A former police officer who had suffered many traumatic and horrific experiences during his 35-year police career, and was unsuccessful in his negligence claim against the State of New South Wales, has been unsuccessful on appeal. The Supreme Court of New South Wales Court of Appeal upheld the primary judge’s finding that although the Commissioner of Police had breached its duty of care, any such breaches did not cause the psychiatric injury.
Benjamin Carangelo commenced his training at the police academy in Redfern in 1974. He was made detective in 1986 and transferred to Campsie/Blacktown Local Area Command where he remained until 1994. During that time, he was involved in several critical incidents and witnessed many horrific situations, including the violent murder of a newborn baby, as well as gang and gun-related violence and murder. Towards the end of 1994, Mr Carangelo was transferred from Campsie to Flemington Police Station where he remained until 1999. During that time, he was called to Silverwater Gaol on several occasions to deal with inmates who had hung themselves, as well as other violent incidents at the gaol.
By September 1999, Mr Carangelo requested, and was granted, a transfer to St George Local Area Command at Kogarah. He requested that he starts on general duties, which was lower than his current rank of detective, as he felt he was not coping with the trauma of what he had been exposed to as a detective. Mr Carangelo remained at Kogarah until 2007.
In September 2005, while he was at Kogarah, the Police Integrity Commission (PIC) launched an investigation into an allegation against Mr Carangelo. In response, he was required to produce financial records, and was questioned on several occasions. He found the experience stressful and was unable to return to work. He went on sick leave on 31 August 2006 and started receiving treatment from Dr Selwyn Smith, a psychiatrist. In June 2007, Mr Carangelo was informed by the superintendent that he was to be removed from the force. Investigations continued and ultimately there was no further action taken against Mr Carangelo and there were no adverse findings against him.
In February 2008, Mr Carangelo applied for a medical discharge on the basis of psychological injury, namely chronic adjustment disorder with a depressed and anxious mood. He was ultimately medically discharged in July 2010.
Mr Carangelo commenced proceedings in the Supreme Court of New South Wales against the State of New South Wales, in negligence and claimed damages. He claimed that the Commissioner of Police, for which the state is liable, owed a non-delegable duty to take reasonable care to provide a safe system of work, and that the Commissioner breached that duty by failing to take reasonable precautions against the risks of his suffering psychiatric injury at two significant points in his service. Firstly, in 1999, when he asked to be transferred from Flemington to Kogarah and secondly, in 2005, when his commanding officer failed to support him during the PIC investigation. Mr Carangelo argued that had appropriate treatment been offered at either of those points, he would not have suffered the psychiatric injury. He alleged that he sustained psychological injury as a result of the breach of duty of care owed to him.
The state denied liability and any breach of duty of care. It also argued that, even if it were shown to have been negligent, any such negligence did not cause the psychiatric injury.
Her Honour Adamson J found that at the time Mr Carangelo requested a transfer to Kogarah to general duties (a significant step down from his rank of detective), the Commissioner ought to have known that Mr Carangelo was suffering from an abnormal stress reaction and found it difficult to cope with the traumatic events he had been exposed to, and was not coping. A reasonable person in the position of the Commissioner would have taken the precaution of referring Mr Carangelo for assessment and treatment, and the failure to do so was negligent. The risk of psychological harm was not insignificant. Adamson J also found that the failure to forewarn Mr Carangelo of the impending PIC investigation and provide him with support was also negligent.
However, her Honour was not satisfied that had Mr Carangelo been referred for treatment and assessment at the time of his transfer to Kogarah in 1999, and had he been provided with support at the time of the PIC inquiry, he would not have suffered psychiatric injury. On that basis, Adamson J found that although the Commissioner was negligent, such negligence did not cause the particular harm. Mr Carangelo failed to establish causation and accordingly, Adamson J dismissed his claim.
Mr Carangelo appealed the primary judge’s findings and argued that the primary judge misapplied s 5D of the Civil Liability Act 2002 (NSW) by requiring that the breach of duty be a necessary condition to the whole of his damages rather than a material contribution to those damages. He also sought to rely on s 5D(2) of the Act.
The court found that there was no error in the primary judge’s finding that the evidence did not establish that a referral to a private psychiatrist in 1999 would have resulted in a relevant difference to the psychiatric injury. In other words, there would not have been a different outcome had the relevant steps been taken by the state. A similar finding was made in relation to the PIC, that the primary judge did not err in finding that the failure of the state to forewarn Mr Carangelo of the PIC was not causative of the psychiatric injury. Mr Carangelo had failed to prove any casual connection between the breach of duty and his psychiatric injury.
Accordingly, the court dismissed Mr Carangelo’s appeal with costs: Carangelo v State of New South Wales  NSWCA 126.
This article was written by Jackie Waugh, Wolters Kluwer Torts editor, and first appeared in the Australian Tort, Personal Injury, Health & Medical Law Tracker dated 2 June 2016.