Tort of Negligence in Police Force: Case Study of Sergeant McDonald

INTRODUCTION
Police officers in Australia do experience traumatic disorders due to horrible incidences they
witness or handle. The Australian state government has a duty of care to its police force by
ensuring that police officers get mental assistance to cope up with their situations and helping
them relieve stress and depression. The case study of Mrs. MacDonald has been used to show
how a tort of negligence arises on the part of government, its elements and possible remedies to
the victims of tort. The case study delves into the understanding tortious liability for negligence,
its elements, remedies and application to the case study of Sergeant McDonald’s suicide case.
Definition and aims of tort law
Civil law has a primary aim of making compensation to the aggrieved parties. Civil cases are
instituted by private individuals who could be natural persons, legal persons and government
agencies. In Australia tort law comprises of common law principles to a larger extent and
Australian legislations to a smaller extent. A tort is defined to be a civil wrong to the exclusion
of breach of contract. The civil wrong is done by private parties against other private parties or
by the government agencies. The case study of this research focuses on the tort of negligence as
discussed below.
Elements of tortious liability for negligence
For an individual to claim negligence, he or she must establish the following grounds of
negligence against the defendant;
Duty of care- the claimant must prove on a balance of probability that the defendant owes him a
duty of care. Duty of care arises where there are set standards guiding the defendant his action.
The defendant is therefore required to uphold those standards. (Amanda Stickley, 2016)
Breach of duty- the claimant must establish that the defendant breached the duty of care by
acting below the required standards. The standard of duty of care was demonstrated in the case
of Donoghue v Stevenson1 where lord Atkin established duty of care using the neighbour
principle by defining a neighbour as anyone affected by our actions.
1 Donoghue v Stevenson [1932] AC 532

Damage-the claimant has to prove that he suffered injuries due to breach of the duty of care
owned to him. The injuries or the damage occasioned to the plaintiff would not have occurred if
the defendant exercised due care and diligence by upholding the set standard required for his
actions. Damage resulting from breach of such a duty was proved in the leading Australian case
of Grant v Australian Knitting mills2 in a case seeking to hold the manufacturer of leather
innerwear liable for skin disease caused to the plaintiff who wore a leather pant with excess
Sulphur.
Causation- there must be proximity between the careless action and the damage suffered. A
causal connection has to be established proving that the negligent act caused the damage and not
any other act hence just and fair to place liability on the wrong doer as evidenced in the case of
Caparo industries PIC v Dickman3
Application to the case study of Sergeant Gabrielle MacDonald
In this particular case study the plaintiffs who have instituted three tortious claims for a tort of
negligence are the spouse to the deceased Mr. McDonald together with his children. The
defendant who was sued is the New South Wales State. The plaintiff Mr. McDonald sued on
behalf of his son and daughter, Joshua and Jessica respectively and on behalf of himself. (Lorna
Knowles, 2016)
The police department for the state of NSW was actually negligent in handling the post-traumatic
stress disorder (PTSD) for Mrs. McDonald. All the four elements of negligence discussed above
can actually be proved on the NSW police force administration. The New South Wales police
department had a duty of care and breached that duty by failing to take all necessary measures
they are supposed to take to handle Gabrielle’s condition at the moment. Despite the deceased
having attempted to commit suicide, the police claimed it was not genuine and settled on a
transfer option which was not well communicated to the deceased.
The suicide victim was not subjected to proper monitoring of her condition from the police. She
instead continued working in a worsened stressful condition. The duty of due diligence and care
was breached by the police for failing to offer the victim with adequate training on her working
2 Grant v Australian Knitting Mills [1935]UKPC 62
3 Caparo Industries v Dickman [1990] UKHL 2