Briggs v State of New South Wales

[2015] NSWDC 235

District Court

New South Wales

Case Name:	Briggs v State of New South Wales
Medium Neutral Citation:	[2015] NSWDC 235
Hearing Date(s):	7, 8, 9, 10 September, & 9 October 2015
Date of Orders:	23 October 2015
Decision Date:	23 October 2015
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	(1) Verdict and judgment for the plaintiff in the amount of $969,136; (2) The defendant is to pay the plaintiff’s costs of the s 151D motion on the applicable scale; (3) The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless otherwise ordered; (4) The exhibits may be returned; (5) Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords:	TORTS – negligence – work-related injury – police officer suffering from post-traumatic stress disorder caused by nature and conditions of his work – grant of leave to proceed pursuant to s 151D of Workers Compensation Act 1987 – whether negligence of the employer has been established – whether contributory negligence on the part of the plaintiff has been established – whether plaintiff failed to mitigate his damage; DAMAGES – assessment of claimed heads of damage
Legislation Cited:	Civil Liability Act 2002, s 3B, s 5D Crown Proceedings Act 1988, s 5 Evidence Act 1995, Pt 2 cl 4(2), s 60, s 136 Police Act 1990, s 145 Workers Compensation Act 1987, s 151D, s 151L Workplace Injury Management Act 1998, Ch 3
Cases Cited:	Bankstown Foundry Pty Ltd v Brastina [1986] HCA 20; (1986) 160 CLR 301 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Browne v Dunn (1894) 6 R 67 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 ITEK Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 Medlin v State Government Insurance Commission [1995] HCA 5, (1995) 182 CLR 1 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383 Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330 S v State of NSW [2009] NSWCA 164 Smith v Grant [2006] NSWCA 244; (2006) NSWLR 735 State of NSW v Fahy [2007] HCA 20; (2007) 232 CLR 486 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Category:	Principal judgment
Parties:	Ryan Briggs (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: Mr I Roberts SC with Mr T Ower (Plaintiff) Mr L Morgan (Defendant) Mr B Quillan (Solicitor for the defendant in place of Mr Morgan on 9 October 2015)   Solicitors: Harris Wheeler Lawyers (Plaintiff) HWL Ebsworth (Defendant)
File Number(s):	2015/84738
Publication Restriction:	None

JUDGMENT

Table of Contents

Plaintiff’s claim	[1] – [5]
Plaintiff’s application for leave to proceed	[6] – [7]
Defendant’s position	[8] – [13]
Issues	[14] – [17]
Evidence overview	[18] – [20]
Credit	[21] – [36]
Facts	[37] – [369]
Plaintiff’s background	[38] – [49]
Initial police career	[50] – [55]
Detective training	[56] – [59]
Sentinel events of 31 July 2003	[60] – [69]
Promotion to detective senior constable	[70] – [76]
Transfer to Gang Squad	[77] – [80]
Promotion to sergeant	[81] – [82]
Transfer to Rose Bay	[83] – [88]
Leave for marriage and honeymoon	[89]
Return to work at Rose Bay	[90] – [92]
Decline in ability to cope	[93] – [96]
Extended leave	[97] – [100]
Wife’s pregnancy with twins in 2011	[101]
July 2011 request for change of duties	[102] – [109]
Plaintiff’s emotional reaction to birth of twins	[110] – [112]
October 2011 – return to operational duties	[113] – [122]
Application for transfer: Exhibit “D”	[123] – [141]
Precipitating incident – 16 November 2011	[142] – [146]
Sick leave	[147] – [148]
Medical and allied treatment	[149] – [165]
“Ten foot tall and bullet proof”	[166] – [170]
Defendant’s construction of events	[171] – [183]
Plaintiff’s expectation of a return to work	[184] – [196]
Return to work on restricted duties	[197] – [202]
Initial contact with Professional Standards Command	[203] – [204]
Target testing for drug use	[205] – [219]
Interview by Professional Standards Command	[220] – [237]
Alleged secondary employment	[238] – [279]
Termination of employment	[280] – [283]
Future work prospects	[284] – [293]
Chronology of medical and allied reviews	[294] – [357]
Resolution of conflicting medical opinions	[358] – [359]
Disabilities that remain	[360] – [369]
Relevant policing documents	[370] – [407]
Task Force Alpha Report - 1992	[371] – [382]
Ombudsman’s Report - 1999	[383] – [386]
Rehabilitation (Return-to-Work) Policy	[387] – [391]
Restricted Duties Policy	[392] – [397]
Complaints Handling Guidelines	[398] – [407]
Issue 1 – Grant of leave to proceed : s 151D of WC Act	[408] – [424]
Issue 2 – Alleged negligence	[425] – [511]
Particulars of negligence	[426]
Principles for determining breach of duty of care	[427] – [430]
Foreseeability of psychological harm	[431] – [437]
SIDS incident as initiating factor	[438] – [439]
Employer’s response to SIDS incident	[440] – [448]
Events between July 2003 and July 2011	[449] – [476]
Disclosure of “struggling” in July 2011	[477] – [498]
Events between August 2011 and October 2011	[499] – [501]
Events between 19 October 2011 and 16 November 2011	[502]
Events between November 2011 and January 2013	[503] – [510]
Conclusions on breach of duty of care	[511]
Issue 3 – Causation	[512] – [548]
Principles for determining causation	[513] – [516]
SIDS incident on the foundation	[517] – [524]
July 2003 to July 2011	[525] – [527]
Disclosure of “struggling” in July 2011	[528] – [535]
August 2011 to 16 November 2011	[536] – [539]
Events occurring after 16 November 2011	[540] – [546]
Conclusions on causation	[547] – [548]
Issue 4 – Alleged contributory negligence	[549]
Issue 5 – Mitigation : s 151L of the WC Act	[550] – [556]
Issue 6 – Assessment of damages	[557] – [602]
Past economic loss	[558] – [578]
Fox v Wood	[579]
Future loss of earning capacity	[580] – [599]
Past loss of superannuation	[600]
Future loss of superannuation	[601]
Summary of damages assessment	[602]
Disposition	[603]
Costs	[604]
Orders	[605]

Plaintiff’s claim

1. The plaintiff, Ryan Briggs, who is presently aged 38 years, formerly a police sergeant in the NSW Police Force until he was discharged from that position on medical grounds, brings these proceedings against the defendant, the State of NSW, pursuant to s 5 of the Crown Proceedings Act 1988, claiming damages in respect of alleged negligence on the part of his employer causing him psychological injuries arising from the nature and conditions of his work as a police officer.

2. The plaintiff claims his exposure to traumatic events in the course of his police work resulted in him experiencing cumulative psychological trauma leading to a diagnosis of chronic post-traumatic stress disorder [“PTSD”], described as a “creeping trauma”, with an associated major depression, and an inability to continue working. The proceedings are governed by the provisions of the Workers Compensation Act 1987 [“WC Act”].

3. The plaintiff has been assessed and treated by both a clinical psychologist and a consultant psychiatrist in respect of the injuries for which he brings this claim. In addition, at the request of the legal representatives of both the plaintiff and the defendant, he has also been further examined and assessed by three other consultant psychiatrists for medico-legal purposes.

4. In their respective reports, all of those practitioners have agreed with the diagnosis that the plaintiff suffers from the conditions of PTSD and depression, and that those conditions have been caused by or have been substantially contributed to by his work as a police officer.

5. During the course of the hearing, the defendant ultimately accepted that the identified conditions had been correctly diagnosed by those practitioners, but contended that those conditions were not caused by the negligence of the plaintiff’s employer.

Plaintiff’s application for leave to proceed

1. As a threshold issue, the defendant claimed the plaintiff was disentitled to bring his claim on account of the expiration of the limitation period of 3 years: s 151D of the WC Act. The plaintiff therefore filed a notice of motion seeking leave to proceed with his claim pursuant to s 151D of that Act.

2. The s 151D motion was heard in Newcastle on 7 September 2015. The plaintiff was granted leave to proceed with his claim as it was determined to be fair and just that he be permitted to do so. The hearing of the substantive proceedings then followed. At the time leave was granted the parties were informed that the reasons for that decision would be incorporated into this judgment: T19.16.

Defendant’s position

1. The defendant’s resistance of the plaintiff’s claim was largely founded upon an attack on the plaintiff’s integrity and credit. The defendant also relied upon sceptical comments, based on speculation about aspects of the plaintiff’s claim, made by two non-treating consultant psychiatrists who had been engaged on behalf of the defendant to conduct a file review of the plaintiff’s claim, without having beforehand had the benefit of an examination of the plaintiff.

2. In defending the plaintiff’s claim, the defendant obtained statements from a number of the plaintiff’s superior officers. Those statements contained unsubstantiated hearsay and opinion evidence: Exhibit “2”, Tab 5 par 31; Tab 6 par 13 and par 28.

3. Following objections, those statements were only admitted into evidence for the limited purpose of revealing the nature of the material that the consultant psychiatrists had been asked to consider. The makers of those statements, Superintendent Joyce, Inspector Greene and Sergeant Browning, were not called to give evidence.

4. In such circumstances, those comments must be seen to carry only limited evidentiary value that was outweighed by the unfair and prejudicial content which could not be tested as the defendant indicated the makers of those statements would not be called to give oral evidence. That limitation was noted as the condition of the tender of those statements: s 136 of the Evidence Act 1995: T248.24 – T249.8. As a result, and for the reasons set out in my credit findings, wherever the content of those statements conflict with the evidence of the plaintiff, I prefer and accept the evidence of the plaintiff.

5. Neither of the two psychiatrists who had undertaken a file review of the plaintiff’s case had been given the opportunity of examining the plaintiff before they provided their comments. They had merely been asked to provide a commentary on aspects of the plaintiff’s case based on their respective file reviews which involved them only considering materials and reports provided to them. Some of those materials, which apparently suggested credit issues on the plaintiff’s part, were not in evidence. In such circumstances, the reports based on file reviews without an examination of the plaintiff carry very little probative value in a case of this kind.

6. In its filed defence, the defendant pleaded in the alternative that there was contributory negligence on the part of the plaintiff, and that the plaintiff had relevantly failed to mitigate his damages.

Issues

1. Apart from factual matters, and matters concerning the credibility and reliability of testimony, an examination of the pleadings, the evidence and the submissions of the parties, conveniently identifies the following issues for determination in these proceedings:

   Issue 1 -Whether the plaintiff should be granted leave to proceed pursuant to s 151D of the WC Act;

   Issue 2 -Whether the defendant was in breach of the duty of care that was owed to the plaintiff;

   Issue 3 -Whether the claimed breaches caused the plaintiff to suffer psychological injuries;

   Issue 4 -Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent;

   Issue 5 -Whether the plaintiff failed to mitigate his losses as is required by s 151L of the WC Act;

   Issue 6 -The assessment of the plaintiff’s entitlement to damages.

2. Factual complexity arose within those issues because of the incremental way in which PTSD occurs, hence the need for a detailed exposition of the underlying facts that the plaintiff claims has led to that condition in his case.

3. The consideration required for those matters commences from a sentinel event that occurred in the line of the plaintiff’s duties in 2003, and continues through to events occurring in the period of the plaintiff’s service as a police officer between 2003 and 2011, and then between 2011 and 2013, in the lead-up to him leaving his work on sick leave, followed later by his retirement on medical grounds.

4. Before considering those issues, and the critical questions embedded within them, it is necessary to take an overview of the evidence and deal with the credit issues raised by the defendant before setting out the relevant facts that unfolded over the course of the plaintiff’s 14 years as a police officer.

Evidence overview

1. The plaintiff was the only witness to give oral evidence in his case. The only oral evidence called by the defendant was from Inspector Andrew Sipos, a senior police officer under whose command the plaintiff had worked immediately before going off work on sick leave. That evidence was of limited utility due to the limited recollections of Inspector Sipos.

2. The remainder of the evidence was documentary, and comprised medical and allied reports and other documents relevant to the respective liability and damages issues. The detail of those documents will be referred to in the course of these reasons where it becomes relevant to do so.

3. The principal factual matters at issue in the proceedings were first, whether, in 2003, the plaintiff’s exposure in the course of his work to an instance of sudden infant death syndrome [“SIDS”], had in combination with the subsequent cumulative stressful experiences of other traumatic events he had been required to deal with in the course of his work as a police officer, and in the context of the ordinary events of his own life, predisposed him to developing PTSD, and secondly, whether the plaintiff’s account of the relevant events described in the evidence, or alternatively, whether the defendant’s argued construction of those events, should be accepted.

Credit

1. On behalf of the plaintiff, in essence, it was submitted that his evidence was credible and satisfactory in all material respects, and could be relied upon for the purposes of arriving at the required findings of fact.

2. In contrast, the defendant argued that the plaintiff was neither a credible nor a reliable witness on contentious matters of fact. The defendant made numerous, wide-ranging and overlapping submissions that sought to criticise the basis of the plaintiff’s case: T263 – T285.

3. The defendant also submitted that the plaintiff’s claim of incapacity for work should be viewed with a critical eye: T285.11. The defendant argued that on the crucial issue of why the plaintiff had left his work, the contemporaneous materials were more instructive than the evidence of the plaintiff. The defendant suggested that the plaintiff left his work due to dissatisfaction with his conditions of work rather than as a result of psychological illness: T263.19 – T263.30. Insofar as that submission was based on the statements tendered by the defendant where the makers of those statements were not called to give evidence, I do not take those statements to be a sound basis upon which to contradict the evidence of the plaintiff: Exhibit “2”, Tabs 4, 5 and 6.

4. The defendant’s submissions on credit also focussed on the plaintiff’s domestic arrangements. The defendant submitted the plaintiff’s evidence should not be accepted on its face on the matters he described regarding his domestic circumstances and as to the extent of his involvement in assisting his wife’s business: T268.15 - T268.20; T273.19.

5. The defendant also submitted that the plaintiff had made a clear effort to play down and to mislead in his evidence as to his involvement in his wife’s business: T273.15 – T273.20. That submission requires a close analysis of the evidence on the subject of the plaintiff’s alleged secondary employment and the travel undertaken by the plaintiff in the course of assisting his wife’s business when he was not working on police duties.

6. The implication of the submissions made on behalf of the defendant was that before it could be accepted, the plaintiff’s evidence required corroboration on matters of contention.

7. The defendant sought to downplay the plaintiff’s sense of distress from his psychological conditions by pointing to his involvement in playing football and doing some things to assist his wife’s business whilst he was off work and on compensation, thereby suggesting an incongruity in the plaintiff’s situation compared to his evidence of disability: T277.43 – T278.8. That submission flew in the face of, and ignored the uncontradicted medical opinion from the plaintiff’s treating psychiatrist, to the effect that such activities were beneficial to the management of the plaintiff’s psychological illness: Exhibit “F”, pp 21 – 22.

8. Amongst the defendant’s criticisms, contentiously, it was argued that the plaintiff had been “disingenuous” or “cute” in respect of his explanation of the events relating to his case: T171.49 – T172.8; T272.33. The defendant also submitted, contentiously, that the plaintiff had exaggerated his evidence concerning his inability to work, and therefore, it was suggested, he had exaggerated the extent of his claimed damages: T158.29; T159.8; T159.23 – T160.5; T207.13; T207.36; T263.16.

9. The defendant’s submissions included an unsupported hyperbole to the effect that the plaintiff had been “self-medicating” with “Corona” rather than seeking out employment: T284.29 – T284.48. As that specific allegation was not put to the plaintiff in cross-examination for his response, that submission must be rejected: Browne v Dunn (1894) 6 R 67.

10. The defendant argued, on the basis of an assumed acceptance of the above series of contentious propositions it had advanced, all of which were refuted by the plaintiff, that the expert medical and allied evidence that supported the plaintiff’s case should be disregarded in favour of a finding that there was insufficient evidence to support the conclusions expressed in the reports relied upon by the plaintiff. The defendant made that submission notwithstanding that none of the authors of the reports relied upon by the plaintiff, and whose opinions the defendant sought to avoid, were required for cross-examination.

11. The disputed matters of fact implicit in the defendant’s submissions will be analysed and resolved in the context in which they arise in the course of arriving at findings of fact and in the course of resolving the issues calling for decision.

12. For present purposes, it is sufficient to state, in summary form, contrary to that which was put on behalf of the defendant, that I found the plaintiff to be an impressive, satisfactory and truthful witness, and that his evidence could be safely relied upon and accepted as it stood, without the need for supportive corroborative evidence, as was suggested by the defendant. I am fortified in that view because when he was cross-examined, the plaintiff was prepared, without hesitation, to make appropriate concessions when these were required, even where these could be seen to have been against his interests. Examples of this may be seen at T135.15 – T135.17; T136.3 – T136.6.

1. In my assessment, having regard to the evidence as a whole, the defendant’s attack on the plaintiff’s credit has not been sustained. Furthermore, aspects of that attack, which suggested the plaintiff was giving evidence that was untrue, were made without cogent supporting evidence: T158.28 – T158.31; T159.40 – T160.14.

2. Unfortunately for the plaintiff, and for the reasons that will be set out in the appropriate context in the course of this judgment, the factual circumstances created by the Professional Standards Command within the NSW Police Force, by which the plaintiff’s probity was questioned in the course of an internal affairs inquiry whilst he was on sick leave, and where questions concerning the plaintiff’s probity were allowed to perpetuate up until the trial, have had the untoward damaging effect of worsening the plaintiff’s work-related psychological problems.

3. This was because the questions raised by the plaintiff’s employer concerning the plaintiff’s probity as a police officer were left dangling and unresolved for an extended period of time, and without due consideration being given to his psychological situation. Those circumstances have left the plaintiff feeling a sense of betrayal and abandonment by his former employer, thus effectively precluding the redeployment of his skills in the NSW Police Force in any capacity.

4. For the reasons that will be identified in the context of considering the specific attacks made on the plaintiff’s credit, I find there is no sound basis for sustaining any of the suggested adverse credit findings to be made against the plaintiff, and I reject in their entirety, the defendant’s submissions to the contrary.

Facts

1. Unless otherwise stated, my findings of fact are as follows.

Plaintiff’s background

1. The plaintiff was born in 1977. In his teenage years he was inspired to join the police force because he was impressed by what he saw as the positive role models amongst police officers who were parents of his friends.

2. Until the age of 14 years, the plaintiff and his family lived in Blacktown. In 1992 he moved with his family to the Central Coast of NSW. He completed his Higher School Certificate at the age of 17 years.

3. On leaving school the plaintiff held the ambition of becoming a police officer, but at that stage he was too young to apply for entry to the police force. He considered it was advisable to first obtain some trade qualifications: T23.10. He therefore took the opportunity to pursue a 3 year TAFE course and an associated 4 year apprenticeship as a shopfitter. He completed the TAFE course but he discontinued the apprenticeship when he was accepted into the training programme for the police force: T23.35 – T23.48.

4. In January 1999, the plaintiff entered the Police Academy at Goulburn to train as a police officer in the first year of operation of that program: T24.4 – T24.8.

5. At that time, despite some earlier football injuries, the plaintiff was in good physical and mental health. In 1996 he had a rotator cuff repair to his right shoulder. In 1997 he had an operation to reconstruct his right knee, due to a torn cruciate ligament. In 1998 he underwent a chondroplasty of his left knee. Those pre-existing health-related conditions were disclosed at the time of the plaintiff’s application to join the police force: T24.39 – T25.13. Since his school years the plaintiff was active in his pursuit of rugby league. He was also an avid surfer. Whilst in the police force he continued in those activities until recent years, ceasing after the advent of the claim under present consideration: T22.45.

6. In the context of this case, it is significant that the police medical officer had passed the plaintiff fit for duty without restrictions at the outset of his career: T25.20. Over the 14 years of his police career, there was no evidence of any change in the plaintiff’s fitness for duty status until he developed the psychological illness which is the subject of this claim.

7. In 2009, the plaintiff received a further football injury to his right shoulder. This was classed as a work-related injury because he was playing for the police team when he was injured: T43.35. In December 2010, he had some further surgery to his left knee following which he returned to work in early 2011: T43.39; T137.39.

8. Before the plaintiff was diagnosed with PTSD and an associated depression, he regarded himself as a career police officer who had sought promotion with the aim of achieving a senior supervisory and mentoring role for other officers: T43.22. He was keen and pro-active in his work and he believed he was able to cope with stressful situations: T27.45 – T28.4; T39.50; T52.5.

9. When the plaintiff was attached to Gosford Detectives, he and the others in the team in which he worked, received a significant award of official recognition and appreciation for the duties they performed between Christmas 2002 and February 2003, in which time an extraordinary number of serious crimes were investigated, thereby attracting that police commendation: T35.42 – T36.6; Exhibit “B”.

10. In his personal life, the plaintiff has been married twice. He first married in October 2001: T26.21. He and his first wife have a 12 year old son born in 2003 from that marriage, which ended in mid-2005: T37.28. He continues to have an amicable arrangement with his first wife regarding shared custody and support of their son. In 2007 he had personal debts which resulted in him becoming bankrupt. He was discharged from that bankruptcy after the statutory period. The historical fact of that bankruptcy has no other relevance to this case: T113.29 – T113.50.

11. The plaintiff married for a second time on 9 April 2010: T48.10. In addition to his wife’s children aged 6 and 8 from her previous marriage (T48.18), the plaintiff also has twins presently aged 4 years from his second marriage. They were born in August 2011: T55.15.

12. The plaintiff’s family situation will be revisited in the context of consideration of the defendant’s submissions concerning the claimed reasons for the plaintiff’s changed attitude to his work and the events leading to his retirement.

Initial police career

1. In early 1999, the plaintiff commenced and completed an initial 3 month academic programme at the Police Academy: T24.5. He then completed a further 3 months of field training followed by a final 3 months of further training at the Police Academy. After graduation he was sworn and attested as a probationary constable on 21 December 1999: T25.24. He described this as one of the proudest moments of his life: T25.36.

2. Thereafter, the plaintiff approached his police career with a great deal of enthusiasm and ambition: T25.49. This was reflected in his successive promotions from trainee to detective constable, and then sergeant, all by the age of 33 years: T43.42. Initially, he was fortunate to have been conveniently stationed at Brisbane Waters Local Area Command, which was near where he resided with his parents: T25.27; T26.2.

3. On 21 December 2000, after serving his first year as a probationary constable, the plaintiff was confirmed as a constable of police: T26.18. In November 2002, at the age of 25 years, and after completing 3 years of general duties as a police officer, he commenced training as a detective at Gosford: T26.25. Whilst deployed there in general duties, he enjoyed his work. He enjoyed being at work, and in fact he had accumulated excess leave which he was required to convert to money in lieu of taking that leave: T26.41. The context of that evidence indicated the plaintiff’s enthusiasm and commitment to his work.

4. Whilst the plaintiff was assigned to general duties, he was on vehicle patrols, or “on the trucks” almost all of the time: T27.5. He was variously rostered to work at Woy Woy, Gosford and Terrigal: T27.17. In the course of his general duties he was called upon to deal with instances of domestic violence, assaults, traffic accidents, pub brawls, suicides, and non-suspicious deaths that were occurring at a frequency commensurate with an ageing population on the Central Coast: T27.34.

5. In a typical shift in that period, it was not uncommon for the plaintiff to be required to deal with 4 – 5 cases of domestic violence per night, as well as attending upon pub brawls that occurred on Friday and Saturday nights: T27.36 – T27.44. He approached that work with enthusiasm. He took pride in sorting out those situations of conflict and in looking after people: T27.49; T28.47.

6. In his traffic work, the plaintiff was required to assist in attending upon fatal accidents, including to assist in the removal of bodies trapped in vehicles, and in the course of those duties he saw some particularly gruesome sights. The impression gained from the evidence was that he approached that work with professional impersonal detachment, and took such matters in his stride without apparent difficulty: T28.35 – T28.45. The unchallenged expert evaluation of those various circumstances was that a large part of the plaintiff’s coping mechanisms depended upon his enthusiasm for the job, the experience of camaraderie, and belonging within a mutually supportive group that provided a general level of encouragement in the job: Exhibit “F”, p 123.

Detective training

1. The plaintiff’s initial secondment for detective training was at Gosford for a period of 3 months. That placement was later extended to 6 months, and then to 9 months, as his superior officers were satisfied with his work performance. He was the youngest person in that command selected for detective training. He enjoyed working in the detective role. In that work he was exposed to a range of significant investigatory work in cases involving minor and major crimes, sexual assaults, murders, suicides, serious assaults, malicious woundings and complex fraud cases: T31.15 – T31.41.

2. In the course of that work, it was a standing requirement of the local coroner that detectives should attend to investigate every instance involving a deceased person in order to consider whether the circumstances of death were suspicious, and the plaintiff did so as a trainee detective on many such occasions: T32.5

3. After 9 months in that role, the plaintiff was encouraged to apply to become a detective. He returned to general duties for a short time whilst his application was processed. In that time, he had not lost his enthusiasm for police work: T32.9 – T32.20.

4. Between September 2003 and August 2006 the plaintiff continued to work at Gosford Detectives: T37.15. In that period, on 24 December 2004, he was promoted to the rank of senior constable: T37.19. In July 2005, after completing the final requirements of detective training, he was promoted to the rank of detective senior constable: T37.25.

Sentinel events of 31 July 2003

1. On 31 July 2003, a sentinel traumatic event occurred in the plaintiff’s career as a police officer. He was called to a domestic emergency in Erina at a location which was not far from his home. He arrived at the scene at about the same time as ambulance personnel. He observed an infant aged about 9 months in the process of undergoing resuscitation attempts by the mother, who initially resisted ambulance personnel taking over from her. He then observed ambulance personnel performing resuscitation compressions, administering oxygen, and then injecting adrenaline, but unfortunately, the infant was not revived: T32.29 – T33.4.

2. On that occasion, the plaintiff’s duties involved him in dealing with the course of, and the aftermath of those events, including physical and other interaction with the parents of the deceased infant in fraught circumstances where the mother of the infant was understandably hysterical. He accompanied the mother and the deceased infant to hospital. He remained in the same room with them for several hours and had to take a statement from the distraught mother whilst she continued to hold her deceased child.

3. The plaintiff described this experience as being very tough from his perspective. This was in part due to the fact that his first son was born about 2 months beforehand: T33.6 – T33.37. In that context, his duties on that day had an emotional or sensitising effect on him, the extent of which he did not realise at the time. He was unprepared for the circumstances and found himself overwhelmed. Those circumstances will require further consideration later in these reasons.

4. The plaintiff was not feeling good at the end of that shift. When he arrived home he became very upset when he picked his infant son up out of his bed and sat with him, thinking how fortunate he was: T33.44 – T33.48; Exhibit “2”, Tab 1, par 43.

5. Several days later, the plaintiff and other police officers, about half a dozen in all, were called to attend a debriefing session conducted by a counsellor appointed by the police Employees Assistance Program [“EAP”]. The session took place in a meal room in a group setting. The plaintiff described those events as follows:

   “Q. What's your recollection of what the counsellor said?

   A. It was pretty much, you know, just a brief description of the event and how's everyone feeling. That was pretty much it, and was anyone having problems.

   Q. Sorry?

   A. Or is anyone having problems.

   Q. Did anyone say they were?

   A. No.

   Q. Were you all together?

   A. We were all together.

   Q. Did you think at that stage you were having problems?

   A. No.

   Q. So did you say anything?

   A. No.

   Q. Anything at all?

   A. I said I had a I said I had a son the same age and how lucky I am.

   Q. For how long do you think the debriefing went? What's your best recollection?

   A. 15 minutes. 15/20 minutes tops.

   Q. That was in early August 2003; is that right?

   A. I believe so.

   HIS HONOUR

   Q. Did the debriefing include any discussion on what you might expect to experience in the coming days, weeks or months?

   A. No.”

   [T34.26 – T35.8]

6. At the time of the above EAP session, the plaintiff’s attitude to the traumatic circumstances that led to the counselling was that the underlying circumstances were of the type the police were necessarily and inevitably exposed to in the course of carrying out their duties: T36.45 – T37.3.

7. That EAP session took place in early August 2003. The plaintiff remained in the police force for a further 8 years. In that time he was never asked to attend another such debriefing or other assessment or psychological test aimed at revealing, ventilating or discussing his feelings arising from traumatic events he had encountered in the course of his work: T35.15 – T35.38. The statement of Inspector Joyce tends to confirm the plaintiff’s evidence in that, debriefing by the duty officer or supervisor according to the procedure for managing police officers who have attended scenes of death, may not always occur: Exhibit “2”, Tab 5, par 27. This is a matter of some significance in a police culture where it was a perceived requirement not to display any sign of weakness or to reveal feelings or vulnerabilities in the professional environment: Exhibit “F”, p 124.

8. The injury notification form concerning the events of 31 July 2003 was dated 18 November 2011: Exhibit “F”, pp 1 – 2. Although the report contains an inaccuracy describing the plaintiff’s actions regarding CPR on the day in question, the error is not that of the plaintiff, and nothing turns on that error of description: T215.40. The delay in the plaintiff lodging that notification was because until that time, he had not realised he had a diagnosable psychological illness due to his work.

9. As part of the attack on the plaintiff’s credit, without supporting evidence, and contrary to the views of the various psychiatric and psychological opinions that were in agreement that the SIDS incident had relevantly affected the plaintiff, the defendant formally challenged the plaintiff to the effect that no part of his work between 2003 and 2011 had contributed to him going off work in 2011. The plaintiff disagreed with that proposition: T135.28; T155.35.

10. I accept the plaintiff’s hindsight rebuttal of that proposition even though in doing so he was expressing his personal opinion, no doubt aided by the opinions of the clinicians whom he has consulted about the underlying factual circumstances. The plaintiff was entitled to disagree with the proposition put to him in that regard as the question called for his opinion. Absent challenges to the underlying opinions of the treating and assessing practitioners, I accept the plaintiff’s evidence on the subject of that challenge, and his opinion, on that account.

Promotion to detective senior constable

1. Shortly after the plaintiff’s exposure to the SIDS episode in July 2003, he was promoted to the rank of detective constable and he continued to work in a plain clothes capacity. On 24 December 2004 he was promoted to the rank of senior constable, and by July 2005 he had completed his detective’s training and became a detective senior constable: T37.7 – T37.25.

2. By that time, in his personal life, the plaintiff had separated from his first wife: T37.27. He described having drifted apart from his first wife because of the demands of police work. Elsewhere, this was stated to have been attributed to the effects or demands of his work: Exhibit “F”, pp 14 and 122. He nevertheless maintained a good relationship with his first wife. He has continued to support, have contact with, and shares the custody of, his son by his first marriage: T40.20.

3. During the plaintiff’s time as a detective at Gosford, his work involved him being exposed to some gruesome events, including horrific murders, an instance of self-mutilation by a mentally ill person who had self-amputated his penis, suicides, the need to attend autopsies, as well as dealing with assaults and armed robberies. The cumulative effect of those experiences had an effect on the plaintiff’s work in that he recognised it as having had a toll on him. He stated that he started to feel a little dejected and “more numb” and less pro-active, and “just shut off to just the job, to my family, to friends”: T40.13; T41.43. This was consistent with the description by Dr Peters of the plaintiff having anxiety based symptoms and accumulated stress over many years: Exhibit “F”, p 4.

4. At the time of those events, the plaintiff kept those feelings to himself. He did not seek help to ventilate or to deal with those feelings and it seems he regarded such circumstances as being part of what police officers just had to accept as part of their role. Whilst in that role, as part of a team, the plaintiff received the significant commendation for his work as already identified: T37.30; Exhibit “B”.

5. In that period, the plaintiff remained unaware that he had psychological problems that had their origins in his work as a police officer. He gained the insight to that effect at a much later stage, with the benefit of professional assistance from the practitioners who have provided reports for the purpose of these proceedings.

6. At around that time, the plaintiff sought a transfer to a position that involved less hands-on policing work and which was more commensurate with his detective training. This seems to have been a natural career progression at his age and stage of experience.

7. In that time, in his recreational activities, the plaintiff continued to play representative rugby league for the NSW Police Force. He also continued to be a keen surfer: T40.30 – T40.38. His earlier knee and shoulder injuries, and the surgery he had undergone for those injuries, seemed not to have interfered with his long-term physical fitness for work.

Transfer to Gang Squad

1. In August 2006 the plaintiff was transferred to the position of detective in the State Crime Command Gang Squad at Parramatta. In that role he participated in large scale criminal investigations and surveillance work in the context of a strike force that included the Gang Squad and Gosford Detectives. That work extended to crime detection in significant cases using surveillance, listening devices and search warrants, including in relation to motorcycle gangs and drive-by-shootings that were occurring in Sydney: T40.40 – T41.30.

1. After an initial period of enthusiasm for the work of the Gang Squad, the plaintiff began to again experience “that numb feeling” and became less “tolerable” of people generally, and in that regard, he found himself becoming quick to anger. He also found he would lose his patience and he would talk to people in undiplomatic terms: T41.41 – T41.48. He said, and I accept, that he felt himself changing in his outlook, and that he felt he wanted to stay away from people. In understated terms, he explained that he did not want to be out on the road dealing with “the clientele”: T42.9.

2. Again, at that time, the plaintiff did not recognise or make a connection between his changing outlook and the stresses involved in certain aspects of his work as a police officer. However, the unchallenged interpretation of that aspect of the plaintiff’s history was that the plaintiff became aware of feeling disengaged, uninterested, and lacking in drive: Exhibit “F”, p 126.

3. In 2008 the plaintiff had met the woman who was to later become his second wife. At that time he was continuing to commute to work from the Central Coast to Parramatta and return. He was continuing to play sport. He was also giving some consideration to seeking promotion: T42.12 – T42.27.

Promotion to sergeant

1. In 2009, the plaintiff successfully undertook his sergeant’s examinations. He did so with the intention of moving into a more supervisory role which was less operational because he felt he was beginning to lose trust in himself as to how he dealt with people in the street. In that regard, he found that at times he was getting angry, and that he was losing his patience and his temper. He did not like the person who he felt he was becoming.

2. His response to those stresses was that he continued to conduct himself in the manner in which he understood to have been the culture in the police force. In that regard, he did not discuss any of his negative feelings with anyone else at that time, but instead he sought out police work that was in a supervisory role, as he regarded himself as a career police officer, and he wanted to stay in the police force: T43.22; T112.12.

Transfer to Rose Bay

1. On 28 February 2010, in accordance with what had been intimated to him beforehand, the plaintiff was promoted to the rank of sergeant. He had looked around for what he thought was a suitable job in that role and he applied for a transfer to an available sergeant’s position at Rose Bay Police Station. He had understood that position would be a quiet posting where he would work as a supervisor and station manager without the need to “go out on the trucks” as he understood that position involved administrative duties: T44.33 – T44.39.

2. Until he achieved the posting to Rose Bay, the plaintiff had not intimated to anyone any aspect of the negative feelings that had evolved concerning his work. Nor had he revealed anything of his changed reactions to people and how he dealt with them when he was out in the field in terms of loss of patience, temper, and altered disposition. Instead, he abided by what he described as the culture in the police force with regard to coping with work-related difficulties, and just “suck it up”: T43.14; T55.6. However, after a while, he determined he should seek other duties that did not involve frontline policing: T41.22.

3. Ultimately, the plaintiff’s understanding of the duties he would be performing at Rose Bay police station proved to be incorrect. It transpired that, unlike the position with sergeants who were rostered to work at Gosford, at Rose Bay there were positions for both internal and external supervisory duties, and he was allocated to the non-administrative external duties that required him to “work the trucks”: T44.20 – T43.38.

4. The plaintiff’s Rose Bay posting covered the areas of Rushcutters’ Bay, Rose Bay, Point Piper, Double Bay, Watson’s Bay, Paddington and parts of Bondi. Those areas included some busy hotels and the Gap, the latter being a location where it was known that at times some people would go for the purpose of attempting suicide: T44.49 – T46.36. Part of the plaintiff’s duties involved him in attending at the Gap to seek to investigate and to dissuade such attempts, or to deal with the consequences where such attempts were successful.

5. The plaintiff found aspects of those duties stressful. He found he was attending at the Gap on average twice per week. He was also involved in searches and body retrievals on occasions: T46.38 – T47.1. Whilst stationed at Rose Bay, for the first 6 weeks of his time there, the plaintiff described himself as being on a learning curve concerning the duties he was required to carry out: T48.35. The plaintiff reported that within a reasonably short time after his transfer to Rose Bay, the plaintiff became aware of feeling irritable, resentful and unsympathetic towards the public, and particularly irritable with people who were difficult or critical of police: Exhibit “F”, p 126.

6. By this time, the plaintiff had formed a new relationship. He was planning to re-marry and to take on new domestic responsibilities. He continued to reside on the Central Coast and he continued to commute to Rose Bay for shift work, and the travel was onerous. In its submissions, the defendant sought to make much of those circumstances as being a suggested reason why the plaintiff wanted to cease working. Those circumstances will be further considered in the context of such submissions.

Leave for marriage and honeymoon

1. On 9 April 2010, which was about 6 weeks after commencing his duties at Rose Bay, the plaintiff married his present wife. He then took 6 weeks leave to go on a honeymoon. He had a new blended family, which comprised his wife’s children aged 6 and 8 from her first marriage, and the shared custody arrangements for his son from his first marriage also had to be accommodated. He had successfully established those arrangements: T48.10 – T48.40.

Return to work at Rose Bay

1. When the plaintiff returned to sergeant’s duties at Rose Bay following his honeymoon, he found his work duties had become more onerous than was previously the case because of staff shortages which had resulted in sergeants such as himself being rostered to work onto “truck” duties: T48.47.

2. It is clear that at that time the plaintiff did not want to continue carrying out general duties work on the trucks. He was unhappy about being rostered to carry out that work because he was feeling annoyed, dejected, and angry when dealing with people. He felt that police were being disrespected by sections of the community, and he was concerned that in such circumstances, in his professional reactions, he might “step across the line” when responding to situations when he was called upon to do so: T49.13.

3. That latter circumstance did not sit well with the plaintiff. At that time he found it difficult to control his anger and at times he found himself getting heavy-handed in the execution of his duties: T48.39 – T49.22. He explained the evolution of those attitudes and circumstances as follows:

   “…

   A. It seemed to be a gradual experience that just got worse. So it got to the point where those times that I was rostered on to work the truck, that I would pull myself off or I would actually change the roster for myself to go and work in the station. So I was technically operational and I would put one of the constables out on the road and I would work in the station to reduce my level of contact with the general public.

   ROBERTS

   Q. Even though you were able on occasions to roster yourself off, were there many occasions where you were unable to?

   A. Yeah.

   Q. So you did continue to work the trucks a lot of the time?

   A. Yes.

   Q. As well as I I overlooked asking you. As well as being involved in the recovery of the bodies of successful suicides, did you were you also regularly required to attend on persons who were apparently contemplating suicide?

   A. Yes.

   Q. How did you deal with those sort of people? Initially.

   A. Well initially my very first time I turned up at Rose Bay, I had a guy, he was on the other side of the fence. I jumped the fence and pulled him over. So I'd put myself in a position of harm but -

   HIS HONOUR

   Q. This is at The Gap is it?

   A. This is at The Gap, yeah. Ordinarily we're supposed to contact negotiators.

   ROBERTS

   Q. As time went by did you become less sympathetic in your approach to these people?

   A. I did, yes.”

   [T49.26 – T50.10]

Decline in ability to cope

1. In those events the plaintiff was not always able to avoid working “on the trucks” by rostering himself to carrying out only station duties: T49.40. Over the course of his work at Rose Bay Police Station he was becoming somewhat jaded in his attitude to work, especially with regard to the aspects of his work that involved the stresses of contact with the public.

2. Initially, the plaintiff found that in order to seek to manage what he perceived as the gradually worsening experience with his work, and to avoid the stresses of working on the trucks, he would continue to attempt to roster himself off the trucks, however, even then, he still had to work on the trucks a lot of the time: T49.24 – T49.40.

3. In 2011, the plaintiff found that his ability to deal with the public had declined, and he became snappy, intolerant and heavy-handed at times: T51.34 – T51.49. He became quick to take offence at behaviour he encountered whilst on duties outside of the police station where in earlier times, he would have ignored such behaviour in the course of his work: T52.5 – T52.9. Domestically, he felt that he had alienated his children and he found himself overreacting to trivial situations: T52.10 – T52.29. As a consequence of such circumstances he began to experience feelings of guilt, worthlessness, and failure: Exhibit “F”, p 127.

4. The plaintiff found that he was experiencing sleeping difficulties due to the intrusion of worried thoughts and nightmares. He was also having difficulties with temper control and his reactions to work situations in circumstances where he was rostered to spend more working time on the streets: T52.35 – T52.49. The unchallenged expert interpretation of these events was that the plaintiff was becoming aware of increasing symptoms of hyper-arousal, poor sleep, awareness of a loss of composure, and marked irritability: Exhibit “F”, p 126.

Extended leave

1. In December 2010, the plaintiff took some leave to have knee surgery as a result of earlier football injuries. From the evidence, it seems he had a good recovery from that procedure.

2. In early 2011, coinciding with his wife’s pregnancy, the plaintiff took a lot of leave. He felt he just did not want to be at work. At that time, no senior officer asked the plaintiff why he was taking so much leave: T53.1 – T53.18.

3. Furthermore, no senior officer had asked the plaintiff why he had transferred from being a detective to go back to general duties work, or why he was not rostering himself on the trucks: T54.41 – T54.44.

4. This was so notwithstanding that later, those rostering issues had come to the notice of his colleagues, along with some adverse comment from colleagues: T53.24 – T55.1. The plaintiff’s response to those circumstances was that he continued to “suck it up” and absorb his negative feelings about his work: T55.6.

Wife’s pregnancy with twins in 2011

1. In August 2011 the plaintiff’s wife gave birth to twins. Beforehand, from early July 2011, she had been unwell during her pregnancy and in response, the plaintiff took his various industrial entitlements to carer, parental and annual leave: T55.29. In that context, the plaintiff reached a point where he just did not want to be at work, and he had used up all of his extended leave entitlements, so he had to return to work: T53.15.

July 2011 request for change of duties

1. Before the birth of the twins, and before going on leave, the plaintiff stated that he had asked his senior officer, Inspector Sipos, for a change in his duties. In that discussion, he made a disclosure to the effect that he was struggling, that he wanted to “get off the truck” and needed a break, and that he was prepared to accept a lesser position as brief handling manager which was work at a level below that of a sergeant: T55.31 – T57.25. It is relevant to set out the plaintiff’s description of that communication in full, which was in the following terms:

   “Q. Shortly prior to that had you made a request for some change in duties?

   A. I did.

   Q. To whom did you first make the request?

   A. To Inspector Sipos. Inspector Sipos.

   Q. What did you say to Inspector Sipos?

   A. Well I saw that they had advertised the position for a a brief handling manager and I said to him I asked him if it was okay if I could put in for that because I was struggling and I wanted to get off the truck and I needed a break. He said to me "It's not a sergeant's position but you know mate you can put in for it if you like and we'll see what happens"

   Q. All right, now can I just ask you then. You said you used the words "I'm struggling and I need a break"?

   A. Yes.

   Q. Were they the words you actually used?

   A. Something along those lines, yeah.

   Q. Did he ask you what it was that was causing you to be struggling?

   A. No.

   Q. So he said make an application and see how you go essentially?

   A. Pretty much, yeah.

   Q. Did you have some subsequent discussion, before going off on your parental leave or paternal leave, with some other senior officer?

   A. I did. I can't remember his name because he was very new at the time but he was a crime manager

   Q. A crime manager? What rank was he?

   A. Chief superintendant. Sorry, chief inspector. And because they'd received all of the expressions of interest and they'd discussed it at the crime manager's meeting

   Q. That is expressions of interest, what do you mean by that?

   A. Well expressions of interest for that position, so

   Q. Had you completed such an expression of interest?

   A. Yes.

   Q. In documentary form?

   A. Pretty certain I did because it was an advertised position so I'm pretty sure I had to.

   HIS HONOUR

   Q. Did that involve filling out a form or did it involve writing something that demonstrated your interest?

   A. Yes.

   Q. Which was it?

   A. A report. It's called an expression of interest so you're desiring to and it's almost like a mini job application.

   Q. Thank you.

   A. So it was discussed and I was in the supervisor's office one day. The crime manager came up and he said to me "I know that you've put in to do the crime the brief handling role. The crime coordinator's position is also available." Which was a sergeant's position, different role. Different sort of hours, different locations and they gave me the option. He said, "Would that suit you better? Would you prefer to do that or would you prefer to the brief handling?" and I felt at the time that the brief handling role suited me for what I wanted to do. And the last of the conversation was "Well no worries, when you get back from leave you'll be up there", and it became common knowledge.

   ROBERTS

   Q. Well don't worry about the common knowledge.

   A. Sorry.

   Q. Did that officer, the crime manager, say to you "Why do you want to go back to being why do you want to go the brief handling job, it's not even a sergeant's job?"?

   A. No.

   HIS HONOUR

   Q. Did the change in position involve a reduction in salary?

   A. No.

   Q. Or other entitlements?

   A. Yeah, I wouldn't have got shift allowances. I would have lost my shift allowances because it was just like a 9 to 5 type.

   Q. So what would that have meant by way of difference in money terms?

   A. Probably a couple of hundred dollars a week I suppose in shift penalties. I guess.

   Q. No one ever asked you why you were wanting to do this?

   A. No, not that first conversation I had with Andrew, I said I was just struggling, I just want to need a break and want to get off the truck. And there was never -…“

2. The defendant called Detective Inspector Sipos to give evidence. He was the duty officer in charge of “man management” at Rose Bay Local Area Command until September 2012: T233.7 – T233.15; T235.8. He only had a vague impression of his conversations with the plaintiff in that time. He thought the conversation he had with the plaintiff was about him wanting to have regular working hours, Monday to Friday: T229.19 – T229.30.

3. Although the plaintiff fairly conceded he was struggling with the commuting to and from work at that time, that was not the whole story behind his request for changed work duties. The evidence of Inspector Sipos throws no significant light on that matter because of his limited recollection and because he did not explore with the plaintiff the reasons for him “struggling”. In that regard I accept the plaintiff’s evidence that his struggle related to the much more fundamental issue of how he was reacting to situations in the course of his work, leading him to become intolerant, short-tempered, angry and to over-react to situations in an untoward manner. This was in the context of a progressive build-up of overwhelming feelings where he had tried to keep his emotions to himself, together with a realisation he had lost some of his professional capabilities: Exhibit “F”, p 127.

4. In cross-examination Inspector Sipos agreed that the position the plaintiff wanted to be considered for, namely that of brief handling manager, was an important quality assurance position which was not a sergeant’s position, but was instead, a senior constable’s position: T229.48 – T230.37.

5. Inspector Sipos agreed that if the plaintiff’s request had been acceded to, it would have been a theoretical demotion and it would have involved some loss of income from shift allowances: T232.23 – T232.38.

6. Inspector Sipos was asked whether it was unusual for a young sergeant to want to forgo income and take a lesser role: T233.21 – T233.22. His responses to that question, at T233.40 – T234.28, were as follows:

   “ROBERTS

   Q. Unusual, wasn't it?

   A. I don't know if it's unusual. In this organisation there are opportunities where you don't have to work nightshift necessarily. That's not unusual not to want to work nightshift. I didn't like nightshift either.

   Q. But you see you don't know whether his request had anything to do with nightshift; do you?

   A. I don't know what his request had to do with.

   Q. I beg your pardon?

   A. I don't know what his request had to do with.

   Q. Precisely. You see what he said to you was that he was having trouble, he was struggling and he wanted to get off the track and needed a break; do you remember that?

   A. I don't remember that exact conversation.

   Q. Would you deny that the issue of being transferred to the brief handling job arose in the context where he said he was struggling and wanted to get off the truck and needed a break and he wanted to apply for the brief handling manager's job?

   MORGAN: I object to that, your Honour. The witness has already indicated he can't remember.

   ROBERTS: I'm asking him whether he denies it.

   HIS HONOUR: I'll allow the question.

   WITNESS: I don't deny the I just don't recall the conversation.

   ROBERTS

   Q. If such a conversation took place then as a duty officer to whom such a request was passed you had an obligation to investigate what it was that he was struggling with; did you not?

   A. Yeah, that could be correct.”

7. When the plaintiff took leave in relation to the forthcoming birth of his twins, based on his understanding of his conversation with Inspector Sipos, he was expecting that on his return from leave, he would be re-allocated to the non-operational role of brief handling manager: T56.45. He had hoped this would help to preserve his police career: Exhibit “F”, p 127. I accept the plaintiff’s account of the discussions with Inspector Sipos in that regard.

8. The defendant downplayed the disclosure the plaintiff made to Inspector Sipos that he was struggling, submitting that “we had no chance of knowing that he was struggling because he did not tell anyone”: T266.26 – T266.44. I do not accept that submission. In the context of the plaintiff’s disclosure that he was struggling, I find that disclosure ought to have operated as a signal or a cue to his superior officer that something may be amiss with the plaintiff, and that this needed to be investigated or explored by discussion with him, in accordance with the obligation conceded by Inspector Sipos: T234.28.

1. In that regard, I consider that the defendant’s submissions are based on arbitrary assumptions that are not sustained on the evidence. The preponderance of the medical and allied evidence does not support an argument that the plaintiff had a revived partial fitness for work from 27 August 2014. The submission seems to have been founded upon the proposition of the plaintiff’s involvement in assisting his wife in her business whilst he remained certified as being unfit for policing duties. In my view, that submission is contrary to the effect of the findings I have made on my evaluation of the medical evidence, and it should be rejected.

2. The practitioners who have treated the plaintiff since he has ceased work have certified him as being unfit to work until the present time. Dr Galea has apparently provided the plaintiff with ongoing certificates in order to support the plaintiff receiving ongoing workers’ compensation benefits: T137.13 – T137.26. Those certificates were not the subject of challenge.

3. Dr Peters first certified the plaintiff as unfit for work when he issued his report to the insurer dated 13 December 2011: Exhibit “F”, p 3. On 14 December 2012, Dr Murray stated the plaintiff was unfit for work of any kind: Exhibit “F”, p 15. That opinion from Dr Murray was progressively updated over time, up until he provided his last report dated 3 July 2015”: Exhibit “F”, pp 19, 48, 53 and 73.

4. Over that period, Dr Murray’s opinion was also supported by Dr Robinson’s opinion dated 26 July 2013, which was to the effect that the plaintiff was not employable: Exhibit “F”, p 110. At that time, the plaintiff had already been retired from the police force on medical grounds on 25 April 2013: T94.16.

5. Dr Diamond noted that the plaintiff’s attempts to return to work before his retirement on medical grounds triggered further illness and caused the plaintiff’s existing illness to worsen: Exhibit “F”, p 137.

6. None of the foregoing medical opinions were contradicted by other medical or allied evidence. The tentative opinions expressed by Dr Jones concerning a fitness to return to work on selected duties as at October 2012 (Exhibit “F”, pp 84 – 85) and September 2013 (Exhibit “F”, p 92) have been overtaken by events and by the other opinions that I have cited above. I accept the evidence tendered by the plaintiff that supported the proposition that he remained unfit to work. That view is supported by the plaintiff having continued to receive ongoing workers’ compensation payments over the period in question.

7. The plaintiff’s own view that he was unfit for operational duties due to his issues with emotional control was confirmed by those treating him, and also by his discharge from the police force. He has had continued problems with motivation and with regard to the stresses associated with his litigation. These matters must be seen in the context of the diagnosis of the plaintiff’s PTSD with depression. The plaintiff’s experience of difficulties in respect of those matters does not support the defendant’s argument of a failure on the part of the plaintiff to mitigate past losses, particularly as attempts at rehabilitation have been unsuccessful.

8. In light of those findings, I accept without discount, the submitted calculation of $275,114 as representing the plaintiff’s past net economic loss incurred to 9 October 2015, noting that from this component of the award, the plaintiff will have to repay the required sum of weekly payments he has received by way of workers’ compensation.

9. I therefore assess the plaintiff’s damages for past net economic loss in the sum of $275,114.

Fox v Wood

1. The plaintiff has paid tax on past weekly payments of compensation made to him by the defendant, and he is entitled to be reimbursed for such payments: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438. As at 9 October 2015, those deductions for tax were in the total amount of $30,156. I therefore award the plaintiff damages on the Fox v Wood component of his claim in the sum of $30,156.

Future loss of earning capacity

1. The parties made disparate submissions as to how the plaintiff’s damages for future loss of earning capacity should be assessed.

2. On behalf of the plaintiff, it was ultimately submitted that there should be an initial allowance of a full year of loss of earnings at the rate of $1487 per week net, followed by an assessment over his remaining working life based upon an assumed loss of earning capacity of 50 per cent thereafter, on the rounded-off sum of $744 per week net, applying the appropriate discounts.

3. On behalf of the defendant it was submitted that there should be an allowance of 50 per cent loss over the ensuing 3 years, appropriately discounted, to which a discretionary cushion of $100,000 should be added, leading to an assessment of future economic loss in the amount of $192,820.

4. I do not accept the defendant’s future economic loss submission. The assumed loss of 50 per cent over the next three years has no reasonable foundation in either the lay or the medical evidence. Furthermore, the suggested cushion of $100,000 seems arbitrary and inadequate, against the weight of the medical evidence as to the impairment of the plaintiff’s capacity to work, and it is without a rational basis in the evidence as a whole.

5. Instead, I consider that the submission made on behalf of the plaintiff is reasonable, conservative, and should be accepted, for the reasons that follow.

6. I am persuaded that the plaintiff’s diagnosed PTSD condition, and the circumstances leading up to him leaving his work, including the effects of that PTSD in the form of the symptoms he has described in his evidence and in his descriptions to those who have examined him, and the aggravating circumstances involving the way he was treated by the Professional Standards Command, have rendered him unfit for work until the present time.

7. In that latter regard, I accept that until now, the issues in this litigation continue to hang over his head with uncertainty. Given the plaintiff’s psychological illness, it is reasonable that he has not felt able to seek out alternative paid work until now. There has been no relevant failure on the plaintiff’s part to mitigate his loss of earning capacity to date. The medical evidence does not derogate from that view.

8. I consider that it will take some time for the effects of this litigation, and the issues that underpin it, to recede from the plaintiff’s thinking, and thus perhaps make his PTSD condition more manageable, given a cure is, on the medical and allied evidence, unlikely to occur. In those circumstances, I consider it reasonable that an initial allowance be made of a full year of loss of earning capacity at the net current full comparable rate without discount to recognise that process.

9. Thereafter, it must be recognised that the plaintiff will be more likely to have a greater degree of peace of mind and calmness than has hitherto been the case, and that this will be more conducive to enabling him to approach the tasks of seeking alternative employment. That said, the plaintiff is not fit for unrestricted employment on the open labour market and this is a significant factor that must be taken into account.

10. The medical and allied evidence indicates that the policing and similar duties for which he was trained, and which occupied his peak earning years, are now unsuitable pursuits for him to follow.

11. Furthermore, he is at a distinct disadvantage as a competitor for employment because of the physical limitations I have already identified at paragraph [E] above. Those matters will very likely affect his ability to gain and sustain employment. In that regard, this is a burden the defendant must bear: Mt Isa MinesLtd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406.

12. It must be recognised that with the condition of PTSD, the plaintiff will have ongoing issues or problems with anger control, depending on his exposure to triggers or exacerbating circumstances, and there is the potential for him to have difficulties with interpersonal relations in the commercial setting, should he need to have to deal with adversarial or confrontational discussions. That is a factor that is very likely to have an adverse effect upon his long-term employability.

13. It is reasonably clear on the evidence that the plaintiff’s future employment prospects will be likely to be best pursued in circumstances where there would be a limited need for him to deal with people so as to avoid the risk of situational stress setting him off on an unhelpful reactive path not conducive to maintaining employment.

14. On the positive side, the plaintiff is hopeful of his wife’s business developing into something which would also provide him with an income as a reward for effort. However, that proposition involves a great deal of uncertainty from which no firm projections can be reasonably or reliably made. The business generates a relatively modest income: Exhibit “H”. Furthermore, the work appears to be seasonal, and requiring good public relations skills.

15. This leads me to consider the need to identify the most appropriate means by which the plaintiff should be compensated for this head of damage. I am satisfied the plaintiff continues to suffer a significant diminution in his earning capacity. I am satisfied from the medical evidence and the nature of his PTSD condition that such impairment will be life-long, and therefore productive of financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180 (1995) Aust Torts Reports 81-322; Graham v Baker [1961] HCA 48; (1961) 106 CLR 340.

16. In those circumstances, even though the impact of the loss may vary in its intensity from time to time, an economic cushion does not seem to be the appropriate method of compensation in those circumstances, particularly as the plaintiff had enjoyed a definite weekly salary beforehand and that is now closed to him.

17. I consider the concession made on behalf of the plaintiff of a 50 per cent residual earning capacity represents a fair and conservative basis upon which to proceed to assess the plaintiff’s damages for future loss of earning capacity. I consider that the submissions made on behalf of the plaintiff on this head of damage provide a reasonable basis for assessment, and I propose to follow that approach.

18. The calculation of a loss of income of $1487 per week net for the initial ensuing year yields the amount of $77,324. There is no sound basis upon which a discount should be applied to that sum given that it involves such a relatively short period of time.

19. With regard to the remainder of the plaintiff’s working life, the projection of the rounded sum of $744 per week at 5 per cent over 28 years (x 796.2) deferred for 1 year (x 0.952) less 15 per cent discount on account of potentially adverse vicissitudes, yields an amount of $479,348.

20. The aggregation of the amounts of $77,324 and $479,348 yields the sum of $556,672. I therefore assess the plaintiff’s damages for future loss of earning capacity in the amount of $556,672.

Past loss of superannuation

1. The conventional assessment of the loss of past employer funded superannuation benefits, on the past loss assessed at $275,114, is 11 per cent yielding the sum of $30,262. I therefore assess the plaintiff’s damages for the loss of past employer funded superannuation benefits in the amount of $30,262.

Future loss of superannuation

1. The parties agreed that the appropriate assessment percentage for identifying the amount of future loss of superannuation is 13.82 per cent of the amount assessed for future loss of earning capacity, namely $556,672. I therefore assess the plaintiff’s damages for future loss of superannuation in the amount of $76,932.

Summary of damages assessment

1. My assessment of the plaintiff’s damages is summarised as follows:

(a) Past economic loss	$275,114
(b) Fox v Wood	$30,156
(c) Future loss of earning capacity	$556,672
(d) Past loss of superannuation	$30,262
(e) Future loss of superannuation	$76,932
Total	$969,136

Disposition

1. The result of the litigation is that the plaintiff is entitled to a verdict and judgment in his favour in the amount of $969,136.

Costs

1. As the plaintiff has succeeded in the proceedings, he is entitled to have his costs of the proceedings paid by the defendant on the ordinary basis unless a party is able to show an entitlement to some other costs order. With regard to the costs of the motion pursuant to s 151D of the WC Act, the plaintiff’s claim for leave was compelling, and it could have been conceded without the need for contested argument. As the plaintiff was successful in his motion pursuant to s 151D of the WC Act, the order for costs in his favour should include the costs of that motion, as well as the costs of the proceedings. In both instances, the costs should follow the outcome.

Orders

1. I make the following orders:

   (1)Verdict and judgment for the plaintiff in the amount of $969,136;

   (2)The defendant is to pay the plaintiff’s costs of the s 151D motion on the applicable scale;

   (3)The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis unless otherwise ordered;

   (4)The exhibits may be returned;

   (5)Liberty to apply on 7 days’ notice if further or other orders are required.

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Amendments

23 October 2015 - Coversheet formatting