Carangelo v State of New South Wales

[2015] NSWSC 655

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Carangelo v State of New South Wales [2015] NSWSC 655
Hearing dates:	18, 19, 20, 21, 22 and 25 May 2015
Decision date:	29 May 2015
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Judgment for the defendant. (2) Subject to an application for a different order being made in writing to my Associate within seven days of the date of this order, order the plaintiff to pay the defendant’s costs of the proceedings.
Catchwords:	TORTS – negligence – personal injury – psychiatric injury – plaintiff a former police officer who suffered many traumatic experiences during 35 year career and was subject of lengthy Police Integrity Commission inquiry which commenced in 2005 – plaintiff suffering from Chronic Adjustment Disorder – whether defendant breached its duty of care by failing to ensure psychiatric assessment of plaintiff when he showed signs of vulnerability in 1999 – whether defendant breached its duty of care by failing to provide adequate support for plaintiff in relation to Police Integrity Commission inquiry – whether defendant’s negligence shown to be causative of plaintiff’s Chronic Adjustment Disorder on balance of probabilities
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5D, 5E, 5R, 13, 16, 42, Sch 1 cl 2 Limitation Act 1969 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW), s 8 Ombudsman Act 1974 (NSW), s 31 Police Act 1990 (NSW), ss 8, 181D, 201 Police Integrity Commission Act 1996 (NSW), ss 26, 54 Police Regulation Act 1899 (NSW), s 7A Police Regulation (Superannuation) Act 1906 (NSW), ss 10, 10B Police Service Act 1990 (NSW) Workers Compensation Act 1987 (NSW), s 11A Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 4
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 Hegarty v Queensland Ambulance Service [2007] QCA 366 Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 McLean v Tedman [1984] HCA 60; 155 CLR 306 New South Wales v Fahy [2007] HCA 20; 232 CLR 486 Podrebersek v Australian Iron & Steel [1985] HCA 34; 59 ALJR 492 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 State of New South Wales v Lepore [2003] HCA 4; 212 CLR 511 State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 State of New South Wales v Seedsman [2000] NSWCA 119 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182
Texts Cited:	Degeling, Edelman and Goudkamp (eds), ‘Torts in Commercial Law’ (2011, Lawbook Co.)
Category:	Principal judgment
Parties:	Benjamin Carangelo (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: I Roberts SC/T Ower (Plaintiff) P Menzies QC/M Avenell (Defendant) Solicitors: Slater & Gordon (Plaintiff) McCabes Lawyers P/L (Defendant)
File Number(s):	2011/229639
Publication restriction:	---

Judgment

Introduction

1. Benjamin Carangelo seeks damages against the State of New South Wales for psychiatric injury said to have been sustained as a consequence of breaches of the duty owed to him by the Commissioner of Police, for which the defendant, the State of New South Wales, is vicariously liable.

2. The plaintiff’s case, in summary, was that the Commissioner failed to take reasonable precautions against the risks of his suffering psychiatric injury at two significant points in his service. The first point was in 1999 when he asked to be transferred from Flemington Police Station, where he was working as a Detective Sergeant, to Kogarah Police Station so that he could work in General Duties. The second point was in 2005 when his commanding officer failed to offer support to him with respect to a Police Integrity Commission (PIC) investigation into his conduct. The plaintiff contended that if appropriate treatment had been offered either at the first or second points, he would not have suffered Chronic Adjustment Disorder with Anxious and Depressed Mood. In that event, he would have continued to serve as a police officer to the age of 60 and would have worked as a private inquiry agent thereafter.

3. The defendant contended that there was no breach at either juncture, at least in part because the plaintiff was loath to allow others to assist him where to do so would require him to disclose or reveal vulnerability to stress. It submitted that, even if it were shown to have been negligent, its negligence could not be shown to have caused Adjustment Disorder or to have made any material difference. It contended that the PIC inquiry and the ensuing internal investigation were the real causes of the plaintiff’s psychiatric injury and that neither was compensable. It did not press its defence under the Limitation Act 1969 (NSW).

The Facts

4. The plaintiff was born in Italy in 1950. He migrated to Australia with his parents when he was ten. He left school after attaining the Intermediate Certificate. He married in 1972. His daughter, Belinda, was born the following year. In 1974 he commenced his training at the Police Academy in Redfern.

5. The Police Force is relevantly divided into two groups: officers who wear uniform, who are known as “General Duties”; and those who wear plain clothes, who are known as “Plain Clothes” or “Detectives”. The principal distinction is that the Detectives are engaged primarily in investigation rather than enforcement. They are paid an additional salary, by way of a clothing allowance, to compensate them for the cost of the plain clothes they wear on duty. In about 2000, the difference in salary was in the order of $5,000 per year.

6. The plaintiff started as a Probationary Constable in General Duties at the Newtown Police Station. On one occasion he was called out with a Senior Constable to a Marshall Batteries outlet at Newtown, where they were confronted by a man with a rifle who threatened to kill them. The Senior Constable shot the man in the throat. The plaintiff performed first aid on the man, who survived, until an ambulance arrived.

7. The plaintiff was confirmed as a Constable in 1975. His second child, Melissa, was born in 1976. On 18 January 1977 he attended the Granville train disaster. He helped to rescue survivors and also carried out corpses from the wreckage. He heard the cries of victims who were trapped. Some died before they could be freed. The plaintiff assisted the last victim to be released alive. He was shaken by these events and suffered claustrophobia and insomnia as a result, particularly in the ensuing months. He continued to suffer distress on the anniversary of the event and whenever he caught trains.

8. For the seven years commencing 1978, the plaintiff worked as a Plain Clothes Constable performing Criminal Investigations duties in various locations including Newtown, Balmain, Glebe and Annandale. In the course of his duties he investigated murders, domestic assaults, sexual assaults and other violent crimes, as well as accidents and suicides.

9. The plaintiff’s third child, Shaun, was born in 1979. In about 1981 he and his wife separated. On 3 March 1982 the plaintiff obtained a medical certificate from Dr Cringali, a general practitioner, who certified that he was suffering from “nervous depression” and was unfit for work from 2 March 1982 until 8 March 1982. The plaintiff did not recall the consultation but accepted that he was having personal problems at the time because of the separation from his wife. On 8 March 1982 he consulted Dr Vance at the New South Wales Police Medical Branch who recorded that he was “depressed over a personal matter re wife and children” and that he would be “FD [fit for duty] on 11 March 1982”. The plaintiff and his wife were divorced in 1983.

10. Although the plaintiff would, at times, be disturbed by what he saw and investigated at work, he felt no need to take time off, seek psychological support or even mention his distress to others, including medical practitioners whom he was consulting for other problems. He explained the distinction he drew between “marriage problems” on the one hand and mental stress arising from his work on the other in the following exchange in cross-examination:

Q.  So you didn't think ‑ you thought it was perfectly acceptable for your employer to be told that you were suffering from a mental illness, in this case depression [from marital problems], provided it had nothing to do with work, is that what you are saying?

A.  No, I am just saying that I didn't feel like ‑ from my ‑ from where I come from in the police department, you just didn't ‑ didn't show weakness by telling them that you couldn't cope with work and you were suffering from any depression because you'd be soon transferred out of detectives and elsewhere, okay.  But marriage problems, that wouldn't affect you in that way.

11. In 1983 the plaintiff was promoted to the rank of Senior Constable. In 1985 he was transferred to the Internal Affairs Branch of the Police Force where he remained until 1986. In this role, he was responsible for investigating the conduct of police officers.

Campsie/ Bankstown LAC: 1986 to 1994

12. In 1986 the plaintiff was transferred to Campsie/ Bankstown Local Area Command (LAC) as a Detective. He remained there until November 1994. In 1986 he married his second wife, Penny.

13. At about the time the plaintiff started at Campsie he met Charles Khalifeh, a police officer in General Duties. Mr Khalifeh observed the plaintiff to be a relaxed, calm, methodical, knowledgeable Detective, who was held in high regard. When Mr Khalifeh became a Detective in 1988 they worked more closely together. Mr Khalifeh’s first detective job with the plaintiff involved the investigation of a murder of a 16-year old boy who had been shot by armed robbers. The boy was part of a close-knit Greek family. Mr Khalifeh noticed that the plaintiff was more subdued during the investigation.

14. During their time together at Campsie, the plaintiff complained to Mr Khalifeh about headaches and being generally run-down. He told Mr Khalifeh that they were under pressure to get results but that staffing levels were down. He would say that he was “feeling like shit”. Mr Khalifeh said of the atmosphere among police at Campsie at that time:

“We all did the best we could and the general feeling was that nobody wanted to let anyone else down.”

15. The plaintiff also met Detective Sergeant David Wood, who was transferred to Campsie in 1987. Detective Sergeant Wood, who was about nine years younger than the plaintiff, regarded him as having “the usual mood variations as anybody else in the detectives”. Detective Sergeant Wood explained that sometimes the mood variations of the “older blokes” in the detectives included being “very quiet if not sullen” and “not level all the time”.

16. In 1990 the plaintiff was promoted to the rank of Sergeant. Over the following four years, he investigated several serious crimes. He particularly recalled conducting raids involving local gangs, the members of which were frequently armed.

17. During this period the plaintiff was called to a location where a 16-year old mother, who had concealed her pregnancy, was attempting to kill her newborn child by bashing his head on the side of a bath and then flushing him down the toilet. When the plaintiff arrived, the baby was wrapped in a towel. He understood that the relatives, who were Muslim, were about to bury the child in order to conceal the birth from the mother’s brother, whom they feared would kill the child’s mother. The plaintiff intervened and called an ambulance. The baby survived for two days in hospital. After the child died, the plaintiff realised that the family expected him to arrange the child’s funeral and burial. The plaintiff found the process of having to persuade the deceased’s family to bury the child disturbing. The whole investigation and autopsy greatly distressed him; he could not stop himself from thinking about it. He explained in evidence that harm to babies affected him more than harm to adults because a baby is “an innocent human being” and also because he was a father himself and could not but help thinking of his own children.

18. Detective Sergeant Wood noticed that the case involving the baby upset the plaintiff “more than usual”. The plaintiff would smoke more and was quieter for longer periods. From time to time the plaintiff would recount to Mr Khalifeh jobs he had done that affected him. He often mentioned the death of the baby. Mr Khalifeh observed the plaintiff to be “quite emotional” when telling him of these jobs.

19. In July 1993 the plaintiff was asked to investigate the drive-by murder of Radwan Rima and the malicious wounding of Paul Eguiabor which occurred when a group fired shots from a moving vehicle into a large crowd of teenagers who were leaving a dance party. The plaintiff attended the scene and discussed matters with Crime Scene and scientific staff. He arranged for police officers to interview witnesses, many of whom were minors and needed to have their parents present when they were interviewed. As many of the parents did not speak English, the plaintiff also had to arrange interpreters. He also communicated with the victims’ families and kept them informed of the progress of the investigation. I have made some allowance for the fact that the plaintiff’s description of his role in this investigation (which is the basis for the facts set out above) was contained in the application for promotion to the rank of Inspector which he made in 1998 and which is referred to below.

20. The plaintiff said in evidence that the investigation caused him stress because he had to conduct raids and was concerned that he could be shot at or otherwise attacked. Although the investigation was concluded without any violent incident involving police he felt considerable anxiety in the course of it. Nonetheless he neither sought, nor perceived the need for, psychological assistance.

21. At the time of these incidents, the plaintiff was not aware of any protocol for welfare checks to be conducted on police officers who were involved in so-called “critical incidents”. The term “critical incidents” was used to refer to incidents such as murder, armed robbery, drive-by shootings, fatal motor vehicle accidents that required police investigation and other major crimes. Nor did the plaintiff recall anyone checking on his welfare. Later, when he was promoted to the rank of Senior Constable, he was responsible for checking on the welfare of officers under his command and informing them that the services of the welfare branch were available if they needed help.

Flemington LAC: 1994-1999

22. Towards the end of 1994 the plaintiff was transferred to Flemington Police Station. He came in contact with Detective Budge, who worked at Campsie, a nearby police station. Detective Budge regarded the plaintiff as an “honest and dependable” police officer. This assessment was based on his experience of working with the plaintiff, as occurred sometimes when the plaintiff was “on loan” to Campsie Police Station.

23. The plaintiff’s duties as a Detective at Flemington Police Station included investigating serious crimes. Silverwater Gaol was within the local area. He was called to the gaol to deal with six inmates who had hung themselves in their cells. He had to cut down two of the six, as the protocol required that a police officer, rather than a prison officer, perform this duty. The plaintiff found these scenes to be particularly distressing, in part because he felt that the deaths could have been prevented. He was dismayed when he learned that, on some occasions, prison officers, who were only minutes away, would take half an hour before they went to the cell where an alarm button had been pressed. The plaintiff was also called to the gaol to investigate attempted suicides.

24. The plaintiff was troubled by the apparent conflicts between prison officers and prisoners. As neither group was prepared to co-operate, either with each other or with police, it was difficult, if not impossible, to ascertain what had actually happened. The area set aside for interviewing inmates was open and could be viewed by other inmates. Police officers, including the plaintiff, were apprehensive that those they interviewed might suffer reprisals from other inmates. The absence of prison officers on sick leave would also hamper the preparation of a brief to the coroner. As time passed, the plaintiff dreaded going to the gaol.

25. The plaintiff kept in touch both socially and professionally with Mr Khalifeh, who remained at Campsie until his transfer to Bankstown. The plaintiff worked with Detective Sergeant Wood again at Flemington. Detective Sergeant Wood noticed a change in him in that he was “crankier at times and more moody”. Detective Sergeant Wood described the environment at Silverwater Gaol as “terrible” and the scenes of suicide “very confronting”. He recalled:

“Ben [the plaintiff] would regularly bring up in conversation the incidents involving the baby in the toilet, the armed robbery shooting and some suicides. When discussing these matters he always seemed very quiet and withdrawn. Often he would go off and have a cigarette and return some time later.”

26. While he was at Flemington the plaintiff was involved in the investigation into the murder of a young woman whose mother had reported her missing. When the deceased’s body was found, having been dumped in bushland off Wakehurst Parkway, the plaintiff was called to the scene. He saw what he initially thought were bullet holes in her body but later realised were marks made by bush rats that had fed on her flesh. The plaintiff was overcome with feelings of helplessness and sadness for the victim. He became short-tempered and angry both at work and at home. Many of the officers who assisted the plaintiff in the investigation were inexperienced, which meant that he needed to be more involved and to bear a greater responsibility. The memory of the investigation continued to haunt him in the years to come.

27. In July 1997 Mr Khalifeh was transferred to Flemington where he again worked closely with the plaintiff, who was then the investigation manager. Mr Khalifeh noticed that his level of frustration was high and his demeanour had deteriorated since they had worked together at Campsie.

28. By 1997 the plaintiff was relieving Chief of Detectives at Flemington. At one time there had been a staff of 28 detectives. Over the years the numbers diminished, which increased the pressure on those who remained. The plaintiff complained to Detective Inspector Lorenzutta, who was in charge of the Major Crime Squad as well as the detectives at Flemington, who instructed him to stop some of the investigations. The plaintiff found it difficult to comply with the instruction as he regarded all of the matters he was investigating as serious. He felt guilty because some matters could not be properly investigated.

29. I accept the following evidence of Mr Lagopodis, a police officer who subsequently worked with the plaintiff, as to the effect of staff shortages on the health and morale of police officers:

“Well, just based on my own experiences working as a detective for over the course of 22 years and also based on what Mr Carangelo had told me, it wasn't a fact that he was complaining to me or anyone else in relation to staff shortages, when you're dealing with major investigations, either it be homicide, or you're on the strike force, you need staff to do your work.  You've got certain time restraints and in relation you've got an obligation not only to the New South Wales Police, you've also got an obligation to victims of crime and witnesses.  When you've got the DPP knocking at your door saying they want a brief and you've only got yourself and you've got 30 other people to interview and you've got no‑one there to help you, it's putting an enormous strain and pressure on you.  When they're taking staff off you to put them ‑ who are doing ‑ they're taking staff off you, from the detectives' office to do other major crime, it puts an enormous strain on you as an investigator, as a supervisor.  You're going to the boss and you're complaining that, "I've got no‑one to do these investigations, junior staff are suffering, I am suffering" and it's falling on deaf ears, and that puts an enormous strain not only on yourself, victims of crime, you've got people ringing you up constantly, "What's happening with my investigation?"  You're talking about people who have been traumatised by horror, homicide victims, where they're not budging.  The Police Department does not budge, they do not care.  You as an investigator though, when you've got your time restraints, you do care ‑ or the majority of us do anyway.”

30. On 13 April 1998 the plaintiff submitted an expression of interest for assessment for the position of Operational Supervisor/ Investigative Supervisor, which was at the rank of Inspector. His then Local Area Commander Treharne supported his application, describing the plaintiff’s integrity as “excellent”. He wrote, on 15 April 1998:

“The applicant has considerable experience in the field of Crime Management. He understands the process and achieves consistently good results.”

31. In order to be considered for such a promotion, the plaintiff had to be assessed at the Assessment Centre. Such centres were established in December 1996 to assess the competence and behaviour of candidates in certain roles. Meeting the standard was a prerequisite to applying for commissioned officer ranks, including, relevantly, the rank of Inspector. The assessment was conducted by Superintendents and an independent assessor over the course of a day. Candidates were assessed at least twice in the following areas: teamwork/ collaboration; maximising performance; individual leadership/ influencing; decision-making; planning and organising work management and communication (oral and written). They had to perform written “in-tray exercises”, role plays or group exercises and were also required to make individual presentations. The assessment was not designed to test the candidate’s capacity for the duties he or she was then performing.

32. The plaintiff met the “minimum satisfactory” standard in teamwork and collaboration but was assessed as having “much need for development” in the remaining categories of: decision-making; individual leadership/ influencing; planning organisation/ work management; maximising performance and technical/ professional knowledge. He was adjudged not to meet a satisfactory level of effectiveness in any area. As a consequence, he was ineligible to be considered for a position at the rank of Inspector.

33. Some time later the plaintiff spoke to Detective Inspector Lorenzutta again about the stress of the work, his distress occasioned by the hangings at the gaol and his inability to cope. He told him, “I just can’t take it anymore, if the staff numbers fall below 20, I’m out of here.” Detective Inspector Lorenzutta initially told him not to worry and that he would be all right. The plaintiff also informed Detective Inspector Lorenzutta of his view that the investigation of serious crime was being compromised as a result of the lack of experienced staff. He instanced an occasion on which he was given the task of investigating a number of armed robberies in the Blue Mountains which had been committed when the perpetrators locked up old people in toilets and took their wallets. The plaintiff identified as a suspect an escapee from Queensland who was enlisting the help of locals to commit these crimes. The plaintiff sought more staff from Detective Inspector Lorenzutta on the basis that it might be possible to charge the suspect with about a dozen offences. Detective Inspector Lorenzutta told him to proceed with the one charge that could be established and not proceed with the balance. The plaintiff, conscious of his duty to the victims, became depressed and demoralised by this response.

34. The plaintiff’s complaints to Detective Inspector Lorenzutta were a significant departure from his former practice of not revealing any difficulties relating to trauma to his superior officer, a practice which he described in the following terms:

“. . . earlier on in the career you just didn't disclose that you were suffering from stress because there'd be consequences.  You'd be isolated, you'd be transferred; as soon as they heard the word stress they would hold that against you.  So we would just debrief by going to the pub and with the closer mates we used to just have a drink and talk about things that happened during the day, and that's how we used to de‑stress things and that's the way we handle things.”

35. Detective Sergeant Wood and Mr Khalifeh were among the “closer mates” with whom the plaintiff felt free to share his experiences. They had both heard many times about old investigations that disturbed him and caused his sleep to be interrupted, including the investigation into the death of the young woman found in bushland and the death of the baby. They had also been privy to the plaintiff’s concern about staffing levels. Mr Khalifeh noticed that the plaintiff was drinking more, his previous enthusiasm for the job had gone and he was looking for a transfer. Mr Khalifeh said that at Flemington he “was clearly not the easy-going person he used to be” and that he was “just generally down, flat”.

36. In 1999, when matters did not improve, the plaintiff applied for a transfer to General Duties at Kogarah. He divulged to Detective Inspector Lorenzutta that he was not coping, as appears from the following evidence.

“Q.  Do you recall, as best you can, what you said to him about your ability to cope generally?

A.  I said to him that I've had enough, I can't cope, I can't cope with what, you know, this sort of work anymore.  I said I'm sick of the gaol, and I just want to have a ‑ I just want to transfer to general duties to have perhaps a quieter time.”

37. Detective Inspector Lorenzutta advised him to put in a form in which he expressed the reason for the transfer as being to work closer to home so as not to “create waves”. In his evidence the plaintiff explained that he regarded Detectives as having greater status than General Duties officers but considered the loss of status to be worthwhile because he expected that, at his rank, General Duties would largely involve supervisory duties at the Police Station rather than work in the field. The reason the plaintiff gave at the time in his Transfer Application signed on 9 August 1999, which was:

“I have been performing duties in the criminal investigation field for the past 22 years. I now wish to transfer to general duty. I seek the transfer not only to improve my skills in main stream policing but also to use my investigative skills in assisting junior members in becoming better investigators. This would give me more job satisfaction. During my service I have never asked for a transfer and hope some consideration be given in transferring me to the requested locations which are closer to home.”

38. Although Dr Selwyn Smith, the plaintiff’s treating psychiatrist since 2006, later recorded a history which suggested that the request for transfer was associated with the workload and the shortage of staff, I accept the plaintiff’s evidence that the true reason for his application to be transferred to General Duties was that he was not coping with the trauma of what he was exposed to as a detective. He had revealed as much to his close associates, including Mr Lagopodis who is referred to below.

St George LAC: September 1999 - August 2007

39. On 19 September 1999 the plaintiff started on General Duties at St George LAC at Kogarah. At that time Superintendent Carey was in charge. The plaintiff was a Team Leader and supervised several officers directly. He was generally not required to attend critical incidents or carry out investigations into homicide or fatal accidents. Nonetheless, a supervisor was obliged to attend when someone had died to form a judgment about whether there was something suspicious or unnatural about the death, and the plaintiff was called on to perform that duty more frequently than others because of his experience as a detective.

40. Detective Sergeant Wood kept in touch with the plaintiff by talking on the phone to him once a month and having a meal with him every 6 to 12 months. He observed the plaintiff to be an angrier person and that he had put on more weight. The plaintiff told Detective Sergeant Wood that he was drinking more. Mr Khalifeh also remained in contact with the plaintiff. They saw each other monthly and also spoke on the phone. Mr Khalifeh’s impression was:

“I know that Ben expected his move to be an improvement but, to my observation, although his work was different, his demeanour remained much the same.”

41. Sergeant John Lonard was the shift supervisor at St George LAC when the plaintiff started there in 1999. As such, he was required to organise, control and command the shift. He formed a very positive view of the plaintiff’s capacity. His evidence, which formed part of the defendant’s case, was as follows:

“Ben was a very efficient and effective Police Officer who had a great deal of plainclothes experience. He was a person who was very much in control. I never saw him stressed out, anxious or upset. Even when matters were complicated he completed the task correctly.

Ben was a very likeable and easy going person who was popular and respected by other staff. I did not see any personal problems impacting on Ben’s work and he appeared happy.”

42. Mr Lonard remembered the plaintiff talking about the Granville train disaster when they were, as Mr Lonard put it, “telling ‘war stories’”. Mr Lonard did not socialise with the plaintiff outside work and had no knowledge of his drinking habits.

43. At some stage in 1999 the plaintiff satisfactorily completed a course entitled “Responding to High Risk Incidents”.

44. On 24 October 2000 the plaintiff attended the scene of an explosion in Brighton-Le-Sands. When he arrived with Constables Green, Mirarchi and Porter, he was informed that people were trapped inside the building. They broke into the rear of the building to rescue anyone inside. There were flames and heavy smoke throughout. The plaintiff, who was overcome by smoke fumes, left the building for some fresh air. Just before he went back inside, the two Constables emerged to inform him that all of the occupants had already left the building. The plaintiff recorded the incident as critical but was not approached by the Employment Assistance Program (EAP) or by anyone else about his welfare following the incident.

45. As Constable Mirarchi’s Team Supervisor, the plaintiff and Constable Mirarchi saw each other on most shifts. Constable Mirarchi described the plaintiff as “a largish man, who enjoyed his family, food and fishing”. He also said:

“Ben had been a police officer for a long time and knew what he was doing. I could always speak to Ben for advice about jobs. He completed his work, with no issues. Every now and then he might have shown some angst after a major accident or seeing a deceased person…”

46. In 2001, while he was at St George, the plaintiff again applied for promotion to the rank of Inspector and was accordingly required to undergo another assessment at the Assessment Centre, which took place on 16 January 2001. Although the plaintiff’s results in individual categories were better than those he had achieved in 1998, he still did not meet the standard.

47. Notwithstanding his actual results, the plaintiff was informed, by email dated 6 February 2001, that he had passed. He was relieved and pleased that he was finally entitled to apply for positions as an Inspector. He was later told that a mistake had been made and he had in fact failed. He received a letter dated 3 April 2001 in which he was informed of his true results and that he could not, accordingly, be considered for any promotion to the rank of Inspector. The plaintiff was devastated. At that time he decided that he would no longer accept any offers to act as an Inspector on the grounds that:

“. . . if I couldn’t be a real inspector I wasn’t going to be a pretend one”

48. When the plaintiff examined the relevant Assessment Centre file and found no record of his complaint about having been told the wrong result, he lost faith in the promotion system and remained unable to accept that a genuine mistake had been made. As a result of this event and his experience of how the system worked from his time in the Internal Affairs Section, the plaintiff came to believe that he and those of his “vintage” were unlikely to be promoted because their age meant that they may have been implicated in the matters that were the subject of investigation in the Wood Royal Commission. When asked in cross-examination to elaborate on what had occurred in the Internal Affairs Section to make him believe that the system was corrupt, he referred to situations in which positions which had been advertised were not in fact available because they had already been earmarked for people who worked in Internal Affairs. Even when Mr Menzies QC, who appeared with Ms Avenell on behalf of the defendant, took the plaintiff through the records of his assessment in 2001 and his results on each task in cross-examination, the plaintiff refused to accept that his being told, incorrectly, that he had passed when he had in fact failed, was a mistake rather than a corrupt conspiracy.

49. In 2001, when he undertook the assessment, the plaintiff knew that the Police Force was generally concerned about the effects of trauma on police officers as a result of what they were exposed to in the course of their duties. In his position as Team Leader the plaintiff would speak to those under his command who had attended scenes which might affect their mental health to see whether they were all right, However, he considered that had he disclosed his own distress at such scenes he would not only be an outcast from the group, but that his disclosure would not be kept confidential because such things “seemed to have a habit of getting out”.

50. On 18 September 2001 the plaintiff recommended to the Commissioner that favourable consideration be given to recognising the actions of Constables Mirarchi, Green and Porter on 24 October 2000 when they attended the explosion at Brighton-Le-Sands. In his submission to the Commissioner the plaintiff wrote:

“Constables Mirarchi, Porter and Green acted with a high level of courage in entering the building looking for persons trapped. The dense smoke and heat made breathing very difficult and there was a real and high risk to personal safety due to the leaking gas and buckled floor which could have collapsed at any time. Constable Mirarchi and Porter both received minor cuts to their hands and were treated at the scene by ambulance.”

51. As a result of the plaintiff’s recommendation each of the Constables was awarded a Commissioner’s Certificate of Merit, which was presented on 6 July 2005. The plaintiff was similarly recognised for his role in the incident.

52. Notwithstanding what had occurred in 2001, the plaintiff applied again for promotion to the rank of Inspector and underwent another assessment at the Assessment Centre on 10 June 2003. Once again he failed to meet the standard. He did not reapply because he did not think he would ever be successful.

53. In about 2003 Sergeant Lonard was adjudged by the NSW Assessment Centre to be eligible for promotion to Inspector. From that time until about May 2006 he acted as an Inspector in the role of Duty Officer. He often worked on the same shifts as the plaintiff, with the plaintiff as the Shift Supervisor and Sergeant Lonard as Duty Officer.

54. On 27 March 2003 the plaintiff satisfactorily completed a course entitled “Stress Management and Employee Support” as part of the Mandatory Police Education Scheme. The relevant material is considered further below in the context of the defendant’s knowledge of the stress suffered by its police officers.

55. In about 2004 the plaintiff was asked to investigate a police officer who was in his team and was accused of molesting female officers in the work place. The plaintiff was loath to conduct the investigation as he considered that his role as Team Leader gave rise to a conflict of interest. He was also concerned that, as a Sergeant, he was too junior to conduct the investigation which he thought ought be conducted by an Inspector. As a result of the plaintiff’s investigation, the officer concerned was dismissed. The plaintiff felt guilty. He also sensed that he was being shunned by his peers for the part he had played. He disliked the feeling that he was back in Internal Affairs.

56. In about 2004 Mr Lagopodis started working with the plaintiff at St George LAC. He was about 12 years younger than the plaintiff, who was by that time one of the most senior officers in the LAC. They had a good working relationship. Mr Lagopodis found the plaintiff to be well respected by his peers and subordinates, to have good communications skills and to have an “approachable, easy-going nature”.

57. Inspector Lonard recalled the plaintiff mentioning that he had separated from his wife in about 2004 or 2005, although Inspector Lonard could not say what effect this had on him. This was the only disclosure of a personal nature that the plaintiff ever made to Inspector Lonard.

58. In October 2004 Sergeant Graham Baird worked on the same team as the plaintiff at Kogarah Police Station. Sergeant Baird said that he completed his job satisfactorily although he “could get a bit grumpy, as anyone does.”

59. In early 2005 the plaintiff confided in Mr Lagopodis as to the reasons he left the Detectives for General Duties. He identified the lack of experienced staff and the work load. He also described the traumatic situations to which he had been exposed as a Detective. The plaintiff told Mr Lagopodis:

“I needed to get out of Plain Clothes [Detectives] before it killed me, even though it meant a pay cut in salary and transfer away from the duties that I loved. My health was suffering. I thought that coming back to general duties after so many years would be a break from hell, plus I was going back as a Supervisor so I didn’t have to attend every single deceased and murder. Back when I started in the job, it was difficult and very hard as a young bloke and I wanted to get into Plain Clothes and be a Detective.”

60. On 27 July 2005 the plaintiff completed a course in Occupational Health and Safety as part of his mandatory continuing education. Although the course emphasised the responsibility for providing a safe system of work, it was not suggested that it dealt in any detail with managing stress.

61. On 1 September 2005 the plaintiff fell while he was fishing under Tom Ugly’s Bridge in Sylvania and fractured two ribs. He was off work from the date of the accident until 4 October 2005 and put in a claim in respect of this absence. He saw Dr Taluja throughout this period but did not report any symptoms associated with distressing events that had occurred in the course of his police duties. I accept that, at the time, he was suffering from depression and insomnia and was having difficulty coping. His failure to report his symptoms was consistent with his usual approach of concealing such matters from everyone apart from his closest associates in the police force.

The PIC inquiry: September 2005 – June 2007

62. In September 2005 Andrew Baxter, who had just been appointed as an investigator with PIC, was required to conduct an investigation into an allegation against the plaintiff. I am satisfied that, at some time prior to 7 September 2005, Mr Baxter informed Superintendent Mark Murdoch (the plaintiff’s then Commander) that PIC was investigating the plaintiff’s conduct, although he did not inform him of the subject matter of the investigation, which remained confidential. Mr Baxter agreed that there was nothing about the investigation into the plaintiff which prevented his disclosure of the fact of the investigation to the plaintiff’s Commander. Mr Baxter informed the Commander before notices were issued to ensure that the officer was given appropriate support, it being no part of the duties of a PIC investigator to monitor and consider the officer’s welfare. Mr Baxter also considered it to be important for the Commander to be aware of the investigation so that, if the officer had to be absent from work by reason of the PIC investigation, the Commander would already know and understand the reason for the officer’s absence.

63. On 7 September 2005 Mr Baxter served the plaintiff with a notice pursuant to s 26 of the Police Integrity Commission Act1996 (NSW) (PIC Act) which required production of documents from 1 July 2000 to that date. The notice set out various matters for the information of the recipient, including the following:

“OFFENCES

Disclosure of information

It is an offence to disclose information about the Notice that is likely to prejudice the investigation to which it relates, except where provided for under the Act (see above). The maximum penalty for this office is 50 penalty units ($5,500) or imprisonment for 12 months, or both.

To ensure that this provision is not breached, unless the proposed disclosure is to a person specified above (see under the heading, “Your Notice – What it Will Say”), you should not make any disclosures about having received the notice or its contents without first seeking permission from the Commission. Enquiries should be directed to the Commission officer named on the Notice.”

64. Mr Baxter also informed the plaintiff of the Legal Representation Office (LRO), which provided legal advice free of charge to officers the subject of investigation. The plaintiff obtained legal advice from Mr Robert McIlwane, who represented him throughout the PIC inquiry.

65. Later that month, on 23 September 2005, Mr Baxter served a s 26 notice on the plaintiff’s wife and, on 26 September 2005, conducted a recorded interview with her at the home in Blakehurst where, although they were separated, she was living with the plaintiff.

66. On 17 October 2005 Peter McErlain was appointed Acting Commander of St George LAC. At this time the plaintiff was one of three General Duties Team Leaders, each of whom led about 13 police officers who worked in shifts. Superintendent McErlain considered the plaintiff to be both senior and experienced and to be performing his duties satisfactorily. His impression was of a quiet man who did not display any overt psychological symptoms in the course of their time together.

67. Superintendent McErlain was subsequently confirmed in the position in around February 2006 and replaced Superintendent Murdoch. Although Sergeant Murdoch conducted a detailed handover he omitted to inform his successor that the plaintiff was being investigated by PIC. Had Superintendent McErlain been aware of the PIC inquiry into the plaintiff he would have taken steps to provide some support for him as he appreciated that such an inquiry would be a stressful experience and could give rise to feelings of helplessness, anger and isolation in the officer the subject of investigation.

68. On 23 November 2005 Mr Baxter spoke with the plaintiff about the summonses he proposed to serve on his parents, who were then elderly and in poor health. The plaintiff was hostile towards Mr Baxter and accused him of engaging in a fishing expedition. He refused to be present when his parents were served or otherwise to assist. The plaintiff’s parents were served with notices on 25 November 2005.

69. In early 2006 two officers from PIC came to the plaintiff’s home with a summons that required him to produce his financial records. He was surprised and upset. The PIC inquiry was causing him substantial stress which he did not disclose because of the confidentiality requirements to which he was subject. Despite these events, the plaintiff continued to perform his duties as a police officer without taking any leave.

70. In May 2006 Mr Lagopodis went off on sick report. His initial complaint was workplace bullying and harassment. His general practitioner referred him to Dr Smith to obtain psychiatric treatment, as a result of which he made a Hurt on Duty (HOD) claim arising from exposure to trauma in the course of his police work.

71. On 18 May 2006 Superintendent McErlain filled in a Risk Assessment Form, without consulting the plaintiff, in which he assessed the plaintiff’s risk as “low”. Superintendent McErlain was still not aware that the plaintiff was then the subject of a PIC inquiry. Had he known, he would not have assessed the plaintiff’s risk as “low” because of the inevitable stress and anxiety suffered by police officers the subject of such inquiries.

72. On 17 August 2006 Mr Baxter served on the plaintiff a summons to appear and give evidence. A document entitled “INFORMATION FOR WITNESSES” was attached to the summons. It contained the following passages:

“Your summons will state whether information may or may not be disclosed about the summons (sub-section 54(2)). If your summons says that you may not disclose any information about it, this includes information about the existence or nature of the summons or of the investigation to which it relates. It also means that you may not disclose any information to a person from which the person could reasonably be expected to infer the existence or the nature of the summons or of the investigation to which it relates. With several exceptions, it is an offence to disclose information in contravention of an order that information not be disclosed.

Even if the summons does contain a statement that information about the summons is not be disclosed, you may disclose information about the summons in the following circumstances:

(a)   the disclosure is made to an employee, agent or other person in order to obtain information to comply with the Summons and the employee, agent or other person is directed by you not to inform the person to whom the information relates about the matter, or

(b)   the disclosure is made to obtain legal advice or representation in relation to the Summons, or

(c)   the disclosure is made for the purposes of, or in the course of, legal proceedings, or

(d)   the disclosure is made in accordance with guidelines issues by the Commission or in accordance with the regulations (sub-section 54(3)).”

. . .

PROCEDURES AT HEARING

. . .

You should be aware that the fact that you have given evidence and been released from your summons does not preclude you from being re-called to give further evidence at such time as the Commission may determine. A further summons will be served upon you should that circumstance arise.”

73. The plaintiff gave evidence in a closed PIC inquiry on 29 and 30 August 2006. He was represented by Mr McIlwane. After the first day’s examination had concluded, Mr Baxter accompanied the plaintiff, with his consent, to his home at Blakehurst to search his bedroom for an item that he had referred to in evidence.

74. The plaintiff found the experience of being questioned for a day and a half, in what he regarded as an aggressive way, very stressful. He was so upset by the experience that he was unable to return to work. The plaintiff described how he felt in cross-examination:

“I was sick.  When I got out of there I felt like I'd been shot, you know, my stomach wasn't there anymore and I just made it to a doctor.  I was really ill after leaving PIC because that's how much it affected me.  But it wasn't the only reason why I went off sick because of PIC, it was because of other things that had happened before that and it all accumulated.”

75. He went on sick report from 31 August 2006. Superintendent McErlain said of the plaintiff’s absence that it was “sudden, and no specific work related event appeared to trigger his leave”. The plaintiff submitted a certificate from Dr Taluja, who certified on 31 August 2006 that he was suffering from hypertension and stress and would be unfit for work up to and including 4 September 2006. Her clinical notes recorded in part:

“Stressed, some time ago met few people and it confidential. All story is very stressful so relaxation therapy done.”

76. The plaintiff saw Dr Taluja five times in September 2006 for stress arising from the PIC inquiry. She recorded on 2 September 2006:

“Does not feel any better. He is very annoyed that after doing the loyal job that he has been in the Police for 32 yrs and now being questioned the integrity for the last 3-4 days ago [sic].”

77. Dr Taluja recorded on 15 September 2006:

“BP 130/90. Still c/o Headaches and anxiety still there and stressed when he thinks about that and he is more stressed if he has to go to work. MED CERT AGAIN 1 WK. He is coming back again and again of the questions that he had in the Court and that makes him angry that he was asked that he is living beyond his means for $4000, and was asked the trip for Italy where was living with Uncle and parents were there and was asked why spent only $3000 and all these things are now bothering him and brings the Memories which were unpleasant in the Police force. THERE IS BIG COUNSELLING”

78. At some time in September 2006 Mr Lagopodis rang Kogarah Police Station and asked to speak to the plaintiff. The unidentified female officer who answered the phone told him that the plaintiff was off sick and that it was hard to say when he would be back. When Mr Lagopodis pressed her she told him that it would be better if he did not contact the plaintiff because he was being investigated. Mr Lagopodis rang the plaintiff on his mobile, which was switched off at the time. Eventually he made contact and arranged to visit the plaintiff at home. Mr Lagopodis, who had not seen the plaintiff since he himself had gone off on sick report in May 2006, was shocked when he saw the plaintiff, who was unshaven and had put on a lot of weight. The plaintiff explained that he was being investigated by PIC and that his parents had been drawn into the investigation.

79. The plaintiff recounted to Mr Lagopodis that his wife and parents had also been served with summonses and that he had been cleared after having given oral evidence for a day and a half. When he had finished talking about the PIC inquiry, he showed Mr Lagopodis the email dated 6 February 2001 in which he had been informed that he had passed the assessment but later told that he had failed. The plaintiff told Mr Lagopodis that he could not accept that it had been a mistake. The plaintiff also said to Mr Lagopodis:

“You’re the only person that has come to see me Bill. Do you believe that nobody from St George has even bothered to call me or come over and see me to conduct a welfare check, even though I’ve been off sick for so long. I contacted the station Manager, Rudy Kolkman, about my sick leave and paying my doctor’s bills and they refused.”

80. Mr Lagopodis was very concerned about the plaintiff, whom he had found to be very agitated, angry and anxious. Mr Lagopodis knew from his own experiences that the plaintiff was suffering, which is why he suggested that he go and see Dr Smith at St John of God Medical Centre in Burwood. Mr Lagopodis, who saw Dr Smith himself, knew that other police officers were treated by him.

81. On 11 September 2006 Inspector Ajaka contacted the plaintiff to ask about his welfare. The plaintiff told him that he was suffering from stress and anxiety but that he was seeing his own doctor and did not require assistance. This was the first of several occasions on which welfare checks were conducted by police officers on the plaintiff. I am satisfied that on each such occasion assistance was offered to the plaintiff but he declined it, at least in part on the basis that he was seeing his own doctor for treatment.

82. On 4 October 2006 Ms Brodie, Senior Injury Management Advisor at the Welfare Branch, visited the plaintiff at his home. The plaintiff told her that he was suffering anxiety, depression and high blood pressure as a result of stress and that he had been referred to a psychiatrist or psychologist the following Friday. Ms Brodie told him that there was nothing she could do to help him until the PIC inquiry was over. She recorded that he was not expecting to be able to return to work in the short term due to decreased sleep and concentration. She posted the relevant claim forms to him following the visit.

83. On 12 October 2006 Inspector Lonard made a welfare check on the plaintiff by telephoning him to follow up on some HOD forms. On 26 October 2006 Superintendent McErlain asked Inspector Lonard to visit the plaintiff to make a welfare check. When he visited, Inspector Lonard found the plaintiff to have changed. He said of the plaintiff:

“He appeared to be anxious and nervous and stressed out.  Ben was the sort of fellow that was always very welcoming, and he'd say with smile on his face, "How you going, Lonnie?"  But this time he said ‑ well, I'm not really sure he said the words along the lines of "What are you doing here?" but he seemed wary of my presence there.”

84. Inspector Lonard’s impression was that the plaintiff viewed his visit with suspicion. The plaintiff revealed that he had been visited by investigators but said that he could not say where they were from or what it was about. Inspector Lonard drew his own conclusion that the plaintiff was being investigated by PIC. He told Inspector Lonard that he was getting psychiatric treatment.

85. The plaintiff subsequently filled in an Accident/ Incident Notification form which was faxed to the Police on 27 October 2006, in which he described the incident which had caused him to stop work as follows:

“I am suffering from stress, depression, hypertension as a result of an inquiry which has been ongoing since early September 2005. I have been off on sick report since 31 August 2006. As this inquiry is still ongoing I am not prepared to disclose any further details at this stage. But I believe it’s being conducted in a harassing and discriminating manner against myself and my family.”

86. The plaintiff reported in the form that he had seen Dr Taluja who had prescribed medication for blood pressure and cholesterol. Mr Kolkman, the Local Area Manager at St George LAC, answered the question on the form: ”What action has been/ can be taken to prevent a recurrence?: Insufficient info provided by injured officer. Injury Management Advisor engaged to intervene.” When he saw this form Superintendent McErlain became aware for the first time that there was an inquiry into the plaintiff.

87. On or before 1 November 2006 the plaintiff signed a Claim for HOD Benefits. He indicated that he had not made any other compensation claims. The injury identified was “stress, depression and hypertension”. When asked how the injury or illness occurred, he answered:

“As a result of injury which is still current and not prepared to disclose anything further at this stage except it’s being conducted in a harassing and discriminating manner.”

88. Superintendent McErlain indicated on the form that he was not satisfied that the injury or illness occurred in the manner reported and wrote:

“I have no knowledge of the inquiry the claimant refers to in the claim details.”

89. On 7 November 2006 Inspector Lonard rang the plaintiff to check on his welfare. The plaintiff was disappointed that he had not yet received a HOD claim number. This was the last time they spoke at any length. When Inspector Lonard next contacted him, while off duty, to see how he was going, the plaintiff told him that he was with his mother and would call back but he did not.

90. On 21 November 2006 Superintendent McErlain rang the plaintiff who told him that he was anxious because his family and ex-wife had been contacted by investigators. The plaintiff accepted that Superintendent McErlain was trying to help him when he told him that he ought not return to duty until he was feeling better. The plaintiff was, at that time, very unhappy that the PIC Inquiry seemed to be dragging on. Superintendent McErlain said in evidence:

“After he left on sick leave, when I saw and spoke to Ben, he was not the same person as he was before. He was vocal, angry and upset about how PIC investigators treated him and his family. Ben felt he was being kept in the dark. At first, I was unaware of what the investigation was.”

91. In his file note of the conversation with the plaintiff, dated 21 November 2006, Superintendent McErlain recorded:

“Told him I have had no contact from anyone re his matter. Info from MM Kings Cross- PIC Inquiry prior to me taking over Command.”

92. Although Superintendent McErlain could not confirm it to be the case, I am satisfied that it is likely that “MM” is Superintendent [Mark] Murdoch, who was told about the PIC Inquiry into the plaintiff by Mr Baxter in September 2005.

93. On 4 December 2006 the plaintiff consulted Dr Smith for the first time. In his report to Dr Taluja of the consultation Dr Smith noted the following history:

“Ben [the plaintiff] reported that he has been off work for the last three months against a background of work-related stressors.

Approximately 12 months ago Ben was referred to the Police Integrity Commission Unit and served papers requesting that he produce banking statements. The investigation extended to his former wife and his elderly parents. A hearing was formally held, the outcome of which remains outstanding. The impact on Ben has been significant and he has experienced significant anger and preoccupation. He was emphatic that he has done no wrong. He has been ruminating upon his previous work as a police officer which has involved a multiplicity of traumatic events.”

94. At some stage, the plaintiff, at Dr Smith’s request, prepared a list of traumatic events in which he had been involved over the years. It was Dr Smith’s usual practice to make such a request; he had done so when Mr Lagopodis first consulted him in May 2006. In the list, which went for eight pages, the plaintiff not only described various incidents involving victims of fatal accidents or crimes, but also referred to the mistake in the result of the assessment in 2001 as well as the PIC investigation in 2006. That he did not identify the incident concerning the baby in this list does not mean that it was not significant. I accept the plaintiff’s explanation that it was impossible to put down 30 years of police service in one document. Later, he provided a further document to Dr Smith which was entitled, “Extra Incidents I Have Remembered”.

95. When the plaintiff was cross-examined about why he had not sought help earlier he said:

“I knew I was having trouble and I knew I was being affected and I thought of those things and sometimes it would come back to me but I thought that things would get better.  And so I didn't seek help thinking that things were going to get better.  But eventually things didn't get better and I hit a brick wall.”

96. The plaintiff continued to see Dr Smith about once a fortnight for about 15 minutes or half an hour. Dr Smith prescribed anti-depressants, including Effexor.

97. On 11 December 2006 Inspector Middleton from St George LAC rang the plaintiff to check on his welfare, offer assistance and update him on his claim. Inspector Middleton recorded that the plaintiff was “somewhat disgruntled, not at us but at the system”. Although the plaintiff did not dispute that the conversation had occurred he had no recollection of Inspector Middleton offering him any assistance. On 4 January 2007 Inspector Middleton rang the plaintiff again to ask him how he was.

98. On 18 January 2007 Mr Kolkman received an internal police email that referred to difficulties that had arisen regarding the plaintiff’s HOD claim because the plaintiff had refused to disclose anything regarding the PIC inquiry. The author of the email was concerned that the claim might be excluded by s 11A of the Workers Compensation Act 1987 (NSW) (which excludes claims relating to performance, discipline and appraisal) and explained that because of the lack of information the claims for medical treatment at St John of God Hospital could not be approved.

99. On 1 February 2007 Superintendent McErlain rang the plaintiff who said that he was “okay, still anxious”. Superintendent McErlain told him that he would visit him the following week, although when he tried to contact him the following week he was unsuccessful.

100. On 15 February 2007 Superintendent McErlain rang the plaintiff to arrange a meeting. Although the plaintiff gave evidence that he suggested that the meeting take place at his home, I accept that the Superintendent’s usual practice was to meet an officer at his or her home unless he or she had an objection to that location. Accordingly, it is likely that the meeting took place at Southgate Shopping Complex because the plaintiff suggested the location. Superintendent McErlain found the plaintiff to be apparently well physically but learned, while talking with him, that he was anxious, could not sleep and was preoccupied with the PIC inquiry which had being going on since early 2006. The plaintiff told Superintendent McErlain that he had lost any chance of reconciliation with Penny, his then wife. He also related the incident with his assessment in 2001 and indicated that he did not accept that it had been caused by an administrative error. The plaintiff expressed his annoyance at his doctor’s bills not being paid and being embarrassed when the receptionist raised it in the waiting area within earshot of others. He gave Superintendent McErlain a medical certificate certifying his unfitness for work up to 30 March 2007. Superintendent McErlain recorded his conclusion in a file note of the meeting in the following terms:

282. Mr Menzies submitted that, if I accepted the opinions of Drs Smith and Diamond as to the plaintiff’s susceptibility to psychiatric disorder immediately prior to the PIC inquiry, the plaintiff should be regarded as having an “egg shell skull” which rendered him vulnerable to the effects of any trauma as a result. I do not consider this description to be either accurate or fair, unless it means no more than that the plaintiff’s years of service as a Detective made him more vulnerable than officers whose service had been shorter or who had not had such significant exposure to death. The defendant knew, or ought to have known (as I have found above), that the longer an officer had been exposed to trauma, the more likely he or she would suffer an abnormal response which could lead to permanent psychiatric harm. The stressors that were likely to bring about Adjustment Disorder in these circumstances were largely confined to police service. In these circumstances I do not consider it to be appropriate to discount the plaintiff’s damages on this basis.

Non-economic loss

285. The plaintiff’s enjoyment of life has been substantially affected by Adjustment Disorder. He is dogged by persistent images and memories of hideous scenes arising from years of service as a police officer. He is still haunted by the sight of the young woman whose body was so horrifically mutilated after her corpse had been abandoned in bushland. His gregarious nature has been compromised by short temper and the irritation brought about by the disorder. The joy he takes in time with his grandchildren is clouded, though not eclipsed, by thoughts of the baby boy who was killed by his own mother.

286. Nonetheless he is in a happy and enduring relationship with a woman who has been with him in dark hours. Although his retirement is not what it might have been but for the Adjustment Disorder, he spends time with his children and grandchildren and enjoys cooking and fishing and getting together with his close friends from the Police Force.

287. His dedication to his role as a police officer went far beyond the financial remuneration. For him, it was a substantial loss that psychiatric illness required him to stop serving as a police officer when he was 56, when he had not planned to retire until he turned 60.

288. I assess his damages under s 16 of the Civil Liability Act as 35% of a most extreme case, being an amount of $200,000.

Economic loss

289. The plaintiff accepted that he would not have been promoted to the rank of Inspector and that he would, in any event, have retired on 21 December 2010 at the age of 60. His past economic loss to age 60 was agreed at $109,400. For reasons that follow I am not satisfied that, but for the injury, the plaintiff would have worked beyond the age of 65.

290. The distinction between past (post- 60 but pre-judgment) and future (post- judgment and pre-65) loss of earnings is determined by the somewhat arbitrary date of judgment. As to future economic loss I am obliged by s 13(1) of the Civil Liability Act to determine the plaintiff’s most likely future circumstances but for the injury. Although s 13 does not in terms apply to past loss, a similar exercise must be undertaken under general law principles.

291. The plaintiff said that he had been offered work as an investigator for a private insurance company but could not accept the offer because of his mental state. He also gave evidence in re-examination that he wanted to start a private inquiry agency, had made preliminary enquiries and was confident that it was something that he could have done, using the skills he had acquired as a detective.

292. It may be accepted that it was not uncommon for police officers who retired between 55 and 60 to continue to work in other occupations thereafter, even if their retirement was on medical grounds. Mr Khalifeh, for example, was medically discharged with an injury to his right knee in 2007 but has worked full-time ever since as a self- employed truck driver and indeed worked part-time in that role when he was a serving police officer.

293. The plaintiff’s superannuation benefits would not have been reduced by any extra income he earned after his retirement as a police officer. Nonetheless the amount of such benefits would, in my view, have largely removed any incentive for the plaintiff to work more than a few hours a week. There is no evidence of how much the plaintiff would have been likely to earn as a private investigator or, indeed, how many hours a week he would have been prepared to work in that role. But for the defendant’s concessions that it was appropriate that a buffer be awarded to compensate the plaintiff for the loss of his earning capacity and that Average Weekly Earnings (AWE) was a reasonable guide to how it should be assessed, it might have been difficult to come to a view as to the appropriate assumptions or percentage possibility as required by s 13.

294. In light of the evidence referred to above and the defendant’s concession, I consider that the most likely future circumstances would have been that, but for the injury, the plaintiff would have worked for about a day a week as a private investigator and that he would have earned, in that role, 20% of AWE until the age of 65. I am not persuaded that he would have worked thereafter at all.

295. On this basis his past loss (to which must be added the agreed figure of $109,400 referred to above) is a weekly loss in the order of $1,500 gross per week ($1,140 net per week) from 22 December 2010 to the date of judgment. His future loss is a weekly loss in the same order from the date of judgment to 22 December 2015. To express the calculations in this way gives an unwarranted impression of precision. The lump sum for this head of damage is, in substance, a buffer designed to quantify the plaintiff’s loss in circumstances where the evidence does not permit precise calculations to be made: State ofNew South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [64]–[87].

296. On this basis I assess his damages for past loss as $163,400, being the rounded sum of $109,400 (for loss of income as a police officer) and a further $54,000 by way of a buffer for past loss of post-retirement income. I assess future economic loss of post-retirement income on the same basis. Accordingly I assess the plaintiff’s future economic loss, taking into account vicissitudes of 15%, in a rounded amount of $25,000.

Out of pocket expenses

297. Past out of pocket expenses are agreed at $39,657.35. The cost of Effexor is $110 per month. The cost of a consultation with a consultant psychiatrist is in the order of $225 per visit. I consider it to be appropriate to allow for monthly consultations. Accordingly, the weekly cost of medications and medical treatment is in the order of $85. The plaintiff has a life expectancy of 20 years. The relevant multiplier is 666.4 (at the rate of 5%). I assess damages for future out of pocket expenses, after discount for vicissitudes of 15% at $50,000.

Orders

298. I make the following orders:

1. Judgment for the defendant.

2. Subject to an application for a different order being made in writing to my Associate within seven days of the date of this order, order the plaintiff to pay the defendant’s costs of the proceedings.

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Amendments

03 July 2015 - par 296 - figures for past loss amended

Decision last updated: 03 July 2015