Date: Tue, 22 May 2007 03:49
From: Neil Foster
Subject: HCA on breach of duty in negligence - NSW v Fahy
In NSW v Fahy  HCA 20 (22 May 2007) the High Court of Australia was hearing an appeal in a negligence action brought against the State by a policewoman who had suffered a psychological condition after being exposed to a stressful incident as part of her duties. The essence of her complaint was that she had been abandoned by a senior officer who was meant to be her partner while left to deal with the consequences of a horrific wounding.
By majority of 4-3 the Court concluded that both the lower courts (trial judge and NSW Court of Appeal) had got it wrong in finding that there had been a breach of duty by the Police Service. The majority (Gummow & Hayne JJ, Callinan & Heydon JJ) came to this conclusion because they said it was not reasonable to require the police to respond to the clearly foreseeable risk of PTSD suffered by police officers, by in effect requiring police officers to work together and support each other unless circumstances made it impossible to do so - see eg the formulation at para  of the judgement of Gummow & Hayne JJ. In the view of the majority "the nature of police work" and "other conflicting responsibilities" made such a system not workable - see -.
The dissenters (Gleeson CJ, Kirby J and Crennan J, in separate judgements) started with the presumption that breach being so much a question of fact, the High Court should be very reluctant to disturb a finding of breach made at two previous levels of the judicial hierarchy (Gleeson CJ at ), and also took the view that in any event the work system suggested by the plaintiff would have been a reasonable response to the risk.
What is perhaps more important about the decision for the future is that, despite the narrow finding against the plaintiff, the Court by a fairly clear majority of 4-2 (Crennan J not deciding) ruled that Wyong Shire Council v Shirt should not be over-ruled in its description of what has (perhaps not very aptly) come to be known as the "calculus" of negligence to be used in deciding whether a breach of duty has occurred. In particular, in recent years there has been much criticism of the standard of foreseeability set out in Shirt (anything that is "not far-fetched and fanciful") as being too "undemanding", and suggestions that a higher standard be set.
All 4 of those judges refusing to over-rule Shirt indicated that not only did the issue not need to be decided in this case (the general foreseeability of some sort of stress being accepted by all), but that in fact the decision was correct - Gleeson CJ at , Gummow & Hayne JJ at , Kirby J at -, interestingly referring briefly to an article by Posner at . Crennan J also rejected the challenge to Shirt at  but without any indication as to her view of the decision.
The only two members of the Court who continued to articulate their opposition to Shirt were Callinan & Heydon JJ at -. It seems likely that future attempts to challenge the Shirt standard of foreseeability in the High Court will probably not be given special leave.
A final pedantic point - Kirby J at  n 172 refers to Lord Atkin's "neighbour" principle in Donoghue v Stevenson as being formulated by reference to St Matthew's Gospel. It is true that there are injunctions to "love your neighbour" in Matthew- see Matt 19:19, 22:39; but given the clear allusions in the subsequent discussion to the parable of the Good Samaritan (reference to "the lawyer's question: Who is my neighbour?") I venture to suggest that Lord Atkin really had that passage in the gospel of Luke in mind (Luke 10:27-37), rather than the Matthew references.
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