Doherty v State of New South Wales - [2010] NSWSC 450

No judgment structure available for this case.

CITATION: Doherty v State of New South Wales [2010] NSWSC 450

HEARING DATE(S): 23 November 2009 24 November 2009
25 November 2009 26 November 2009
30 November 2009 1 December 2009
2 December 2009 4 December 2009
16 December 2009 17 December 2009

JUDGMENT DATE :
20 May 2010

JUDGMENT OF: Price J at 1

DECISION: 1. Order that the limitation period within which the plaintiff was entitled to commence these proceedings be extended up to and including 13 March 2008. 2. Verdict and Judgment for the plaintiff in the sum of $753,676.85. 3. I shall hear the parties on the question of costs.

CATCHWORDS: NEGLIGENCE - duty of care - police officer in Forensic Services Group - psychological injury sustained in the course of work as crime scene investigator - defendant's duty of care not discharged by referral of the plaintiff to a psychologist and general practitioner - duty of care non-delegable - allegation that defendant breached its duty of care by, inter alia, failing to have plaintiff clinically interviewed by a psychologist after psychometric testing - failing to place him on restricted duties and closely monitor him upon return to work - by exposing him to crime scenes when he was unwell - by failing to specifically test for PTSD and by failing to refer him to a psychiatrist - breach of duty denied - breach of duty found - CAUSATION - whether any causal connection between psychological injury and breach of duty - causal connection found - CONTRIBUTORY NEGLIGENCE - allegation that the plaintiff was contributory negligent by, inter alia, failing to disclose his symptoms - contributory negligence denied - contributory negligence found and assessed at thirty five per cent - LIMITATION OF ACTION - causes of action which accrued in 2003 and 2004 not out of time - extension of limitation period for cause of action which accrued in 2001 - DAMAGES - whether there should be a deduction for damage not caused by the defendant's negligence - assessment.

LEGISLATION CITED: Civil Liability Act 2002 Part 2, Part 5, s 5B,
s 5B(2)(c)-(d), s 5C, s 5D, s 5R, 5R(1), s 5R(2),
s 13, s 13(1), s 50
Occupational Health and Safety Act 1983 s 15(1)
Occupational Health and Safety Act 2000 s 8(1)(c), s 32, s 39A
Occupational Health and Safety Regulation 2001
Ombudsman Act 1974 s 31
Police Act 1990 s 6(1), s 8(2), s 8(3)
Police Regulation (Superannuation) Act 1906 s 10(B)(3)(a)
Limitation Act 1969 s 5R(2), s 18A, s 50C,
s 50D(1), s 50D(2), s 60E(1)
Social Security Act 1991 (Cth) s 23(5A)

CATEGORY: Principal judgment

CASES CITED: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
Amoud v Al Batat [2009] NSWCA 333
Baldwin v Lisicic [1993] NSWCA 18
Baker-Morrison v State of New South Wales [2009] NSWCA 35
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20
Doherty v State of New South Wales [2009] NSWSC 1345
Dulieu v White & Sons [1901]2 KB 669
Kondis v State Transport Authority [1984] HCA 61
McLean v Tedman [1984] HCA 60
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
New South Wales v Fahy [2007] HCA 20
S v State of New South Wales [2009] NSWCA 164
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364

PARTIES: Barry Doherty
State of New South Wales

FILE NUMBER(S): SC 2008/20078

COUNSEL: Mr P Doherty SC & Mr M McAuley (Plaintiff)
Mr P Menzies QC & Ms J Chapman (Defendant)

SOLICITORS: Walter Madden Jenkins Solicitors (Plaintiff)
McCabe Terrill Lawyers (Defendant)

OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

20 May 2010

2008/ 20078 Doherty v State of New South Wales

JUDGMENT

1 HIS HONOUR: Barry Doherty, the plaintiff, is a former police officer who was medically discharged from the New South Wales Police Force (the police force) in November 2007. He was sworn in as a member of the police force on 21 June 1985 and in January 1988 commenced full-time duties with the Forensic Services Group (FSG) at Hurstville. In September 1989, he transferred to the FSG at Wollongong where he worked as a crime scene investigation officer until he ceased work in May 2005.

2 On 13 March 2008, the plaintiff commenced proceedings in which he alleged that he suffered Post Traumatic Stress Disorder (PTSD) as a result of the negligence of the defendant, the State of New South Wales, represented by the police force. In a second amended statement of claim filed at the commencement of the hearing before me on 23 November 2009, the causes of action included a breach of statutory duty as well as the claim in tort. This cause of action is founded before 1 September 2001 upon an asserted breach of s 15(1) Occupational Health and Safety Act 1983 (the 1983 Act) and thereafter upon asserted breaches of s 8 and s 8(1)(c) Occupational Health and Safety Act 2000 (the 2000 Act) and various regulations of the Occupational Health and Safety Regulation 2001 (the regulations).

3 The particulars of negligence alleged in the second amended statement of claim are as follows:

(a) Failing to take any or any adequate care for the plaintiff in circumstances where the defendant knew or ought to have known that the plaintiff was vulnerable to psychological injury.

(b) Failing to adequately monitor the plaintiff’s coping with constant exposure to scenes of death.

(c) Failing to provide a system whereby the plaintiff was adequately monitored and reviewed (whether by appropriate testing or diagnostic interviews or otherwise), and if necessary, referred for treatment, provided with leave and/or transferred to alternative duties so that the illness did not develop in a fully fledged manner, or alternatively become chronic.

(d) Failing to recognise the plaintiff’s symptomatic behaviour and refer the plaintiff for appropriate treatment, if necessary, providing him with leave from his duties or other work unlikely to aggravate his then condition.

(e) Failing to withdraw the plaintiff from further traumatic exposures.

(f) Failing to act on indications of developing psychological illness.

(g) Adopting a form of psychological testing which was either ineffective or inappropriate or not acted on.

(h) After the plaintiff’s symptoms first became evident, returning the plaintiff to duties which were unsuitable and which caused the plaintiff’s condition to become worse.

4 Prior to the commencement of the hearing before me, Hulme J heard a motion on 17 and 18 November 2009 by the plaintiff to vacate the hearing date and for leave to rely upon a second amended statement of claim. The proposed pleading contained not only the statutory count but particulars of negligence other than those quoted at [3] above. The defendant opposed the applications. His Honour refused the application to vacate and refused leave to amend the particulars of negligence. The plaintiff was allowed to rely on the statutory count but only pursuant to the claim as pleaded in particulars (a) to (h).

5 In a defence to the second amended statement of claim filed on 23 November 2009 the defendant admits that there was a reasonably foreseeable risk that FSG officers could suffer psychological injury and that if suffered there was a reasonably foreseeable risk that it would be significant. The defendant, however, denies that it was reasonably foreseeable that the plaintiff would suffer such a risk of such an injury. The defendant does not admit that it owed a duty of care to the plaintiff. Moreover, the defendant denies that it breached such a duty. Voluntary consent to risk and contributory negligence are also pleaded. The defendant denies any breach of statutory duty and relies upon ss 32 and 39A of the 2000 Act and its predecessors. The defendant asserts that the plaintiff’s claim is statute barred according to the provisions of the Limitation Act 1969.

The issues in dispute

6 The defendant’s statement of issues in dispute identifies that there is an issue:

(ii) the scope and content of the duty to take reasonable care;

(iii) as to whether, and if so in what respects, the defendant was in breach of duty;

(v) as to whether, upon ceasing work, or at any time the plaintiff was suffering from a post-traumatic stress disorder;

(vi) as to what is meant by sensitisation or “kindling”; in the context of post traumatic stress disorder;

(vii) as to what a reasonably prudent employer in the position of the defendant knew or ought to have known at any relevant time;

(ix) about the plaintiff’s present diagnosis;

(x) about the plaintiff’s prognosis, including his capacity for work;

(xi) about the plaintiff’s future treatment requirements;

(xii) about when the plaintiff should have first received treatment;

(xiii) about the plaintiff’s past and future domestic, gardening and handyman assistance requirements;

(xiv) about whether there would have been any difference to the plaintiff’s condition if treatment had been instituted at a time earlier than any treatment which has been administered;

(xv) about whether a regime of rotation in, or removal from, the work place would have been effective in preventing any psychiatric injury;

7 A general statement was made that there are issues arising out of Part 5 Civil Liability Act 2002. Those issues are not otherwise identified in the document. There is, however, no issue:

(a) that from November 1988 it was reasonably foreseeable that officers in the FSG could be at risk of suffering psychiatric injury if they performed duties which exposed them to traumatic events in circumstances which satisfied diagnostic criteria for a post traumatic stress disorder;

8 Whilst the defendant accepts that it owed the plaintiff a duty of care, the precise scope and content of the duty of care are controversial. Furthermore, although the defendant accepts that a risk of psychiatric injury to a police officer working in crime scene investigation is reasonably foreseeable, the defendant does not accept that a risk of injury to the plaintiff in particular was foreseeable. No reliance was placed by the defendant during the hearing on voluntary consent to risk although this defence was pleaded.

9 One of the identified disputed issues was whether the plaintiff was at any time suffering from PTSD. The defendant, however, in its closing written submissions accepted at par 8.1 that “PTSD was caused by the plaintiff’s exposure in the workplace to traumatic events, that is those where the plaintiff’s subjective response satisfied the DSM-IV diagnostic criteria.” The defendant acknowledged that it would be liable in negligence if the disorder was caused, in the sense of materially contributed to, by the defendant’s breach of duty. It is hardly surprising such a concession was made. The psychiatric evidence overwhelmingly supported the plaintiff’s claim that he was suffering from PTSD. There is some disagreement, however, as to the genesis of the PTSD and as to the plaintiff’s prognosis.

10 The questions of breach of duty, causation and contributory negligence are governed by the Civil Liability Act 2002 – in particular ss 5B, 5C and 5R: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 at [27]; Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364. The onus of proof of breach and causation is on the plaintiff on the balance of probabilities.

11 The plaintiff was represented by Mr P Doherty SC with Mr M McAuley and the defendant by Mr P Menzies QC with Ms J Chapman. To avoid confusion arising out of the identical surnames of the plaintiff and his senior counsel, any reference to ‘Mr Doherty’ in this judgment other than in quoted portions of the trial transcript, will be a reference to Mr Doherty SC.

Matters of evidence

12 The plaintiff was born on 11 May 1963. His father was a police officer who rose to the rank of Chief Inspector and Patrol Commander at Corrimal. From an early age, the plaintiff aspired to joining the police force but on leaving school at 15 years of age commenced a boilermaker apprenticeship with BHP at Port Kembla. He did so as his father had encouraged him to complete a trade before becoming a police officer. Having completed his apprenticeship, he worked as a boilermaker at a mining site in Queensland. The plaintiff married Sharon Doherty on 25 May 1985. There are three children of the marriage.

13 After being sworn in as a member of the police force on 21 June 1985, he was stationed at various police stations in Sydney on general duties. In January 1987 when driving a police vehicle on emergency duty the plaintiff was involved in a motor vehicle accident as a result of which he was summonsed for culpable driving. Although the evidence does not disclose the outcome of the proceedings, it is evident that the summons was either withdrawn or dismissed. Unsurprisingly, the plaintiff found the accident to be an upsetting event. He was referred to the Police Psychology unit and was seen by a medical officer, Dr Anderson and a psychologist, Mr Raue. The plaintiff accepted in cross-examination that as early as 1987 he was aware of the existence of the Police Psychology unit, that he initially, when he felt the need, took the opportunity of attending at the unit and that the psychologist provided him with techniques to deal with anxiety.

The plaintiff’s career in crime scene investigation

14 In January 1988 the plaintiff commenced full-time duties with the FSG at Hurstville. During 1988 he completed courses in crime scene examination, forensic medicine and police drafting. The plaintiff recounted that when he commenced with the FSG, he received his training through an apprenticeship-like system, learning on the job with experienced officers. He was promoted to the rank of constable first class in 1990 and obtained the designation of an expert for court purposes in 1993.

15 The plaintiff described his work as a crime scene officer as follows (ex A pars 69-80):

“ I was in particular, required to attend numerous crime scenes involving death or serious injury.

I also attended serious motor vehicle accidents.

My duties require me to be ‘hands-on’.

I was required to attend post-mortems to attend to various matters.

I worked lengthy periods without rest days.

I was on-call for extensive periods.

Due to court commitments, I often had holiday periods disturbed due to recalls to attend court.”

16 During oral testimony, the plaintiff related what his role was when a suicide was suspected (T 20 L 39-50, T 21 L 1):

“Our role in a suicide would be, first of all, to make - carry out an examination of the scene, first of all, to make sure that it was a suicide and it wasn't something more suspicious. We have examined, say, in the case of a hanging, nearly all the time we would arrive there, the body would still be hanging from the rafters or the roof or whatever. It was our job to then cut the deceased down. We would make a physical examination of the body, check to make sure there was no injuries that weren't consistent with a suicide. The same as with if it was a shooting suicide, we would be required to examine the deceased looking for projectiles. So it was - it was hands on, like we would physically examine the bodies to make sure there wasn't any other injuries that wasn't consistent with a suicide.”

17 It is unnecessary to detail here the numerous scenes which the plaintiff investigated. They are referred to in the schedule annexed to the statement of claim and in his witness statement. His duties included disaster victim identification following aviation accidents and the Newcastle earthquake. He attended many post mortems and investigated deaths by drowning. One of the drowning scenes that he attended involved six people, three of whom were children, from the same family at the Kiama Blowhole in July 1992.

18 The plaintiff recounted “abusing alcohol fairly regularly” in 1998-1999 to give himself “a bit of relief from some of the things [he] was feeling.” He described being extremely anxious at home and at work. He said (T 23

L 5-6):

“I started to have nightmares about some of the jobs that I’d attended and using alcohol on some nights was preventing me from having those nightmares.”

19 He identified a number of crime scenes which he had investigated as the source of the nightmares. The plaintiff had attended a crime scene where Senjzana Valevski and her three children had had their throats cut in June 1994. All four bodies were piled up, he stated, beside a bed with the babies on the bottom. One child was a 7 year-old girl and the others 3 month-old twin girls. It was set up to be a murder/suicide. The plaintiff said (T 23 L 15-19):

“It was a very horrific scene. He'd cut all their throats with a large knife and it almost got to the situation where, especially with the two young babies, where their heads were nearly completely severed from their bodies.”

20 The plaintiff said “one of the things I struggled through my whole service is I struggled with jobs where there was children involved and I was unlucky to get a number of these during my time.” He referred to another “fairly brutal” murder scene where there was a mother, a 17 year-old son and a 13 year-old daughter who had been bashed to death by their older brother. It seems that the plaintiff was referring to the triple murder at Albion Park which he attended on 13 March 1996 and describes at ex A pars 670-696. He was at the murder scene for about nine hours and described Mrs De Gruchy’s body as being so badly bashed that she was unrecognisable. He recounts having “flashbacks from time-to-time about the scene” and “regular nightmares about the job.”

21 He recalled that there was a group debriefing at Port Kembla police station after the “Valevski murders” which he was told was a trauma counselling session but there was no follow-up. After the “De Gruchy murders”, he recalled attending a debriefing with other police officers conducted by Mr Mutton of the Police Psychology section. He stated that he was reluctant to say much at the debriefing about his personal feelings in front of so many fellow police officers. The psychology section debriefing notes reveal that the plaintiff attended a debriefing session with six other police officers that was conducted by David Mutton, a psychologist (ex B v 1 p 12).

22 In oral testimony, he related being part of a disaster victim identification team in April 1998 which attended the scene of plane crash in the Kosciusko National Park. Six people had been killed. He described the number of body parts as being “horrendous”. The plaintiff details at ex A pars 946-960 the tasks that he performed at the accident scene which included the collection and individual bagging of body parts.

23 There was a group debriefing on 30 April 1998 at Cooma police station involving two psychologists from the Police Psychology section. There were, he said, about twenty to thirty people there and there was “no one on one contact with the psychologists.” He was reluctant to express his “innermost feelings” in front of so many other persons. The psychology section debriefing notes reveal that twenty-one persons attended and the psychologists present were David Mutton and Hilary Lindgren (ex B v 1 p 15).

24 The plaintiff described the scene of the mutilation murder of David O’Hearn in June 1998 as being “probably one of the worst scenes that [he] attended”. The plaintiff said (T 25 L 41-50; T 26 L 1-3):

“… we found the deceased when we got there and he was lying on the floor in the lounge room of his unit. He was a single man. He had been beheaded. His head had been cut off with a knife and a saw. The offender had placed his head in the sink in the kitchen. He used a corkscrew to try and pull his eyes out. He had been disembowelled. Some of his intestines and his bowel were laid out on a silver-serving tray on the floor in the lounge room. There was some other intestines draped over the breakfast bar in the kitchen area.

There was an attempt made to sever his body around the abdomen as well, but they hadn't been able to cut through the spinal cord. But they'd severed his left hand and they'd been dipping that in the blood and then writing stuff all over the walls in the room.”

25 He was unsure in this case whether there was a debriefing or any psychological follow-up.

26 Nine days after attending the O’Hearn murder scene, the plaintiff attended the scene of the murder of Frank Arkell. The same offender had committed the crime but the deceased was “fortunately not mutilated to the same extent as David O’Hearn.” Mr Arkell had massive head injuries and tie pins had been struck in his eyes and cheeks.

27 The plaintiff was not able to put these matters behind him. The plaintiff said (T 26 L 21-29):

“At that stage, getting into the 2000's, I was getting nightmares on a quite regular basis. I've had flashbacks sometimes of the day and night, which sometimes they were triggered by things I saw on television or sometimes they would just happen for no reason. I was having immense trouble sleeping. When I did get to sleep I was having nightmares most nights. I was really, really hammering the alcohol around that time.”

28 The plaintiff described having “flashbacks and nightmares” about the O’Hearn crime scene and being constantly reminded of the scene by the wall tiles in his house (ex A par 994).

29 During cross-examination the plaintiff’s testimony on this topic included the following (T 68 L30-24):

30 He nominated the double murder of the Haines’s sisters and the death of David Athill, a five year-old boy, as other scenes which he had investigated prior to 2003 as giving rise to feelings of fear, helplessness or horror. The death of Pamela Northey in a motor vehicle accident on 2 March 1993 had really upset him for a few days after he had attended the scene but he could not recall “having any nightmares about that incident until into the early 2000’s when things started to get worse” (T 93 L 11-12). Mrs Northey had been the mother of a friend who had been run over by a truck when riding a pushbike and had almost been severed in half (ex A pars 450-456). He agreed with Mr Menzies that by the expression “flashback” he meant more than “a feeling as if the event were happening again” but included disturbing memories and things he did not want to think about (T 74 L 10-15). Flashbacks, he said, were happening before 2003 “but not as regularly as they were from the 2000’s” (T 73 L 40).

31 In re-examination, when asked by Mr Doherty to give an example of a flashback, the plaintiff said (T 219 L 44-50; T 220 L 1-3):

“My understanding of what I call flashbacks, sometimes they can be as little as something might happen and you will get an image come into your mind where you can actually see - like see the scenes you have been to. Maybe the case I will get an image of my cousin in the mortuary when I have unzipped the body bag but there is other ones. For example, I had been to visit some friends of mine who had just given birth to some twins through the IVF programme. I had been nursing one of those babies, young Joshie, and he had gone to sleep. I had gone to put him back in his crib and in doing so, the baby's head went back and the image I received was I was holding one of the Valevski babies. I've run to the bathroom and I have been violently ill.”

32 On 16 February 2001, the plaintiff attended, as a member of a disaster victim identification team, a fatal crash of a New Zealand Air force fighter aircraft at HMAS Albatross near Nowra. He became subsequently aware that he might have been exposed to depleted uranium. Although he found the incident disturbing, he stated that at the group debriefing he was reluctant to say anything much in front of his fellow police officers. The plaintiff said that the scene of the Nowra air crash, although not pleasant, was not one of the scenes that gave him ongoing problems.

33 The plaintiff underwent psychometric testing by the Police Psychology section on 9 April 2001. The test was conducted in a work room at Wollongong police station with other police officers present. He recalled “the humorous conversation amongst the officers completing the test, making cracks about particular questions asked, and the most appropriate answers” (ex A par 1325). He received an email from Mr Mutton and Ms Stamoulis, psychologists in the Police Psychology section on 5 June 2001 enquiring if he was “still travelling okay” in relation to the fatal air crash in February to which he replied that everything was going alright and he was waiting for an appointment to see a doctor specialising in nuclear medicine. e testified that he misunderstood the nature of the psychologists’ enquiry and thought that they were asking about his concerns of radiation exposure. The plaintiff said that at that time he was not coping well and was still “having heaps of nightmares and … [had] become a bit withdrawn at home.”

34 It is apposite to note that the plaintiff` was seen by Dr John Harvey, his general practitioner, on 25 February 2002. Dr Harvey’s clinical notes reveal that he had come “in for a check up…[had] not been feeling himself”. The plaintiff complained of headaches at work when on the computer or on the microscope and neck stiffness. Dr Harvey found “No signs of depression” (ex B v 4 p 6). The plaintiff accepted in cross-examination that he did not raise any concerns with Dr Harvey relating to his mental state. When asked by Mr Menzies (T 124 L 47-49):

35 Whilst dropping off some papers at the hospital in May 2002, the plaintiff was asked by the mortuary assistant to look at an unidentified deceased. When shown the body, the plaintiff realised that the deceased was his close friend Bill Carvino. They had grown up together and referred to each other as cousins. The plaintiff described himself as being “absolutely shattered”. One of the roles of a crime scene officer was the identification of deceased persons which included organising fingerprinting.

36 On 25 June 2002 the plaintiff underwent psychometric testing by the Police Psychology section which, he stated “was completed in a room with a number of other police officers, making quips about the nature of the test.”

37 I digress to summarise the plaintiff’s progression in the police force. He was promoted to Senior Constable in June 1994. In February 1996 he completed a peer support course at the Goulburn Police Academy and was appointed a Peer Support Officer which position he held until he ceased work. He completed a Certificate IV course in team leadership in 1997 and a Diploma of Applied Science (Forensic Investigation) in May 1997. In May 2001, he was promoted to Detective Sergeant, a position he had relieved in over the years. He had also relieved in the zone supervisor’s position. In August 2002, the plaintiff passed the pre-qualifying assessment for Inspector level. He states that there was limited promotion available at the crime scene section in Wollongong and had intended to seek promotion to the position of Inspector in Sydney or elsewhere (ex A pars 1344, 1510-1511).

38 He agreed in cross-examination that he did not apply further for promotion. He did not attend the assessment centre which was, he thought, the next step in the process. Things were starting to happen that made him think that he would not be able to cope with the process.

39 The plaintiff described the role of a Peer Support Officer as follows (T 48 L 9-14):

“It was a role they started off in the mid 90's, I think, where police would - you went and done a course and you were - you learn about how to look after your colleagues, like identify if you thought they might have been not travelling well and then you would have a conversation with them and if they were happy to you could refer them on to the Police Psychology Unit.”

40 The peer support course had dealt with PTSD in some detail. When taken by Mr Menzies to the resource booklet for the peer support program prepared by the Police Psychology section in 1996, the plaintiff gave the following evidence (T 72 L 45-49; T 73 L 4-21):

“Q. You will see there then, that part of the course involved and indeed at page 28 and you are quite right it is unnumbered, but 27 and 29 are, so Post-traumatic Stress Disorder is dealt with in some detail?

Q. So, as at 1996 it would be fair to say, wouldn't it, that you were aware of the concept of Post-traumatic Stress Disorder?

Q. And you were aware of what characterised it and that was, first of all, there had to be a traumatic event?

Q. Outside the range of usual human experience which was markedly distressing because it involved a serious threat to someone's life or something like that and the response of the person, in this case you, involved intense fear, helplessness or horror?

Q. Then it goes on to deal with what are the, what a person who is suffering from Post-traumatic Stress Disorder might suffer?

Q. And what the result of that is, so far as that person's response, see that? That's the third dot point on the page, "There is an avoidance of things associated with the trauma"?

A. Oh yes, yes.”

41 The plaintiff separated from Sharon Doherty on 29 April 2003. The marriage had been unhappy for some time and they had been living separately and apart under the same roof. Although the separation was initially “quite amicable”, the plaintiff experienced difficulties obtaining access to his children but parenting orders were obtained “fairly quickly” which resolved this issue (T 13 L 5-10). In 2005 the plaintiff and Sharon Doherty were involved in proceedings before the Federal Magistrates Court. The decision in these proceedings was the subject of an appeal to the Family Court of Australia. Shortly after the separation in 2003, the plaintiff commenced seeing his present wife Leisa Atherton. They had been friends for many years and the relationship developed. They began living together in May 2004 and married in 2007. He testified that issues developed with Mrs Doherty when he commenced seeing Ms Atherton. Mrs Doherty acted, he said, fairly aggressively towards Ms Atherton and mutual domestic violence orders were taken out. He had been told by Ms Atherton that his then wife had threatened to destroy his career and make false reports to his boss. It was, the plaintiff said, an “extremely difficult time”. He informed Detective Sergeant Hodder, his supervisor, about the threats who then arranged for him to see Marion Bloom, a psychologist, through the Employee Assistance Program (EAP). When he saw Ms Bloom on 19 May 2003, he had a long conversation about his wife with whom he was “very angry at the time”. He agreed that he told the psychologist that he felt himself under stress, was thinking about a holiday and “would go to the GP to get something to help [him] sleep” (T 131 L 31-50). He believed that he had some conversation with Ms Bloom about the issues he was having at work.

42 Ms Bloom’s clinical records of this consultation are found at ex B v 4 p 34. Ms Bloom recorded in an “Initial Assessment Form” that the plaintiff’s “presenting problems” were primarily “grief” and secondarily “work stress”. She assessed the plaintiff’s “work-related issues” as being “4” (on a scale of 1 to 4) which equated to “extreme” and identified the work-related problem as being “work stress”. Ms Bloom also noted that the plaintiff had extreme “behavioural health problems” specified as being ”grief/bereavement” and extreme “marital/relationship problems” specified as being “breakdown/separation/divorce”. Ms Bloom referred the plaintiff to medical care from “his own doctor”. She rang Dr Harvey and the plaintiff was placed off work from 20 May 2003 until 4 June 2003. Dr Harvey diagnosed depression and prescribed Cipramil.

43 It was the plaintiff’s understanding that he was suffering depression which related to his marital difficulties. Dr Harvey’s clinical notes of the consultation on 27 May 2003 are as follows:

“Assessed at work and psychologist Marrioan (sic) Bloom…recommended that he come and see me.

Separating.

Anhedonia early morning wakening difficulty getting out of bed, suicidal ideation feeling miserable. Not feeling guilty nor loss of libido. Anxious at work.

Diagnosis:

44 When cross-examined on the doctor’s notes of “suicidal ideation”, the plaintiff was adamant that he would not have told Dr Harvey that this had to do “with the marriage because that never happened.” When referred by Mr Menzies to being “anxious at work” he agreed that the fair inference to be drawn was that he told the doctor he had very serious issues which were making him anxious and arose out of his relationship problems.

45 The plaintiff did not put in a “Hurt on Duty” claim as he considered the time off related to marital difficulties. He did not see the police medical officer prior to returning to work (ex A pars 1550-1552). Upon returning to work on 4 June 2003 he resumed normal duties.

46 During cross-examination, the plaintiff agreed that “things settled down on the domestic front…life was back stable again…and [he] found that [his] depression went away” (T 154 L 25-42). He told Dr Harvey on 3 June 2003 that he was feeling and sleeping better. The doctor’s clinical notes of the consultation, inter alia, disclose (ex B v 4 p 7):

“Mood is 6/10

47 At the time he was taking Cipramil which had been prescribed at “20mg 1 nocte”.

48 The plaintiff consulted Dr Harvey on 17 June 2003. He informed the doctor that he was “sleeping well enjoying life more, more productive at work” and felt “good about himself” (ex B v 4 p 7). He agreed that he had not suggested to Dr Harvey that there was anything going on concerning mental health issues unrelated to his unhappiness with his wife. On this topic, he gave the following evidence (T 156 L 23-41):

A. Well, at that stage I was having nightmares and such. But I hadn't spoke to them, Dr Harvey about them, though, no.

A. Well, nightmares and flashbacks of jobs that I have been to previously.

Q. When you say flashbacks, you mean having memories or recollections unbidden come into your mind?

Q. And so do you say that in June of 03, it was starting to get more frequent, is that what you are saying?

A. In that time frame, yes. In 2003, 2004, yes.”

49 Dr Harvey’s diagnosis was “depression better” but the 20mg dosage of Cipramil was changed “from 1 nocte to 1&1½ nocte”. Dr Harvey noted that his patient “feels about 9/10.”

50 Dr Harvey’s records reveal that the plaintiff consulted him on 29 October 2003. Dr Harvey noted that the plaintiff’s “depression [was] going OK” and his 20mg dosage of Cipramil was reduced from “1&1½ nocte to 1 nocte.”

51 The plaintiff related that “things were starting to get to [him].” He was experiencing nightmares and was unable to return to sleep after waking. He noticed that he was taking shortcuts at crime scenes and had become very anxious. He made particular reference to the impact that attending the scene of the suicide of a 16 or 17 year-old girl at Chevalier College at Bowral in November 2003 had upon him. The deceased reminded him of his daughter who was in Year 12 at the time.

52 He recounted attending in November 2003 the scene of an accident where an elderly lady, a pedestrian, had been run over by a truck. The plaintiff said (T 47 L 4-12):

“The old lady was almost like cut in half from the collision but I had attended a job many years before where a good friend of mine's mother had been killed in almost identical circumstances. She had been riding a push bike along and a truck had done a left hand turn in front of her and run over her. Again she had almost been severed in half by the truck and it just brought back a flood of memories from that previous job, from Chopper's mum and it was just quite hard to take. I had to leave the scene and I went and sat in the car for a while. I was crying and it took a while to compose myself and I come back and finished but it was very traumatic.”

53 The plaintiff said that he continues “from time to time to remember this incident and be upset by it.”

54 The plaintiff went “off work sick” from 25 May 2004 until 13 September 2004. He stated that “with the benefit of hindsight [he] realise[d] that [he] was becoming increasingly unwell, and did not keep [his] duty books adequately”. He consulted Dr Harvey on 27 May 2004 who told him he was suffering from PTSD. Although he had previously heard of PTSD, he stated that he did not fully understand what the term meant. In particular, he expected he would be treated, would recover and continue with his work as a crime scene officer (ex A pars 1683-1684).

55 He completed an accident/incident notification form on the same day as he consulted Dr Harvey stating that he had suffered multiple traumatic incidents as a crime scene investigator. Detective Sergeant Hodder completed a claim for “Hurt on Duty” benefits on 4 June 2004 which recorded that the plaintiff had suffered PTSD as a result of exposure to multiple traumatic incidents as a crime scene investigator.

56 Dr Harvey’s clinical notes of the visit on 27 May 2004 disclose, inter alia, the following (ex B v 4 p 8):

Dr Harvey diagnosed PTSD and prescribed Cipramil and Diazepam.

57 Between the consultations on 17 June 2003 and 27 May 2004, the plaintiff consulted Dr Harvey on four occasions concerning matters other than the diagnosis of depression. The clinical notes of 29 October 2003, however, record that “Depression [was] going OK” and the dosage of Cipramil was reduced to “1 nocte” (ex B v 4 p 7).

58 Following the diagnosis of PTSD, Dr Harvey’s clinical notes record three visits by the plaintiff in June, two visits in July and three in September 2004. The plaintiff also saw Dr Dana Smith, a doctor in the same medical practice on 30 August 2004. The clinical notes of the consultation with Dr Harvey on 8 September 2004 include the following (ex B v 4 p 9):

“Feels the best he has for the last 18 months. Wants to go back to work. Had been getting dizy (sic) spells so went back to 2 Cipramils a day… Sleeping well. Feeling…happy. Has not had any flash backs since 30th /7th 2004. Has not seen the psychologist for 3 weeks. Has discussed going back to work with boss and he can go back on reduced duties, with no on call work.”

59 Ms Bloom had seen the plaintiff on 28 May 2004 and 7 July 2004. The plaintiff agreed in cross-examination that during the consultation in May he had, inter alia, related to the psychologist that he had not been good lately, had not been sleeping and was not “travelling well at work”. He told her that he “had been feeling lousy for 12 months, trying to make it look as if [he was] allright (sic)”.

60 When cross-examined on this subject, the plaintiff gave the following evidence (T 192 L 46-50; T 193 L 1-24):

“Q. Please listen to me. (a) you knew there was something wrong, right? You agree with that?

A. Yes.

Q. (b) you knew that if your employer knew that there was something wrong to the extent that there was, the probabilities are you would be stopped from doing your job; those two consequences are inevitable, aren't they?

A. That's true, yes, sir.

Q. Perhaps I am expressing myself badly and appearing to be critical when I am not. That in the light of that knowledge you then tried to, as you told Marion Bloom, tried to make it look as if you were all right, is that right?

A. I did I tried to soldier on to get through the work, that's correct.

Q. Stay with my question. In light of the fact that you knew that there was something wrong with you?

A. Yes.

Q. You knew that if the boss knew there was something wrong with you you would be unable to continue doing your work?

A. Yes.

Q. And you knew that that would have consequences to not only yourself but to your colleagues?

A. That's right.”

61 The plaintiff informed Ms Bloom that he had stopped taking Cipramil in December 2003 and had resumed taking the medication the day before the consultation.

62 When the plaintiff next consulted Ms Bloom in July 2004, he told her, inter alia, that he had been to the doctor and that he had been really good. Ms Bloom was also informed that he was sleeping okay on medication but “not solid… having a few dreams and nightmares but [was] much better”, but so far as his memory was concerned he was losing it halfway through a sentence and was forgetting things (ex B v 4 p 37).

63 By an email in July 2004, the plaintiff informed Superintendent Sweeney that he was travelling okay but had some good days and bad days. He went on to state (ex 9):

“The good thing is that my Doctor and the Psychologist from EAP have put some structure and some strategies in place that are helping me enourmously [sic].

…

I will definetley [sic] be back at work. I still love the work, I just think that my bucket got a bit to [sic] full.”

64 Having been certified by Dr Harvey on 8 September 2004 as being fit for reduced duties, the plaintiff returned to work on reduced hours. He was initially not allowed to attend at crime scenes. After a short period, he resumed normal work hours and attended crime scenes but not by himself. Whilst in the office, he was preparing crime scene documentation and examining exhibits, which constantly reminded him of crime scenes that he had attended. After being back for a few weeks, he resumed normal operational duties. Superintendent Sweeney was, however, concerned about the plaintiff’s recovery. In an email dated 28 October 2004 to Senior Sergeant Jennifer Lette, a police psychologist, he informed her that he was not sure how the plaintiff was travelling as “when he went off it was clear that he was suffering also.” Although the plaintiff “provides enough information to [his] own GP to get a clearance,” he suspected “that the GP has know [sic] real understanding of the job as a crime scene investigator or much about law enforcement stressors” (ex B v 5 p 21). Superintendent Sweeney referred him to Dr Li, the police medical officer, who examined him on 23 November 2004.

65 Between the time he had resumed normal duties and was examined by Dr Li, the plaintiff described himself as “struggling with [his] work…and avoiding attendance at work” (ex A par 1725). On one occasion before going to work, he had thrown up and on another he did not want to get out of bed because he was reluctant about what he might face that day at work. He had days off when he was not coping. At the time the plaintiff was relieving as Zone Commander which required him to oversee the operation of crime scene units within the southern region. The position’s responsibilities included being on call twenty-four hours a day, advising on major jobs and checking crime scene investigation material. The position, the plaintiff stated, involved “constant exposure of details of crime scenes” (ex A par 1746). He had been out to a couple of crime scenes including the suicide of a 16-year-old girl on 8 November 2004.

66 Superintendent Sweeney had explained to him why he was being referred to Dr Li. He was to be reviewed to see if he was able to continue his duties within the crime scene unit. The plaintiff said that he was extremely anxious about the referral as he loved his job and did not wish to go anywhere. At the time he was taking some form of medication but could not recall whether it was either Cipramil or Aurorix.

67 Senior Sergeant Lette, in an email to a Tania Rogers on 1 November 2004, stated that she had read the plaintiff’s referral and considered that he was “clearly unwell” and suffering from PTSD. She considered given “the degree of [the plaintiff’s] illness and the type of work he performs” that a psychiatric assessment [was] advisable (ex B v 5 p 22). The evidence does not disclose who Ms Rogers was or what role she had.

68 Dr Harvey’s clinical notes, relevantly, record visits by the plaintiff on 24 September 2004 and 28 October 2004. The notes of the latter consultation include (ex B v 4 p 10):

“Yesterday morning told by commander that he and Stephen Hodder had to see the police medical officer to see if they are fit to continue in their jobs.

Barry was shocked and distressed and was unable to sleep.”

69 Dr Harvey noted during the consultation on 24 September 2004 that the plaintiff had not reported flashbacks and had “not been involved in any jobs that may provoke flashbacks.”

70 On 23 November 2004 Dr Li certified the plaintiff as being fit for full operational duties which he states the plaintiff was “pretty happy about”. Dr Li’s statement is exhibit 32. During cross-examination the plaintiff substantially confirmed the history that appears in the doctor’s statement. In particular, he informed Dr Li that he had returned to work at the end of September or October 2004 and had a work plan. From October he was on call. On 14 October 2004 he saw Dr Harvey and obtained a medical certificate for full operational duties. As to the plaintiff’s current symptoms, Dr Li records that the plaintiff’s “sleeping was improving, he was thinking of previous jobs and had memory of pictures. He could control these symptoms and was doing positive thinking, his agitation was indifferent and his emotional status was okay” (ex 32 par 34).

71 The plaintiff told Dr Li that after his return to work on full operational duties there were no problems. He was “in FSG and he was better handling his problems through coping strategies” (ex 32 par 36). He had continued on Cipramil and saw his counsellor and general practitioner as needed. He informed Dr Li that he was thinking about going for a Senior Sergeant or Inspector’s role in FSG in Sydney, that he was not seeing a psychiatrist and consumed alcohol occasionally.

72 Dr Li’s view was that there had been improvement in the plaintiff’s psychiatric condition “but as he had been diagnosed with PTSD [he] put “?? PTSD” (ex 32 p 44). Dr Li states at pars 45-47:

“I have then written down the plan which consisted of:

(a) continue on full operational duties;

(b) me to discuss his condition with his GP;

(c) I advised him about seeing a psychiatrist.

I also had Sgt Doherty complete a DASS 21 at the time of the examination…

The DASS 21 is a screening test. It was the practice of the PMO officer to ask officers to fill these in. Looking at Sgt Doherty’s test on that day, the majority of questions he gave a zero score, meaning that most of the statements referred to did not apply to him at all for the last week. On three of the questions he had scored a “1” which indicates that the statements applied to him to some degree within the last week. Overall, the test indicated he had no significant or minimal problems.”

73 Dr Li rang Dr Harvey on 26 November 2004 who informed him that the plaintiff’s symptoms were better and his condition was stable. Dr Harvey was happy for him to stay in the FSG and would consider a referral to a psychiatrist if it became necessary. Dr Li recorded that “Dr Harvey had no problems with FSG” (ex 32 pars 48-51).

74 In a report dated 29 November 2004 to Acting Commander Sweeney, Dr Li reported that the plaintiff:

“indicated that he currently did not suffer with any significant psychological symptoms. He believed he could remain onto (sic) his full operational duties at FSG. Despite there was risk of exposing (sic) to crime scenes’ materials, the plaintiff believed he could cope with them without any impact on his psychological condition. After he had returned to full operational duties in 10-2004, Sergeant Doherty did not have any problem with his duties or symptoms. There was no significant psychological finding during the assessment.”

75 Following the appointment with Dr Li, the plaintiff continued performing full operational duties as relieving Zone Commander. The plaintiff testified that looking back, he realised that he did not fully understand the nature of the illness from which he was suffering, nor its likely future effects. It was difficult, he said, to replace experienced crime scene officers and he was one of the most experienced in the section. He was relieving in Detective Sergeant Hodder’s position and felt a sense of responsibility to him so that Sergeant Hodder could take whatever time off he needed. It became obvious to him that he was not “travelling the best again”. On this topic, he gave the following evidence (T 39 L 41-50):

“Q. When you say not travelling the best, how were you feeling?

A. It was getting back to the stage as I was previously where I was starting to take shortcuts at scenes and just, I wasn't - I wasn't doing my work properly. I was started to hoard briefs and take them home, so I wouldn't have to complete them and hoarding photos so I wouldn't have to go through the photos and file them. I was hiding those at work and hiding them at home.

Q. Were you spewing before you went to work?

A. Yes, I was.”

76 The scenes that he attended included the death of a female who had fallen three storeys to her death.

77 In February 2005, the plaintiff attended a three-zone conference in Jindabyne during which a group psychometric test was carried out. He recalled police officers discussing the questions during the test and expressing concern as to the need to get to Thredbo to have sufficient time to play a full nine holes of golf.

78 The plaintiff testified that he attended a murder-suicide at Oak Flats on Anzac Day in 2005. At the time he was on leave but had been called out as the police constable on call was not qualified to attend by himself. A father had shot and killed his five-year-old son and then had turned the rifle on himself. The plaintiff had completed much of the examination and “everything was going quite well until we got into the room where the young boy was”. He said (T 44 L41-50):

“When we got in there I started to feel a bit nauseas. I think it is the first time that I have had to actually leave a scene like halfway through like. I went back out to the vehicle and I just told Adam that I wasn't able to complete my assistance in that room with him. I went out and done some other stuff but I just wasn't able to be in the room while they were doing the examination of the young boy.

A. I couldn't cope. I thought I was going to be ill. I just had to get out of the room.”

79 A few weeks later, the plaintiff went to the scene of an apparent suicide of a young man in bushland near Berry. When he returned to where the corpse lay for a second time, he discovered that its face been eaten by an animal. He said that he had quickly taken some photographs, made a sketch plan and left the scene as he could not cope. Whilst at the scene, he had discovered from relatives of the deceased that the deceased was the nephew of a computer technician at the Wollongong police station whom he had known for some years.

80 After leaving by car, he pulled off the road to write up his notes. He then vomited, felt unwell and distressed for some twenty to thirty minutes at the side of the road. He finished work that night at 11pm but was recalled at 4am on the following day to attend a serious motor vehicle accident.

81 On 17 May 2005 the plaintiff ceased work and since that time has not returned to work as a crime scene officer.

82 The plaintiff recounted that he had been experiencing intrusive recollections of crime scenes, nightmares and insomnia, apprehension, anxiety and nausea, difficulties with concentration and memory, irritability and disinterest in everyday activities. He had, however, hoped to return to work. He realised, with the benefit of hindsight, that he did not fully understand the significant cause of PTSD (ex A pars 1851-1868).

83 Dr Harvey’s clinical notes record that the plaintiff consulted him concerning PTSD on 17 and 24 May 2005. The entry for 17 May 2005 includes the following (ex B v 4 p 11):

The dosage of Cipramil was increased from “2 nocte to 2 ½ nocte”.

84 Dr Harvey prescribed Temazepam “1 nocte p.r.n” during the consultation on 24 May 2005. The dosage of Cipramil was increased to “3 nocte” on 2 June 2005.

85 During a consultation with Ms Bloom on 3 May 2005, the plaintiff explained that he was not as comfortable doing calls and that he had had an anxiety about calls for about “18 months [and] probably back longer than that” (ex B v 4 p 49). The plaintiff said that his anxiety really got bad in the beginning of 2004.

86 Dr Li examined the plaintiff on 28 June 2005 and told him that he was not fit for any duties which exposed him to crime scene materials. Dr Li records in his statement “that [the plaintiff’s] symptoms were that before the two incidents (call backs to work) he had been okay. Those call backs were in April and May 2005”: (ex 32 par 62). The plaintiff gave evidence that these “call backs” were the murder/suicide at Oak Flats on Anzac Day and the suicide near Berry. He said that before that time he was having nightmares but it was not until after the two call backs, especially the one on Anzac Day that he realised he was unable to perform his duties: (T 185 L 45-50). He did not agree that he had told Dr Li that he stopped taking Cipramil in November 2004. He agreed that he told Dr Li that he had found the increased dosage of medication helpful, his symptoms with medication were getting better and he was now about 50 per cent recovered. The plaintiff had also indicated to Dr Li that “in November 2004 to March 2005, he was 75-80 per cent recovered” (ex 32 par 65).

87 Dr Li asked the plaintiff to complete a DASS 21. Dr Li stated that the plaintiff’s responses revealed that he was much more symptomatic. He had “recorded one “3” and several one’s and two’s”: (ex 32 par 68). On the same day, the plaintiff was assessed by Renata Cimino, a police psychologist. In an email to Dr Li dated 1 July 2005, Ms Cimino opined that it was plausible that the nature of the plaintiff’s work may be contributing to his current symptomatology which raised concerns about his emotional wellbeing should he return to the same work environment. Ms Cimino recommended that the plaintiff undergo a psychiatric assessment for a more accurate diagnosis.

88 In November 2005, Dr Prior, a psychiatrist, examined the plaintiff at the request of the police force and diagnosed him as suffering from a “chronic mild post-traumatic stress disorder on a background of obsessive compulsive personality traits”. Dr Prior attributed the cause of the PTSD to “multiple traumatic incidents experienced over the course of his career working in the forensic department of the Police Service”. He did not think that there were any other factors contributing to it and found the plaintiff unfit to perform operational police duties. He recommended that the plaintiff have more aggressive treatment from a psychiatrist experienced in treating PTSD and that the plaintiff be referred for more intensive cognitive behavioural therapy for PTSD in a dedicated PTSD unit. Dr Prior was of the view that the plaintiff was not fit for rehabilitation designed to get him back to operational police duties.

89 Superintendent Sweeney had submitted an application for a medical discharge on the plaintiff’s behalf without his knowledge and had discussed making the application with Leisa Doherty. The plaintiff said that he did not make the application himself as “it was making me rehash things that I didn’t want to go over” (T 47 L 49-50). He said that he was so unwell that he had difficulty coming to any decision.

90 The plaintiff saw Dr Peter Anderson, a psychiatrist, on 1 June 2007 at the request of his solicitors. Dr Anderson reported that the plaintiff “has a post traumatic stress disorder and this diagnosis is made within the DSM System of classification.” Dr Anderson noted that the plaintiff had been exposed to horrific incidents and scenes at which time he experienced horror and helplessness. It was his view that the plaintiff’s problems were directly caused by overexposure to crime scenes in the course of his work in the police force. His work was the major contributing factor. The plaintiff was unfit for work and his medical discharge should be supported.

312 The plaintiff bears the onus of establishing his past and future wage loss.

313 The first step in establishing future economic loss under s 13 Civil Liability Act requires the plaintiff to satisfy the Court of his most likely future circumstances but for the injury. In Amoud v Al Batat [2009] NSWCA 333 Basten JA when considering the operation of s 13 said at [23-24]:

(a) the claimant’s most likely future circumstances but for the injury, and
(b) the assumptions about future earning capacity (and other events) which will form the basis of calculation.

It appears that sub-s (1) deals only with the baseline earning capacity which might have been achieved but for the injury. Of course, an assessment of post-injury future earning capacity will also be required, but if sub-s (1) were addressing the assumptions necessary for that part of the exercise it would be unlikely to require them to “accord with” the most likely future circumstances but for the injury. The operation of this provision will vary from case to case and will depend in part on the level of particularity or generality at which the exercise is undertaken. Because there is no challenge in the present case to the findings by the trial judge in respect of the most likely future circumstances, or the assessment of future earning capacity, but for the injury, the operation of this provision need not be addressed further.”

314 No evidence was adduced for the plaintiff from other police officers (past or present) or anyone else to attest to his service in the police force. Other than his evidence, I am left with what can be derived from his progression in the police force. The career path of the officer who successfully challenged the plaintiff’s promotion in 2001 provides no assistance in determining what the plaintiff’s most likely future circumstances would have been. There are too many variables in career advancement for any weight to be attached to this evidence. Similarly, the plaintiff’s father’s rank upon retirement has no relevance other than to provide motivation for his son to aspire to a higher rank.

315 The plaintiff was sworn in as a member of the police force on 21 June 1985. He was promoted to the rank of Senior Constable in June 1994 and to the rank of Detective Sergeant in May 2001. He also relieved in supervisory positions. His steady progression is indicative of a solid but not outstanding police officer. The successful completion of the PQA in 2002 does not demonstrate that he had the qualities required for a merit promotion to the rank of Inspector nor does his ambition. The plaintiff has not discharged the evidentiary burden of establishing under s 13(1) Civil Liability Act that it most likely that he would have attained the higher rank of Inspector but for the injury, nor am I satisfied that it is more probable than not that he would have attained such rank.

316 As to the claim for past loss, the plaintiff’s steady career progression, his relief in supervisory roles, his academic achievements and application to work persuade me that it is more likely than not he would on merit have achieved the rank of Detective Senior Sergeant Third Year by 1 July 2008, but for the injury.

317 There is no dispute that he has been unable to work until the present time. I am satisfied that he has been incapable of performing full-time or part-time work. Accordingly, I propose to award damages for past wage loss in accordance with the plaintiff’s claim. The arithmetic has been adjusted to accord with the date of judgment.

318 As to the claim for future wage loss, I am satisfied that it is most likely that the plaintiff would have continued in the rank of Detective Senior Sergeant until his retirement from the police force.

319 Another matter of contention is that of the age of retirement. In the schedule of damages, the plaintiff’s future wage loss is calculated upon retirement from the police force at the age of 65. In his witness statement (ex A) the plaintiff states that if he had not been medically discharged from the police force, he had hoped to work as a police officer until at least age 60, and possibly would have done some other work upon retirement from the police force, until perhaps age 70. During cross-examination on this topic, the plaintiff gave the following evidence (T215 L 34-50; T 216 L1):

“Q. You have told us that you intended to finish up with the police at retirement age which you have postulated was probably aged 60?
A. Yeah or a similar age, yes. I am not sure whether it would have been--

Q. Once you retired you would have then proceeded on some retirement pension from the Police Service?

A. That would be right, sir, yes.

Q. Not ungenerous?

A. No, it was quite a reasonable pension, yes.

Q. You would have expected then after aged 60 not to do any more work; is that right?
A. Oh, I can't comment on that. That would be a decision I would have made whatever my situation was at that age, sir. I couldn't comment on it now fairly.

Q. Equally you can't suggest then that you would have worked past age 60?

A. Exactly, yes.”

320 Mr Doherty submitted that the plaintiff would probably, in all the circumstances, retire from the police force in the vicinity of 60 years of age and thereafter, like his father, would have obtained other employment. He put to me that the plaintiff may well have chosen to work in some other enterprise to the age of 65.

321 In the absence of specific evidence, it is usually appropriate to calculate future wage loss to the age upon which a person is “entitled by law to retire and receive an Australian pension”: Baldwin v Lisicic [1993] NSWCA 18. The present law is that the pensionable age is 67 years for a male born after 1 January 1957: s 23 (5A) Social Security Act 1991 (Cth). As the plaintiff was born after that date his qualifying age for the age pension is 67 years.

322 Assistant Commissioner Jenkins had been asked by the defendant to provide current statistics on the average retirement age of police officers. His research revealed that in the three years to 22 November 2009, 75 police officers retired, with an average and median age of 58. One officer retired from the FSG in this period at the age of 60.

323 In this case there is specific evidence from the plaintiff that upon retirement from the police force at age 60 years, he would be entitled to a police service pension. I conclude that it is most likely that he would not have continued in the police force beyond 60 years of age and would have retired at age 60 but for the injury. The plaintiff was equivocal as to whether he would seek paid work after retirement. Upon retirement he was entitled to a police service pension which he considered to be quite reasonable. In all the circumstances, I am not satisfied that it is most likely that he would have chosen to work after retirement in some enterprise but for the injury: s 13(1) Civil Liability Act.

Past wage loss

324 I award damages for past wage loss as follows:

^th

$1,283.00 x 8 weeks $10,264.00

^th

$1,304.00 x 26 weeks $33,904.00

^rd

$1,358.00 x 26 weeks $35,308.00

^rd

$1,369.52 x 52 weeks $71,215.04

(v) 1.1.2010 – 20.5.2010 calculated
at the rate payable to Detective
Senior Sergeant 4 ^th year of
$100,214.00 gross per annum or
$1,404.00 net per week.
$1,404 x 20 weeks $28,080.00

Total $178,771.04

Future Wage loss

325 There is nothing in the material which has been presented to me which indicates that the annual salary for a Detective Senior Sergeant increases after the fourth year of service in that rank. In fact, the plaintiff’s calculations in the schedule of damages for future wage loss until 30 June 2014 were founded upon the annual salary of a Detective Senior Sergeant 4th year. Accordingly, the plaintiff’s baseline earning capacity which would have been achieved but for the injury is that of a Detective Senior Sergeant 4^th year earning $100,214.00 gross per annum or $1,404.00 net per week until retirement at the age of 60 years. My assessment of his post-injury future earning capacity is, as I have found, the chance that he will at some future time be able to work part-time for about 8 hours per week. I have considered increasing the conventional allowance of 15 per cent for vicissitudes for such a contingency but it seems to me, that the chance of future part-time work is offset equally by the chance that the plaintiff would have obtained part-time work upon retirement from the police force or have been promoted to the rank of Inspector but for the injury. I calculate future wage loss as follows:

$1,404.00 net per week multiplier

Past loss of superannuation benefits

326 The plaintiff’s claim for past loss of superannuation benefits is calculated on the basis of 9 per cent of gross earnings. I award damages for past superannuation loss as follows:

9 per cent of gross weekly loss of

(ii) 1.1.08 – 30.6.08 calculated at 9 per cent

of gross weekly loss of earnings of $1,760.76

$1,760.76 x 9 per cent x 26 $4,120.18

(iii) 1.7.08 – 31.12.08 calculated 9 per cent

of gross weekly loss of earnings of $1,833.84

$1,833.84 x 9 per cent x 26 weeks $4,291.19

(iv) 1.1.09 – 31.12.09 calculated at 9 per cent of

gross weekly loss of earnings of $1,870.52

per week.

$1,870.52 x 9 per cent x 52 weeks $8,754.05

(v) 1.1.2010 – 20.5.2010 calculated at 9 per cent

of gross weekly loss of earnings of $1,927.19

per week

$1,927.19 x 9 per week x 20 weeks $3,468.94

Total $21,877.25

Future loss of superannuation benefits

327 Consistent with his claim for future wage loss, the plaintiff’s claim under this head of damage was calculated upon promotion to the rank of Inspector and retirement at age 65 years which I have not accepted. Accordingly, I award damages for future loss of superannuation benefits calculated as follows:

calculated at 9 per cent of the gross weekly future

wage of Detective Senior Sergeant 4^th year of

$1,927.19 x 9 per cent = $173.45

Multiplier 13 years on 5 per cent Tables 502.3 less

15 per cent for vicissitudes $74,055.35

Past treatment expenses

328 The plaintiff’s claim for past treatment expenses is as follows:

(ii) Allianz Australia Insurance Limited: $8,066.00

Total $15,021.15

329 There is no real dispute about these expenses having been necessarily incurred and there is agreement as to the arithmetic. I propose to allow the amount of $15,021.15 for past treatment expenses.

Future treatment expenses

330 The plaintiff’s claim in the amount of $157,882.92 for future treatment and medication is particularised in the schedule of damages as follows:

per consultation for 30 sessions

$150 x 412.9 $61,935.00

$3.85 x 909.9 $3,503.12

$10 x 909.9 $9,099.00

331 The defendant disputes the claim under this head of damages but agrees as to the arithmetic.

332 Much of the plaintiff’s claim is founded upon the opinions of Dr Durrell. He was of the opinion that the plaintiff’s future treatment would require sessions with a psychiatrist in the order of 20-30 per year ($350 per session) for 5-10 years and depending on future rates of deterioration, this may need upward adjustment. He considered that psychotherapy adjustment as prescribed by the supervising psychiatrist may be carried out by a suitably qualified psychologist ($100-$140 per session), with 20-30 sessions per annum for 5-10 years with a view of continuation depending on response. Dr Durrell reported that it would be prudent to factor in 5-8 inpatient admissions of 14-21 days over the plaintiff’s lifespan to manage the risk of acute chronic relapses. Costing would be $1,000-$1,200 daily dependent on treatment needs. Inpatient treatment programs for PTSD were, he said, in the order of $20,000-$30,000. Dr Durrell considered that such programs would be of benefit to the plaintiff and his participation in one of these programs every 3-5 years would be appropriate. He also recommended family counselling sessions but no claim is made in this regard by the plaintiff.

333 Professor McFarlane considered that the plaintiff’s ongoing psychological treatment should focus on providing psychological support and assistance in dealing with environments that he finds difficult. He would also need the regular treatment and supervision provided by his general practitioner, with whom he has a good relationship. Professor McFarlane anticipated that the cost of his psychological care per annum was likely to be in the order of $3,000. Professor McFarlane considered that the plaintiff could benefit from a PTSD Treatment Program provided by the St Johns of God Hospital which provides both individual and group treatment for police officers. There is no material before me of what it might cost the plaintiff to attend this program.

334 Dr Brown was critical of Dr Durrell’s outline of future treatment. Given that the plaintiff had not undergone “significant remission of symptoms over time”, Dr Durrell’s recommendations, Dr Brown reported, for further extensive psychiatric and psychological counselling would not be warranted. Moreover, given that the plaintiff had not previously required an inpatient admission related to his PTSD and depressive conditions, Dr Brown considered that it was unlikely that he would need treatment of this type in the long term. Dr Brown opined that rather than providing further extensive counselling which was unlikely to offer additional benefit, attention to his psychotropic medication regime may prove to be a far more effective intervention. More aggressive pharmacological treatment was yet to be tried.

335 Although I have paid particular heed to the views of Dr Durrell as the plaintiff’s treating specialist, it has not been difficult to conclude that some of his recommendations for future treatment are unreasonable. His over enthusiasm for his patient’s future needs is readily demonstrated by his recommendation for 5-10 family sessions ($250 per session) for up to 10 years even though the plaintiff is happily married and supported by his family. The plaintiff sensibly does not claim such an allowance. As to the recommendation for psychotherapy intervention, Dr Durrell explained that it would be an advantage that the plaintiff form “a therapeutic relationship” with somebody else which would be of importance when he was unavailable. The 20-30 consultations recommended for such psychotherapy intervention are in addition to the 20-30 recommended psychiatric consultations. I agree with Dr Brown that such extensive psychiatric and psychological counselling is unwarranted. I do not propose to allow the claim for psychotherapy intervention.

336 The plaintiff undoubtedly requires regular ongoing psychiatric consultations particularly if new treatments are trialled. I propose to allow 20 sessions per annum for the next 10 years.

337 The claims for general practitioner consultations and medication costs are to my mind reasonable. As to the cushion claimed for inpatient treatment it is true that the plaintiff has not previously required inpatient treatment but I have accepted Professor McFarlane’s opinion of a significantly increased risk of exacerbation of symptoms and of cardiovascular disease. The plaintiff did require inpatient monitoring for cardiac palpitations last November. I, however, have not accepted Dr Durrell’s opinion that the plaintiff is likely to experience acute relapses due to aging process. I propose to allow a cushion in the sum of $30,000 for inpatient admissions.

338 I award damages under this head as follows:

(i) Consultations with consultant psychiatrist

at the rate of $260 per consultation for

20 sessions per year for 10 years

$100 per week. Multiplier for 10 years

on 5 per cent tables 412.9

$100 x 412.9 $41,290.00

(ii) Consultations with General Practitioner

as particularised by plaintiff $3,503.12

(iii) Inpatient admission for acute chronic

relapses. Allow cushion $30,000.00

(iv) Medication costs as particularised

by plaintiff $9,099.00

Total $83,892.12

Interest

339 Although not mentioned in the schedule of damages the plaintiff is entitled to interest on his past loss of wages for 2.6 years (round figures) at the average rate prescribed by s 18 Civil Liability Act of 5.7 per cent. On $178,771.04 that amounts to $10,189.95.

340 The plaintiff is also entitled to interest on past loss of superannuation on the same basis. On $21,877.25 that amounts to $1,247.00.

Total $11,436.95

Summary as to damages

341 The chart below summarises the damages that have been awarded:

Non-Economic Loss	$175,000.00
Past Wage Loss	$178,771.04
Future Wage Loss	$599,449.00
Past loss of Superannuation Benefits	$21,877.25
Future loss of Superannuation Benefits	$74,055.35
Past out of pocket expenses	$15,021.15
Future treatment expenses	$83,892.12
Interest	$11,436.95
Total	$1,159,502.86

342 The damages are reduced by thirty five per cent by reason of the plaintiff’s contributory negligence.

Orders

commence these proceedings be extended up to and including 13 March 2008.

2. Verdict and Judgment for the plaintiff in the sum of $753,676.85.

3. I shall hear the parties on the question of costs.

**********

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Citations

Doherty v State of New South Wales [2010] NSWSC 450

Most Recent Citation

Skinner v The State of New South Wales (No 2) [2021] NSWDC 49

Cases Citing This Decision

7

Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21

New South Wales v Doherty [2011] NSWCA 225

Zheng v Commonwealth of Australia (No 3) [2020] NSWSC 1347

Cases Cited

12

Statutory Material Cited

12

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48

Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364

Amoud v Al Batat [2009] NSWCA 333

CITATION:	Doherty v State of New South Wales [2010] NSWSC 450
HEARING DATE(S):	23 November 2009 24 November 2009 25 November 2009 26 November 2009 30 November 2009 1 December 2009 2 December 2009 4 December 2009 16 December 2009 17 December 2009
JUDGMENT DATE :	20 May 2010
JUDGMENT OF:	Price J at 1
DECISION:	1. Order that the limitation period within which the plaintiff was entitled to commence these proceedings be extended up to and including 13 March 2008. 2. Verdict and Judgment for the plaintiff in the sum of $753,676.85. 3. I shall hear the parties on the question of costs.
CATCHWORDS:	NEGLIGENCE - duty of care - police officer in Forensic Services Group - psychological injury sustained in the course of work as crime scene investigator - defendant's duty of care not discharged by referral of the plaintiff to a psychologist and general practitioner - duty of care non-delegable - allegation that defendant breached its duty of care by, inter alia, failing to have plaintiff clinically interviewed by a psychologist after psychometric testing - failing to place him on restricted duties and closely monitor him upon return to work - by exposing him to crime scenes when he was unwell - by failing to specifically test for PTSD and by failing to refer him to a psychiatrist - breach of duty denied - breach of duty found - CAUSATION - whether any causal connection between psychological injury and breach of duty - causal connection found - CONTRIBUTORY NEGLIGENCE - allegation that the plaintiff was contributory negligent by, inter alia, failing to disclose his symptoms - contributory negligence denied - contributory negligence found and assessed at thirty five per cent - LIMITATION OF ACTION - causes of action which accrued in 2003 and 2004 not out of time - extension of limitation period for cause of action which accrued in 2001 - DAMAGES - whether there should be a deduction for damage not caused by the defendant's negligence - assessment.
LEGISLATION CITED:	Civil Liability Act 2002 Part 2, Part 5, s 5B, s 5B(2)(c)-(d), s 5C, s 5D, s 5R, 5R(1), s 5R(2), s 13, s 13(1), s 50 Occupational Health and Safety Act 1983 s 15(1) Occupational Health and Safety Act 2000 s 8(1)(c), s 32, s 39A Occupational Health and Safety Regulation 2001 Ombudsman Act 1974 s 31 Police Act 1990 s 6(1), s 8(2), s 8(3) Police Regulation (Superannuation) Act 1906 s 10(B)(3)(a) Limitation Act 1969 s 5R(2), s 18A, s 50C, s 50D(1), s 50D(2), s 60E(1) Social Security Act 1991 (Cth) s 23(5A)
CATEGORY:	Principal judgment
CASES CITED:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 Amoud v Al Batat [2009] NSWCA 333 Baldwin v Lisicic [1993] NSWCA 18 Baker-Morrison v State of New South Wales [2009] NSWCA 35 Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 Doherty v State of New South Wales [2009] NSWSC 1345 Dulieu v White & Sons [1901]2 KB 669 Kondis v State Transport Authority [1984] HCA 61 McLean v Tedman [1984] HCA 60 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 New South Wales v Fahy [2007] HCA 20 S v State of New South Wales [2009] NSWCA 164 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
PARTIES:	Barry Doherty State of New South Wales
FILE NUMBER(S):	SC 2008/20078
COUNSEL:	Mr P Doherty SC & Mr M McAuley (Plaintiff) Mr P Menzies QC & Ms J Chapman (Defendant)
SOLICITORS:	Walter Madden Jenkins Solicitors (Plaintiff) McCabe Terrill Lawyers (Defendant)