In a significant victory for frontline police officers grappling with the psychological toll of their work, the New South Wales District Court has ruled that the State breached its duty of care to a detective by failing to provide promised mental health support during a high-stakes investigation. The decision in Paul v State of New South Wales [2023] NSWDC 277, handed down by Judge Gibson DCJ, underscores the legal obligations of employers—particularly in high-stress fields like policing—to respond promptly and systemically to known risks of psychiatric injury.
The case centres on Detective Paul, who led Strike Force Bilvo, a task force probing serious allegations tied to the Royal Commission into Institutional Responses to Child Sexual Abuse. Over the course of the inquiry, Paul repeatedly sought access to “WellChecks”—mandatory psychological screenings designed for officers exposed to traumatic duties. Despite these requests, the New South Wales Police Force (NSWPF) did not implement the program for Paul or his team, leaving him without the counselling or assessments he flagged as essential.
Breach of Duty: A Systemic Oversight, Not Individual Fault
At the heart of the dispute was whether Paul’s superior officers knew—or ought to have known—of the foreseeable risk of psychiatric harm. The court drew clear parallels to the landmark High Court decision in Kozarov v Victoria (2022) 273 CLR 115, which expanded the scope of employer liability for mental health injuries in policing. Unlike routine cases, Paul’s situation involved proactive warnings: he explicitly raised concerns not just about his own symptoms, but about the broader vulnerability of officers performing similar roles.
Judge Gibson emphasised that Paul’s outreach “crystallised and identified for the Defendant the risk,” triggering a duty for a reasonable response. Critically, the NSWPF had already recognized the need for WellChecks for this exact class of duties—making the failure to act all the more glaring. The Court found as a consequence of the nature of the duties being performed by Mr Paul, he need not have made the complaint: the NSWPF had recognised the need for WellChecks in relation to workers that performed the duties that Mr Paul and his team were performing in any event.
This distinguished the case from precedents like Hegarty, Sills, and Briggs, where breaches often hinged on “struggling disclosures” of personal symptoms. Here, the complaint was preventive, focused on occupational hazards rather than immediate distress. The court also highlighted a key distinction between WellChecks—structured, duty-specific assessments—and the more general Employee Assistance Program (EAP), underscoring that the former was the appropriate tool for Paul’s circumstances.
The judgment faulted the system itself, not individual supervisors. “Police officers should be well aware of what stress-related conduct is like because recognising that a particular individual is stressed… may be an important part of detective work,” Judge Gibson observed. “The failure of the Plaintiff’s senior officers to realise that he needed help is a fault of the system, not of these individual witnesses, and demonstrates the breach of duty of care arising from the failure to act on the evident signs of the Plaintiff’s psychological harm.”
Drawing on established authority, the court reaffirmed the duty of care owed to police officers, as summarized by Macfarlan JA in S v State of New South Wales [2009] NSWCA 164 at [58]–[60] and Sackville AJA in Sills v State of New South Wales at [114]–[117]. In assessing breach, regard must be given to the “system of work, the provision of warnings and notices and the circumstances of particular kinds of employment such as police work,” per Kiefel CJ and Keane J in Kozarov at [6] and [19]. Echoing Gageler and Gleeson JJ at [27]–[28], the decision stressed the relevance of workload and systemic stress factors.
Ultimately, Judge Gibson held: “The breach of duty of care is ‘the failure by the State to follow its own system in dealing with the appellant'”—a direct nod to Sills.
Causation: Work-Related Trauma, Not Personal History
On causation, the State argued that Paul’s psychological injuries stemmed from unrelated personal matters, including a divorce and domestic violence proceedings from over a decade earlier. The court rejected this outright, finding the harm directly attributable to his police duties, particularly the unrelenting pressure of Strike Force Bilvo. “The Plaintiff’s psychological injuries arise from his police duties, and particularly by Strike Force Bilvo, and not from the circumstances of his divorce or the domestic violence proceedings occurring more than a decade before the events the subject of this application,” Judge Gibson ruled.
This finding aligns with Kozarov‘s emphasis on foreseeability in policing contexts, where “a search for obvious signs was unnecessary to establish a duty of care,” as affirmed in Bersee v State of Victoria [2022] VSCA 231 at [88]. The decision builds on Basten AJA’s observations in Horne v J K Williams Contracting Pty Ltd, while carving out the “special category of foreseeability” for officers in traumatic roles.
Broader Implications for Employers and Policing
This ruling serves as a cautionary tale for public sector employers, particularly in law enforcement, where mental health risks are inherent. It reinforces that when an employee—especially in a regulated profession—flags a foreseeable hazard and requests established support mechanisms, inaction constitutes a breach, regardless of overt symptoms.
The full judgment is available on Caselaw NSW. For more on employer liability in occupational health cases, visit our resources on psychiatric injury claims.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.