding officers to offer him timely support from the outset. Accordingly, her Honour concluded that Mr Carangelo had failed to establish factual causation of the Psychiatric Injury with respect to the Commissioner's negligence in 2005 and 2006. Breach in 1999 but not in 2005 1. Mr Carangelo also contended, in the alternative, that the State was liable because the Commissioner's negligence in 1999 compromised his psychological resilience, such that, when he was investigated by the PIC, he was unable to withstand the additional pressure of the Inquiry. He asserted that had he seen a police medical officer in 1999 and been referred to a private psychiatrist, such as Dr Diamond, he would have been in a more robust psychological state when served with the PIC Notices. The primary judge rejected that contention on the basis that the evidence did not support it. Further, her Honour considered that it did not overcome the principal impediment to liability, namely, that Mr Carangelo failed to prove factual causation because, at best, the Commissioner's negligence in 1999 caused him to lose the chance of a better outcome. While her Honour was prepared to accept that Mr Carangelo would have been in a better psychological position to deal with the PIC Inquiry had he had an ongoing therapeutic relationship with a psychiatrist in 2005 (when the PIC Inquiry began), more than that was required to make the State liable. The Appeal 1. In his Notice of Appeal of 18 August 2015, Mr Carangelo asserted that the primary judge erred in so far as she misapplied s 5D of the Civil Liability Act 2002 (NSW) by: * Requiring that the Commissioner's breach of duty be a necessary condition to the whole of his damages rather than a material contribution to those damages; * Construing the expert evidence as merely supporting the loss of a chance of a better outcome and incapable of supporting factual causation; and * Failing to find that his case was an exceptional case within the meaning of s 5D(2) of the Civil Liability Act. 1. In its Notice of Contention filed on 7 September 2015, the State asserted that the conclusion of the primary judge could also be supported on the following bases: * Her Honour should have found that there was no negligence in the Commissioner's failure to refer Mr Carangelo for psychiatric assessment and treatment in 1999; * Her Honour erred in finding that a duty of care arose in the circumstances obliging DI Lorenzutta to refer Mr Carangelo to the Police Medical Officer for assessment and treatment in 1999; and * Her Honour erred in finding that in the circumstances, reasonable care required the Commissioner to refer Mr Carangelo to a psychiatrist in private practice. 1. The State also contended that it would not have been apparent to the Commissioner in 1999 that Mr Carangelo was suffering from a psychiatric illness and that, therefore, the Commissioner would not have been on notice in 2007 that there was a not insignificant risk of harm to Mr Carangelo, in the nature of psychiatric illness, in facing the PIC Inquiry, so as to found a duty to exercise reasonable care for Mr Carangelo. Thus, the State submitted that the primary judge erred in concluding that there was a breach of duty in that regard. While that was not the subject of the Notice of Contention, no objection was raised by Mr Carangelo to that argument being advanced and, accordingly, leave was granted to the State to make submissions in support of that contention. 2. Questions of contributory negligence were also raised by the State before the primary judge. Her Honour found that the Commissioner's negligence in failing to direct that Mr Carangelo be assessed by a police medical officer for referral to a private psychiatrist broadly correlated with Mr Carangelo's contributory negligence, namely, the failure to seek professional help for his psychological distress. Her Honour assessed Mr Carangelo's contributory negligence at 10%. Her Honour did not consider that any reduction ought to be made for contributory negligence in relation to the Commissioner's negligence in failing to offer support to Mr Carangelo in advance of the PIC Inquiry. In its Notice of Contention, the State asserted that the assessment of 10% was outside the bounds of a proper exercise of discretion and that the primary judge ought to have allowed for contributory negligence of 100%. Relevant Legal Principles 1. Both parties accept that s 5D of the Civil Liability Act applies in the circumstances of the case. Section 5D was introduced by the Review of the Law of Negligence Report (2002) conducted under the chairmanship of the Hon David Ipp (the Ipp Report). The Ipp Report referred to a "two pronged'' test of causation, and postulated that causation has two aspects. The first, the factual aspect, is concerned with whether the negligent conduct in question played a part in bringing about the harm that is the subject of the claim, in the sense that it was a necessary condition of the occurrence of the harm. Answering that question positively is not enough to justify the imposition of liability for negligence, because every event has an infinite number of necessary conditions. The Ipp Report observed that the ultimate question to be answered in relation to a negligence claim is not the factual one, of which the allegedly negligent conduct played a part in bringing about the harm, but rather a normative one, about whether the defendant ought to be held liable to pay damages for that harm. The second aspect is whether the defendant should be held liable for any of the harmful consequences of an act of negligence. That aspect was said to concern the appropriate scope of liability for the consequence of negligence. 2. Thus, s 5D(1) relevantly provides that a determination that negligence caused a particular harm comprises two elements as follows: 1. That the negligence was a necessary condition of the occurrence of the harm, described as factual causation; 2. That it is appropriate for the scope of the negligent person's liability to extend to the harm so caused, described as scope of liability. 1. The Ipp Report also referred to the problem of what has been described as "evidentiary gaps". Two types of situation were described where an evidentiary gap may exist. One involves harm that is brought about by the cumulative operation of two or more factors, but which is indivisible in the sense that it is not possible to determine the relative contribution of the various factors to the total harm suffered. An illustration of the second type of situation where an evidentiary gap may exist is where a person contracted mesothelioma as a result of excessive periods of exposure to asbestos while working for different employers. The evidence may not justify a conclusion in relation to any particular employer that, but for the negligence of that employer, the plaintiff would not have contracted the disease. 2. The Ipp Report referred to the "material contribution to harm" and the "material contribution to risk" principles, both of which were said to allow negligent conduct to be treated as a factual cause of harm even though it cannot be proved, on the balance of probabilities, that there was in fact a causal link between the conduct and the harm. That is to say, in some circumstances, it may be appropriate to bridge such an evidentiary gap by allowing proof that negligent conduct materially contributed to harm, or the risk of harm, in order to satisfy the requirement of proof of factual causation. The Ipp Report said that the major difficulty with those principles is to define those cases in which the normal requirements of proof of causation should be relaxed. That was characterised as a normative issue that depends, ultimately, on a value judgment about how the costs of injury and death should be allocated. 3. Those observations resulted in s 5D(2) of the Civil Liability Act, which relevantly provides that, in determining, in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is required to consider, amongst other relevant things, whether or not, and why, responsibility for the harm should be imposed on the negligent party. Mr Carangelo places some reliance on s 5D(2). 4. An action in negligence has been described as being based upon the union of negligence and the injuries caused thereby, which will as a rule, involve and have been accompanied by specific damages. An action in negligence is sufficiently flexible to enable courts to extend it to cover situations where damage was suffered in circumstances that call for a remedy. However, the requirement for damage cannot be dispensed with. Breach of duty of care without proven loss or harm will not suffice. The common law requires proof by the person seeking compensation that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant's negligence caused the injury or harm. In that context "more probable" means no more than that, upon the balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood. It does not require certainty (see Tabet v Gett [2010] HCA 12; 240 CLR 537 at 577 – 578). 5. The "but for" test is regarded as having an important role in the resolution of causation, more as a negative criterion than as a comprehensive test. Once causation is proved to the general standard, the common law treats what is shown to have occurred as certain. The purpose of proof at law is to apportion legal responsibility, which requires the courts, by judgment, to reduce to legal certainty questions to which no other conclusive answer can be given. The result of such an approach is that, when loss or damage is proved to have been caused by a defendant's act or omission, a plaintiff becomes liable for the entire loss. (Tabet v Gett at 577 – 578). 6. When physical or mental injury or harm is proved, the question is whether it was caused by a relevant negligent act or omission. A claimant will fail if the evidence does not establish the link between the act or omission of the defendant and the damage or harm suffered. It must be able to be said that, but for the act or omission, the claimant would not have suffered the injury or harm (Tabet v Gett at [114]). 7. Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury. The risk of an occurrence and its cause are quite different things. However, the relationship between risk and causation must be considered. Ordinarily, risk refers to a challenge or danger, or the chance or hazard of loss. The existence of an association or a positive statistical correlation between the occurrence of one event, and the subsequent occurrence of another, may be expressed as a possibility which may be no greater than a real chance that, if the first event occurs, the second event will also occur. The mere existence of such an association or correlation does not justify a statement relevant to factual causation in law, that the first event creates or gives rise to or increases the probability that the second event will occur. Such a statement contains an assumption that, if the second event occurs, it will have some causal connection to the first. However, if the association between the two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause. An inference of causal connection may be reached on the balance of probabilities after the event, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a mere possibility or a real chance that the second event would occur, given the first event. (Amaca Pty Limited v Booth [2011] HCA 53; 246 CLR 36 at [41] – [43]). 8. The "but for" criterion of causation can be troublesome in different situations in which multiple acts or events lead to injury of a plaintiff. In such cases, what might be unclear is the extent to which one of those conjunctive causal factors contributes to that state of affairs. It is sufficient for the plaintiff to prove that the negligence of the defendant caused or materially contributed to the injury. For example, where a plaintiff is exposed to quantities of silicon dust produced by various activities, one of which is at the plaintiff's work place, and the other activities are conducted without any breach of duty, the question is not what the most probable source of the plaintiff's disease was. Rather, it is whether dust from the employer's negligent conduct was a cause of the disease, when the medical evidence was that disease can be caused by gradual accumulation of silica particles inhaled over a period of years (Amaca v Booth at [70]). 9. Section 5D(2) of the Civil Liability Act makes a special provision for cases where causation cannot be established on a "but for" analysis. The provision permits a finding of causation in "exceptional cases", notwithstanding that the defendant's negligence cannot be established as a necessary condition of the occurrence of the harm. Negligent conduct that materially contributes to a plaintiff's harm, but which cannot be shown to be a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation, subject to the normative considerations to which s 5D(2) requires that attention be directed. 10. The assumption made by the Ipp Report is that some cases will not meet the test of factual causation under s 5D(1). Whether that is so will depend on the evidence in the particular case. In some cases, although the relative contribution of two more factors to the particular harm can be determined, it may be that each factor is part of a set of conditions necessary to the occurrence of that harm. The limitations of the "but for" analysis of factual causation include cases in which there is more than one sufficient condition to the occurrence of the plaintiff's injuries. Under the common law, each sufficient condition may be treated as an independent cause of the injuries. Causation is to be determined by reference to the statutory test in s 5D (Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [26] - [29]). Transfer in 1999 1. Mr Carangelo accepted that the Psychiatric Injury was caused by the cumulative effect of stressors in the course of his duties as a police officer over a lengthy period. However, he contends that, in that context, the primary judge asked herself the wrong question in requiring proof that the entire Psychiatric Injury would not have occurred but for the Commissioner's breach of duty. He says that the question that should have been addressed is whether the Commissioner's breach of duty materially contributed to the Psychiatric Injury or any part of it. 2. Further, Mr Carangelo contends that the primary judge erred in concluding that the medical evidence of Dr Smith and Dr Diamond did not go further than merely establishing the loss of a chance of a better outcome. He says that, although Dr Diamond used the term "opportunity for a better outcome" in the course of giving oral evidence, that use should be understood in the context of his evidence as a whole. Mr Carangelo says that the primary judge was correct to observe that he had been exposed to numerous stressful events in his personal life up to 1999, but says that there was no evidence to support a conclusion that those events, absent later events, were entirely causative of the Psychiatric Injury. 3. In the context of dealing with s 5D(2), the primary judge observed that the difficulty of proving causation arose from the difficulties in quantifying the effect of treatment for nascent adjustment disorder, the foundations for which have been laid over the period of more than two decades of service in the Police Force prior to the alleged breach of duty in 1999. Mr Carangelo contends that, on a proper construction of the medical evidence, the Commissioner's breach of duty was demonstrated to be a necessary condition of the later development of the Psychiatric Injury. 4. Thus, Mr Carangelo asserts that the Commissioner's negligence led to his not being treated between 1999 and 2005, and asserts that such treatment would likely have made a significant difference to the Psychiatric Injury. He relies on evidence given by Dr Diamond that, if he had been seen as a person who was overwhelmed and had a health problem, "that would have sent him down a different pathway". Furthermore, he also relies on Dr Diamond's evidence that, had there been a referral to a police medical officer, there "could have been" counselling made available to talk about what steps he might have taken "to address the psychological issues", such as taking a period of long service leave, rather than transferring him into another role and not making any enquiries when "there was such a clear signal that something was amiss". 5. Mr Carangelo asserts that the lack of such treatment was a necessary condition for his damaged state as at 2005. He also relies on the evidence given by Dr Smith, that referral to a private practitioner for appropriate referral and assistance "would have gone a long way towards" acknowledging that he had a problem and would have given him a forum in which he could "tell the tale" of the difficulties he was experiencing and it "could have opened the door for him" to access appropriate psychological assistance. 6. However, the evidence of Dr Smith and Dr Diamond, whether or not it may be evidence of a breach of duty on the part of the Commissioner in failing to refer Mr Carangelo to a police medical officer who in turn would have referred him for private psychiatric treatment, simply does not support the conclusion that it was more likely than not that there would have been a different outcome had those steps been taken. Rather, the evidence was clear that the Psychiatric Injury was caused by the severe stressors that Mr Carangelo experienced during his time in the Police Force. It is clear that his Psychiatric Injury was caused by those stressors. The question, however, is whether the Psychiatric Injury would have been prevented or, possibly, alleviated to a significant degree, by referral to a police medical officer and private psychiatrist in 1999. The evidence of Dr Diamond and Dr Smith simply does not support a finding, on the balance of probabilities, that such a referral would have resulted in a relevant difference so far as Mr Carangelo's Psychiatric Injury is concerned. That is the conclusion reached by the primary judge. There was no error on her Honour's part in reaching that conclusion. 7. The reliance placed by Mr Carangelo on s 5D(2) appears to be misplaced. This is not a case where there were various factors all of which may have, in some way, contributed to the Psychiatric Injury. The evidence is clear that the Psychiatric Injury was caused by the various stressors to which Mr Carangelo was subjected in the course of the performance of his duties as a police officer over many years. The complaint made by Mr Carangelo is that the Commissioner was negligent in failing to take steps that would have prevented the Psychiatric Injury from occurring or would have prevented it from becoming worse. Section 5D(2) cannot be called in aid simply because there is no evidence to support a contention as to the causation of injury. 8. In the light of the above conclusions, it is not necessary to express a concluded view as to whether or not there was a breach of duty on the part of the Commissioner in 1999. Nevertheless, it is desirable to make some observations on that matter. 9. The State contends that, if Mr Carangelo was suffering from work related stress, he would not have told his superiors because he perceived that it would be a career limiting move and he would become an outcast. It says that he recognised that, if he needed help, there were facilities of which he could have taken advantage and he had declined to seek help because he did not want the Commissioner to find out that there was something wrong with him. The State disputes that Mr Carangelo had had a change in attitude by reason of the disclosure that he made to DI Lorenzutta. Rather, the State contends, the evidence suggests that, while Mr Carangelo complained that he could not cope with his work load, his work at Silverwater Gaol and the shortage of staff to cover serious investigations, the better view, on the evidence, is that he did not reveal to DI Lorenzutta an inability to cope with trauma. 10. DI Lorenzutta had since died and, accordingly, was not available to give evidence. The State points to other evidence, such as the histories given by Mr Carangelo to Dr Diamond and Dr Smith, justifying his requests for a transfer on the basis of staffing at Flemington and not by reason of his inability to cope with trauma. The State contends that the revelation to DI Lorenzutta, even accepted at its face value, was properly to be construed as an expression of attrition, exhaustion, loss of enthusiasm for the job and difficulty in coping with the work load, the lack of resources and the content of the work at Silverwater. The State says that it could not be fairly construed as a revelation of experiencing psychiatric harm. 11. The State contends that the Commissioner was entitled to assume that, in the absence of evident signs, warning of the possibility of psychiatric harm, Mr Carangelo considered himself to be able to do the job. It asserts that nothing that was revealed to DI Lorenzutta by Mr Carangelo was indicative of the fact that he felt that he could not do the job. Rather, what he revealed was that he was fed up with the job and that his reactions to his experiences were not out of the ordinary. The State says that, from what Mr Carangelo said that he told DI Lorenzutta, a risk of psychiatric harm would not have been perceptible. 12. Alternatively, the State contends, if the risk of psychiatric harm was perceptible to DI Lorenzutta, the scope of the duty imposed on the Commissioner had to take into account Mr Carangelo's wishes. That is to say, he desired to conceal his stressful psychological state so as not to jeopardise, as he perceived it, his prospects for advancement in the Police Force. The State contends that the duty imposed on the Commissioner would not extend to ignoring Mr Carangelo's own wishes. It suggests that it would be implausible that DI Lorenzutta, assuming that he recommended a course to Mr Carangelo so as to "not create waves", would then recommend to Mr Carangelo that he speak to a police medical officer. While there may be some substance in the State's contentions, as indicated above it is not necessary to express a firm view. The PIC Inquiry 1. The reasoning of the primary judge is not as clear in relation to the breach that her Honour found concerning the PIC investigation in 2005 and 2006. The question of causation in relation to the PIC investigation is very similar to that which has been dealt with in relation to the 1999 transfer from Flemington to Kogarah. That is to say, the question is whether it is more likely than not that, had Mr Carangelo been afforded forewarning, and appropriate support when the stress of the PIC investigation arose, his Psychiatric Injury would have been avoided or would have been less serious. 2. The primary judge held that the failure by the Commissioner to forewarn Mr Carangelo of the PIC Inquiry and the failure to offer support before or during the first year of the PIC Inquiry was not causative of the Psychiatric Injury or any material aggravation of it. Rather, her Honour held, it was "yet another blow but not a material one". It is not entirely clear what was intended by that observation. However, it is reasonable to conclude that her Honour was applying the test that she had applied in relation to the 1999 circumstances, namely, whether it was more likely than not that the Psychiatric Injury, under which Mr Carangelo clearly laboured as at 2005 and 2006, would have been prevented from becoming worse, if the Commissioner had taken the steps of forewarning him and offering support. The case advanced by Mr Carangelo was not that Psychiatric Injury was aggravated as a consequence of the Commissioner's breach of duty. His case could only have been that the Psychiatric Injury might have been prevented or its aggravation by the PIC Inquiry may have been prevented. It is clear enough that the primary judge found that there was no evidence to support a conclusion, on the balance of probabilities, that the Psychiatric Injury would have been prevented or that its aggravation by the PIC Inquiry would have been averted by the Commissioner taking the steps of forewarning Mr Carangelo and providing him with support. 3. Mr Carangelo contends that it was necessary to ascertain whether the Commissioner's breach materially contributed to the development of the Psychiatric Injury. He asserts that there was medical evidence to the effect that, had he been provided with appropriate support between September 2005 and August 2006 when he gave evidence to the PIC, his symptoms would have been ameliorated. He points to the evidence of Dr Smith to the effect that, had he been provided with appropriate psychological support and perhaps psychiatric intervention, that would have ameliorated the significant symptoms he was experiencing. Dr Smith said that such support may not have completely alleviated the symptoms but would have given Mr Carangelo some appreciation that his employer was sensitive to what he was experiencing and may have gone a long way to preventing him from eventually being discharged from the Police Force. That evidence, however, is by no means compelling as to a conclusion that, on the balance of probabilities, support would have made a material difference to the extent of the Psychiatric Injury. It indicates no more than Mr Carangelo may have lost a chance of avoiding or ameliorating the Psychiatric Injury. 4. Dr Diamond said that it was necessary to look at the evolution of the illness along a time line to understand the likelihood that an intervention might have had an effect. He said that it was not correct to ask whether intervention would or would not have caused an improvement or a cure. Rather, he said, one must look at the point at which an intervention could have occurred and look at the nature of what the intervention may have been. He said that Mr Carangelo was a far more ill person following the PIC Inquiry than he was before and that he was steadily on the decline during that period. He said that, had he had access to some competent support, not necessarily a psychiatrist, Mr Carangelo would have had an opportunity at least to identify what his distress was about, and that may have given him an opportunity to appreciate what the sense of loss or pending loss may be, were he to be precluded from his career. Dr Diamond said that intervention would have offered Mr Carangelo an opportunity to enable him to deal with what lay ahead for him, so that he might have arrived at the PIC in a better condition to have dealt with it, without the devastating effects that followed afterwards. Dr Diamond concluded that part of his evidence by saying that it was necessary to look at an evolutionary process, the timeline involved and the opportunity that it could have provided Mr Carangelo for a better outcome. 5. The evidence of neither Dr Smith nor Dr Diamond supports a conclusion that it was more likely than not that, had support been provided during the relevant period, the Psychiatric Injury would have been avoided or ameliorated. The evidence goes no more than supporting the conclusion that Mr Carangelo lost a chance or opportunity to avoid deterioration in his condition. It does not rise higher than that. On that basis, the primary judge was correct to conclude that Mr Carangelo had failed to show any causal connection between the breach of duty found by her Honour in relation to the PIC investigation and his Psychiatric Injury. 6. In dealing with the breach of duty that she found concerning the PIC Inquiry, the primary judge observed that, while it was possible that Mr Carangelo might have felt less isolated had Supt Murdoch or Supt McErlain given him support and reminded him of the services available, he may well have rejected such advances on the grounds that they were no more than a cynical attempt to go through the motions required, rather than a genuine indication that those police officers cared about his welfare or were in a position to safeguard it in any significant way. Her Honour observed that Mr Carangelo's reaction may well have been the same as it was when offers were made in August 2007, at the time when Supt McErlain told Mr Carangelo that his HOD benefits claim had been declined and he refused Supt McErlain's offer of help. 7. Mr Carangelo contends that, by 2007, he had been left to his own devices by the Commissioner for over a year, and that it was improbable that he would not have accepted support if it had been offered in September 2005. He also says that the finding that he may have rejected advances is inconsistent with her Honour's finding that he would have availed himself of psychiatric support if it had been offered in 1999. It was also inconsistent, he says, with the evidence of Dr Diamond recorded by her Honour that, if assistance had been offered to Mr Carangelo in December 2005, he would not have rejected it. 8. The evidence relied on by Mr Carangelo does not support a finding that, on the balance of probabilities, forewarning of the PIC Inquiry and offering of psychiatric support in connection with it would have had any relevant bearing on the Psychiatric Injury. As the State contends, the harm suffered by Mr Carangelo was caused by his two decades of service in the Police Force. There was no error in the conclusion reached by the primary judge in that regard. 9. For the reasons indicated above, the reliance by Mr Carangelo on s 5D(2) is misplaced. This is not an exceptional case, such that responsibility for the harm suffered by Mr Carangelo should be imposed upon the State as vicariously liable for the conduct of the Commissioner. 10. The State contends, for the reasons indicated above, that the Commissioner had no knowledge of Mr Carangelo's psychiatric state in 1999. It would follow that it would not have been apparent to the Commissioner in 2005 and thereafter that there was a not insignificant risk that Mr Carangelo might suffer psychiatric harm in facing the PIC Inquiry, such as to found a duty to take care in the way found by the primary judge. In light of the conclusions reached above, namely, that Mr Carangelo has failed to demonstrate any error on the part of the primary judge in finding that there was no causal connection between such a breach of duty and the Psychiatric Injury, it is not necessary to deal with the contention by the State that there was no breach of duty on the part of the Commissioner in connection with the PIC Inquiry. Conclusion 1. It follows from the above that Mr Carangelo's appeal must be dismissed. He should be ordered to pay the State's costs of the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 May 2016