New South Wales v Burton

[2006] NSWCA 12

NSW Court of Appeal

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Interrogate

Catchwords

1. Negligence
2. › Employer's duty of care
3. › Psychiatric injury
4. › Police officer
5. › Foreseeability of risk of PTSD to specially trained officer
6. › Whether risk foreseeable given officer's training and experience
7. › Whether employer's own protocols established foreseeability
1. Negligence
2. › Employer's duty of care
3. › Breach of duty
4. › Failure to provide psychological counselling and debriefing
5. › Whether failure to follow employer's own protocols constituted breach
1. Negligence
2. › Causation
3. › Material contribution
4. › Pre-existing condition
5. › Whether breach materially contributed to psychiatric condition or merely caused loss of chance of better outcome
6. › Distinction between causing condition and exacerbating condition
1. Damages
2. › Personal injury
3. › Loss of a chance
4. › Psychiatric injury
5. › Assessment of loss of chance of better medical outcome
6. › Whether damages should be assessed on loss of chance basis where tortious conduct exacerbated but did not cause condition

Quick Take

Where an employer's breach of duty exacerbates a psychiatric condition caused by a non-tortious event (here, a shooting incident), but the medical evidence establishes only that early intervention could have reduced the severity and duration of the condition without establishing that the breach materially contributed to the condition developing at all, damages must be assessed on a loss of chance basis rather than as full compensation for the condition. The distinction between causing a condition and exacerbating it is critical to the measure of damages. Medical evidence using terms like 'contributed' and 'exacerbated' without specifying the degree of contribution may be insufficient to establish material contribution.