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

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

The findings that the State breached its duty of care by failing to provide adequate psychological review, screening, referral and monitoring, and that those breaches caused Mr Doherty's PTSD-related loss, were open. The 35 percent reduction for contributory negligence was not shown to be erroneous. However, given Mr Doherty's long pre-existing psychological vulnerability, symptoms from 1994, and determination to keep working while concealing symptoms, the primary judge should have increased the future economic loss discount for vicissitudes from 15 percent to 30 percent. The appeal was therefore allowed only to reduce damages, and the cross-appeal was dismissed.

Jurisdiction
Australia
Judgment Date
05 August 2011
Procedural Posture
Appeal and Cross Appeal in Negligence and Breach of Statutory Duty Proceedings for Damages for PTSD / Appeal From Verdict and Judgment of Price J in Doherty V State of New South Wales [2010] NSWSC 450
Outcome
Appeal allowed in part; appeal otherwise dismissed; cross-appeal dismissed.
Legal Topics
['post Traumatic Stress Disorder' 'police Officer Exposure to Traumatic Crime Scenes' 'employer Duty of Care' 'causation Under Civil Liability Act 2002 S 5 D' 'contributory Negligence' 'assessment of Future Economic Loss' 'vicissitudes']
['tort' 'negligence' 'employment Injury' 'damages'] ['post Traumatic Stress Disorder' 'police Officer Exposure to Traumatic Crime Scenes' 'employer Duty of Care' 'causation Under Civil Liability Act 2002 S 5 D' 'contributory Negligence' 'assessment of Future Economic Loss' 'vicissitudes']

Case Brief

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Procedural Posture

Appeal and Cross Appeal in Negligence and Breach of Statutory Duty Proceedings for Damages for PTSD / Appeal From Verdict and Judgment of Price J in Doherty V State of New South Wales [2010] NSWSC 450

Legal Issues

  1. 1 ['Whether the State of New South Wales breached its duty of care to Mr Doherty before and during 2003 by failing to provide adequate psychological review, screening, monitoring or restricted duties.' 'Whether the State of New South Wales breached its duty of care in 2004 by failing to provide relevant information to the Police Medical Officer, use appropriate PTSD screening, refer Mr Doherty for psychiatric or psychological assessment, or monitor him adequately.' "Whether any breach by the State caused Mr Doherty's psychological injury within Civil Liability Act 2002 s 5D." 'Whether the primary judge erred by not resolving contested medical evidence about entrenchment, chronicity and treatment outcome.' "Whether damages should have included a larger discount for the chance that Mr Doherty's pre-existing vulnerability and symptoms could have resulted in disabling PTSD in any event." 'Whether Mr Doherty was contributorily negligent and whether the 35 percent reduction should be set aside, reduced, increased or made 100 percent.']

Ratio Decidendi

The findings that the State breached its duty of care by failing to provide adequate psychological review, screening, referral and monitoring, and that those breaches caused Mr Doherty's PTSD-related loss, were open. The 35 percent reduction for contributory negligence was not shown to be erroneous. However, given Mr Doherty's long pre-existing psychological vulnerability, symptoms from 1994, and determination to keep working while concealing symptoms, the primary judge should have increased the future economic loss discount for vicissitudes from 15 percent to 30 percent. The appeal was therefore allowed only to reduce damages, and the cross-appeal was dismissed.

Court Disposition

Appeal allowed in part; appeal otherwise dismissed; cross-appeal dismissed.

Orders

  • ['Appeal allowed in part.' 'Verdict and judgment for Mr Doherty for $676,486.91 substituted for the verdict and judgment below, to take effect from 20 May 2010.' 'Appeal otherwise dismissed.' 'Cross-appeal dismissed.' "Each party to pay its own costs of the appeal and cross-appeal, Mr Doherty to have a certificate...