CLA v BUU
[2025] NSWPIC 259
•11 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | CLA v BUU [2025] NSWPIC 259 |
| APPLICANT: | CLA |
| RESPONDENT: | BUU |
| MEMBER: | Gaius Whiffin |
| DATE OF DECISION: | 11 June 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claims for weekly benefits compensation and treatment expenses pursuant to section 60; whether applicant sustained a psychological injury in accordance with section 4 as a result of traumatic incidents experienced during course of employment with respondent; consideration of credit to be afforded to the applicant as a witness; whether expert opinion provided in a ‘fair climate’; consideration of need for actual persuasion to be felt in order for applicant to satisfy onus of proof; Nguyen v Cosmopolitan Homes, Drca v KAB Seating Systems Pty Ltd, Malco Engineering Pty Ltd v Ferreira, ACW v ACX, Hancock v East Coast Timber Products Pty Limited, Paric v John Holland (Constructions) Pty Limited, and Paric v John Holland (Constructions) Pty Limited considered; Held – applicant failed to satisfy onus of proving he sustained a psychological injury (in accordance with section 4(b)) arising out of traumatic events experienced during the course of employment with the respondent; award for respondent. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant has failed to satisfy his onus of proving that he sustained a psychological injury (in accordance with s 4(b) of the Workers Compensation Act 1987 (the Act)) arising out of traumatic events which he experienced during the course of his employment with the respondent. 2. There will be an award in favour of the respondent in relation to the claims made by the applicant for weekly benefits compensation and expenses pursuant to s 60 of the Act. 3. In accordance with cl 132 of the Personal Injury Commission Rules 2021, I order that the entirety of this publishable decision be de-identified before it is published. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
[CLA] (the applicant) is 30-years-old. He worked for the [BUU] (the respondent) from the date of his attestation in around April 2018 until he resigned from that employment effective as at 7 August 2023. At the time of his resignation however, he had not worked for the respondent since 22 February 2023, and he had been criminally charged on 17 March 2023. The criminal charges related to his conduct on 22 January 2023.
The applicant alleges that during the course of his employment with the respondent, he had experienced numerous traumatic incidents, which have led to him sustaining a psychological injury. He claimed compensation in this regard when he lodged a P902 form with the respondent, together with an accompanying certificate of capacity, on 17 March 2023.
The respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim in relation to his alleged psychological injury, dated 9 June 2023. It then reviewed its denial of liability in this regard in accordance with s 287A of the 1998 Act, but maintained the denial by way of a notice dated 17 August 2023.
As a result, the applicant has not received any weekly benefits compensation or payment of his expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) after 4 July 2023. He has also not received any wages payments from the respondent since 17 March 2023.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (Commission), the applicant claims weekly benefits compensation from 4 July 2023 to date and on a continuing basis.
ISSUES FOR DETERMINATION
The parties agree that the following issues are in dispute and require determination in these proceedings:
(a) has the applicant sustained a psychological injury arising out of traumatic employment events - in accordance with s 4(b) of the 1987 Act;
(b) if the answer to (a) is in the affirmative, does the respondent have a defence to the applicant’s compensation claim in relation to the injury - either in accordance with s 11A(1) of the 1987 Act or s 14(2) of the 1987 Act, and
(c) if the answer to (a) is in the affirmative, and the answer to (b) is in the negative, is the applicant entitled to weekly benefits compensation after 4 July 2023, due to incapacity for work as a result of the injury.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the proceedings understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the proceedings to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution in the proceedings.
The proceedings were listed for conciliation/arbitration before me initially on 16 September 2024. On that occasion, Mr Ross Stanton of counsel appeared for the applicant, instructed by Ms Norus; and Mr David Baran of counsel appeared for the respondent, instructed by Mr Kim and Ms Mou. The applicant was present, as well as Ms Tatian on behalf of the insurer of the respondent and Ms Kitchener as a direct representative of the respondent.
Following an unsuccessful conciliation on 16 September 2024, the proceedings continued to arbitration, and the parties agreed with me as to the issues in dispute in the proceedings (see paragraph 6 above).
The applicant confirmed that in addition to his claim for weekly benefits compensation, he also sought a ‘general’ order pursuant to s 60 of the 1987 Act, should he be successful in proving injury and should the respondent be unsuccessful in establishing its potential defences to his compensation claim. The respondent did not object to the making of such a ‘general’ order in those circumstances.
There was then a discussion between the parties as to the documentary and other evidence to be admitted in the proceedings, and certain documents (see paragraph 26 below) were admitted by consent. An Application to Admit Late Documents which had been lodged by the applicant on 10 September 2024 was objected to by the respondent and was not pressed by the applicant (the applicant acknowledging that the respondent was forensically prejudiced by the late provision of those documents). The documents attached to that application were therefore not admitted in the proceedings.
The respondent then made an application pursuant to cl 132(1) of the Personal Injury Commission Rules 2021 (the Rules) that the entirety of my eventual decision in the proceedings be de-identified. In this regard, it advised that the applicant’s conduct on 22 January 2023 was a core issue in the proceedings, in relation to which there was substantial evidence for me to review and detail in my decision. It was common ground that the applicant still faced criminal charges regarding the conduct, and the applicant therefore consented to the de-identification order sought.
In the circumstances, I granted the de-identification order, specifically relying upon the criteria referred to at cls 132(4)(b), 132(4)(e) and 132(4)(d) of the Rules.
The respondent then confirmed that it wished to cross-examine the applicant. The applicant did not oppose such an application, and indeed, in previous proceedings before the Commission (W6051/23 – which were not eventually proceeded with and therefore not determined) with respect to the same claim as made by the applicant in these proceedings, Member Snell had issued a written decision on 30 October 2023 granting leave to the respondent to cross-examine the applicant.
The applicant was therefore cross-examined and re-examined on 16 September 2024. However, the proceedings as a result were unable to complete on that date. Orders were made relating to the lodging of Wages Schedules and written submissions by both parties. The parties were also encouraged to reach a mathematical agreement regarding the extent of the applicant’s claim for weekly benefits compensation.
The proceedings were next listed for conciliation/arbitration on 15 October 2024, when the appearances on behalf of the parties were exactly the same as on 16 September 2024, except that Ms Mou did not appear.
The respondent had lodged a further Application to Admit Late Documents, and by consent, those documents were admitted in the proceedings after the respondent agreed to withdraw sections of the report included in the application from [BSG] dated 20 September 2024 (see paragraph 26 below).
Wages Schedules lodged by both parties were also admitted, and I noted an agreement between the parties as to the following:
(a) the applicant’s actual earnings since 4 July 2023 were $nil per week;
(b) the applicant’s award wage (his current weekly earnings) as at 4 July 2023 was $1,768.56 per week, and
(c) the applicant’s probable weekly earnings (reflective of the earnings of comparable police officers remaining uninjured in the employ of the respondent) as at 4 July 2023 were $2,200 per week.
The applicant then signalled his intention to apply for a costs order (with a relevant complexity uplift of 30% in accordance with table 4 item 4 to schedule 6 of the Workers Compensation Regulation 2016 (the Regulation)) should he be successful in the proceedings. The respondent did not indicate any objection to such an order if the applicant was successful.
The applicant then embarked upon oral submissions, but due to time constraints, was unable to complete them on 15 October 2024.
The proceedings were next listed for conciliation/arbitration on 10 December 2024, when the appearances on behalf of the parties were exactly the same as on 16 September 2024, except that Ms Kitchener and Ms Mou did not appear, and Ms Gair appeared with Mr Kim as instructing Mr Baran.
The respondent had lodged a further Application to Admit Late Documents, and by consent, those documents were admitted in the proceedings (see paragraph 26 below).
The applicant then completed his oral submissions, and the respondent commenced its oral submissions, but again due to time constraints, was unable to complete them on 10 December 2024.
The proceedings were finally listed for conciliation/arbitration on 17 March 2025, when the appearances on behalf of the parties were exactly the same as on 16 September 2024, except that Mr Kim did not appear, and Ms Loganathan appeared with Ms Mou as instructing Mr Baran.
All submissions were completed on 17 March 2025.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents – admitted on 16 September 2024;
(b) the respondent’s Reply (Reply) and attached documents – admitted on 16 September 2024;
(c) a USB stick evidencing video footage of the applicant’s conduct on 22 January 2023 – admitted on 16 September 2024;
(d) the applicant’s Application to Admit Late Documents dated 14 May 2024 (applicant’s AALD) and attached documents – admitted on 16 September 2024;
(e) the respondent’s Application to Admit Late Documents dated 29 February 2024 (respondent’s first AALD) and attached documents – admitted on 16 September 2024;
(f) the respondent’s Application to Admit Late Documents dated 18 July 2024 (respondent’s second AALD) and attached documents – admitted on 16 September 2024;
(g) the respondent’s Application to Admit Late Documents dated 23 September 2024 (respondent’s third AALD) and attached documents (save for the documents between pages 2-11 and 21-30 inclusive) – admitted on 15 October 2024;
(h) the respondent’s Application to Admit Late Documents dated 17 October 2024 (respondent’s fourth AALD) and attached documents – admitted on 10 December 2024;
(i) the applicant’s Wages Schedule dated 30 September 2024 – admitted on 15 October 2024, and
(j) the respondent’s Wages Schedule dated 23 September 2024 – admitted on 15 October 2024.
Applicant’s statement and factual evidence
The applicant provides an initial statement which he signed on 11 August 2023 – found at page 1 of the ARD.
He says that he graduated from the respondent’s Academy in 2018, and thereafter worked for it as part of its Nepean Command. He had no pre-existing psychiatric history, and he had not previously suffered from any “melancholia, mania, hypomania, psychosis, obsessions or compulsions”.
He says that during his five years working with the respondent, he attended numerous traumatic incidents (the traumatic incidents), including murders, suicides, fatal motor vehicle accidents, assaults, recoveries of deceased persons, and child deaths. He specifically mentions:
(a) about six months after he commenced his employment, he attended a stabbing (the stabbing incident) where the victim died in front of him and where he was covered in the victim’s blood, and
(b) in late 2018, he attended “one of the most horrific and incomprehensible jobs that I have had to attend” – it was a fatal motor vehicle accident (the motor vehicle accident incident) where a pregnant woman’s abdomen had been severed – he was required to place the woman and her two unborn babies in the same body bag – he says that he now has flashbacks about this incident on a daily basis.
He says that after the motor vehicle accident incident, his wife told him that he was “fucked up from the cops”. Their marriage later broke down in April 2022.
He says that he was never provided with any emotional support, debriefings, or counselling by the respondent following any of the traumatic incidents. He says that independently, he attended one session of counselling in January 2019 and another session of counselling in February 2020.
He continued to work for the respondent and “try to repress the thoughts surrounding my traumatic experiences”. He says:
“I did not inform my supervisors about the decline in my mental health as I was afraid that if they were alerted to the fact that I was suffering psychologically, I would have my firearm removed and be isolated, judged by colleagues and placed in non-operational duties.”
He says that he consulted with his general practitioner, [CPA], on or around 17 March 2023, and was referred to both a psychologist and a psychiatrist. He then consulted with [COC] (psychologist) and [CKS] (psychiatrist) in May 2023.
He says that his current psychological symptoms include:
(a)nightmares every second night;
(b)flashbacks and distressing memories;
(c)feelings of anxiety and panic – including panic attacks a couple of times per day;
(d)agitation and irritability;
(e)feeling low in mood;
(f)lack of motivation – including in relation to domestic tasks, self-hygiene (especially brushing teeth), and attending family outings;
(g)social withdrawal from friends and family;
(h)high levels of anxiety when leaving home;
(i)insomnia;
(j)weight gain;
(k)concentration and memory difficulties;
(l)diminished confidence and self-worth;
(m)suicidal ideations;
(n)over-reliance on alcohol – drinking up to 15 drinks per day;
(o)strain on personal relationships, and
(p)inability to continue to work as a police officer.
He then mentions an incident on 22 January 2023 (the 22 January 2023 incident) involving a naked female (the naked female) in a public area, and he says:
“My partner and I observed the woman to be suffering from psychotic symptoms and we scheduled her under the Mental Health Act…An ambulance was called however, the woman started to escalate her behaviour and asked to be shot…She repeatedly tried to run away, defecated on my partner and bit me…We were required to detain the woman as she had been scheduled and it took us approximately 15 minutes to do so…A few weeks later I was criminally charged in relation to the incident and suspended without pay as a result of the alleged misconduct.”
He strongly disagrees that the 22 January 2023 incident was the whole or predominant cause of his psychological condition, advising that in hindsight, he now realises that he had “begun to experience a gradual decline in my mental state from late 2018, resulting in me attending 2 sessions of counselling between 2019 and 2020”.
The applicant provides a second statement, which is unsigned, but which is dated 20 November 2023 – found at page 8 of the ARD.
He says that he cannot remember the name of the counsellor that he saw in January 2019, but that he did not find the session helpful. He was also fearful that the respondent “would find out that I underwent treatment due to the nature of my job and reprimand me by either taking my gun off of me and/or assigning me to a desk job”.
He says that his psychological session in February 2020 was at the Difference Psychology clinic within Southwest Wellness Centre. Again, he did not find the session to be helpful, and he did not continue with any treatment as he was “fearful I would lose my job”.
The applicant provides a third statement which he signed on 6 May 2024 - found at page 2 of the applicant’s AALD.
He says that the nightmares, flashbacks and distressing memories referred to in his initial statement relate to the traumatic incidents, and he says that they continue. In many of his dreams, he sees the two unborn babies that he had to place in a body bag during the motor vehicle accident incident. He confirms that – “I do not experience any nightmares, flash backs or distressing memories arising from the alleged misconduct incident on 22 January 2023”.
The applicant’s ex-wife ([BUV]) provides a statement which she signed on 21 November 2023 – found at page 10 of the ARD.
She says that she first met the applicant in January 2011 and that they started dating in January 2016. They married in November 2018. When they first met, she describes the applicant as extremely social, well-liked, selfless, kind, and compassionate – “He was an all-round happy guy”.
She says that she noticed “a shift in his character and demeanour” when he commenced his employment as a police officer.
She mentions the stabbing incident and advises that following it, the applicant “became cold” and developed sleeping issues.
She mentions the motor vehicle accident incident and says that following it:
“[CLA] was never the same man that I knew when I married him after this incident. [CLA] began drinking daily. Previously, he would only drink socially but [CLA] began to drink at any time of the day and during the week. This incident had an extremely large impact on his mental health. The already existing sleeping issues worsened and he started having nightmares. [CLA] became very reluctant to socialise with friends or family, even though he had always been a very social person.”
She says that the applicant became emotionally detached and lost his compassion and empathy. She understands that his supervisors at the respondent then “raised concern with [CLA] and asked if he was okay however there is a stigma associated with mental health at the NSWPF so [CLA] denied anything was wrong to his boss”. She remembers him consulting a counsellor, but not continuing any treatment as he was fearful that the respondent would discover that he was seeking treatment. She also advises that she arranged for the two of them to consult with a marriage counsellor “to address the concerns I had with our marriage due to [CLA]’s mental health”, but they only undertook one session again due to fear that the respondent would discover the treatment. She says:
“It is my understanding that, should a police officer raise concerns surrounding their mental health, they will be placed on restricted duties and have their gun removed. [CLA] was young and did not want to disappoint his boss and was scared to raise that he was suffering and not coping following the incident [the motor vehicle accident incident], in fear of being put on restricted duties and in turn hindering his career progression.”
She says that she and the applicant separated in April 2022, and she explains:
“[CLA]’s outlook on life rapidly declined and he no longer saw the good in things. He had lost all love and drive for everything in life, his humour darkened and, in every situation, he was negative and displayed no signs of happiness. His drinking worsened and he started gambling. Our relationship became loveless because of [CLA]’s mental health and I was unable to cope.”
The applicant’s father ([BWB]) also provides a statement which he signed on 13 November 2023 – found at page 13 of the ARD.
He describes the applicant as independent, selfless, compassionate, and community-minded prior to the applicant’s employment with the respondent. The applicant was social and well-liked.
He says that he encouraged the applicant to join the respondent’s employment, but noticed a “change” in the applicant immediately after he did so. He says that his father also commented to him that “[CLA] wasn’t right”.
He mentions the motor vehicle accident incident, and says that following it, the applicant became quiet, withdrawn, and isolated. The applicant lost friends, would not leave home, and began to drink 10-12 beers per day. The applicant’s wife approached him and said “that she ‘cannot do it anymore’ with [CLA] as he had changed”.
The only other factual evidence relied upon by the applicant is:
(a) invoices and a Medicare statement regarding the applicant’s treatment expenses - I note however that the applicant only seeks a ‘general’ order in relation to his claim for expenses pursuant to s 60 of the 1987 Act, and
(b) pay slips in relation to the applicant’s employment with the respondent – used to substantiate his Wages Schedule calculations.
Respondent’s statement and factual evidence
There are seven P902 forms in the Reply, which report various injuries sustained by the applicant during the course of his employment with the respondent:
(a) 28 September 2018 (at page 19) – reported by the applicant’s supervisor on 18 October 2018 – refers to psychological injuries relating to the motor vehicle accident incident – advises that the applicant is fit for pre-injury duties and that the form is “notification only – no time loss or treatment (incl first aid)” - the incident is described as follows:
“On 28th September 2018, the officer attended a fatal motor vehicle accident. This accident took the lives for 2 female occupants. one of these occupants were pregnant with twins who also died. At the scene one of the babies was located in the vehicle after being forced from the mother.”;
(b) 2 July 2019 (at page 21) – reported by the applicant’s supervisor on 12 July 2019 – refers to potential exposure to asbestos fibres at a house fire that the applicant attended - advises that the applicant is fit for pre-injury duties and that the form is “notification only – no time loss or treatment (incl first aid)”;
(c) 25 June 2021 (at page 24) – reported by the applicant directly on 25 August 2021 – refers to hip and hernia injuries sustained during a training course attended by the applicant – advises that the applicant is unable to undertake his normal employment duties and requires medical treatment;
(d) 7 April 2022 (at page 27) – reported by the applicant directly on 8 April 2022 – refers to a needlestick injury sustained by the applicant – the applicant had a blood test but otherwise “no time loss and no medical review or treatment required”;
(e) 27 August 2022 (at page 31) – reported by the applicant directly on 3 September 2022 – refers to the applicant’s exposure to gas and fumes – advises that the applicant is fit for pre-injury duties and that “no time loss and no medical review or treatment required”;
(f) 22 January 2023 (at page 34) – reported by the applicant directly on 22 January 2023 – refers to the applicant’s right thumb being bitten by the naked female during the 22 January 2023 incident, in relation to which he required admission to hospital and time off work until 23 January 2023, and
(g) 17 March 2023 (at page 36) – reported by Natalie Gilbody – refers to the applicant as having no capacity for any type of work and requiring medical treatment – states: “Officer submitted a medical certificate stating suffering depression/anxiety from exposure to traumatic police work…This was submitted after he was charged with criminal offences relating to his police duties”.
There is a statement provided by [CEA] ([CEA]) which he signed on 18 April 2023 – found at page 71 of the Reply.
He is a detective inspector of the respondent’s and the Professional Standards Duty Officer at the respondent’s Nepean Command. He was involved in the respondent’s investigation into the 22 January 2023 incident:
(a) a formal complaint was received by the respondent on 23 January 2023 against the applicant and [CCT] ([CCT]) in relation to them using “excessive force to a criminal standard” against the naked female on 22 January 2023;
(b) misconduct protocols commenced and an investigator was appointed;
(c) an Interim Risk Management Action (IRMA) plan was instigated – which involved the applicant and [CCT] being restricted to station-based duties;
(d) on 6 February 2023, the respondent’s Nepean Command Commander met with the applicant, [CCT], and their support persons at St Mary’s police station – where the IRMA was explained and signed by them – they were then provided with copies of it;
(e) following the meeting, he “attended to a welfare check” upon the applicant – the applicant was then assigned a monitoring officer and provided with that officer’s details;
(f) a member of the public then provided the respondent with CCTV footage depicting the 22 January 2023 incident – he viewed the footage and determined that “it was likely that excessive force, amounting to possible criminal offenses [sic] had been used” against the naked female;
(g) during the investigation, he was informed that the applicant had said words to the effect of: “I’ll take a bit of lead for breakfast” – he says that as a result, he removed the applicant’s access to a firearm and referred the applicant to a police clinical psychologist – a day or two later, he checked on the applicant’s welfare and was told by the applicant that “the comment made around taking a bit of lead for breakfast was a silly thing to say and [CLA] acknowledged that he shouldn’t have said it” – he says that the applicant otherwise gave no indication that he was suffering from any stress;
(h) the Nepean Command Commander and he then consulted and (based upon the evidence gathered) determined to submit a request for the work status of the applicant and [CCT] to be reviewed – the result of this request was that the applicant and [CCT] were suspended from duty with pay from 22 February 2023;
(i) the suspension notice was provided to the applicant personally by a “senior officer” (together with a notice seeking a formal interview “dealing with criminal matters”) on 23 February 2023 – he advises that the senior officer told him that the applicant was upset, and that the senior officer therefore carried out a welfare check on him, but that the applicant “did not express any work related impacts”;
(j) he was told on 16 March 2023 by the applicant’s solicitor that the applicant would not be participating in a formal interview;
(k) he arranged for criminal charges to be authorised against the applicant and [CCT] – they were to be issued with a Court attendance notice through their solicitor, rather than arrested – a decision which “was made with regard for the welfare” of the applicant and [CCT];
(l) as the applicant had now been charged with an offence, he arranged for a senior officer to conduct a review of the applicant’s suspension from duty with pay – as a result, on 17 March 2023, paperwork was signed by the senior officer authorising the applicant’s suspension from duty without pay;
(m) he then had a long (13 minutes and 28 seconds) telephone conversation with the applicant’s new solicitor, Paul James (James), regarding service of the suspension paperwork upon James – he advises that James did not raise any injury concerns of the applicant’s or medical treatment required by the applicant, during that conversation, and
(n) he then emailed James with the suspension paperwork, and received a response from James confirming that the suspension paperwork had been provided to the applicant – however, later on 17 March 2023 at around 5.40pm, he had a further telephone conversation with James in which he was advised that James had just sent him an email attaching a certificate of capacity in relation to the applicant, and in which James insisted that a P902 form be submitted immediately.
[CEA] summarises:
“Between Monday 6 February 2023, when both Mr [CCT] and [CLA] attended the police station at St Marys for the purposes of the Interim Risk Management Action documents to be read and explained by the Commander, and 17 March 2023 when [CLA] commenced his workers compensation claim, neither Mr [CCT] nor [CLA] give any indication of, or raised any concerns around workplace psychological injuries. Both men had ample opportunity to raise concerns around workplace psychological injuries with me, and with relevant other officers assigned to provide support to Mr [CCT] and [CLA], and to the best of my knowledge, no such concerns were raised…I have been informed in clear terms by the officers I spoke to who worked directly with Mr [CCT] and [CLA] that there have been no signs of anxiety or other psychological symptoms observed, or any commentary by either Mr [CCT] or [CLA], that they were suffering from any form of cumulative stressors that could be attributable to their work.”
[CEA] finally advises that he believes that he acted reasonably and in good faith (and in accordance with the respondent’s policies and procedures) when investigating the applicant’s role in the 22 January 2023 incident. He considers the applicant to have commenced his workers compensation claim “in bad faith”, as he:
(a) is not aware of the applicant having ever approached any of the respondent’s support services regarding the applicant’s mental health between the date of the applicant’s commencement of employment and 17 March 2023;
(b) is not aware of the applicant having ever disclosed to a fellow officer or a senior officer that the applicant was “struggling”, and
(c) is not aware of the applicant having ever approached the respondent’s Employee Assistance Provider (EAP), peer support service, chaplaincy service, or psychologist.
[CEA] then provides an additional statement which he signed on 6 June 2023 – found at page 99 of the Reply.
In this statement, [CEA] details his viewing of both the body worn video camera footage from the applicant’s and [CCT]’s uniforms, as well as CCTV footage obtained from a business premises, in relation to the 22 January 2023 incident. He refers to the definition of ‘serious misconduct’ under the Law Enforcement Conduct Commission Act 2016, and states that following his viewing, he is of the opinion that the applicant and [CCT] “have conducted themselves in a manner that meets the criteria for serious misconduct”.
Of relevance to the applicant’s conduct in the 22 January 2023 incident, [CEA] advises that the footage that he viewed shows:
(a) that the applicant was verbally abusive on two occasions to the naked female;
(b) that the applicant sprays the naked female with OC spray – and when she covers her face, he sprays under her arms in the direction of her face again;
(c) that the applicant “mentions something to [CCT] about there possibly being cameras in the area” – it is to be noted that [CEA] refers to his viewing of numerous assaults committed by [CCT] against the naked female;
(d) that the applicant and [CCT] then “grab the female by an arm each and she struggles with them”;
(e) that the applicant then again sprays the naked female with OC spray to her face region approximately 10 times, while she is sitting on the ground and not “resisting or reacting to the police”, and
(f) that the applicant later kicks the naked female “no less than six times to the upper body and torso region”.
There is a statement provided by [BNY] ([BNY]) which he signed on 19 April 2023 – found at page 85 of the Reply.
He is a sergeant employed by the respondent, and both the applicant and [CCT] reported to him and another sergeant as at 22 January 2023. He says that he had “visibility” of the applicant on a daily basis.
He refers to the seven P902 forms submitted by or on behalf of the applicant during the course of the applicant’s employment with the respondent, and says:
“With the exception of the events of 28 September 2018, detailed above at P902 Incident Reporting Form 238291, which involved a significantly traumatic event and which was pro-actively monitored by Police in relation to the claimant’s welfare and which resulted in no approach that I am aware of by the claimant for any psychological assistance from any of the services provided by the insured, there has never been any form of struggling disclosure made by the claimant prior to 17 March 2023, recorded in P902 Incident Reporting Form 290468 that I am aware of.”
He also says:
“I hold the belief that I enjoyed a positive working relationship with the claimant…I can think of no reason that would have prevented the claimant from approaching me for any form of support in the event he was struggling…The claimant has made no approaches to me in relation to any concerns he held around his own mental health or his ability to cope with his duties as a police officer.”
He finally refers to the 22 January 2023 incident, and advises that following the formal complaint received by the respondent against the applicant and [CCT], he reviewed the body worn video camera footage from [CCT]’s uniform, which led to him making a report to [CEA] of misconduct by the applicant and [CCT].
There is also a statement provided by [BTI] ([BTI]) which he signed on 19 April 2023 – found at page 94 of the Reply.
He is an inspector employed by the respondent, stationed at the St Mary’s police station, with the role of the Nepean Command’s Human Resources Duty Officer. He says:
“In my role as HR Duty Officer, I will typically become aware of an approach made by an injured worker to our numerous support services including peer support officers and chaplaincy, unless the approach is made to a confidential service the likes of the Employee Assistance Provider (EAP)…I am not aware of any approaches made by the claimant, [CLA], to any of our service providers in relation to mental health concerns held by the claimant…I have never heard of the claimant approaching anyone in relation to mental health concerns held by the claimant.”
He also however advises that following the institution of the applicant’s workers compensation claim, he searched the respondent’s records regarding traumatic incidents witnessed by the applicant, and found:
(a) the motor vehicle accident incident – in relation to which the applicant did not require any time off work;
(b) an incident when the applicant attended the scene of another fatal motor vehicle accident on 14 June 2020 – in relation to which the applicant did not require any time off work, and
(c) an incident on 14 October 2022 when the applicant attended a fatality on a farm where a male person was crushed – in relation to which the applicant did not require any time off work.
The respondent has also included in the Reply (at page 107) a document entitled ‘Claimant Questionnaire – [CLA]’. This document appears to consist of a number of written questions put to the applicant by an investigator ([CTU]) from Quantumcorp, together with written replies from the applicant. The document is dated 17 May 2023 but is not signed by either [CTU] or the applicant. In the circumstances, I do not intend to afford to the document any weight. I consider that if the applicant had wished to rely upon the contents of the document, he would have signed it or otherwise adopted it by declaring the accuracy of its contents. I also consider that for the respondent to rely upon the contents of the document, it should have led evidence (from [CTU]) to establish matters such as why the document was created, how the document was created, and why the document’s contents could be considered to be statement evidence from the applicant in circumstances where he did not sign the document. Needless to say however, if aspects of the document are put to the applicant during his oral evidence, I will have regard to those aspects in the context of that oral evidence.
The other factual evidence relied upon by the respondent is:
(a) the USB stick evidencing video footage of the applicant’s conduct on 22 January 2023 – having viewed this video footage, in my opinion, it is succinctly and correctly interpreted by [CEA] in his 6 June 2023 statement (see paragraph 61 above) – it was also shown to the applicant during his oral evidence, and will be discussed further in this regard from paragraph 117 below;
(b) the suspension with pay notice (at page 53 of the Reply) issued to the applicant by the respondent on 22 February 2023 (and signed by him as received by him on 23 February 2023) – providing over eight pages of details regarding the reasons for the suspension, the terms and effects of the suspension, the responsibilities of suspended officers, and other relevant matters;
(c) the suspension without pay notice (at page 12 of the respondent’s first AALD) issued to the applicant by the respondent on 17 March 2023, together with James’ email on 17 March 2023 confirming that the notice had been received and passed on to the applicant (at page 10 of the respondent’s first AALD) – the notice repeats the eight pages of details which were also provided by the 22 February 2023 suspension with pay notice;
(d) the applicant’s resignation form (at page 23 of the respondent’s first AALD) – forwarded to the respondent on 4 August 2023;
(e) [CEA]’ recommendation (at page 21 of the respondent’s first AALD) that the applicant’s resignation be accepted so as to “achieve unequivocal separation of the officer from the organisation” – the recommendation is then also signed by the respondent’s Nepean Command Commander, Region Commander, Misconduct and Management Support Command Operations Manager, Misconduct and Management Support Command Commander, and Professional Standards Command Assistant Commissioner;
(f) a Service Summary (at page 25 of the respondent’s first AALD) dated 10 January 2024 prepared by the respondent in relation to the applicant’s employment with it – the summary confirms that the applicant was employed at the respondent’s Nepean Command from 27 April 2018 until his date of termination on 7 August 2023 – the summary advises the termination reason as: “Resignation – Ill health” – the summary also includes a misconduct incident history in relation to the applicant which shows that no action was taken by the respondent in relation to any relevant allegations of misconduct, save for the action taken in relation to the 22 January 2023 incident, as well as action taken (a mediation) in relation to an allegation of a failure to investigate a motor vehicle accident on 23 October 2019;
(g) the applicant’s leave history with the respondent (at page 42 of the Reply) covering the period between 27 April 2018 and 24 March 2023 – the history does not refer specifically to the applicant requiring any leave for psychological issues;
(h) a document entitled ‘Individual Profile’ (at page 38 of the Reply) – prepared by the respondent and detailing the applicant’s promotions, transfers, courses completed, and awards granted during his employment with it;
(i) a document entitled ‘NSW Health – NSW Police Force Memorandum of Understanding 2018’ (at page 10 of the respondent’s second AALD) – which explains to, inter alia, police officers how to appropriately respond when dealing with situations involving people with mental health issues;
(j) the applicant’s 16 March 2023 payslip issued by the respondent (at page 1 of the respondent’s third AALD) – used to substantiate its Wages Schedule calculations;
(k) the Crown Employees (Police Officers – 2021) Award (at page 31 of the respondent’s third AALD) – used to substantiate its Wages Schedule calculations;
(l) various bank statements of the applicant’s between 1 January 2023 and 17 January 2024 (from page 34 of the respondent’s first AALD) – in relation to which the applicant was questioned during his oral evidence (see paragraph 137 below);
(m) four social media posts of the applicant’s in September 2023 (from page 99 of the respondent’s first AALD) – showing the applicant with a female and smiling;
(n) a report prepared by Lee Kelly Investigations dated 22 February 2024 in relation to the applicant’s online activities (from page 103 of the respondent’s first AALD) – the report collected electronically stored information from March 2023, mostly from social media activity undertaken by the applicant’s current girlfriend – the information shows the claimant interacting with his girlfriend’s children, fishing, going to the beach, being dressed for social events, and being at Sydney airport presumably about to travel – due to the limited amount of information available to the investigator, I do not place much weight on the report insofar as it attempts to present an indication as to the current level of the applicant’s psychological incapacity, and
(o) a letter from the respondent’s solicitors to [CAW] dated 20 February 2024 (at page 1 of the respondent’s fourth AALD) – advising that the doctor was sent, inter alia, the statements from the applicant’s ex-wife and father, [BST]’s 12 July 2023 report, [CKS]’s 2 August 2023 report, [CPA]’s 30 July 2023 report, [COC]’s 27 June 2023 report, as well as clinical records from [CKS], [CPA], [COC] and Southwest Wellness Centre.
Applicant’s medical evidence
The applicant’s solicitors arranged for him to be examined by [BST] on 11 July 2023. Following the examination, he prepared a report dated 12 July 2023 – found at page 29 of the ARD.
The doctor is provided with various clinical notes from [CPA], [CKS] and [COC]. He obtains a history of the applicant being “exposed to trauma throughout the course of his employment, including murders, suicides, fatal motor vehicle accidents, recovery of deceased persons, victims of assaults and child-related deaths”. He is specifically advised as to the stabbing incident and the motor vehicle accident incident. He is also advised as to the 22 January 2023 incident and the criminal proceedings being faced by the applicant following that incident, but he is not provided with full details of the incident, specifically that the applicant sprayed the naked female with OC spray and kicked her. He notes that the applicant had not worked since being suspended following that incident.
He is advised that as a result of the traumatic incidents, the applicant “experienced gradual deterioration in his mental state”, involving such symptoms as nightmares, flashbacks, distressing memories, anxiety, panic, agitation, irritability, hypervigilance, low mood, social withdrawal, reduced motivation and energy, sleep disturbance, appetite disturbance, impaired concentration, impaired memory, feelings of hopelessness and worthlessness, passive suicidal ideation, and impaired self esteem. He is advised:
“[CLA] continued to work and tried to repress his traumatic experiences although he struggled to do so. He reflected on how he continued to be exposed to other traumatic incidents while performing his normal work duties. [CLA] mentioned how he received no emotional support from his employer, including through debriefing or welfare checks, and he did not raise his concerns with how he was struggling due to fears that he would have his firearm removed and he would be isolated and ostracised at work and placed in mundane non-operational duties.”
The doctor is advised of the applicant’s ongoing treatment with [CPA], [CKS] and [COC], as well as their diagnoses. He is advised that the applicant had not experienced any symptoms of trauma, depression, or anxiety prior to the applicant’s employment with the respondent. In terms of family history, he is advised that the applicant’s brother committed suicide, but he does not deal with the effects upon the applicant of that event.
The doctor records the following mental state examination:
“[CLA] described his mood in dysphoric and anxious terms. His affect was despondent. There were no abnormalities of speech and thought form. [CLA]’s thought content comprised pervasive symptoms of trauma, depression and anxiety. There was no perceptual disturbance. [CLA]’s cognition had evidence of impairment in attention, concentration and memory. He had appropriate insight and judgment.”
He diagnoses the applicant with post-traumatic stress disorder, major depressive disorder, and severe alcohol use disorder. He states that his diagnosis is in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria, but does not outline the criteria. He opines that the applicant is totally unfit for any work and requires substantial ongoing treatment.
In relation to causation, he opines:
“[CLA] has sustained a psychiatric/psychological injury as a result of his employment as a police officer with the [BUU]. In summary, he was subjected to traumatic experiences throughout the course of his employment. These traumatic exposures caused his mental state to gradually deteriorate from 2018 and has led him to develop the psychiatric conditions of post-traumatic stress disorder, major depressive disorder and severe alcohol use disorder. There were no identifiable non-work-related factors contributing to [CLA]’s presentation.”
In relation to the 22 January 2023 incident, he opines:
“Although the suspension for alleged misconduct following the work incident that occurred on 22 January 2023 caused [CLA] to stop working, it is evident that his psychiatric/psychological injury first emerged around 2018 with the development of pervasive symptoms of trauma, depression and anxiety that perpetuated escalating alcohol use, led him to seek counselling and caused his marriage to breakdown.”
The doctor is then asked by the applicant’s solicitors to review a report from [CAW] dated 7 May 2023. He advises that he does not agree with [CAW]’s opinion that the applicant only suffers from alcohol use disorder, as it
“…fails to take into consideration the longitudinal trauma, depressive and anxious symptomatology [CLA] has experienced since 2018 and the impact of his symptomatology on his functioning as evidenced by his escalating alcohol use and the breakdown of his previous marriage”.
He also notes:
“[CAW] considered [CLA] to be a ‘guarded historian’, which is not consistent with my assessment of [CLA] who was forthcoming with his history.”
The doctor prepared a supplementary report dated 7 May 2024 (found at page 4 of the applicant’s AALD). The doctor was provided with the three statements from the applicant that are in evidence, together with the statements that are in evidence from the applicant’s ex-wife and the applicant’s father. He was asked specific questions by the applicant’s solicitors.
The doctor advises that the statements support his opinions in his first report regarding causation. He sees it as “clearly evident” that the applicant’s mental status had first started to deteriorate in 2018 as a result of the traumatic incidents. The applicant’s mental state deterioration and his alcohol use were evident to the applicant’s wife at the time. Importantly, the doctor also notes:
“The fact that [CLA] needed to engage in counselling in 2019 and again in 2020 in relation to his workplace trauma is also evidence of the fact that his psychiatric/psychological conditions had reached a threshold of diagnosis by then, which predated the events of 2023.”
As a result, the doctor opines:
“It is likely that [CLA]’s mental health was so affected by early 2023, before the event with the mentally unwell woman, that he was already in need of medical treatment and not mentally well enough to deal with events such as this specific incident.”
The applicant’s treating psychiatrist, [CKS], has provided a brief medico-legal report, dated 2 August 2023 – found at page 37 of the ARD.
He refers to the applicant advising him that the applicant had noticed heightened anxiety following 32 jobs in 2018. He then only however refers to the stabbing incident and the motor vehicle accident incident. He records the following history that he obtained:
“He became increasingly angry towards his wife and family. His wife left him around April 2022 because he was irritable and distant. She said ‘you’re fucked up from the cops’…He has nightmares about a number of these incidents which occurred every second night. He would panic before he went to sleep. These occur twice per night. He also has flashbacks…He has had problems with irritability and anxiety. He has been having panic attacks. He has a couple per day when he is just about to go to sleep, during sleep…He has also described depressed mood for a few years. This is worsening. He is depressed most of the time most of the day. He has low energy and low motivation. He has problems with his memory and concentration. He sleeps 4 hours each night with initial insomnia. His sexual function is normal…He has suicidal thoughts but would not act on this.”
The doctor diagnoses the applicant with post-traumatic stress disorder, major depressive disorder, insomnia disorder, and alcohol use disorder. He opines that the applicant’s employment with the respondent was the sole cause of his psychiatric condition. In relation to the 22 January 2023 incident, the doctor opines:
“His psychiatric injury and illnesses occurred well before the incident of 22/1/23. In fact his angry and poorly judged actions on 22/1/23 can be seen as stemming directly from anger and poor judgment [sic] that are part of the Post Traumatic Stress Disorder syndrome and demonstrate why he should not work as a Police Officer anymore.”
The doctor also advises that he does not agree with [CAW]’s opinion, noting that the applicant advised him as to a lack of opportunity to talk to [CAW] about the traumatic incidents and the applicant’s responses to them, and also noting that it was “telling” that the applicant’s wife left the applicant in 2022 for reasons that were consistent with the applicant having post-traumatic stress disorder.
The applicant’s treating general practitioner, [CPA], has also provided a brief medico-legal report, dated 30 July 2023 – found at page 41 of the ARD.
The doctor advises that he has known the applicant for more than 25 years, and that the applicant presented to him on 17 March 2023. He summarises the history that he then obtained:
“He was very distressed, depressed and anxious. He described an incident happened [sic] during his police work which led to his suspension and accusation of police brutality…He is currently waiting for court proceedings. [CLA] described prolonged period of stress related to attending crime scenes such as murders, fights, car crashes with death involved and suicides adding to his current problem.”
He diagnoses the applicant with anxiety, depression and post-traumatic stress disorder. He advises that he referred the applicant to [CKS].
In relation to causation, he opines:
“In my opinion, [CLA]'s current psychological and mental illness is related to prolonged exposure to distressing and traumatic police work as described aboved [sic] added to the effects of the current suspension and court case stress.”
The applicant’s treating psychologist, [COC], has also provided a medico-legal report, dated 27 June 2023 – found at page 42 of the ARD.
He first consulted with the applicant on 26 May 2023 and records that the applicant “reported the development of psychological disturbance over time due to the cumulative effects of exposure to traumatic incidents”. He records the stabbing incident and the motor vehicle accident incident, but notes that the applicant advised him that those incidents were not an exhaustive account of the traumatic incidents.
The applicant advised him that the motor vehicle accident incident “represented the most significant trauma experienced during his policing career”, and that following it, the applicant “felt very much effected [sic] and changed as a person”. The applicant began to experience sleep disturbance, the applicant undertook some self-funded counselling in 2019 and 2020, and the applicant separated from his wife in January 2022 as she could not tolerate that “he hadn’t been himself after the traumas experienced”.
In relation to the applicant’s current functioning, the psychologist notes:
(a) sleep disturbance and episodic nightmares;
(b) a predominant flat, depressed mood;
(c) low motivation;
(d) isolation;
(e) anxiety and hypervigilance;
(f) vivid visual flashbacks;
(g) cognitive impairment including memory and attentional problems, and
(h) increasing reliance upon alcohol.
The psychologist diagnoses the applicant with post-traumatic stress disorder, major depressive disorder, and alcohol use disorder. However, he had only consulted with the applicant on three occasions and warns:
“The assessment was not considered an [sic] in depth and fully comprehensive assessment of every facet of his mental health and history, moreso [sic] an overview of the most pressing difficulties he was experiencing and that he wished to discuss during treatment.”
In relation to causation, the psychologist advises:
“In terms of the narrative, I later discovered that [CLA] had been criminally charged in relation to an incident on 22/1/23. He was subsequently suspended from work firstly with, then without pay…As further information was provided, questions were raised in relation to the percentage of disturbance associated with traumas experienced and that which related to him being criminally charged and suspended from New South Wales Police Force. There has been an inability to reconcile this issue due to cancellation of treatment and absence of further information…It must be remembered that I have only seen this man on three occasions and I am not across his entire history, both work and non-work related…The suspension and timing of claim lodgement has seemingly muddied the water in relation to the attribution of reported symptoms…In closing, this has become a complex matter in relation to liability determination and as a treating, rather than assessing clinician, I respectfully pass over the issue to others who consider themselves to have the requisite expertise in those matters.”
The ARD also contains clinical notes from treating practitioners of the applicant’s. I have considered these clinical notes and will detail relevant aspects of them below. However, in accordance with cl 67D(2) of the Rules, I do not propose to otherwise refer to them unless directed to do so during the parties’ submissions. The clinical notes are from:
(a) [CKS] (from page 56) – the notes solely include an assessment and management plan – the plan only refers to “an accumulation of traumatic experiences” and does not refer to the 22 January 2023 incident or its consequences – the plan notes that as at 6 May 2023, the applicant had a K10 score of 40, indicating severe anxiety/depression;
(b) [CPA] (from page 59) – the notes cover the period between 27 June 2007 and 26 June 2023, but do not refer to any psychological complaints until 17 March 2023 when the following history is recorded:
“…police officer…attended murders, fights, car crashes with death involved, duicide [sic] escenes [sic], several very stressful police type work…insomnia, nightamres [sic]…shakey, anxious, drinking more alcohol than before as he is not coping well with these trauma in his life…palpitation”
– the doctor’s referral letter of the applicant to [CKS] is also dated 17 March 2023;
(c) [COC] (from page 80), and
(d) Southwest Wellness Centre (from page 103) – the applicant and his ex-wife attended on 19 January 2021 – on a Depression, Anxiety and Stress Scale (DASS 21) questionnaire, he answered “never” to 21 descriptors of psychological symptoms – his mental state examination concluded that he had neat appearance, normal speech, normal eye contact, normal motor activity, full affect, euthymic mood, no orientation impairment, no memory impairment, normal attention, no hallucinations, no suicidality, no homicidality, no delusions, co-operative behaviour, poor insight, and fair judgement – a suicide risk screener referred to upsetting events being relationship problems and work-related trauma (without more detail) – otherwise, the assessment of the applicant and his ex-wife on 19 January 2021 seems to relate to “wife reports him as not caring” and the assessment concludes by referring the applicant and his wife to counselling with Relationships Australia – the assessment notes also:
(i)under triggers, record – “occupational: none reported”;
(ii)record the applicant’s mood as “good”;
(iii)record no issues with loss of interest, weight, concentration and memory, or suicidality;
(iv)record the applicant as “always a good sleeper”, and
(v)record the applicant’s energy and motivation as “high”.
Respondent’s medical evidence
The respondent largely relies upon the opinions of [CAW]. She examined the applicant on behalf of the respondent’s solicitors on 1 May 2023, and has since produced three reports.
The first report is dated 7 May 2023, and found at page 121 of the Reply.
The doctor provides significant detail regarding the history that she obtained from the applicant and makes the following comments:
(a) his first major exposure to a traumatic incident was the stabbing incident – he told her that he then noticed a feeling of “distance” and an inability to “show emotion” – he stated to her that he was otherwise unsure as to how the incident affected him, but that following it, he continued to work and live his normal life;
(b) he was
“…extremely vague in discussing incidents through his career and also could not appear to connect any potential emotional states or problematic or consistent symptoms associated with any events other than using rather generalised statements such as ‘cumulative exposure’ and ‘shut down’”;
(c) he was “guarded” and evasive in answering questions – but agreed that he did not have any symptoms of mental ill health until recently and could not explain his deterioration in this regard except to say that it was “cumulative”;
(d) he agreed that he had not approached any of the respondent’s support services for assistance;
(e) in relation to the motor vehicle accident incident, he stated “you just don’t talk about those things with your senior officers” – he nominated that incident as an issue for his mental ill health, but described symptoms arising only recently, after continuing to work for three or four years after the incident;
(f) he could not describe to her any symptoms which would align with a post-traumatic stress disorder diagnosis;
(g) when she discussed with him that his fellow officers had not noticed any signs that he was struggling or suffering from mental ill health, “he agreed that there was not any external signs and he was getting on with his job” – he also advised her that he was not comfortable discussing such issues with his fellow officers and that the respondent’s culture was not to discuss such issues;
(h) in relation to the two occasions when he had sought psychological assistance prior to the making of his workers compensation claim, he could not provide her with specific details except that one of the appointments with was with a psychologist whom his wife had been speaking to;
(i) he was unable to elaborate or describe his psychological symptoms from the traumatic incidents without direct questioning – she did however elicit the following symptoms without direct questioning:
(i)chest tightness;
(ii)he “slowly stopped caring about anything”, and
(iii)a general sense of being unable to respond emotionally in the way that he felt he should;
(j) he told her that he had thought about resigning from the respondent’s employment after about two years as he “couldn’t handle the jobs”, but he advised that he did not discuss his thoughts in this regard with anyone;
(k) he told her he had no mental health issues before commencing his employment with the respondent, and
(l) he described drinking alcohol (4-10 standard drinks) daily for the last one to two years – which she considers to be “a harmful sustained level of drinking” – she says however that he was unable to make any connection between mood or anxiety issues and his alcohol use.
The doctor acknowledges the difficulties which she experienced in obtaining information from the applicant:
“[CLA] did appear to have difficulty expressing his emotions. He talked about feeling emotionally blunted, but could not describe how this was impairing him, although I note the separation from his wife which may indicate these issues. It was difficult to get a clear picture of what he was like pre-morbidly to compare as well, as he was very guarded about giving his history and often responding that he did not want to talk about that, particularly when exploring relationships with others around him, details around particular incidents.”
In relation to the applicant’s current symptoms, the doctor records:
(a) his mood fluctuates day-to-day;
(b) he has had suicidal thoughts;
(c) his sleep has been poor;
(d) he and his wife were considering separating, which did not “faze me too much”;
(e) “shaking and a heavy chest” when he feels anxious, and
(f) he has had three severe panic attacks.
Importantly, the doctor records the applicant as denying any flashbacks or nightmares; as not advising as to any changes in his concentration or attention; as being able to attend the gym on a daily basis, and as being able to attend to his activities of daily living in terms of household activities, personal hygiene, and driving. She records:
“He agreed that he was able to get on with work with no impairments, this is despite him stating that he was struggling with exposure to traumatic events. His history was at times contradictory and not consistent.”
On mental state examination, the doctor finds:
“He was not able to endorse a history which was suggestive of a pervasive mood disturbance nor of an anxiety disorder and was not experiencing the full constellation of symptoms for PTSD. He did describe physical symptoms of anxiety including chest tightness and shaking, however, could not give me examples of when this had occurred or any potential triggers, only that this had happened recently. He did endorse having several panic attacks, three in total, which have happened since he has left work. He described general emotional blunting, difficulty experiencing what he would expect to be normal emotions, in particular situations of feeling somewhat cut off. There were no clear risk issues. His insight was limited. Judgement was reasonable and he is care seeking. Cognition was suitable for purposes of review.”
In relation to diagnosis, the doctor opines:
“On review today, I did not find that [CLA] was suffering from any consistent symptoms, which would be attributable to a DSM-V disorder other than Alcohol use disorder. He did not meet threshold for diagnosis of PTSD and was not experiencing many of the criteria which are necessary to diagnose this. This was complicated by the fact that [CLA] was a very guarded historian and was unable to describe clearly what his difficulties had been over the years with New South Wales policing beyond vague statements. He did discuss that he had felt numbed and detached in his line of duty, which can be related to a symptom (dissociation) within the context of PTSD, however, he did not meet the other criteria necessary for diagnosis. He did not meet full criteria for a mood disorder nor an adjustment disorder in my opinion…There was no doubt that [CLA] has been exposed to traumatic incidences with [sic] the course of his duties and I note several of these on the P902 forms submitted to me by the employer. However, there does not appear to have been any impacts on his ability to complete his job. He has not formally sought care as far as I am aware either through New South Wales Police Force or externally. This is not necessarily unusual as men in particular are less likely to reach out for help when needed so may not exclude that he was suffering from some symptoms…He had isolated symptoms which did not constitute any disorder (other than alcohol use disorder). There was no history of consistent pervasive mood disturbance. He is not anhedonic and his anxiety has been isolated. He experienced three panic attacks in the context of being at home and generally worrying about the upcoming court case which is about to occur, which would be considered on the normative spectrum of distress related to his circumstance currently. There were no outward symptoms or signs of mental health issue seen by his employer. However, this may not rule out illness in the context of an individual who wishes to separate out their mental struggles and is concerned about prejudicial stigma if they come forward to report difficulties. It is impossible for me to opine further other than to say that there are inconsistencies in his history and in the reporting of his symptoms compared to his functioning.”
In relation to the 22 January 2023 incident, the doctor notes:
“Around the incident which has led to the criminal charges being laid, he would not discuss this or its impacts upon him, however, appeared nervous and unsettled. It would be normal that he would be experiencing anxiety in relation to potentially discussing this and/or feelings of shame and it is difficult for me to opine upon this without any further background information in terms of [CLA]’s previous functioning. His mental state is reflective of the current stressors related to the court case in my opinion…It can be extrapolated that his experience of going through criminal charges and having substantive media exposure in relation to the case, would undoubtedly have caused an unsettling effect on his mental state and precipitated anxiety, symptoms of worry for the future and placed a strain on his relationship.”
In terms of prognosis, the doctor notes that the applicant is likely to remain unsettled and anxious until the criminal proceedings against him in relation to the 22 January 2023 incident are finalised. He otherwise requires treatment for his alcohol use disorder, and if this disorder can be addressed, his prognosis “would be considered very good”. He should be re-assessed for suitability of employment once the criminal proceedings are finalised and once he has had assertive treatment for his alcohol use disorder.
Finally, the doctor summarises by declaring that the applicant does not suffer from a psychological injury. Further, when specifically asked by the respondent’s solicitors as to whether there were any non-work-related factors contributing to the applicant’s condition, the doctor mentions the applicant’s alcohol use disorder, his relationship separation, as well as “the stress of the criminal case against him”.
The doctor produced another report dated 7 May 2023 (found at page 140 of the Reply), in which she specifically addresses a question posed by the respondent’s solicitors as to whether in-patient hospital treatment for the applicant’s psychological condition would be reasonably necessary treatment. She opines:
“In my opinion, at this stage I do not consider the need for a hospital admission to provide treatment as I did not find that he was suffering from a DSM-5 diagnosable disorder such as PTSD which may benefit from this. The exception to this would be if the admission was directly related to addressing his alcohol use disorder, which has clearly been present for at least two years. From [CLA]’s history, he is drinking at harmful problematic levels on a daily basis currently…An admission to facilitate treatment for this, and as such, any secondary mood or anxiety disturbance as a result of alcohol abuse, would be reasonably necessary in my opinion; however, I do not opine that this is directly related to any work injury…In my opinion, [CLA]’s recent difficulties appear to have arisen directly because of the issues arising from his criminal prosecution at this stage, which has caused a reasonable level of distress. The alcohol use has been problematic but present for some years. He has been functioning in between. There was no clinical indication of a pervasive mood disturbance or a clinically active anxiety disorder which was impairing his function at this stage in my opinion…As stated previously, there is no doubt that [CLA] has been exposed to trauma in the context of his work, but I did not find him to be suffering from consistent symptoms or to reach threshold for DSM-5 diagnosis at this stage from my assessment of him including taking a history covering his function over the years…[CLA] was unable to nominate specific symptoms relating to DSM V diagnoses me [sic] or provide me with information that was convincing that he was suffering from PTSD or a pervasive mood disturbance in the past. The anxiety that he described has mostly been in the context of current issues related to criminal investigation against him and facing charges, and in this timeframe including the three panic attacks (that he has had since criminal investigation has been launched). I would opine that his issues are related to the courtcase and charges as opposed to any previous work-related trauma. Again, low mood, anxiety and poor sleep may also be attributed to current circumstances as well as to substantive alcohol use disorder, present for some years.”
The doctor’s third report is dated 25 February 2024 and found at page 92 of the respondent’s first AALD.
The doctor is provided with [BST]’s first report, [CKS]’s report, and [CPA]’s report, as well as the statements from the applicant’s ex-wife and father, which I have detailed above. She confirms that from the history that she obtained from the applicant, he “did not [emphasis in original] endorse symptoms of PTSD resultant from the traumas he was exposed to over his years of policing”. She notes however that he provided a different history to [BST], [CKS] and [CPA], and she advises:
“Given the latency of him reporting these symptoms, there is a possibility of ‘delayed expression’ PTSD but there is also the possibility of ‘impression management’. Impression management should be considered in the context of him facing criminal charges, as well as ongoing Workers’ Compensation process given he is not at work. I cannot exclude the possibility of this occurring.”
The doctor accepts that the emergence of post-traumatic stress disorder in the applicant since her assessment “cannot be excluded”.
She emphasises however that:
(a) “there was no historical evidence provided to me by [CLA] nor in his records, that he had in anyway experienced substantive or impairing symptoms of a mental health disorder, prior to his difficulties which arose from his actions on 22nd of January”;
(b) the decline in the applicant’s mental state and the emergence of symptoms and anxiety only arose after he was charged with criminal offences and suspended from his employment with the respondent – this is “the solely attributable cause to his decline in mental state, as he had been working (at his own admission) without issue until that point”;
(c) the applicant did not provide her with a history of impairing mental health symptoms prior to being suspended from his employment with the respondent, despite the fact that during her assessment of him, he “was given multiple opportunities to relay his history, explain what his symptoms were, and he was repeatedly asked about what his experiences had been”;
(d) she accepts that the applicant has a history of drinking heavily (which is a common problem for post-traumatic stress disorder sufferers, but does not of itself lead to such a diagnosis being made) and she explains that “some police officers will drink to calm their symptoms, but this is not what [CLA] relayed to me as his reasons for drinking, during my assessment with him”;
(e) she accepts that the applicant’s ex-wife blamed the breakdown of their marriage on his employment with the respondent, but she also notes that there was no evidence that the applicant had been impaired at work, especially considering the statements of his work colleagues;
(f) she accepts that police officers often do not seek assistance for psychological symptoms due to stigma but she notes that the applicant “did not convey to me that this was the case during my assessment with him. He stated he did not have cause to seek care and endorsed he was functioning in his job and life”, and
(g) during her assessment of the applicant, she was careful to not ask leading questions which could simply be endorsed – she asked open questions and the applicant was unable to describe psychological symptoms – she accepts some individuals have problems expressing themselves in this regard, but states that her expertise, as a psychiatrist, is “to uncover or elicit any symptoms that may be present, and then interpret potential experiences and mental state in the context of diagnosis” – she says:
“[CLA] did not present to me as an individual who had difficulty expressing himself, but he chose not to talk about some things he was asked about. He was able to express he did not experience trauma symptoms which impaired him but accepted he had been exposed to trauma in the context of his day to day work as a police officer over the years. I do not assume that he did not endorse PTSD symptoms to me because he could not express himself, I take that he did not express those symptoms, because he did not have them.”
She summarises her opinion as:
“In my opinion, based on my clinical assessment, he experienced a catastrophic decline in mental state directly because of disciplinary action taken against him. There may have been trauma symptoms present which he did not disclose to myself and that he hid from colleagues but I find it unusual that he did not at any stage, discuss this with myself. Having the experience of doing several hundred medico-legal assessments, and interviewing hundreds of police officers with varying diagnoses, including PTSD and comorbid disorders (such as alcohol use disorder), adjustment disorders and those with no psychological symptoms/disorders, I did not find [CLA] was suffering from a DSM V disorder prior to being suspended form work.”
The respondent also relies upon a section of a report from [BSG] dated 20 September 2024, found between pages 12-20 of the respondent’s third AALD. The remainder of the report is not in evidence before me (see paragraphs 17 and 26(g) above).
The relevant pages provide amounts which are said to represent the award rates of pay for various occupations, and which are said to have been obtained from Fair Work Australia. The pages also provide “Market Pay Rate” figures for the occupations, calculated by Rodney Stinson. All figures are relevant to August 2023. Summarising the figures provided (and having regard to the applicant’s age):
(a) police officer – no award rate given, market rate of $1,663;
(b) security consultant – no award rate given, no market rate given for applicant’s age;
(c) security guard – award rate of between $1,012.60 and $1,059.50, market rate of $1,291;
(d) control room operator – award rate of $1,090.30, market rate of $1,588;
(e) butcher – no award rate given, market rate of $1,263;
(f) postal delivery driver – no award rate given, market rate of $1,302;
(g) pathology courier – award rate of $964.30, market rate of $1,328;
(h) delivery driver – award rate of $964.30, market rate of $1,332;
(i) truck driver (if applicant obtained relevant licence) – award rate of between $975.50 and $992.70, market rate of $1,566;
(j) heavy goods train driver (if applicant obtained relevant licence) – no award rate given, market rate of $2,356;
(k) mining plant operator – no award rate given, market rate of $1,778;
(l) crane operator – award rate of $1,032.30, market rate of $1,584, and
(m) drone operator – no award rate given, market rate of $2,078.
Oral evidence of the applicant
The applicant gave oral evidence on 16 September 2024.
He was initially cross-examined regarding de-escalation techniques taught to him by the respondent. He eventually conceded that he was taught certain techniques in this regard at the respondent’s Academy, but had forgotten them since leaving the respondent’s employ.
He was then shown the video footage in evidence of the 22 January 2023 incident. He advised that the initial footage that he was shown came from [CCT]’s body worn video camera.
Before the footage indicated his direct presence at the site of the incident, he gave evidence that he could not recall where he was or what he might have witnessed (despite the naked female using plural terms when addressing [CCT] and despite his concession that he was the only police officer present at the time with [CCT]). He denied that his “purpose” in attending the site was to apprehend the naked female in order to take her to a mental health facility. He had not formed a view that she was mentally ill. He said – “I don’t recall what we were trying to do”.
At 2.53 into the footage, the applicant identified his voice and that he was therefore in reasonable proximity to [CCT]. He asked the naked female what her name was, but was otherwise not heard to say anything to attempt to calm her. He agreed with questioning that the footage showed her as being agitated and mentally ill, but did not recall what he did further to attempt to calm her.
At 6.02 into the footage, the applicant identified himself as shown in it. The naked female had defecated, and she had bitten him. It was put to him that the footage showed him laughing, to which he advised that he cannot recall, although he conceded that he was coughing. It was put to him that he was not offering any words of comfort to the naked female, and he advised that he had earlier done so, but could not recall what he had then said.
The applicant then viewed footage of him telling the naked female to “wash your dirty stinking arse”, and he conceded that it was not a “nice thing to say” and that nothing in his police training permitted him to speak like that.
The applicant then viewed footage of him spraying the naked female with OC spray, and the following questioning occurred:
Question – OC spray is also known as pepper spray or capsicum spray
Answer – not sure
Question – what does OC spray do
Answer – I’m not sure
Question – were you not sure to your recollection on the day of what you were spraying in her face
Answer – I’m not sure what it does
Question - so you would agree then if your evidence is correct that you’re simply just spraying something that was beyond your understanding of what you were spraying, is that right
Answer – I’ve forgotten what it does
Question - forgotten what it does, that’s a deliberate lie isn’t it
Answer – incorrect
………..
Question - do you say do you, having sworn an oath, that as a police officer you were permitted to spray as much OC spray as you wanted
Answer - I know that you can spray when violent confrontation is likely to occur
Question - that wasn’t my question, do you say having taken an oath that as a police officer you are entitled to use by way of spraying as much OC spray as you wanted
Answer - I don’t know, I’m not a police officer
Question - when you were a police officer
Answer - two years ago
Question - yes, what’s the answer
Answer - what’s the question
Question - do you say when you were a police officer you could use as much OC spray as you wanted, yes or no
Answer - I can’t answer for a police officer
Question - but you were once a police officer
Answer - many years ago
Question - and I am asking you about many years ago, do you understand that
Answer – do I understand what
Question - what I have just asked you, I’m asking you about the time when you were a police officer, when you were a police officer you were not allowed to spray as much OC spray as you wanted to, correct
Answer - I don’t recall
Question - you don’t recall, you had OC spray training at the academy
Answer – yes
Question - and I suggest that no one ever told you that you could spray as much OC spray as you wanted to
Answer - I don’t recall
…………
Question - you’re less than a metre at times and then about a metre at times, spraying away with OC spray, correct
Answer - I’m not a judge of how far a metre is
Question - but that is you
Answer - that is me
Question - when you say you’re not a judge of how far a metre is, are you saying you don’t know what a metre is
Answer - based off the footage I’m not sure
Question - you were close to the woman that you were spraying with the OC spray just then, correct
Answer - define close
Question - how far do you say you were at 17.23.38
Answer - I don’t know how far that is
Question - give us an estimate
Answer - I can’t give an estimate
Question - it’s not that you can’t estimate, you won’t estimate, that’s right isn’t it, you are very close to that woman spraying OC spray into the direction of her head and face, correct
Answer – yes
Question - at a close distance
Answer - define close
Question - within a metre
Answer - I’m not sure
Question - and I suggest to you that that kind of spraying in a multiple way like that is an excessive use of force, what you say about that
Answer - what’s a multiple way
The applicant then viewed footage of him kicking the naked female, and maintained that he was not using unreasonable force, stating on numerous occasions that she had a weapon, before conceding that the weapon was [CCT]’s handcuffs.
The origin of the video footage in evidence then changed from [CCT]’s body worn video camera to the CCTV footage obtained by [CEA] from a business premises close to the site where the 22 January 2023 incident occurred. The applicant conceded that he, [CCT], and the naked female are depicted on the CCTV footage, but as the footage was taken from a considerable distance, he was unable (reasonably in my opinion) to respond to questions regarding specifically what was occurring on the footage.
The respondent refers to the clinical notes from Southwest Wellness Centre and specifically emphasises the applicant’s answers to his DASS 21 questionnaire (see paragraph 98(d) above), as well as the notes referring to the applicant as having no sleeping issues as at 19 January 2021, which are inconsistent with both the applicant’s statements and his ex-wife’s statement.
The respondent then refers me in significant detail to the medical reports which it obtained from [CAW] dated 7 May 2023. It notes that the doctor found the applicant to be evasive, vague, unco-operative, and inconsistent. It submits that I would consider these descriptions to be accurate, having regard to the similar manner in which the applicant provided oral evidence. It also submits that the applicant’s lack of specificity is a major factor in relation to why his evidence should not be accepted. There was no reason why he could not provide [CAW] with a coherent history and with an explanation as to his symptomatology. Indeed, he had apparently been detailed and co-operative in this regard with [BST], [CKS], and [CPA].
The respondent specifically emphasises:
(a) the applicant provided the doctor with an incorrect history as to his separation from his ex-wife, stating that (when he consulted with the doctor on 1 May 2023) separation was being considered – when it had in fact occurred already, according to the ex-wife’s statement;
(b) the applicant confirmed to the doctor (when discussing his current symptoms as at 1 May 2023) that he had no impairment to his work capacity despite his exposure to the traumatic incidents - see paragraph 103 above;
(c) the applicant denied to the doctor having any current flashbacks or nightmares;
(d) the evidence provided by the doctor is balanced and impartial – she is not acting as an advocate, she is attempting to elicit information from the applicant, and she does not categorically rule out the applicant suffering some mental struggles which he did not wish to report to the respondent;
(e) the doctor’s inability to diagnose the applicant with post-traumatic stress disorder, or even a mood disorder or adjustment disorder – it specifically quotes the extract referred to at paragraph 105 above, and
(f) the doctor views the applicant’s psychological prognosis as being dependent upon the outcome of the criminal proceedings against him and the treatment of his alcohol use disorder.
The respondent submits that [CAW]’s report should be given more weight than the reports from [BST], [CKS] and [CPA]. The report is far more explanatory in relation to the doctor’s path of reasoning, and the opinions in it are based upon a thorough attempt by the doctor to engage with the applicant, despite his lack of co-operation in this regard. The respondent specifically quotes the extract from the report referred to at paragraph 109 above.
The respondent also submits that [CAW]’s further report dated 25 February 2024 is thorough and informed by the material provided to the doctor. It provides a lengthy path of reasoning, and while conceding the possibility of the applicant experiencing post-traumatic stress disorder symptoms (based upon the history which he provided to [BST] and his treating doctors, as well as his ex-wife’s statement), it nevertheless concludes its path of reasoning by referring to a “catastrophic decline” in the applicant’s mental state as being directly due to the disciplinary and criminal action taken against him following the 22 January 2023 incident.
The respondent finally refers to the applicant’s bank statements, and its cross-examination of him with respect to the statements (see paragraphs 71(l) and 137 above). It submits that I should draw an inference that the applicant continues to lead a busy social life involving extensive travel, which is inconsistent with him suffering nightmares, flashbacks, and social phobia, and which is also inconsistent with him having any ongoing incapacity for work.
During the course of its submissions, the respondent also made the following points:
(a) despite the evidence of the applicant receiving $100,000 from his grandmother, there was no evidence that he had spent any of that amount on treatment for his alleged psychological injury – despite the view of [BST] that he required substantial ongoing treatment;
(b) the applicant’s evidence that he reported psychological symptoms to [CPA] prior to 17 March 2023 should not be accepted as it is inconsistent with the entries in the doctor’s clinical notes;
(c) the applicant has failed to provide any evidence from the counsellors that he said he attended in January 2019 and February 2020 - see paragraph 31 above, and
(d) I would not accept the oral evidence given by the applicant as it was evasive and dishonest – the respondent specifically refers to part of the questioning referred to at paragraph 124 above.
Applicant’s submissions in reply
These submissions were made orally on 17 March 2025. The submissions were recorded, and form part of the Commission’s record. I will not therefore detail the submissions exhaustively.
The applicant submits:
(a) the uncontradicted corroborative evidence from the applicant’s ex-wife and father is emphasized as being “enormously persuasive and probative”;
(b) there is no real inconsistency between the statement evidence of the applicant and the statement evidence of his ex-wife and father – “one never finds a perfect correlation” of evidence in this regard;
(c) the immediacy of the applicant’s symptoms as recorded in his father’s statement needs to be viewed in the context of the traumatic incidents being almost immediately after the applicant commenced his employment with the respondent;
(d) it is clear that an individual can be incapacitated but still working – the applicant was unwell while he was working and his lack of empathy manifested itself on 22 January 2023;
(e) the 22 January 2023 incident and its subsequent disciplinary and criminal consequences were not causative of the applicant’s post-traumatic stress disorder;
(f) the opinions provided by [BST], [CKS] and [CPA] were provided in a ‘fair climate’, and are sufficient to provide me with the persuasion needed for the applicant to be successful in these proceedings;
(g) in relation to the respondent’s criticism of [BST] not listing DSM-5 criteria, he did not need to, considering his expertise;
(h) the history recorded in the clinical notes from Southwest Wellness Centre needs to be viewed in the context of the applicant suppressing and potentially not even recognising psychological symptomatology at the time;
(i) it does not necessarily follow that just because the applicant was not receiving medical treatment for psychological symptomatology prior to 17 March 2023 that he did not experience such symptomatology;
(j) the applicant’s form of delivery in his oral evidence was “stilted”, which is understandable considering his mental health issues – he was taking care to be correct, and it was correct for him to say that he did not remember certain issues if he did not in fact remember them;
(k) while it might appear “odd” for the applicant to state that he reported his mental health issues to another police officer, and then reveal that other police officer to be his ex-wife – in the context of his mental health issues, the statement should be viewed as perfectly correct and a manifestation of the applicant being very careful to be truthful;
(l) any suggestion as to the incorrectness of the applicant’s statement that at the time of the motor vehicle accident incident, he was required to place bodies in a body bag, should be rejected as there is no direct evidence contradicting the applicant’s account in this regard;
(m) [CAW] has a fundamental misunderstanding of the applicant’s history of nightmares and behavioural problems prior to 22 January 2023 – her reasoning develops from her acceptance that the applicant’s psychological symptoms only arose “recently”, and
(n) especially in the absence of expert medical opinion, the applicant’s ability to travel does not demonstrate a capacity for paid employment.
FINDINGS AND REASONS
Has the applicant sustained a psychological injury arising out of traumatic employment events in accordance with s 4(b) of the 1987 Act
In the ARD, the applicant pleads his injury description as – “The Claimant sustained psychological injuries in the form of post-traumatic stress disorder, major depressive disorder and severe alcohol use disorder as a result of the nature and conditions of his employment.”
During the course of the proceedings, the applicant confirmed that he only relied upon the traumatic incidents as being causative of his alleged psychological injury. He did not rely upon the 22 January 2023 incident or the subsequent disciplinary and criminal procedures that he has been subject to as a result of that incident – see particularly paragraphs 141 and 172(e) above.
In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen), McDougall SCJ (with whom McColl JA and Bell JA agreed) referenced an article by Hodgson SCJ and stated (at [51-52]):
“In the later article, Hodgson J suggested that the two approaches could be combined. He did so in a way that, I think, is consistent with what I have said above as to Malec. He said at 732 that ‘if, on the basis of adequate material concerning circumstances of a particular case, the tribunal [of fact] believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.
In my view, that is the approach that should be adopted in the resolution of disputed questions of fact. It is something of particular significance where a resolution of the disputed question depends upon the drawing of inferences from entirely circumstantial evidence. It also accommodates the requirement that attention be paid to the seriousness of the fact in issue, or the consequences of finding that it has occurred.”
Roche DP discussed Nguyen in Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 (Drca) (at [104-105]):
“A mere mechanical comparison of probabilities, independent of a reasonable satisfaction, will not justify a finding of fact. The fact finder must feel ‘an actual persuasion of the occurrence or existence of the fact in issue before it can be found’ (Redlich JA, Harper JA and Curtain AJA in NOM v DPP [2012] VSCA 198 at [124]; see also Dixon J in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and Dixon, Evatt and McTiernan JJ in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712).
Once the feeling of actual persuasion has been obtained, ‘it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’ (McDougall J (McColl and Bell JJA agreeing) at [51] in Nguyen v Cosmopolitan Homes [2008] NSWCA 246).”
For the applicant to be successful therefore, he has to satisfy his onus of proof that the traumatic incidents were causative of a psychological injury which he has sustained. I have to feel actual persuasion in this regard.
An acceptance of the applicant’s statement and oral evidence is crucial if I am to be persuaded by him that he has satisfied his onus of proof.
In order to assess his evidence, I had the opportunity to not only witness him give oral evidence, but I also had an opportunity to review a video and audio recording of that oral evidence. The recording confirmed my initial view that the evidence was often evasive, vague, confusing, and self-serving. His demeanour was one of unhelpfulness, he was reluctant to make reasonable concessions, and he often engaged in questioning exchanges with the respondent’s counsel. I refer specifically in this regard to the questioning quoted at paragraph 124 above, as well as the questioning referred to at paragraphs 120, 127, and 128 above.
I do not accept the applicant’s submission at paragraph 172(j) above. I would not describe his oral evidence as “stilted”, and I would not describe the evasive and vague way in which he answered questions as being related to him being careful.
The oral evidence also:
(a) described the naked female’s possession of handcuffs as possession of a weapon (see paragraph 125 above) – although this description may be technically correct, it still in my opinion has the capacity to mislead until the description is further explained (which it eventually was by the applicant, but only after further questioning from the respondent’s counsel);
(b) was particularly vague in relation to the applicant’s counselling in January 2019 (see paragraph 131 above) – there was no evidence produced by the applicant from this counsellor, so his oral evidence would have been important in this regard, but instead it was unhelpful;
(c) referred to the applicant advising a colleague as to his deteriorating mental health (prior to 22 January 2023), and then later conceded that the colleague was his ex-wife (see paragraph 132(a) above) – again, although this was not an untruth, it still in my opinion had the capacity to mislead, in circumstances where there was no need to refer to his ex-wife as a colleague – in this regard, I reject the applicant’s submission at paragraph 72(k) above, and
(d) maintained that the applicant had advised [CPA] of mental health issues prior to 17 March 2023 (see paragraph 134 above) – in circumstances where the doctor’s clinical notes (which date from as far back as 27 June 2007) are silent in this regard.
I also find aspects of the applicant’s statement evidence to be either misleading or untruthful:
(a) he claims that the respondent never provided him with any counselling services (see paragraph 31 above) – but in his oral evidence he conceded that he was aware of the respondent’s EAP service (see paragraph 130 above) but chose not to use it - further, the statements from [CEA], [BNY], and [BTI] all contradict the applicant’s statement; [CEA] going into detail regarding his welfare checks upon the applicant after the 22 January 2023 incident (see paragraph 56 above), both [CEA] and [BTI] advising as to the numerous support services offered by the respondent (see paragraphs 58 and 68 above), and [BTI] advising that the applicant’s welfare was “pro-actively monitored” by the respondent after the motor vehicle accident incident – in addition, a P902 form (see paragraph 54(a) above) was completed by one of the applicant’s supervisors (rather than the applicant himself) in relation to the motor vehicle accident incident, which suggests to me an interest by the respondent (and not necessarily the applicant) in his welfare following the incident – finally, the applicant’s ex-wife’s statement (see paragraph 47 above) contradicts his statement in referring to concerns being raised with him by his supervisors following the motor vehicle accident incident;
(b) he advises as to attending counselling in January 2019 and February 2020 (see paragraphs 31, 38, and 39 above), but does not concede that the 2020 counselling (which would seem to refer to the counselling at Southwest Wellness Centre on 19 January 2021) was marriage counselling involving no counselling for work trauma, nor that the January 2019 counselling involved him not being “honest” with the counsellor (according to his oral evidence – see paragraph 131 above);
(c) his brief description of the 22 January 2023 incident (see paragraph 35 above) is in my opinion clearly misleading as to exactly what occurred on that date, as depicted in the video footage shown to the applicant when he gave oral evidence.
I am not persuaded by the applicant’s statement and oral evidence. There were some untruths told, as well as evasive, misleading, and unhelpful evidence given. In my opinion, there needs to be some corroborative evidence to the applicant’s. In Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 (Malco), Handley JA stated (at [118]):
“This did not necessarily require the trial Judge to reject the whole of his evidence. Nor on the other hand was the trial Judge entitled to simply accept the whole of his evidence except those parts that the respondents had established was false.
In my opinion the perjury by the worker required the trial Judge to carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of his evidence may have been acceptable because it was confirmed by other independent or objective evidence. However where the worker’s evidence was not independently supported it clearly had to be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings.”
The applicant provides corroborative evidence from his ex-wife and his father. Their statements however regarding the extent of his symptoms prior to 22 January 2023 lack detail. The respondent submits the statements to be too simplistic, and I agree.
The corroboration which I receive from the statements in my opinion is limited to:
(a) following the traumatic incidents – the applicant experienced sleeping issues with nightmares, he began drinking alcohol daily, and he became reluctant to socialise – he became negative and unhappy, and he lacked drive – see the applicant’s ex-wife’s statement, and
(b) following the traumatic incidents – the applicant became quiet, withdrawn, and isolated, and he developed an alcohol problem – see the applicant’s father’s statement.
I accept this symptomatology occurred, but the lack of detail in the statements leads me to question whether the symptomatology by itself is sufficient for me to find a psychological injury, especially as the symptomatology did not lead to the applicant requiring any time off work or specific treatment (other than one session of marriage counselling and an inadequately explained counselling session in January 2019) prior to 17 March 2023.
I also accept however the applicant’s submission that an individual can be incapacitated and suffering from the effects of injury but still working.
In my opinion, the significance of the symptomatology referred to in the statements from the applicant’s ex-wife and father is undermined by:
(a) the applicant not reporting the symptomatology to the respondent – I note his submission at paragraph 144 above regarding his perception that reporting it would prejudice his career, but (especially having regard to my general reservations regarding his evidence) it seems to me that the lack of its reporting suggests that the symptomatology was not significant;
(b) the detailed reporting by the applicant in P902 forms (see paragraph 54 above) of other injuries sustained by him during the course of his employment with the respondent;
(c) the fact that neither the applicant nor his legal advisers raised any issues with [CEA] regarding his mental health during [CEA]’ investigation into the 22 January 2023 incident, until 17 March 2023 after the applicant had been provided with suspension from employment paperwork – see paragraphs 56-57 above, and
(d) the clinical notes from Southwest Wellness Centre on 19 January 2021 (see paragraph 98(d) above) – which I find to be particularly instructive as they are the only documented notes in evidence regarding counselling undertaken by the applicant prior to 17 March 2023 – in essence, the notes deal with marital issues although they do at one point refer (without any detail of symptomatology at all) to work-related trauma – importantly, the DASS 21 questionnaire completed by the applicant does not allude to any psychological symptomatology at all, and the relevant assessment notes of the counsellor refer to the applicant as having no reported occupational triggers, having a “good” mood, having no issues with concentration or memory, having no issues with sleeping, and having high energy and motivation – I do not accept the applicant’s submission at paragraph 172(h) above.
I accept that the applicant was clearly exposed to traumatic incidents during the course of his employment with the respondent, specifically the stabbing incident and the motor vehicle accident incident. I have no evidence to dispute his role in those incidents, and I accept the applicant’s submission as to the “absolute horror” of the motor vehicle accident incident particularly.
However, he has confirmed (see paragraph 138 above) that prior to 17 March 2023, he did not require any time off work because of emotional problems.
I also find that he did not need treatment for mental health issues prior to 17 March 2023, other than one session of marriage counselling and an inadequately explained counselling session in January 2019. Having regard to the clinical notes of [CPA] and my general reservations regarding the applicant’s evidence, I do not accept that he advised [CPA] of any mental health issues prior to 17 March 2023.
In all of these circumstances, I turn to the medical evidence to establish whether the applicant’s symptomatology prior to 22 January 2023 (as corroborated by his ex-wife and his father) was such that I should feel actual persuasion in order to find that he has satisfied his onus of proving that he sustained a psychological injury prior to that date.
In relation to the medical evidence, I am cognisant of the requirement that the evidence be given in a ‘fair climate’. In ACW v ACX [2022] NSWPICPD 19 (ACX), Snell DP referred to Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 (Hancock) as well as Paric v John Holland (Constructions) Pty Limited [1985] HCA 58 and Paric v John Holland (Constructions) Pty Limited [1984] 2 NSWLR 505 (Paric), and summarised (at [51-53]):
“In Paric No. 1 Samuels JA said:
‘It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended that there was no evidence upon which the opinions could be based.
Discrepancies may be fatal; in some cases even slight discrepancies may be fatal; in other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess this factual basis.’
In Paric No. 2 the High Court said:
‘It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson [1961] HCA 65; (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.’
In Hancock v East Coast Timber Products Pty Ltd Beazley JA (as her Honour then was) discussed the above principles in the context of the Commission. The discussion remains applicable since the relevant commencement of the 2020 Act. Her Honour said:
‘82. Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA.’”
The applicant relies upon [BST]’s medical evidence. It is apparent however that in providing his opinions, the doctor has relied largely upon the history provided to him by the applicant of the applicant’s symptomatology prior to 22 January 2023.
I have already expressed my significant reservations regarding the reliability of the applicant’s evidence, and I therefore do not believe that [BST]’s evidence could be said to have been given in a ‘fair climate’. Importantly:
(a) it does not seem that the doctor was provided with the clinical records from Southwest Wellness Centre dated 19 January 2021 which contradict the applicant’s claims to the doctor of significant mental illness symptomatology at the time – indeed, the doctor placed specific emphasis (see paragraph 82 above) on the incorrect proposition that the counselling that the applicant engaged in prior to 22 January 2023 was in relation to the applicant’s workplace trauma;
(b) the doctor did not obtain an accurate history of precisely what occurred at the time of the 22 January 2023 incident (see paragraph 73 above) – yet without knowing these complete details, the doctor was still willing to opine that what occurred on 22 January 2023 were events that the applicant was not mentally well enough to deal with (see paragraph 83 above);
(c) the doctor obtained (see paragraph 74 above) what I find to be an incorrect history (for the reasons outlined at paragraph 182(a) above) regarding the lack of counselling services and welfare checks provided by the respondent;
(d) the history of the applicant’s claimed symptomatology prior to 22 January 2023 (as recorded by the doctor at paragraph 74 above) is not described to the same extent in any of the statement evidence given by him, his ex-wife, or his father;
(e) the doctor does not outline the criteria for his diagnoses (see paragraph 77 above) – I accept the applicant’s submission that such an outline was not absolutely necessary, but I consider that it would have been significantly useful for the outline to have been provided in order to assist me to determine whether the applicant was suffering from a psychological injury based upon solely the symptomatology which I have accepted that he was suffering prior to 22 January 2023, and
(f) the doctor’s view (see paragraph 80 above) that the applicant was “forthcoming with his history” is contrary to the view which I formed when hearing his oral evidence.
I have also considered my specific questioning of the applicant during his submissions (see paragraph 147 above) regarding [BST]’s failure to address the psychological effect upon him of the disciplinary and criminal proceedings following the 22 January 2023 incident. Despite the applicant’s answer to my questioning that I should logically infer that the doctor did not consider the proceedings to be causative as he opined that the injury pre-dated the proceedings, I do not find that answer to be of assistance to me following my detailed review of the doctor’s evidence. The doctor has not recorded sufficient details of either the 22 January 2023 incident or the proceedings which followed. His opinion quoted at paragraph 79 above is in my opinion simplistic. He has not sufficiently considered what happened to the applicant from 22 January 2023 to 17 March 2023, in circumstances where the applicant only first sought treatment for mental illness on 17 March 2023.
[CKS] also relies substantially upon the history provided to him by the applicant in preparing his brief 2 August 2023 report. I have already expressed my significant reservations regarding the applicant’s evidence, but I also note that the history obtained by the doctor from the applicant (see paragraph 85 above) regarding his symptomatology prior to 22 January 2023 is not described to the same extent in any of the statement evidence given by him, his ex-wife, or his father.
In a similar fashion to [BST], [CKS] also:
(a) fails to document what were the applicant’s “angry and poorly judged actions on 22/1/23” - while still opining (see paragraph 86 above) that those actions stemmed from the applicant’s pre-existing post-traumatic stress disorder, and
(b) fails to address the psychological effect upon the applicant of the disciplinary and criminal proceedings instituted against him following the 22 January 2023 incident.
Of course, [CKS] is the applicant’s treating psychiatrist, and would not be expected to provide a medico-legal report containing as much depth and explanation as a forensic psychiatrist. However, the report is relied upon by the applicant as expert evidence in circumstances where I consider the history obtained by the doctor to be inadequate or flawed. For the reasons enunciated in Paric, Hancock, and ACX, I do not consider the report to have been provided in a ‘fair climate’. I accept the respondent’s criticisms in relation to the report, as outlined at paragraph 160 above.
The applicant also relies upon a report from [CPA]. At least this doctor, unlike [BST] and [CKS] in my opinion, considers to a degree the psychological effect upon the applicant of the disciplinary and criminal proceedings instituted against him following the 22 January 2023 incident. The doctor considers the applicant’s incapacity as at 30 July 2023 to be due to both those proceedings and the traumatic incidents - see paragraphs 89 and 91 above.
The doctor of course relies upon the history given to him by the applicant regarding the traumatic incidents, but does not explain why he considers the traumatic incidents to be causative, when the applicant had not reported them to him prior to 17 March 2023, in circumstances where he has been the applicant’s general practitioner since at least 27 June 2007.
The applicant finally relies upon a report from [COC]. I accept the respondent’s submissions in relation to this report as not being particularly helpful to me considering the psychologist’s inability to provide a useful opinion regarding causation (see paragraph 97 above), when attempting to reconcile the effect upon the applicant of the traumatic incidents and the effect upon him of the criminal charges and his suspension from his employment with the respondent.
The respondent relies upon medical evidence from [CAW], which I have extensively detailed at paragraphs 99-114 above. It is clear from the letter from the respondent’s solicitors to her dated 20 February 2024 (see paragraph 71(o) above) that she was eventually provided with all necessary information to be able to provide her evidence in a ‘fair climate’. Having regard to the information provided to her, as well as the detailed information in her report (including in relation to the motor vehicle accident incident), I completely reject the applicant’s submission at paragraph 146 above.
It is also instructive to note that she experienced similar difficulties as myself (when reviewing the applicant’s oral evidence) in finding the applicant’s responses to her as being evasive and vague. He was unable to sufficiently explain to her his symptomatology except by using generalised statements, such that she was initially unable to diagnose him with post-traumatic stress disorder.
In her first report of 7 May 2023, she does however obtain extensive details of his current symptoms (see paragraph 103 above) and conduct an extensive mental state examination (see paragraph 104 above). Her opinions (quoted at paragraphs 105 and 106) are then both detailed and reasoned. She concedes that the applicant was exposed to the traumatic incidents, but notes that he was able to continue working and did not seek psychological assistance. She does not find any psychological disorder other than an alcohol use disorder, and explains that the “isolated symptoms” being experienced by the applicant do not meet the criteria necessary for a diagnosis of post-traumatic stress disorder. She notes that the applicant appeared nervous and unsettled and would not discuss the impacts upon him of the criminal charges against him.
In her second report of 7 May 2023, she confirmed her opinion that the applicant’s alcohol use disorder was not “directly related to any work injury”. Further, although the disorder had been present for some years, the applicant had been able to function.
I find [CAW]’s report of 25 February 2024 particularly instructive. Having been provided with medical evidence from [BST], [CKS], and [CPA], as well as the statements from the applicant’s ex-wife and father, and having considered the symptoms described in that material, she concedes the possibility [my emphasis] of the applicant having post-traumatic stress disorder. However, she comes to the conclusion quoted by me at paragraph 114 above, that despite the applicant potentially having some symptomatology prior to 22 January 2023, he “experienced a catastrophic decline in mental state directly because of disciplinary action taken against him”. She provides her detailed path of reasoning for this conclusion, which I have summarised at paragraph 113 above. Importantly:
(a) despite reviewing the applicant’s ex-wife’s statement and the applicant’s father’s statement, she does not accept that prior to 22 January 2023, the applicant was experiencing “substantive or impairing symptoms of a mental health disorder”;
(b) she considers the solely attributable cause to the decline in the applicant’s mental state after 22 January 2023 as being the criminal charges laid against him and his suspension from his employment with the respondent – he was working “without issue” until then and had not been able to explain to her “a [prior] history of impairing mental health symptoms”, and
(c) she relied upon her expertise to elicit and interpret the applicant’s symptomatology without asking leading questions – she did not consider the applicant as a person who was unable to express himself but as a person who chose not to express himself – he did not therefore endorse post-traumatic stress disorder symptoms because he did not have them, rather than because he could not express them to her.
Having considered [CAW]’s evidence in detail, I intend to give it significant weight. I accept the submissions of the respondent at paragraphs 167-168 above.
In accordance with Hancock, my finding that the opinions of [BST] and [CKS] were not provided in a ‘fair climate’ does not lead to those opinions being inadmissible evidence. However, it significantly affects the weight that I give to those opinions. I also cannot give significant weight to the opinions expressed by [CPA] and [COC] for the reasons given above.
In the circumstances, I accept the opinion of [CAW] that the applicant’s psychological symptomatology prior to 22 January 2023 (being the symptomatology corroborated by his ex-wife and his father) did not involve “substantive or impairing symptoms of a mental health disorder”. In my opinion, this position is entirely consistent with the evidence discussed at paragraph 188 above regarding the significance of the symptomatology.
[CAW] acknowledged the possibility of the applicant having post-traumatic stress disorder, but after considering all the evidence, found that he did not “endorse post-traumatic stress disorder symptoms”. I accept this opinion, and am unable as a result to find that the applicant suffered a psychological injury as a result of his exposure to the traumatic incidents.
I do not feel the actual persuasion necessary in accordance with Nguyen and Drca to find that the applicant (after considering the totality of the evidence presented) has discharged his onus of proving that he sustained a psychological injury as a result of his exposure to traumatic events.
There will be an award in favour of the respondent in relation to the claims made by the applicant for weekly benefits compensation and expenses pursuant to s 60 of the Act.
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