- Benjamin Carangelo seeks damages against the State of New South Wales for psychiatric injury said to have been sustained as a consequence of breaches of the duty owed to him by the Commissioner of Police, for which the defendant, the State of New South Wales, is vicariously liable.
- The plaintiff’s case, in summary, was that the Commissioner failed to take reasonable precautions against the risks of his suffering psychiatric injury at two significant points in 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 commanding officer failed to offer support to him with respect to a Police Integrity Commission (PIC) investigation into his conduct. The plaintiff contended that if appropriate treatment had been offered either at the first or second points, he would not have suffered Chronic Adjustment Disorder with Anxious and Depressed Mood. In that event, he would have continued to serve as a police officer to the age of 60 and would have worked as a private inquiry agent thereafter.
- The defendant contended that there was no breach at either juncture, at least in part because the plaintiff was loath to allow others to assist him where to do so would require him to disclose or reveal vulnerability to stress. It submitted that, even if it were shown to have been negligent, its negligence could not be shown to have caused Adjustment Disorder or to have made any material difference. It contended that the PIC inquiry and the ensuing internal investigation were the real causes of the plaintiff’s psychiatric injury and that neither was compensable. It did not press its defence under the Limitation Act 1969 (NSW).
- Section 5D of the Civil Liability Act provides:
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).
(2) 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 to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
Factual causation: the negligence in December 1999
- The first question is whether the defendant’s failure to direct the plaintiff to attend the PMO for assessment in 1999 caused the particular harm. This is the “factual causation” referred to in s 5D(1)(a) of the Civil Liability Act and must, by s 5E, be established on the balance of probabilities. In order to answer the question it is necessary to address what would have been likely to happen had the plaintiff been directed to attend the PMO in 1999, and to take account of what the plaintiff himself would have done in that event: s 5D(3)(a) of the Civil Liability Act.
- I am satisfied that, had the plaintiff been referred to the PMO in 1999, he would have at least have disclosed that he wanted to be transferred to General Duties because he was not coping with the exposure to suicides at Silverwater Goal and the excessive workload. After all, he had been prepared to tell Detective Lorenzutta as much when he asked for a transfer. Had reasonable care been taken the PMO would have referred the plaintiff to a private psychiatrist, such as Dr Diamond, for assessment and treatment.
- I reject the defendant’s submission that the plaintiff would not have divulged his continued anxiety about the various traumatic events which he persisted in recounting to his closest associates. I do not accept Mr Menzies’ submission that any such consultation would have been futile because the plaintiff would not have been prepared to co-operate. These submissions do not, in my view, pay sufficient regard to the clinical skill of practitioners such as Dr Diamond in eliciting a relevant history. Dr Diamond’s knowledge of the Police Force would have enabled him to ask questions to facilitate such disclosures. Moreover, the plaintiff had already been prepared to breach the unwritten code of not revealing weakness to his Commanding Officer when he divulged his distress at the hangings at Silverwater and his inability to cope with the workload. In these circumstances, I am satisfied that he would have co-operated with Dr Diamond (or another psychiatrist) and given a sufficient history of the events that troubled him and the difficulties he was having to enable him to be treated.
- I accept the evidence of Drs Smith and Diamond that, had this occurred, the risk of his suffering Adjustment Disorder would have been materially reduced. Accordingly, the defendant’s negligent failure to intervene deprived the plaintiff of the chance of a better outcome (of not suffering from Adjustment Disorder). If I could be satisfied that it was probable that, had the defendant taken the reasonable precautions that I have found were required to discharge its duty, the plaintiff would not have suffered Adjustment Disorder, the defendant would be liable for its negligence.
- I am entitled to take into account all of the evidence in determining the question of causation and am not bound by conclusions of experts, or the expression of scientific opinion, the question of causation being ultimately a legal one: Seltsam Pty Ltd v McGuiness  NSWCA 29; 49 NSWLR 262 at  per Spigelman CJ. However, in the present case, it does not seem to me that there is other evidence that would enable me to put the prospect as high as a probability. I am not satisfied that, had the defendant done what was reasonably required in 1999, the plaintiff would not have suffered Adjustment Disorder or that such disorder would not have remained chronic. By the time of the hypothetical consultation, the plaintiff 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 detriment of all.
- The relevant standard of proof is the balance of probabilities: s 5E of the Civil Liability Act. Loss of a chance of a better outcome, which falls short of a likelihood, is insufficient to impose liability: Tabet v Gett  HCA 12; 240 CLR 537. The plaintiff has not discharged his onus. Accordingly, the plaintiff has failed to establish factual causation with respect to the defendant’s negligence in 1999.
- Mr Roberts submitted that if I were not satisfied of factual causation, s 5D(2) of the Civil Liability Act applied to extend liability to the present case, which he contended was “exceptional”. The basis for this submission was not articulated.
- The purpose and effect of s 5D(2) has not yet been established. In Adeels Palace Pty Ltd v Moubarak  HCA 48; 239 CLR 420 the High Court said, at :
“It may be that s 5D(2) was enacted to deal with cases exemplified by the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd  1 AC 32 where plaintiffs suffering from mesothelioma had been exposed to asbestos in successive employments. Whether or how s 5D(2) would be engaged in such a case need not be decided now.”
- Fairchild v Glenhaven Funeral Services Ltd was referred to by French CJ in Amaca Pty Ltd v Booth  HCA 53; 246 CLR 36 at  as a “modified concept of causation” which was developed because the strict application of the “but for” test of factual causation was said to give rise to injustice in cases where the science did not permit proof of causation on the orthodox basis. I do not regard the present case as falling within that special category, which may, in an appropriate case, be regarded as “exceptional” for the purposes of s 5D(2).
- In Strong v Woolworths Ltd  HCA 5; 246 CLR 182 the majority (French CJ, Gummow, Crennan and Bell JJ) considered the circumstances in which s 5D(2) might operate but found that factual causation had been established in that case. Their Honours decided that the appellant had proved on the balance of probabilities that the exercise of reasonable care would have led to the removal of the chip that caused her fall before she slipped on it. Accordingly, there was no need to consider whether s 5D(2) would have been sufficient had factual causation not been established. The majority said at :
“The causation issue presented by the appellant’s claim has nothing to do with concepts of material contribution to harm, material increase in risk of harm, or any of the difficulties discussed by the text writers in the context of the limitations of a “but for” analysis of factual causation. (Stapleton, “Reflections on Common Sense Causation in Australia”, in Degeling, Edelman and Goudkamp (eds), Torts in Commercial Law, (2011) 331 at 338–342).”
- Nor do the issues in cases referred to in the text cited in the passage above have anything to do with the present case. Here, the difficulty of proving causation arises from the difficulties in quantifying the effect of treatment for nascent Adjustment Disorder, the foundations for which had been laid over the more than two decades prior to the alleged negligence. Although the parameters of s 5D(2) are yet to be established, I am not persuaded that the present case ought be regarded as “exceptional” because the plaintiff cannot establish that the chance of a better outcome, if treatment had been provided, was more probable than not. Had Parliament intended to make provision for such a fundamental change, which could potentially affect a large number of cases, it can hardly be expected that it would have done so by reference to an exception, rather than a new rule.
- I am not persuaded that responsibility for the plaintiff’s Adjustment Disorder should be imposed on the defendant notwithstanding its negligent failure to refer the plaintiff to the PMO and a private psychiatrist in 1999.
Factual causation: the negligence in 2005 – 2006
- In order to determine what, if any, harm was caused by the defendant’s negligent failure to forewarn the plaintiff 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 is necessary to subtract the harm caused by the PIC inquiry itself and any harm occasioned by the subsequent action under s 181D. It was accepted that none of the harm caused by these inquiries was compensable. This concession was appropriate having regard to the principle articulated in Sullivan v Moody  HCA 59; 207 CLR 562 at  that the law would not ordinarily impose a duty of care on a public authority which Parliament has made responsible for conducting investigations and exercising powers in the public interest.
- The evidence of the plaintiff and of Mr Lagopodis, as well as the evidence of the psychiatrists, established the devastating effect of the PIC inquiry and the manner in which it was conducted, on the plaintiff. He stood to lose all that being a police officer meant to him, including the status and the good opinion of his colleagues and superiors. Moreover, it rendered his marriage irretrievable. It 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. That he was prohibited by statute, on threat of criminal liability (s 54 of the PIC Act), from disclosing to anyone the details of what was being alleged against him, was a further blow.
- In these circumstances, I do not accept that the plaintiff suffered any material harm from the defendant’s failure to forewarn him or offer support before or during the first year of the PIC inquiry. The failure was not, in my view, causative of his Adjustment Disorder, or any material aggravation of it. It was yet another blow, but not a material one. Moreover, although it is possible that the plaintiff might have felt less isolated had Superintendent Murdoch or Superintendent McErlain taken him aside to express support and remind him of the services available, he 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, or were in a position to safeguard it in any significant way. His reaction may well have been the same as it was when offers were made in 2007. The pervading sense of isolation which the plaintiff experienced was a result, in my view, of the processes of PIC itself, which required and enforced utmost confidentiality rather than the failure of his Commanding Officers to offer him timely support from the outset.
- Accordingly, the plaintiff has failed to establish factual causation with respect to the defendant’s negligence in 2005 and 2006. Nor do I regard the instant case as an “exceptional” one for the purposes of s 5D(2).
Factual causation: assuming breach in 1999 but no breach in 2005
- Mr Roberts also put the plaintiff’s cause on causation on an alternative basis and submitted that the defendant was liable because its negligence in 1999 compromised the plaintiff’s psychological resilience such that, when he was investigated by PIC, he was unable to withstand the additional pressure of the inquiry. He submitted that, had the plaintiff seen the PMO in 1999 and been referred to Dr Diamond, he would have been in a more robust psychological state when served with the PIC notices. On that scenario he would have had a well-established and ongoing therapeutic relationship with a psychiatrist who could have provided sufficient support to enable him to withstand the loss of other protective mechanisms during the PIC inquiry. Mr Roberts relied on the circumstance that the plaintiff was, objectively, able to fulfil all police duties required of him from 1999 when he was transferred from Flemington to Kogarah and continued to work continuously for a year after he was first served with a notice by PIC.
- The difficulty with this submission is that the evidence does not support it although it was the subject of some evidence by Dr Diamond. Moreover, it does not overcome the principal impediment to liability: the plaintiff cannot prove factual causation because, at best, the defendant’s negligence in 1999 caused him to lose the chance of a better outcome. I am prepared to accept that the plaintiff would, had he had an ongoing therapeutic relationship with a psychiatrist in 2005 when the PIC inquiry began, have been in a better psychological position to deal with the PIC inquiry. But more is required to make the defendant liable.
David Cormack – Brisbane Barrister & Mediator
NB: appeal dismissed –