Ferguson v Commissioner of Police

[2022] NSWDC 762

District Court

New South Wales

Medium Neutral Citation:

Ferguson v Commissioner of Police [2022] NSWDC 762

Hearing dates:

28-30 November 2022, 1-2, 7-9 December 2022

Date of orders:

9 December 2022

Decision date:

09 December 2022

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

See pars [183] and [184].

Catchwords:

POLICE – Claim for treatment expenses comparable to s60 of the Workers Compensation Act 1987 – Treatment for PTSD and Major Depressive Disorder – Traumata relied upon between 1979 and September 1996 – Trauma before 21 November 1979 unable to be relied on – Trauma alleged September 1996 not compensable – Lengthy review of medical evidence and of relevant facts.

Legislation Cited:

Police Act 1990

Police Regulation (Superannuation) Act 1906

Workers Compensation Act 1987

Cases Cited:

Dive v Commissioner of Police (1997) 15 NSWCCR 366

King v Commissioner of Police (2004) 2 DDCR 416

Rogers v Commissioner of Police (2005) 2 DDCR 515

Staples v Commissioner of Police (1990) 6 NSWCCR 33

Texts Cited:

Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition pp 271-2.

Category:

Principal judgment

Parties:

Plaintiff – Mark Edward Clyde Ferguson
Defendant – Commissioner of Police (NSW)

Representation:

Counsel:
Plaintiff – Mr Hammond, M.
Defendant – Mr Rowles, T.

Solicitors:
Plaintiff – Carroll & O’Dea Lawyers
Defendant – Bartier Perry Lawyers

File Number(s):

2022/00149628

Publication restriction:

Nil.

Judgment

Background

1. HIS HONOUR: The Plaintiff, Mr Mark Edward Clyde Ferguson, is a former Detective Sergeant of Police. He was attested as a probationary Constable of Police on 19 June 1972, and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 (“the Act”). On 28 August 1996, the Plaintiff tendered his resignation from the NSW Police Force to take effect at the end of the then current pay period. The Plaintiff’s resignation was accepted by Assistant Commissioner Schuberg on 28 August 1996. I do not know exactly when the resignation came into effect, but it would have been shortly after 28 August 1996. Antecedent to submitting his resignation, the Plaintiff made an application for medical discharge. The application bears the date of 17 April 1996.

2. The medical conditions claimed in that application for medical discharge as being “hurt on duty” were a number of conditions affecting the cervical spine, which can be categorised as cervical spondylosis, and symptoms of that condition including occipital headaches, muscle spasm, and chronic neck and shoulder pain. Although it is not at all clear from the medical conditions claimed on the first page of the application for medical discharge, it is common ground that in the past the Plaintiff had had his C4-5 disc surgically removed in a laminectomy and discectomy. The second condition referred to in the application for medical discharge is “chronic depression”, which the Plaintiff attributed to his chronic neck pain.

3. At its meeting on 30 July 1997 the Police Superannuation Advisory Committee (“PSAC”), established under the Act, determined that the Plaintiff was incapable of discharging the duties of his office on account of the infirmity of “cervical discectomy with chronic cervical pain”.

4. On 14 August 1997, the then Commissioner of Police, by his delegate, determined that the suffering by the Plaintiff of the specified infirmity of “cervical discectomy with chronic cervical pain” was caused by the Plaintiff’s having been hurt on duty. The date of injury accepted by the Commissioner of Police as the date of the relevant injury was 3 November 1989. Nothing hangs on that particular date, other than it appears to be the first of a large number of incidents which led to the need for the spinal surgery which was performed by a Dr A.J. Bookallil on 16 December 1994.

5. The Plaintiff in fact, stopped working as a Detective Sergeant of Police on 15 December 1994 in order to undergo surgery on the following day. The way the case was presented to me, is that the Plaintiff remained absent from work up until the time of his resignation, although a part of the Plaintiff’s evidence is consistent with his having returned to work at the Tamworth Police Station on modified duties for some period of time.

6. The present application has nothing to do with the certified infirmity or the amount of the Plaintiff’s hurt on duty pension. No decision was ever made by PSAC or indeed by the Commissioner of Police, about the compensability of the Plaintiff’s claimed psychiatric disorder. However, it appears that certain payments were made by the administrator of the Police Superannuation Fund over a number of years until the Plaintiff lodged a further claim for hurt on duty benefits, which claim bears date 21 May 2018. The claim for hurt on duty benefits can be found in Exhibit A, the Plaintiff’s Court Book, at page 225. The actual form commencing at page 225 says very little. It says that the date of injury was 28 August 1996, which is the date on which the Plaintiff tendered his resignation.

7. The nature of the injury claimed is “PTSD”, which is the usual abbreviation for the well-known psychiatric illness Post-Traumatic Stress Disorder. In answer to the question “How did the injury/illness occur?”, the reader is referred to Annexure 1. Annexure 1 is found in Exhibit A at page 235, under guide tab 112, whereas the claim for hurt on duty benefits is at page 225 and is under guide tab 106. Annexure 1 lists a number of injuries by date. They are;

“13 November 1977;

1979;

29 April 1981;

3 March 1982;

4 May 1982;

14 August 1982;

September 1989; and

September 1996.”

8. On 9 December 2019, the administrator of the State Superannuation Fund, which up until that time was paying the Plaintiff’s claim for medical expenses and the like, for treatment of his PTSD, asked the Defendant to determine if the Plaintiff’s psychological condition was caused by his having been hurt on duty. On 28 June 2021, Assistant Commissioner Wood, acting on behalf of the Commissioner of Police determined that the Plaintiff’s psychological injury was not classified by the Commissioner as having been caused by his having been hurt on duty. The current proceedings challenge that determination of the Defendant. The Statement of Claim relies upon each of the episodes of trauma listed on Annexure 1 to the claim for hurt on duty benefits to which I have already referred, with the exception of the event said to have occurred in September 1996.

Episodes of Trauma

September 1996

9. That event concerned a detective with whom the Plaintiff worked at Tamworth known as Wayne George Johnson. Mr Johnson had certain difficulties which caused him to murder his estranged wife, and then, using the same weapon as he used to shoot his estranged wife, to kill himself. Very properly, that is not relied upon in the Statement of Claim. The Plaintiff was seen by Dr Robert Lewin, a psychiatrist for the Defendant, on 25 September 1996. The Plaintiff gave Dr Lewin a history that Wayne Johnson had shot himself “only a few days earlier”.

10. As I understand, it was approximately three days earlier, which means the murder-suicide happened on or about 21 or 22 September 1996. That, of course, was after the Plaintiff had resigned from the NSW Police Force. There is a line of authority which considers whether learning of the death of a fellow police officer is something that arises out of or in the course of a policeman’s service. The authorities are King v Commissioner of Police (2004) 2 DDCR 416, and Rogers v Commissioner of Police (2005) 2 DDCR 515.

11. It is true that the Plaintiff had worked with Wayne Johnson, and in fact was senior to him in the detective’s office (with Mr Johnson as his inferior) and the Plaintiff gives a history of having trained him. However, he also referred to him as a good friend and, indeed, on one occasion, as his best friend. When he learned of Wayne Johnson’s death, the Plaintiff was not in the course of his employment because that employment had been terminated. The upset concerning Wayne Johnson appears largely to have been because of a personal loss, that is, a loss of a close friend, and admired former work mate. But also carries with it suggestions of feeling of guilt by the Plaintiff, because the Plaintiff could have prevented Johnson from committing a breach of the Commissioner’s regulations which led to disciplinary action being taken against Johnson, and may have led to his transfer from Tamworth to Moree, and may have led to the estrangement of Johnson and his wife, and then to the marital upset which led to his murdering his estranged wife and taking his own life.

12. In the circumstances, the Plaintiff’s learning of Wayne Johnson’s death, that blow to his psyche, could not arise out of or in the course of his employment. As I said, very properly, that trauma has not been relied upon in the current proceedings.

First Episode – 13 November 1977

13. The Plaintiff commenced at the Sydney Police Academy as a trainee on 8 May 1972. On 19 June 1972, he was appointed as a probationary Constable of Police. He was then assigned to number 10 division which was based at Waverley, but he worked at a substation of Waverley, namely the Rose Bay Police Station.

14. He was confirmed as a Constable of Police on 19 June 1973, and on 9 July 1973 was transferred to the traffic branch, riding a motorcycle, but being based at the Central Police Station. On 23 July 1973, he was transferred to the Special Traffic Branch riding motorcycles based at the then motorcycle garage, which was underneath the north side of the Sydney Harbour Bridge. This Special Traffic Branch was the precursor to the now well-known Highway Patrol. On 17 January 1975, he was transferred to Tenterfield where he continued to work in the traffic branch, but there he was driving motor cars. On 21 July 1972, the Plaintiff was transferred to Kyogle Police Station where he performed general duties. The first trauma relied upon by the Plaintiff in these proceedings occurred when he was attached to the Kyogle Police Station. The particulars given in the Statement of Claim are these:

“Whilst stationed at Kyogle on or about 13 November 1977 the plaintiff attended the scene of an aeroplane crash at Afterlee, near Kyogle where the pilot and passengers were all deceased. The plaintiff observed the deceased in situ, and observed a large man weighing approximately 140kgs who had been ejected from the plane, had impacted with the tree, cutting his body in half.”

15. This very telling description was given by the plaintiff in his evidence in chief:

“There were only four police at Kyogle. We got called out to the scene of a plan[e] crash - a light plane crash at Afterlee, which is a small community, maybe north east of Kyogle. There’s a dam out there and thick scrub, and it’s mountainous country. So we went out there and we were trying to find this plane that had gone down…. And we did.

…I was in the car with Sergeant Windsor, and another officer from Casino by the name of Keith Edwards....we found the plane and we had to hike into the bush to get to the scene.

And I recall coming down a steep slope towards and seeing debris, the wreckage of the plane, strewn everywhere in amongst the trees and a path down the hillside where the plane had skidded on after impact. And we were looking around and I saw Senior Constable Edwards….doing something at the bottom of a tree. It was a tree with a diameter of about a foot and it was about 40 feet tall. And he was doing something at the bottom of it.

And then I walked over to either assist or see what he was doing. And he was unwinding human flesh from around the base of this tree. And it dawned on me that what I was looking at, was a huge mound of what was once a human being. And there was just fat and flies. And I couldn’t determine whether there were limbs or what part of the body was what. And I started to help the Casino officer pull the flesh from around the tree because it had wrapped around the tree. And there was a skid path from up the hill down to the base of this tree. And it looked like this huge man had come sliding down the hill and his legs had gone around either side of the tree and the tree had impaled him about his sternum and the rest had wrapped around…”

16. At that point the Plaintiff became distressed. He went on to say that he became hysterical and incoherent at the accident scene and eventually went back to Kyogle but felt embarrassment because of his inability to cope with the scene which had confronted him at the plane crash site. Fortunately, for him, he had no further involvement in that accident.

Second Episode - 1979

17. The second event relied upon is particularised in this fashion in the Statement of Claim:

“In or about 1979 the Plaintiff attended a residential address where an infant had ingested Strychnine causing a horrific and painful death. The Plaintiff observed the deceased.”

18. Part of the Plaintiff’s duties when he was stationed at Kyogle was relieving at small country towns near the Queensland border at Woodenbong and Urbenville. These were both “one-man stations”. The Plaintiff was probably a relieving lock-up keeper. When he was relieving at one of those two small sub stations, the Plaintiff received a call to attend upon a house at which there was a deceased baby.

19. He eventually found the house and confronted a couple who had twin boys, and the one that was deceased was named Arjuna. The Plaintiff was told by the child’s parents that he had been found after ingesting Strychnine which had made him very sick. They tried to “save him” by putting him in a bath. However, the Plaintiff did not see the child in the bath. By the time the Plaintiff arrived, an ambulance had attended and taken the child to the Lismore Base Hospital. The Plaintiff did see the bath and the water in which the child had been placed to seek to “save him”.

20. The Plaintiff saw the child’s body not in situ, or indeed at the Lismore Base Hospital, but at the morgue, I assume attached to the Lismore Base Hospital. The Plaintiff told me that he felt guilty because he was not able to do anything for the child, but that smacked to me of being an ex post facto rationalisation because he did not see the child at any time prior to his death, and no doubt only saw the child at the morgue for a formal identification process. And there was nothing which any human being in the Plaintiff’s position could have done to save the child’s life.

21. A problem with this event is that the Plaintiff was unable to give any meaningful evidence as to when it exactly occurred in 1979. The Plaintiff said he thought it was in summer, but of course summer in 1979 was halfway through on 1 January 1979, and the second summer of that year was halfway through on 31 December 1979. This causes a jurisdictional problem. This Court, as the successor of the Compensation Court of New South Wales, has no jurisdiction in respect of any injury occurring prior to 21 November 1979: Staples v Commissioner of Police (1990) 6 NSWCCR 33; Dive v Commissioner of Police (1997) 15 NSWCCR 366.

22. Since I cannot find on the balance of probabilities that this event occurred on or after 21 November 1979, the Plaintiff’s seeking to rely on this event and the event of 13 November 1977 cannot enable me to make a finding that those events lead to the contraction by the Plaintiff of a psychological injury. In any event, there is no evidence that those two events of themselves, might have caused PTSD were there not some further exposure to similar traumata.

Third Episode - 29 April 1981

23. In early 1980, the Plaintiff was placed on an A-list at Lismore. This was a temporary secondment to learning to be a plain clothes police officer/detective. On 11 May 1980, he was transferred to Tweed Heads and continued to perform A-list duties. The third trauma particularised in the Statement of Claim is this:

“On or about 29 April 1981, the Plaintiff, whilst stationed at Murwillumbah/Tweed Heads, attended a scene in Murwillumbah where a six-year-old and a three-year-old had been murdered by their father and burned [sic] in a vehicle. The father then had committed suicide. The plaintiff viewed the charred remains at the scene and had children of a similar age at the [sic, scil. that] time.”

24. In evidence is a press clipping from a local north coast newspaper bearing date 2 May 1981. The banner headline is “Two Children, Father Dead”. A smaller headline is “Nullum Forest Horror Find”. The article says this:

“The bodies of two young children were found yesterday morning beside a road in the Nullum Forest about 20 kilometres from Murwillumbah.

The bodies of two - aged 3 and 6 - were burned almost beyond recognition.

They were later identified as being the children of a 34-year-old Clothiers Creek man whose body was found on Thursday afternoon in a car parked about 800 metres from where the children’s bodies were found.

The dead man was identified as being John William Wardrop, of Clothiers Creek Road.

The children were Jason, 6, and Simone, 3, who had been living at Coffs Harbour with their mother, who is separated from her husband.

He had been allowed access to the children on ANZAC day holiday weekend.

On Tuesday, the father contacted the wife and said he would be returning the children to her the following day.

Wardrop’s body was found in a hired yellow station wagon about 1.30pm on Thursday by a resident of the area.

The vehicle was parked on the side of Roland’s Creek Road inside the forest.

Police were informed and they found the man’s body dressed in a bright blue coat on a mattress in the rear of the vehicle.

A plastic hose was fitted to the vehicle’s exhausted and led to the interior of the vehicle.

Police, after making inquiries, ascertained that the children had been in the company of the man the previous day.

A search was organised at first light yesterday, and police found plastic toys and other items on the side of the road about 800 metres from where the station sedan had been found.

They made a search of the rough country nearby and found the bodies of the two children lying on a burnt section of ground over the side of an embankment about 20 metres from the roadway.

It is believed that the children might have been given a sedative prior to their death. A bottle of sedative was found inside the vehicle.

There were also some cans of beer. An empty can of the same brand was found just off the roadway opposite where the bodies of the children were lying.

Detective Sergeant Bob Jackson and Sergeant John Holland, who are in charge of the police inquiries, were assisted at the scene yesterday morning by Constable B Evans of Lismore and Constable M Ferguson of Tweed Heads.

The government medical officer also attended the scene, and post-mortems and an inquest were to be carried out.

No date has yet been set for the inquest.

Police also yesterday afternoon interviewed the mother of the two children.”

25. At the top of the article is a photograph having beneath it this caption:

“Detective Sergeant Bob Jackson, Sergeant John Holland, Constables Ferguson and Evans making a detailed examination of items found on Rowlands Creek Road, 20 kilometres from Murwillumbah yesterday near where the bodies of two young children were found.”

26. That article can be found at pages 239 and 240 of the Plaintiff’s court book. Sometime after this event, Robert Jackson became a detective inspector of police, and he wrote a short report about this incident. He was invited to do so by Sergeant Spiers of Kingscliff. After reciting the finding of the body of the father stumped in the front seat of his vehicle. The report continues in this fashion:

“Sergeant Holland, a former member of the service, was called to the scene and dealt with the matter as an apparent suicide. Later in the evening of the same day, information was received that prior to the discovery of the deceased in his motor vehicle, he was seen at the Uki Hotel with two children. Acting upon this information, a search of the forest area in the vicinity of where the motor vehicle was discovered was organised for first light on or about 1 May 1981. I attended the scene and coordinated the search with a member of police from Murwillumbah and Tweed Heads.

Senior Constable Wheatley of Murwillumbah took it upon himself to search a particular part of the surrounding rainforest, and some time later approached me and asked me to accompany him back into the rainforest. At this time, I could see that he was extremely distressed, and he told me that he thought he had found the missing children. Senior Constable Wheatley led me to an area about 300 metres from Rowland Creek Road where he showed me the remains of a fire that had been lit around a dead log. Upon closer examination of the fire, I recognised the torso and other fragments of two children.

Senior Constable Wheatley remained with me at the scene while I physically examined the charred bodies. We were then joined by Detective Senior Constable Mark Ferguson and upon ascertaining that indeed what Senior Constable Wheatley had found were the bodies of two children, the area was cordoned off so that a proper scientific examination of the area could be made. Whilst waiting for the government medical officer to arrive I saw that both Senior Constable Wheatley and Detective Ferguson were visibly upset as was I, by the discovery of the children and in fact I advised them to leave the scene and return to the police station. Both police however, insisted on staying to assist me in the task of supervising the removal of the remains.   

Detective Ferguson and I were assisted by Senior Constable Wheatley to make enquiries to locate the mother of the dead children and have them formally identified from fragments of clothing which were located from between the fused abdomens of the children. No other identification was possible. The discovery and identification of the two children and the subsequent interview of their mother was a particularly emotional exercise, particularly as Senior Constable Wheatley, Detective Ferguson and myself all had children of a similar age. I am of the opinion that the police involved in this matter performed their duty with dignity and compassion.”

27. It is very easy to envisage the horror of how the Plaintiff experienced the bodies of the two deceased children.

Fourth Episode – 3 March 1982

28. The next event itemised in the Statement of Claim is this:

“On or about 3 March 1982 whilst stationed at Tweed Heads the Plaintiff attended a residential address in Tweed Heads where four children and their parents had been shot dead. The children who were deceased were aged 14 months, 5, 6 and 7. The murderer had then shot himself dead.”

29. In evidence are clippings from the Northern Star, a daily then circulating in Lismore, the clipping being dated 5 March 1982, and clippings from the Gold Coast Bulletin bearing the same date, and further clippings from the Gold Coast Bulletin dated 6 March 1982 and 9 March 1982. The clipping from the Northern Star is from the first page of the newspaper for 5 March 1982. At the top of the page are photographs showing NSW Police carrying out their work at the crime scene. They include photographs of the present Plaintiff. The banner headline is “Seven die in love feud”. The first part of the article is this:

“A modest Tweed Heads flat was turned into a slaughterhouse on Wednesday night when a man shot his lover, her estranged husband, four sleeping children and then turned the rifle on himself.

Detective Sergeant Peter Dunstan of Tweed Heads Police said that Phillip Eric Layton, 21, diesel fitter, had gone to the flat in Stanley Street, Tweed Heads on Wednesday night.

The flat was occupied by Mrs Margaret Ann Ross, 27, and her children Petrina, 7, Natallie, 5, Clinton, 4 and Vicki Leigh, 14 months.

Layton was believed to have been having an affair with Mrs Ross who was trying to terminate the relationship. Mrs Ross’ husband, Craig Alexander Ross, 26, was at the flat on Wednesday night, police said. Mr and Mrs Ross had been separated during the past year and Mrs Ross had moved into the small two bedroom flat about six months ago.

An argument had developed between Layton and Mr Ross on Wednesday night and at 8.55, Layton had [obtained] a .22 calibre automatic rifle and shot the husband and wife in the head.

Layton then went into the children’s bedroom and shot each of the children through the head as they lay sleeping, police said. He then returned to the kitchen - living room and shot Mrs Ross again before placing the 30-shot rifle at his head and shooting himself, they said.

Detective Constable Mark Ferguson of Tweed Heads police said an autopsy had shown that the first bullet fired into Mrs Ross had hit her skull and travelled down her spine paralysing her, but not killing her.

She was likely to have been alive while her children were shot, police said. Layton had returned and fired a shot into her ear, killing her. The killer than had placed the rifle to his head and pulled the trigger.”

30. The article is much longer than what I have quoted, but suffice it to say that description shows the extent of the horror which confronted the Plaintiff when he attended the murder scene. Indeed, the first article from the Gold Coast Bulletin is headed “The House of Horror”. The article published in the Gold Coast Bulletin on 6 March 1982 carries a heading “They Were Great Kids, We Really Liked Them”, referring to the four deceased children. In examination-in-chief, the Plaintiff was asked by his counsel what he saw when he arrived at the crime scene. He said this:

“I got out of the police car at the kerb, and I could see across the front door which was slightly to the right. And there’s a couple of steps and I could see blood and liquid seeping out underneath the front door. And I went over and had a look and there was blood and brains and liquid seeping out underneath the front door onto the step. And I went around the back - there was other police there as well - I went around the back and into the lounge area, and near, and near - on the inside of the front door, there was a man with a totally destroyed head. And it was from him that the brains were coming up underneath the front door, just to the left of him and a couple of feet away was another man who’d been shot dead and lay partly on top of him was a woman who also had been shot dead.

And then I walked - I walked across to a bedroom door and I stood at the bedroom door and looked into the room and there were four single beds - no, three - sorry, three single beds and a cot in the room, and in each of those beds was a little child that had been shot in the head. And the one nearest the door was a tiny little baby whose brains had been blow through the bed into the floor.”

31. The transcript then records learned Counsel for the Defendant, Mr Rowles, pointing out that there was to be no cross-examination of the Plaintiff about any of the traumatic incidents relied upon. I then pointed out to Mr Rowles that I was aware that what was his approach from what he had earlier said, and that I had asked Mr Hammond not to ask questions that might distress his client, but that is what occurred on this occasion. It is clear that the Plaintiff was greatly distressed when recalling the Ross family murders.

Fifth Episode – 14 May 1982

32. The next traumatic incident itemised in the Statement of Claim is this:

“On or about 14 May 1982, the plaintiff was involved in the investigation of the murder of a 13-year-old boy by two soldiers at Kingscliff. He had been picked up as a hitchhiker and taken to a beach location where he was tortured, sexually assaulted, murdered, and buried potentially when he was still alive. The plaintiff was present when the body was exhumed from the sand.”

33. The boy who was murdered was Peter Aston. In evidence, commencing at page 246, is the front page of the Daily News - a newspaper. I assume it circulated in the Gold Coast. The publication bears date Thursday, 6 May 1982. On pages 247 and 248 is a Wikipedia article concerning Peter Aston’s murder. Commencing on page 249, and extending to page 252, is another printed description in detail, extremely gory and distressing detail about what happened to Peter Aston. I am not going to “cite the latter” publication because of the particularly graphic nature of the description of the outrages committed upon Peter Aston. The first part of the Wikipedia article is this:

“On 4 May 1982, Australian army personnel Robin Reid and Paul Luckman kidnapped teenage boys Peter Aston and Terry Ryan on the Gold Coast, Queensland. Reid and Luckman then drove the boys at gun and knife point to Kingscliff, New South Wales, where they were beaten, tortured, and sexual[ly] assault[ed] before Aston was ultimately murdered.

On 3 May 1982, Peter Aston, then 13 years old, decided to hitchhike to his hometown of Melbourne to join his brother. Peter’s school friend, Terry Ryan, also 13, agreed to keep him company until he reached the Gold Coast, and then planned to go back home.

The two caught the train to Beenleigh and bought some clothes, then proceeded to hitchhike south, down the Gold Coast Highway. After short while they came across a yellow four wheel drive Daihatsu and its occupants, Reid 34, and Luckman, 17, who offered to give the boys a lift down the coast.

Not long on the road, the two boys were threatened at knife and gun point by the two men, who then drove the car over the Queensland/New South Wales border into the beachside town of Kingscliff, where they forced the boys out of the car and down a secluded beach track.

Reid and Luckman then bound, sexually assaulted and savagely beat the two boys. Ryan was also forced by the two men to bash and assault his friend. Peter Aston was stabbed, tortured and eventually buried alive. By this point Terry Ryan had reasoned with his attackers and they agreed to drive him home.

Ryan later told police, ‘They got everything they had, put it in the car and drove off, and me too, and they drove me back home. While we were driving they told me that they were Satan worshippers and they had to do it [kill Peter Aston] for the sacrifice.’

Ryan immediately told his mother, who drove him to the police station to report the kidnapping and the murder of his friend. Reid and Luckman attempted to escape in a car they stole from a fellow army private at the Enoggera army base. The two were apprehended on the New England Highway….”

34. After a murder trial in the Supreme Court in Sydney both Reid and Luckman were convicted and sentenced to life imprisonment. Terry Ryan initially told what had happened to Queensland Police. At 4.45am on 5 May 1982, Queensland Police drove to the Tweed Heads Police Station and they were joined by the current Plaintiff, by now a senior constable and a designated local detective. The Plaintiff and his colleague, following Terry Ryan’s instructions, drove to a beach about three kilometres south of Kingscliff where they followed a bush track towards the beach.

35. Eventually, the site where Peter Aston had been buried was found. The deceased body was naked and “defiled”. The Plaintiff was one of the NSW Police who dug the body out of the sand. This incident occurred only two months after the Ross family murders. One can understand, easily, the impact it must have had upon the Plaintiff. The Plaintiff, himself, had two sons, as well as a daughter. After finding the body, the Plaintiff assisted police at Glen Innes interview one of the two offenders. That offender was Robin Reid.

Sixth Episode – 14 August 1982

36. The next event particularised in the Statement of Claim is this:

“On or about 14 August 1982, the Plaintiff was involved in the investigation of the murder of Terry and Susan Basham at Crabbes Creek. They had both been shot dead over illicit drug dealings and their two-year-old daughter had found the bodies.”

37. The Plaintiff attended that murder scene. He saw the bodies in situ. He was involved in the investigation. He found that very distressing. I should indicate that all of these traumatic incidents are formally admitted by the Defendant in its defence, but there is no admission that attending at any of these crime scenes or participating in the criminal investigation had any effect on the Plaintiff’s psyche.

Seventh Episode – 3 November 1989

38. The next event particularised in the Statement of Claim is this:

“On or about 3 November 1989, the plaintiff sustained injury whilst arresting a suspect relating to a supply prohibited drugs offence. The plaintiff was pushed over a veranda railing and made contact with the railing and fell heavily to the ground. He dislocated his little finger on his right hand, suffered abrasions to his right shin, and soreness to the left side of his neck and left shoulder.”

39. I find it difficult to discern why that event was particularised. It is clearly an event which the Plaintiff injured his neck and left shoulder, and is clearly a matter of substance when one considers the Plaintiff’s cervical condition. However, it is not alleged to be a cause of PTSD, but it may have caused the Plaintiff to consider whether his psychiatric illness was related to chronic neck pain.

Eighth Episode – September 1989

40. The final trauma particularised in the Statement of Claim is this:

“In or about September 1989 was performing duties as the Tamworth Chief of Detectives, the plaintiff was called to a scene in Inverell where a man named Dean Wilson had been murdered by his father. Dean Wilson’s body was found in the bush with his head having been smashed in by a large rock.”

41. Before turning to that event, I should state that on 10 May 1985, the Plaintiff was transferred to Tamworth Police Station. This was his final posting. On 30 September 1987, he became a Detective Sergeant. As the evidence was presented, the Plaintiff was always in charge of the detectives at Tamworth, albeit that, according to a history obtained by Dr Robert Lewin, who first examined the Plaintiff on 25 September 1996, the Plaintiff was appointed the commander of detectives at the Tamworth Police Station. However, it would appear from the evidence that I have heard and read, that the Plaintiff was de facto the head of detectives at Tamworth since he became a Sergeant on 30 September 1987.

42. There are a number of press clippings in evidence about the final trauma relied upon by the Plaintiff. One is from the Northern Daily Leader, dated 7 September 1989. It appears that another article, probably from the same newspaper, may have been issued on a subsequent day. The headline for the Northern Daily Leader on 7 September 1989:

“Inverell man charged with Dean’s murder”

43. Beneath that is printed this:

“A 44 year old Inverell man was last night charged with the murder of Inverell teenager Dean Wilson. Dean’s battered body was found yesterday on a site about 13 kilometres north of Inverell. Inverell Police say there were two bullet wounds to the body, and it appeared Dean had also been beaten. An autopsy will be conducted today to determine the exact cause of death.

The charged man was last night in police custody and will appear in Inverell Court this morning at 10am. Inverell had not revealed his name late last night. The man had earlier accompanied police to the area in which the body was discovered.

An eyewitness to the discovery said the body had been found stuffed under bushes between a road and a cultivation paddock. The road linked Inverell Emmaville Road with the Inverell Ashford Road, the eyewitness said.

Reliable sources say police are working on the theory that the victim was murdered and later dumped at the site. A blood-stained rock was allegedly found nearby.

Dean Wilson, 18, was reported missing last Friday and the last confirmed sighting was at 2pm that day in Otho Street outside Syretts Newsagency.”

44. In the press clipping on page 254 of the Plaintiff’s court book is a photograph showing the father of the deceased being led out of court by two uniformed NSW Police Officers. The substance of this article is this:

“Police believe an Inverell father of six may have coerced his 18 year old son into going for a drive before stopping on a country road, shooting him in the arm and then bashing him to death with a rock.

Police are working on the theory the father planned to murder his son after taking a .22 rifle from another son’s home.

The result of an autopsy of the boys’ body is still to be released, however his death is believed to result from a massive fracture to the right hand side of the skull.

Detective Sergeant Mark Ferguson of Tamworth Police said no motive had been established for the alleged murder although it was believed to be related to a family feud. Detective Ferguson said the body had been discovered under bushes near Inverell following directions given by the father.

Police were alerted to the boy’s disappearance last Friday night when a sister of the dead boy reported him missing to police. Detective Ferguson said police had executed a search warrant on a Mawson Street home after interviewing relatives of the dead boy.

Police allege the father was taken to Inverell Police Station where he told them he could locate the body.

Police are believed to have spent the day yesterday searching for a .22 calibre rifle in the vicinity of the discovery of the body.

The father of the dead boy was being held in protective custody in Grafton Gaol after a court appearance yesterday.”

45. It would appear that the Plaintiff was in charge of the investigation. The Plaintiff told me, and I accept, that the family feud was because the boy, Dean Wilson, had applied to and been accepted by the NSW Police to enter the Police Academy and this career path had been bitterly opposed by the father who, as a consequence, committed the murder of his son. The father was tried by the Supreme Court sitting at Grafton.

46. The evidence does not tell me whether the father was convicted of the boy’s murder, but it seems that the likelihood was that that is what actually occurred.

Complications

47. The aetiology of the Plaintiff’s psychiatric illness is not as straight forward as one might perhaps glean from the reasons that I have given thus far. There are certain complications which make the Plaintiff’s claim far from straightforward. One will recall from what I said earlier that the Plaintiff ceased working on 15 December 1994 in order to undergo C4-5 anterior intervertebral discectomy under the hands of Dr Bookallil on the following day, 16 December 1994. In 1993, a sergeant in the Highway Patrol at Tamworth made a series of 58 allegations against the Plaintiff. According to the history recorded by Dr Gloria Bettersworth, which history would have been taken in the second half of 1995:

“In 1993, he was accused by a colleague of 58 counts of misconduct. He was exonerated by the Ombudsman, but one feels that he was beginning to make enemies.”

48. When first interviewed by Dr Robert Lewin, on 25 September 1996, Dr Lewin said this about the allegations made by the highway patrol Sergeant:

“These allegations were to the effect that he had been involved in criminal activity, using known criminals as ‘stand over’ men, some involvement in drug dealing and running drug ‘ring’. Mr Ferguson told me that these matters had been investigated and found to be groundless.”

49. In his oral evidence, Mr Ferguson told me that, in essence, he was being accused of being a lynchpin or major player in the distribution of drugs in the Tamworth region, and that was the subject of the 58 allegations which were found unsustained by, inter alia, the Ombudsman. There is no suggestion that those allegations, themselves, are the cause of any psychiatric illness, but as Dr Bettersworth pointed out, they may indicate that the Plaintiff had made an enemy in the NSW Police Force in Tamworth in the early 1990s.

50. A real complication is what happened in early 1994 prior to the Plaintiff’s going off work to undergo the laminectomy. On 6 March 1994, the Plaintiff, together with Detective Geoffrey Shepherd, and Detective Wayne Johnson, travelled from Tamworth to Muswellbrook in order to give evidence at a criminal trial being conducted by this Court in Muswellbrook, the trial being R v Reginald John Mayne.

49. It appears that the three gentlemen returned to Tamworth from Muswellbrook on the following day, although there is some suggestion it may been a number of days later. Each of the three detectives, that is the Plaintiff, Detective Shepherd, and Detective Johnson, made a claim for travel expenses. They made a claim saying they incurred the expense of staying overnight in a motel. The claim for travel expenses made by the Plaintiff was made on 15 March 1994. On 23 March 1994, the Plaintiff gave a record of interview to Chief Inspector Middleton. On the same day, probably prior to the record of interview, he made a type-written report to Chief Inspector Middleton about the claim for travel allowance.

50. In fact, neither the Plaintiff, Detective Shepherd, nor Detective Johnson incurred expenses for staying overnight in Muswellbrook. Something alerted the NSW Police at Tamworth to intelligence, which indicated that the claims for travel expenses were improperly made. The Defendant’s tender bundle, which is Exhibit 1, contains on page 1 a report by Sergeant Pemberton of the Disciplinary Unit to the solicitor for the New South Wales Police Service. The report commences thus:

“These papers have been referred for the advice of this Office on the question of both departmental and criminal charges.

On the question of criminal charges, I’ve examined the enclosed report of Chief Inspector Wells of 19 July 1994, I am in agreement with the conclusions reached by the chief inspector and in particular I note that the subject investigation, from the outset, was conducted on the basis of a non-criminal departmental inquiry. Accordingly, if advice is sought in respect of likely criminal charges, I recommend that such advice be obtained from the Office of the Director of Public Prosecutions.

The available evidence in the attached papers shows that Detectives Ferguson, Shepherd, and Johnson initially stated that they travelled from Tamworth to Muswellbrook on 6 March 1994, to give evidence at the District Court and return to Tamworth at 4pm on 11 March 1994.

The claim forms stipulate;

‘Where accommodated - Hotel, Motel, Guest House, et cetera, camped in bush. If private house, state whether expense incurred.’

Each detective admitted that they completed a claim form…and on the claim form it states that a ‘Motel’ was used for accommodate.

It came to light that Detectives Ferguson, Shepherd, and Johnson did not stay in a motel, and in fact returned to various private premises for their accommodation.

On 24 March 1994, each detective submitted a second report to mitigate the fact that they were untruthful to the investigating officer in their initial reports.

Raised in these reports is the allegation that Retired Superintendent Donnelly allowed the practice of travelling allowance and meal claims to be extended to redress expenditure and to compensate police officers who paid monies to informants and to rent cars in covert operations.

However, in records of interview conducted with Detective Ferguson and Detective Shepherd on 12 April 1994, and Detective Johnson on 17 May 1994, they inform the investigating officer that what they had accused Ex-Superintendent Donnelly of, was on reflection, a mistake.”

53. The report then refers to a statement made by Retired Superintendent Donnelly. The following paragraph of the memorandum points out that the investigating officer in respect of these allegations was the patrol commander Chief Inspector Middleton. At the top of page 3 of the report, Sergeant Pemberton noted that the detectives admitted that the claim forms were not correct. That led Sergeant Pemberton to the view that there was a breach of Cl 9(3) of the Police Regulation 1990. The memo then continues:

“When asked to explain why he had not completed entries in his Duty Book for 6 March to 14 March 1994, Detective Ferguson stated that he left his Duty Book in his office for the specified period. He also stated that the omission was due to the daunting nature of the trial and urgent staff problems. The failure of Detective Ferguson to record particulars in his Duty Book lacks the wilfulness and culpability to establish a departmental charge of neglect of duty.

On the other hand, Detectives Shepherd and Johnson stated in their Duty Books that they departed Tamworth at 6 on 6 March 1994 and partook of a meal at Scone at 2.30pm that day. However, Detective Ludewig stated that he observed the drug squad vehicle at the home of Detective Ferguson about 2.40pm on 6 March 1994. It is considered that there is sufficient evidence to substantiate a departmental charge against both Detective Shepherd and Detective Johnson.”

54. The memorandum goes on to express Sergeant Pemberton’s view that there was insufficient evidence to establish a criminal charge against any of Detectives Ferguson, Shepherd, and Johnson. Eventually, on 27 February 1995, the Plaintiff was charged with a number of departmental charges. They are, according to the order presented to me in the Defendant’s court book, these:

“That on the twenty-third day of March, 1994, at Tamworth, in your type written report to Chief Inspector Middleton, you did not exercise the strictest honesty and truthfulness in stating that you departed Tamworth at 1pm on Sunday the sixth day of March 1994 and travelled to Muswellbrook and then travelled back to Tamworth at 5am on the seventh day of March 1994.

That on the twenty-third day of March, 1994, at Tamworth, during a record of interview with Chief Inspector Middleton, you did not exercise the strictest honesty and truthfulness in your answer to question 11.

That on or about the fifteenth day of March, 1994, you did not exercise the strictest honesty and truthfulness in certifying as correct the Police Claim for Travelling Allowance form submitted by Detective G R Shepherd.

That on or about the fifteenth day of March, 1994, you did not exercise the strictest honesty and truthfulness in certifying as correct the Police Claim for Travelling Allowance form submitted by Detective Wayne Johnson.

That on the twenty-fourth day of March, 1994, at Tamworth, in your type written report to Chief Inspector Middleton, you did not exercise the strictest honesty and truthfulness in regard to statements you attribute to former Superintendent Donnelly.

That on or about the fifteenth day of March, 1994, you did not exercise the strictest honesty and truthfulness in that you knowingly inserted false particulars in completing a Police Claim for Travelling Allowances form relating to your attendance at Muswellbrook District Court in the trial of Reginal John Mayne.”

55. On 6 March 1995, the Plaintiff typed on each of the charges these words:

“I admit this charge and accept the penalty fine of $100 as indicated to me by Chief Superintendent Evans.”

The Plaintiff then placed his signature and typed underneath it his full name, rank, and the date, 6 March 1995. From the evidence I have heard, it would appear that the fine of $100 was in respect of, not each of the charges, but all of them.

56. The next complicating factor is the Royal Commission into the New South Wales Police Service conducted by the Honourable Justice Wood (“Wood Royal Commission”). On 6 April 1995, that is a month after pleading guilty to the departmental charges, the Plaintiff gave evidence to the Wood Royal Commission. Commencing on page 11 of the Defendant’s tender bundle, Exhibit 1, are handwritten file notes which, according to the index, are from the NSW Police Psychology Unit file relating to the Plaintiff, but there is evidence, and it seems more likely, that these are records from the NSW Police Welfare Branch. There is a note made on 6 April 1995 which says this:

“Spoke to Mark after he gave evidence at the Royal Commission. Mark was very distressed and fearful of the future. Possible criminal charges to be laid relating to travel allowance scam, along with two constables.

I was concerned about Mark when he left, because of his anxiety. I contacted David Mutton [Police Medical Officer] to discuss matters with him.

Referred Mark to Phil Fairhall for him to see when he travels to Tamworth next week.”

57. Mr Fairhall was a NSW Police Welfare Officer. The next note is dated 11 April 1995. It says this:

“Phoned Mark for follow-up. Is doing okay - looking forward to talking to Phil Fairhall today."

58. The following page of the notes commences with an entry made dated 18 April 1994, but appears to be the entry made by Mr Fairhall following upon his interview with the Plaintiff on 11 April 1995. The notes are these:

"Saw mark at Tamworth 11/4 following referral after Mark appeared at Royal Commission on a matter related to misuse of travel allowance. Mark is in a position where proceeding is resulting from Royal Commission would appear to jeopardise his future with the police (promotion, prospects of finding a suitable position, et cetera) and therefore is feeling insecure in that regard and unwilling to return to duty, particularly to a position which is very unsuited, i.e. district training officer, as he is a highly qualified and regarded detective, and feels humiliated in doing such a role. Mark feels isolated in that he is not receiving support or contact of any kind from local police. He should soon be referred to the PMO [police medical officer] for review as he is on sick report (HOD related neck condition), but the factors of how he feels in his mind are irrelevant at this time, and I feel that Mark, if he so desires, can convey that to the PMO. I spoke to David Mutton in the hope that he can speak to him over the next week, hopefully he can."

59. The next note in this series of notes is dated 6 June 1995 and refers to an attempt to visit the Plaintiff for a welfare visit, but the offer was declined. The next entry is dated 19 December 1995, and appears to have been made by Mr Fairhall. It is this:

"I have on a few occasions attempted to see Mark whilst in Tamworth, but telephone contact prior to visiting gave me the impression that he was unwilling for a personal visit. Matters of medical discharge and things so related were discussed, and I am willing to supply that if at least that is all I can do."

60. The next entry bears the date 10 July 1996, and again appears to be made by Mr Fairhall, and is this:

"Contact by Mark by phone - decision made to cease payments of accounts for physiotherapy treatments - HOD unit consulted, who will now take control of the matter ([name of claims manager]) and indications are, after this, that original decision would be upheld, therefore payments be continued - Mark was most distressed by this action and every attempt made to assist him in this regard."

61. The next note bears the date 2 September 1996, but that merely records the fact that, by that stage, the Plaintiff had submitted his resignation, and therefore there was nothing further that could be done by the Welfare Branch to assist the Plaintiff.

62. I turn now to notes made by a NSW Police Medical Officer, Dr Philip Sharpe. Those notes can be found on pages 170 and 172 of the Plaintiff’s court book, which is Exhibit A. On 4 July 1995, it is clear that the Plaintiff saw Dr Sharpe. His notes commence with a description of the medication currently being taken by the Plaintiff, and the notation concerning the operation performed by Dr Bookallil in December 1994. There is then a list of symptoms related to the Plaintiff’s neck and a reference to computerized tomography (CT) scan findings. The notes then say this:

“Appears depressed ++

Suggest notify LMO re: pain relief and depression.

Not to return to work pro tem.

Review and report post MRI.

Discussion with staff officer personnel re: possible appropriate positions.

Worried about long term effects.

Follow-up after he liaises with Denise Pugh. There does not appear to be any reluctance on his part to see PMO.”

63. Another note made on 19 September 1995 noted the Plaintiff was still depressed. A note made on 22 September 1995 records a discussion of the Plaintiff by Dr Sharpe with Dr Bettersworth who had become the Plaintiff’s treating psychiatrist. The next note bears the date of 26 September 1995, and records a discussion that Dr Sharpe had with the Plaintiff, pointing out Dr Sharpe had spoken with his general practitioner, who had agreed to coordinate the Plaintiff’s treatment, including a psychiatric assessment for treatment.

64. The next note appears on page 172 and records notes made by Sharpe on 6 February 1996. Dr Sharpe noted the Plaintiff attended a pain clinic at the Tamworth Base Hospital, was being given counselling, an exercise programme, and it had been suggested to him to take Tegretol, but the Plaintiff had not taken it. The note then records that the Plaintiff was seeing Dr Bettersworth, who had prescribed antidepressants and sleeping tablets. The Plaintiff was to undergo a reassessment by his treating orthopaedic surgeon, Dr Carmody, in three months’ time. There was then a reference to physiotherapy, which was now occurring twice weekly. The doctor then recorded the Plaintiff was taking both Panadol and Panadeine Forte for pain relief. The doctor then recorded the Plaintiff’s symptoms were much the same as they were in September 1995. The notes then say this:

“Needs to know if a suitable meaningful position is or will become available if he has to return to duty in an RDS. I still feel that the benefits of an ADAPT programme now would be helpful. Need follow up info from treating doctors.

Needs to submit HOD for depression, secondary to chronic pain.”

65. Doctor Sharpe prepared a report bearing date 31 May 1996 which he sent to the Defendant’s medical discharge coordinator. Clearly, this was a document that was to accompany the Plaintiff’s application for medical discharge, and would have found its way to PSAC. The report bears date 31 May 1996. The body of it is this:

“The member has had numerous incidents at work injuring his neck. These occurred from January 1981 until 1989. The incidents include a motor vehicle accident, falls and carrying objects. These events left him with severe neck pain that radiated to both shoulders, occipital headaches, neck stiffness and paraesthesia involving the right ring and little fingers.

In December 1994, he underwent a right sided C4/5 anterior intervertebral disc excision without cervical fusion. Post-operatively, he continued to experience symptoms of pain and decreased neck movements with associated paraspinal muscle spasm. There is radiological evidence of degenerative changes in his cervical spine. He has symptoms of depression, secondary to chronic pain, and sees a psychiatrist about this.

He has not worked since his operation in December 1994. He will never be fit for operational duties. There have been difficulties finding a suitable, meaningful position for him if he were to return to work on restricted duties. If no suitable position can be found, I would support his application for medical discharge.”

Doctor Sharpe, therefore, advanced the theory that the Plaintiff’s psychological condition was caused by his chronic neck pain, that his depressive illness was secondary to that chronic physical pain.

66. A further complicating factor in the Plaintiff’s case is a lack of many contemporaneous records. For example, the Plaintiff has, for many years, been consulting a general practitioner, Dr Blair Campbell. Exhibit C is a certificate made by Dr Campbell when he was in a practice with three other medical practitioners at rooms at 164 Marius Street, Tamworth. On page 2 of Exhibit A is a report of Dr Campbell when he was practising as a sole practitioner at 68 Fitzroy Street, Tamworth.

67. More recently, Dr Campbell has been practicing at the Smith Street clinic. A subpoena was served upon that practice seeking to obtain the records of Dr Campbell referable to the Plaintiff, but the records that were made by Dr Blair at the Smith Street practice concerning the Plaintiff are the only records that were available from that practice for the Plaintiff. They are largely irrelevant. The fact that we are missing earlier records from Dr Blair is a complication in the Plaintiff's case.

68. For example, Exhibit C is a certificate of Dr Campbell bearing the date 27 July 1987, certifying that the Plaintiff was suffering from a stress reaction and was not able to follow his usual occupation between 27 July 1987 and 5 August 1987. Exhibit B is a report under the hand of Inspector Donnelly referring to the Plaintiff's sick report leave from 28 July 1987, certifying the Plaintiff was suffering from a stress reaction. To what stress the Plaintiff was reacting is completely unclear. The Plaintiff has some memory of it, but again, his recollection is not clear.

69. The report of Dr Campbell of 6 June 1996 is written on the stationery he used when practicing as a sole practitioner at 68 Fitzroy street, Tamworth. It is clear from that document that Dr Campbell first saw the Plaintiff at that practice on 8 November 1989, but it is clear he had a recollection of earlier consultations that he had had with the Plaintiff. The report commences with reciting the Plaintiff's problems with his neck. He also noted that stress suffered by the Plaintiff after November 1989 makes his neck stiff and increases the pain. That is consistent with "stress" causing an increase in cervical problems, the counterbalance to chronic neck symptoms causing a psychiatric illness.

70. The report then refers to the Plaintiff's attendance upon the doctor on 8 November 1989 and, subsequently, speaks of the Plaintiff's treatment by Dr Bookallil up to June 1995. The doctor then sets out the MRI report of August 1995. The report then has a heading, “Stress”, and says this:

"Mark consulted me in July 1987 with some stress symptoms possibly related to work. He agreed that his alcohol intake was excessive at this time. and said that he felt that was due to stress. However, his stress and depression has been certainly worse since the neck pain became constant from 1994, and he really understands the complex inter relationship between stress making his pain worse, and pain making the stress worse. Further, I gather there have been stressors from work to add to this burden. I further understand that these work stressors are partly resolved, and he is anticipating that he may be medically discharged from the police force in a few months [note this was written on 6 June 1996]. He tells me that Dr Bettersworth feels that he will be much better off not being employed by the police force.

He tells me that he now has one to two stubbies of light beer every night, and once a week (Friday night) has about eight schooners of light beer at the pub. He is currently on Aropax, one per day, and two Panadeine Forte at night with six to eight Panadol per day, and Melleril, 10 milligrams, one tablet PRN (about three times a week)."

71. The following paragraphs of Dr Campbell's report bear headings, "Exercise", "Relationships", "Other interests". Under the latter heading, the doctor recorded that the Plaintiff had almost completed a law degree. However, in the same paragraph it is pointed out that the Plaintiff cannot tolerate a sedentary job because sitting for more than five minutes increases pain. It appears that Dr Campbell believed that working as a lawyer was a sedentary job. For many that is so, but not for all. The Plaintiff was referred by Dr Campbell to Dr Gloria Bettersworth, a psychiatrist.

Psychiatric Treatment

72. Dr Bettersworth died in 2013. Records made by her can no longer be located. I only know what is contained in her report of 10 June 1996 which commences on page 5 of Exhibit A. The Plaintiff attended upon Dr Bettersworth on 23 August 1995. Dr Campbell expressed alarm at the Plaintiff's deteriorating mental state. According to Dr Bettersworth's report, Dr Campbell had suggested referral of the Plaintiff to her on many occasions over the preceding number of years, but Dr Campbell's attempts to do so had been rejected by the Plaintiff. The first paragraph of Dr Bettersworth's report notes that Dr Campbell had telephoned her in June 1994 requesting assistance in the management of the Plaintiff's depression.   The first part of Dr Bettersworth's report is this:

"Mr Ferguson presented as a pale, tense man, uncomfortable talking of his problems. He said that in recent weeks he had begun to make suicide plans, which plainly had jolted him into the necessity for assistance.

He told me that some years earlier, I believe 1989, had fallen over a balcony during an arrest and hurt his shoulder and neck. The pain and immobility had become progressively worse and cervical laminectomy was performed in December 1994. This surgery, I believe, was precipitated by conspicuous wasting of the muscles of the right arm. Following surgery, muscle bulk recovered and right arm pain was relieved, but he remained with chronic pain, stiffness and limited mobility of the cervical spine.

During this first interview, Mr Ferguson was very distressed. He was unable to provide a fluent history, and I allowed him to talk about events which had distressed him in recent years. His concentration was poor, his memory patchy, and the content of his talk was profoundly depressed - 'I'm on the scrap heap, dying a slow death, don't know who to trust, unable to go near the Tamworth Police Station, feel physically ill’. He described a depressive sleep pattern since 1990 - that is, waking at 3am every morning, ruminating upon his current situation.

I considered Mr Ferguson to be suffering a major depressive disorder with some symptoms of post-traumatic stress disorder. I felt that he was in some danger of self-harm. He did not wish to be admitted to hospital. He was reluctant to take medication, having already used tranquilisers which he felt has increased his agitation. I did, however, prescribe the anti-depressant paroxetine, with thioridazine 10 mg to 50 mg at night to assist sleep. He undertook to contact me if he felt himself in danger.”

73. Although Dr Bettersworth appears to have thought that there were some symptoms of PTSD initially, she does not identify any such symptoms. The Plaintiff returned to see the doctor one week later - that is, on 30 August 1995. The doctor noted that the Plaintiff had not persisted taking his medication, because it made him feel sick, but the Plaintiff had an improved mood. In Dr Bettersworth’s view, his admission of the need for psychological assistance had been in itself a huge obstacle for the Plaintiff to overcome, and having done so, that in itself had a therapeutic effect. She then refers to the next visit, but I do not know when that was. I do know that the fourth visit was in January 1996. Accordingly, the history recorded on the third visit I assume was given in the latter half of 1995. It is this:

“Mr Ferguson is the eldest in a sibship of three boys and one girl. His father has a refrigeration business which he continues to operate with two other sons. Father is described as having been a heavy drinker. The parents continue to live in Muswellbrook. Mr Ferguson says that he fears alcohol, for the reason of his father’s problems, but considers that since being off work, he is now drinking too much, that is, six beers most days.

He was a bright at school and always ambitious. He was also a good athlete. He obtained a scholarship and attended boarding school for six years. He did, however, ‘discover girls and football’, and did not perform well at the HSC. He thought that he might be a pilot, but had a couple of mates joining the police force, so [he] joined up as well. He quickly became very enthusiastic about the job and received rapid promotion, into detective work which he relished. In 1988, he commenced a law degree by correspondence, with the explicit intention ‘to expand general and legal education, to supplement knowledge of criminal law’. His goal was to become ‘an Operation Police Manager’.

Thus, his inability to work is a huge loss. He thought he had a future. He says he feels disconnected from everything he knew. He had hoped to return to work after surgery as a non-Operational Detective Manager. This is not being offered. In fact, he has been told that he will not be re-employed at the Tamworth station. He wonders ‘what I could have done that was so bad’.

Mr Ferguson has been married for 23 years. His wife manages a nursing home in Tamworth. There are three healthy children aged 19, 17 and 16. He says that with gratitude that his family has stuck by him. He admits that in recent times he has been difficult to live with, impatient and irritable.

He was stationed in Tweed Heads until 1995. He described these as good years with camaraderie amongst colleagues, and active social and sporting life. However, a number of exposures to the deaths of children continued to haunt him. In particular, being called to the home where three children, roughly the same age of his own, had been burnt to death. He says ‘can’t get the picture’ out of his head.

He was selected to go into the plainclothes as a detective and was transferred to Kyogle for a period, then went back to Tweed Heads. He loved his work and believed that he was good at it. He transferred to Tamworth. Despite his injury he described the years 1988 to 1991 as pretty good. In 1993 he was accused by a colleague of 58 counts of misconduct. He was exonerated by the Ombudsman, but one feels that he was beginning to make enemies. At another stage his zealous pursuit of drug dealers led to threats upon his property and family, such that he required police protection for a time.

Things have gone downhill for him since, particularly in his work where from the history it seems that he has tended to fall out with the colleagues and perceived as a poor team player. He has no social life. He can no longer play sports, he is highly motivated to complete his law degree, but has enormous difficulty with concentration, tending to ruminate upon his present problems and his future."

74. It is noteworthy and unfortunate that the Plaintiff did not tell Dr Bettersworth about the departmental charges for misconduct between 7 and 23 March 1994 which he admitted on 6 March 1995, and the effect of his giving evidence at the Wood Royal Commission on 6 April 1995, and his obvious distress after doing that. The Plaintiff's attendance upon Dr Bettersworth was in January 1996. The Plaintiff told the doctor that he felt much better having passed his law exams and being told by his treating orthopaedic surgeon that his medical retirement was indicated by his orthopaedic problems. The note continued thus:

"Mr Ferguson does not wish to leave the police force, but is fully aware that he is incapable of operational work, and being an intensely obsessional, driven and ambitious man, quite temperamentally is unsuited to sedentary and non-challenging work."

75. The plaintiff's next attendance upon Dr Bettersworth was in March 1996. The report does not give exact dates. When the plaintiff returned to see her in March 1996, she described him as being despondent, having heard that he maybe called before the Wood Royal Commission regarding a matter which he believed he had already answered to within the department, and for which he had paid his fine of $100. The doctor's report then records that on 30 April 1996 the plaintiff again attended before the Wood Royal Commission, and that, ‘Whilst no fault had been found, the local paper had mentioned his name in a bias light, in his view, and he had been hurt and angered by this…and...also to be a damaging reflection upon his family'.

76. The plaintiff returned to see Dr Bettersworth on 25 June 1996. He was, 'very shaken, with another presentation to the Royal Commission a possibility. Again, he was awaking at 3am and felt that he was back where he started'.” Dr Bettersworth then prescribed a drug which he described as a sedating antidepressant. This appears from the report to have been the last time that she saw the Plaintiff. Her report ends with this matter:

“I could not elicit from Mr Ferguson a history of episodes of depression or nervous disorder before sometime in 1991. Indeed, his lifestyle and achievement suggests that there have been no such episodes. My understanding of the sequence of events is that, the neck injury 1989 with chronic pain limitation of social and other activities, insidious eroded Mr Ferguson’s coping skills and confidence, such that he became increasingly, and outside of his awareness or control, irritable, tired, humourless and difficult to work with. As he became increasingly depressed, he became more suspicious and untrusting of colleagues, which led eventually to a breakdown in work relationships, such that he is ‘no longer welcome’ at the Tamworth police station. This hurts him deeply, and he continues to puzzle over what he did which was so wrong. This is a classical picture of an estrangement from work, family, and society, as depression becomes deeper. Naturally, this estrangement makes the victim of the illness feel persecuted, misunderstood, and more depressed.

My diagnosis is of;

Major Depressive Disorder - a single episode - chronic,

Post Traumatic Stress Disorder - chronic.

He is unsuited for return to full or former duties within the police force, by reason of neck injury. He is temperamentally and by reason of current mood disorder which is reactive to the problems created by the neck, unsuited to cope with police duties generally.”

77. The following paragraph of the doctor’s report includes recommendations as to treatment and the prognosis. The penultimate paragraph refers to Dr Bettersworth’s opinion that there was no consistency between the history that had been given to her and the symptoms experienced by the Plaintiff and the diagnosis she had made. As I pointed out, it is unfortunate that Dr Bettersworth did not have a history of the Plaintiff’s false claim for travel allowance and the subsequent internal investigation and disciplinary proceedings, and the impact upon his initial appearance before the Wood Royal Commission.

78. The ultimate paragraph of the report discusses questions of rehabilitation. One can see that based on the history, which I have emphasised and quoted, the doctor thought that there was a PTSD which was long standing, that is “chronic”. Superimposed upon that she thought there was a major depressive disorder resulting from the Plaintiff’s chronic neck pain. However, her opinion as to causation in that regard is marred by the fact that her history is not complete, albeit that there is no fault of Dr Bettersworth because the correct history was not given to her by the Plaintiff.

79. There is no further psychiatric medical evidence before me that was made during the period in which the Plaintiff was a member of the NSW Police. There is, however, medical evidence obtained by the Defendant immediately prior to the Plaintiff’s resignation, obtained in connection with his application for medical discharge. Because of the allegation made in the Plaintiff’s application for medical discharge that he was suffering from chronic depression, the Defendant sent the Plaintiff to see Dr Robert Lewin, a psychiatrist on 25 September 1996. Doctor Lewin’s report bears date 30 September 1996 and can be found at page 23 of Exhibit 1.

Dr Lewin’s Opinion (1)

80. Commencing at the foot of page 2 of his report, Dr Lewin commented upon the history of the Plaintiff’s neck injury. On page 3 of his report, Dr Lewin commences with the Plaintiff’s psychiatric history. He obtained a history of depressive symptoms over “the last four years approximately”, which would take one back to either 1991 or 1992. Dr Lewin then records this:

“There are a number of factors related to the onset and maintenance of his depressive symptoms. Mr Ferguson’s current complaints are of symptoms heightened over the last several months by his emotional reaction to recent events. He noted matters relating to his police service, with particular regard to a prolonged examination of his conduct following a set of allegations made against him, the recent hearing in the Police Royal Commission and his recent decision to resign. Of particular concern had been the suicide of one of his close workmates [Wayne Johnson], three days prior to the examination. He reported, however, that symptoms he was describing had been present for several weeks.”

81. The doctor then turns to the Plaintiff’s symptoms which might be thought to be of a psychiatric or psychological nature. The Plaintiff complained of feeling tired all the time. The report then continues in this fashion:

“On awakening, he feels “terrible, nauseous, churning in the stomach and unlisted”. He first experienced this symptom in 1990 and it has continued intermittently to the present day. He reported a recurrence of symptoms recently with the Royal Commission hearings and following the police internal affairs inquiry.”

82. I assume by the quote “police internal affairs inquiry” the doctor was referring to the investigation into the false travel allowance claim. The report then continues thus:

“Mr Ferguson told me that he felt terrible and short tempered. He told me, ‘I explode to my kids for no good reason. I try to look after the relationship with my kids and my wife. I have not been coping emotionally’.

Mr Ferguson explained that he felt angry about the way the service had not cared for him or provided for him. He noted, ‘I am unbelievably angry with them. I gave them so much. I am concerned that they will seize upon me being angry and categorise me as being not as unwell as I am. I feel absolutely betrayed by the police service’. He complained to me that he believed the supports offered to serving policemen were trivial and illusory. He also told me, with considerable strength of feeling, ‘I was told I was not welcome back at the police station where I had worked for ten years. The Commander refused to discuss the issue. I was viewed as someone who generates conflict. I cannot come to terms with that’.

Mr Ferguson spoke with great feeling and at considerable length about these matters. He told me that he could not understand what had happened and gave a complex explanation about how he had been wronged: ‘I think it is so unfair, having given them so much, that I could be reduced to refuse. Not one hint of the basis on which they done this to me. I cannot come to terms with it. It just doesn’t add up’. He then explained to me that he believed that his colleagues had unfairly closed ranks behind management, who had made a decision to get rid of him. Mr Ferguson hinted that there may have been some collusion against him in this. I did not find any basis for a delusional belief in this regard.”

83. Dr Lewin went on to discuss the symptoms recorded by Dr Bettersworth, and then turned to the symptom of having a variable appetite. And then, as an example of that, referred to the Plaintiff’s becoming nauseous when he was named adversely in the Wood Royal Commission, and when he was summoned to appear before it. The Plaintiff also told Dr Lewin about feeling irritable of mood. On page 5 of his report is a heading “report stressors”. What is inserted beneath that is, in my view, important. So I shall quote in full:

“At the end of the examination when I asked him if there was any particular matter that he wished to bring to my attention, Mr Ferguson volunteered the following. He told me, ‘My problems, my health problems are the major problem. That is, the problems relating to my neck injury. I am concerned that my health is deteriorating and that has caused my emotional problems. When you stack up the disciplinary and the departmental problems on top of that, that’s all been difficult to cope with. When I went to see the psychiatrist, I was frightened and desperate and near to suicide’.

Mr Ferguson told me several times during the examination that he was fearful that the department would try to assert that he’s current state of disability was attributable to the adverse finding in the Royal Commission and the series of events that led to that conclusion. Mr Ferguson described those events in the following way.

He noted that his best friend, a fellow police officer aged 35, with whom he had trained, had shot himself only a few days earlier. This young man had gone to the home of his former wife in Brisbane where he killed both her and himself. The couple had run into marital difficulties and had separated soon after the birth of their daughter, who is now two years old. Mr Ferguson told me that the funeral was the following day.

He noted, ‘That three of us got into the some trouble over some bullshit travel claim. It was dealt with at departmental level and I was fined $100. We were all three adversely named in the Royal Commission. He came through it and he was moved to Moree’. Mr Ferguson dismissed these matters as unimportant and asserted that a whole range of other matters which were, in his view, far more significance had not been given any enduring attention before the Royal Commission. He told me that the matters first came to a head in 1990 [sic, scil. 1993] when an unnamed police officer had made a series of 58 allegations against him. These allegations were to the effect that he’d been involved in criminal activity….[I cited this yesterday when discussing the allegations made by the highway patrol sergeant in 1993].

‘He was suspended with pay in July 1996. He noted that he had spoken to police Internal Affairs and had asked them what they had in front of them. He told me that there were no basis for any of the allegations and he further noted that no criminal charges had made against him. He added, ‘Nor could there be. Within weeks of this Mr Ferguson had resigned from the Service.’ He told me that this had occurred because, ‘I felt I would rather do anything than be in the police service. I felt I was being pursued and that it would never stop.’ Mr Ferguson maintained that the charges were paltry and groundless. He added that the matters that were being examined did not justify what was being done to him.

At a later stage, Mr Ferguson told me that he believed that the Police Service were attempting to evade what he regarded as their responsibility. He told me, ‘I feel the Police Service used this as a manufactured claim because of the disciplining matters and I feel that nobody believes that I am injured and hurts. They believe that it is all a substitute to gain medical discharge. Their support has been non existent.’

At this point in the examination, Mr Ferguson agreed with my question regarding his angry feelings. He made a brief statement to the effect that he was intensely angry and then checked himself. He told me he did not want to describe this any further for fear that the Police Service will assert that he’s angry rather than sick. He was evidentially enraged.”

84. Dr Lewin then recorded no history of any depressive symptoms prior to either 1990 or 1991, a history similar to that obtained by Dr Bettersworth. On page 10 of his report, Dr Lewin said this:

“Mr Ferguson presents with a depressive reaction. At the time of this examination the characteristic symptoms of a more severe major depressive illness were not present. I note the report of Dr Gloria Bettersworth and her conclusion regarding major depression at the time of his initial presentation earlier this year. It’s entirely possible….that he was more unwell at that stage. I note in particular his complaint of suicidal preoccupation at that time, and important symptom which is not prominent at the present time. I also note the absence of the characteristic vegetative, melancholic and anhedonic symptoms, again at the time of this examination.

Mr Ferguson is currently preoccupied with a sense of outrage and injustice. He is also distressed about the very recent death of a close friend who killed his former wife in a murder-suicide. Mr Ferguson compared his own case to the enraged state of mind of this man, it appears that he is not currently fit to work. However, I observed his symptoms are acute and reactive to current circumstances. It is very likely indeed that this aspect of his condition will settle rapidly.”

85. Dr Lewin went on to make a number of comments about the Plaintiff’s case. He then said this:

When one reads the medical evidence carefully one will note that there were many complaints made by the Plaintiff about his work with the ODPP in Newcastle, especially from about 2011 onwards. That work appeared to have been an aggravating factor.

152. Tendered in the Defendant's case was a report of Dr Frank Chow, a consultant psychiatrist who was retained by the ODPP. Dr Chow assessed the Plaintiff on 25 January 2018 and prepared a report bearing the date 1 February 2018. Under the heading ‘History’, and under the words “Presenting complaints”, Dr Chow recorded this:

“Mr Ferguson is a 65-year-old male living at home with his wife. He said he is currently off work on leave entitlement. He has been off work since 22 June 2017. He said he worked for New South Wales office of the Director of Public Prosecution and he worked as a senior prosecutor. He said he has been in the department since 7 September 2007.

He said over the years he had corresponded with the director about the Newcastle office. He said it was a toxic workplace.

He said he was doing pretty well until 2009 when the managing lawyer started to bully him and the other members. Fourteen staff members ended up putting in a complaint to the director about the manager in 2010. With an investigation, the manager eventually left the organisation.

He said he was doing very well since joining the DPP and he thought that he could become the crown prosecutor. It was a critical time for him as he was much older than others. However with the difficulties with the manager in 2009, it had poisoned his career prospects and he was never able to recover.

He started consulting a psychologist in 2010, needed help because he was becoming suicidal.

In 2011 he was very depressed and when he was at work, he would often pull the curtain around and lock himself in the office. He would not go to staff meetings or the Christmas party.

In 2014 he reported to his manager about his depressed mood and fatigue as he was falling asleep in the office. He said he would wake up frequently at 3:00 am with panic attacks. Instead of support he was reprimanded for his behaviour at work such as banging the door, being abrupt and grumpy to other staff members.

He said in 2014 he was prescribed sleeping tablets. He then started to have more conflict with the management because of his workload. He said he was trying to get a support but was unable to.

In the subsequent year he was having difficulties coping. He said at one stage he was driving recklessly hoping that he would have an accident so he could get out of work and his workload.

He said his wife was diagnosed with early dementia in 2015, it is getting worse as time goes by. His wife is unable to have a conversation now and she is confused easily. He said his parents both passed away in 2015. Every time he had to deal with legal cases related to family death, he was having some difficulties communicating with the family members.

He said he eventually collapsed in the court at the end of 2015.

He said from the manager’s point of view his situation outside work was causing him stress and difficulties but he felt that his complaints of workload and work pressure was never dealt with.

He said the office then introduced a performance management scheme. He was asked to set goals and he wanted to get help with his anger management. He said his relationship with the workplace was breaking down. He was losing friends and he felt his performance at work was affected. The manger then referred him to a psychologist.

He said on 22 April 2017 he was approved travel expenses to attend work in Sydney. He came back and submitted a claim. He said the management then alleged he engaged in misconduct by not strictly claiming the appropriate date of travel.

In May 2017 he asked for an extension to the response and he was not coping with the workload on top of the allegation. He subsequently needed time off work. He said he wrote to the director to ask for more time extension.

He said his anger was related to his previous posttraumatic stress symptoms from his police career. He said he has been seeing Dr Bhandari since August 2017 and he has been prescribed Pristiq. He said he has been referred to the day program at Warners Bay starting in the next few weeks. He said he is also starting to deal with the trauma he had in the past.

He said every time he thought about the work situation he would become angry. He said he is contemplating resigning from his employment.

He said he feels confused with his current situation. He is still not mentally capable and motivated to re-engage back at work and deal with the allegation. He said his wife’s dementia is deteriorating quickly and he is just focusing on looking after his wife.

He has been able to come off alcohol. He said his anger is just below the surface. He is not able to control his distress tolerance among others and he has violent fantasies.

He said he is not sleeping well and he has worsening nightmares. He has low self-esteem. He would often yell and scold at himself. He said he thought he could be a much more successful person than he has been.

153. Under the heading “Past psychiatric history” Dr Chow recorded this:

“Mr Ferguson said he had a mental health history which first started in the 1970s. He said he worked in the police force before for 26 years and he started having psychological difficulties in the 1970s.

He was managed by his GP, but then was referred to a psychiatrist in 1996. He had sleeping tablets and he eventually was started on antidepressant, but only took it for a few months.”

154. One might think that was downplaying the Plaintiff's past psychiatric history, but that was never suggested to the Plaintiff himself. Dr Chow diagnosed a major depressive disorder. He thought the prognosis was good with further treatment. He thought the Plaintiff was unfit to work at the ODPP. After 26 January 2018, he thought he was totally unfit to do work and that there ought be some improvement over three months. No doubt that report was obtained by the ODPP because of the Plaintiff’s sick leave claim and, at times, a suggestion that he might be claiming workers’ compensation from the ODPP. However, the plaintiff did not do so. Again, it is consistent with the opinion of Dr Bhandari and the opinion of Dr Paisley that those sorts of stressors can make the Plaintiff’s experience of PTSD worse, that is, they might aggravate or exacerbate an underlying psychiatric condition, but with time any such aggravation or exacerbation will settle down as appears to have happened in the past.

155. There is no suggestion that the need for the Plaintiff’s treatment since 21 July 2021 was causally related to the work which the plaintiff had been doing for the ODPP prior to his stopping work there on 22 June 2017 or that it had anything to do with the period thereafter until he submitted his resignation in 2018.

156. As I indicated shortly before I adjourned yesterday afternoon, I turn now to consider the Defendant’s case as it has been put to me by learned counsel for the Defendant, Mr Rowles.

Defendant’s Case

Credibility

157. The first thing is an attack upon the Plaintiff’s credibility. Necessarily, I have approached the Plaintiff’s evidence with circumspection. He has admitted being untruthful to his superiors when serving in a disciplined service. Furthermore, he has admitted making a false claim for travel allowance, which could be categorised as a crime of seeking a financial advantage by deception. He also told me of an event that happened at the Tamworth Police Station, which caused me great anxiety, and in my view, an event which casts doubt on his integrity.

158. At one time, Detective Shepherd, whilst driving a police vehicle, was involved in an accident which involved no other vehicle. As I understand it, Detective Ferguson rolled the police car. There does not appear to have been anybody else in the police car, and I assume therefore it was an unmarked police car. Detective Ferguson was injured. Inter alia, the ambulance service was called to the accident. The driver of the police vehicle was found to have had a head injury causing profuse bleeding. That head wound was swathed in bandages.

159. However, it is clear from the evidence given by the Plaintiff that there had been a loss of a substantial amount of blood which covered Detective Shepherd's face, neck, and I assume the upper clothing of his body. However, Detective Shepherd was not taken by the ambulance to the hospital. That is highly unusual in my experience. Where a person sustains a head injury occasioning a loss of a fair amount of blood, there would always be an investigation, at least of an x-ray of the skull, to try to ensure that there had been no skull fracture.

160. However, taking Detective Shepherd to the hospital would no doubt, given the history of his being involved in a motor vehicle accident, have led to his blood being taking for analysis of its alcohol content. The evidence of the Plaintiff is that Detective Shepherd smelled of alcohol. Instead of being taken to hospital, he was taken to the Tamworth Police Station to which the Plaintiff was called. Arrangements had been made for Detective Shepherd to be taken to his own general practitioner, and the Plaintiff himself took Detective Shepherd to that general practitioner.

161. When I pointed out to the Plaintiff that that may have been to obviate his blood being assayed for alcohol content, the Plaintiff told me that a blood alcohol reading had been taken by somebody at the Police Station, probably using a breath analysis machine. That in itself is irregular.

162. The Plaintiff’s attitude to this series of irregularities was “old‑school” in that he failed or professed to be unable to see how this was irregular, and cast suspicions upon the conduct of the police who may have been trying to hide the fact that Detective Shepherd may have been committing a drink driving offence. This “reversion to old form” caused me to, again, consider the Plaintiff’s evidence with circumspection. However, what came through to me loud and clear was of an underlying anger dictating his actions on many occasions.

163. The parties have put before me extracts from the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-V”). The entries for PTSD commencing on page 571, and for major depressive disorder commencing on page 160, are before me as exhibits. I insert below the diagnostic criteria for post‑traumatic stress disorder contained on pages 271 to 272 of that extract:

“Note: The following criteria apply to adults, adolescents, and children older than 6 years. For children 6 years and younger, see corresponding criteria below.

A. Exposure to actual or threatened death, serious injury, or sexual violence in on (or more) of the following ways:

1. Directly experiencing the traumatic event(s).

2. Witnessing, in person, the event(s) as it occurred to others.

3. Learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental.

4. Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse).

Note: Criterion A4 does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related.

B. Presence of one (or more) of the following intrusion symptoms associated with the traumatic event(s), beginning after the traumatic event(s) occurred:

1. Recurrent, involuntary, and intrusive distressing memories of the traumatic event(s).

Note: In children older than 6 years, repetitive play may occur in which themes or aspects of the traumatic event(s) are expressed.

2. Recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s).

Note: In children, there may be frightening dreams without recognizable content.

3. Dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring. (Such reactions may occur on a continuum, with the most extreme expression being a complete loss of awareness of present surroundings.)

Note: In children, trauma-specific reenactment may occur in play.

4. Intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).

5. Marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s).

C. Persistent avoidance of stimuli associated with the traumatic event(s), beginning after the traumatic event(s) occurred, as evidenced by one of both of the following:

1. Avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).

2. Avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).

D. Negative alterations in cognitions and mood associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidence by two (or more) of the following:

1. Inability to remember an important aspect of the traumatic event(s) (typically due to dissociative amnesia and not to other factors such as head injury, alcohol, or drugs).

2. Persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., “I am bad,” “No one can be trusted,” “The world is completely dangerous,” “My whole nervous system is permanently ruined”).

3. Persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead the individual to blame himself/herself or others.

4. Persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame).

5. Markedly diminished interest or participation in significant activities.

6. Feelings of detachment or estrangement from others.

7. Persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings).

E. Marked alterations in arousal and reactivity associated with the traumatic event(s), beginning or worsening after the traumatic event(s) occurred, as evidenced by two (or more) of the following:

1. Irritable behavior and anger outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects.

2. Reckless or self-destructive behavior.

3. Hypervigilance.

4. Exaggerated startle response.

5. Problems with concentration.

6. Sleep disturbance (e.g., difficulty falling or staying asleep or restless sleep).

F. Duration of the disturbance (Criteria B, C, D, and E) is more than 1 month.

G. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.

H. The disturbance is not attributable to the physiological effects of a substance (e.g., medication, alcohol) or another medical condition.

Specify whether:

With dissociative symptoms: The individual’s symptoms meet the criteria for post-traumatic stress disorder, and in addition, in response to the stressor, the individual experiences persistent or recurrent symptoms of either of the following:

1. Depersonalization: Persistent or recurrent experiences of feeling detached from, and as if one were an outside observer of, one’s mental processes or body (e.g., feeling as though one were in a dream; feeling a sense of unreality of self or body or of time moving slowly).

2. Derealization: Persistent or recurrent experiences of unreality of surroundings (e.g., the world around the individual is experienced as unreal, dreamlike, distant, or distorted).

Note: To use this subtype, the dissociative symptoms must not be attributable to the physiological effects of a substance (e.g., blackouts, behavior during alcohol intoxication) or another medical condition (e.g., complex partial seizures).

Specify if:

With delayed expression: If the full diagnostic criteria are not met until at least 6 months after the event (although the onset and expression of some symptoms may be immediate).”

164. One will note in Criterion B4, D2, D3 and D4, which include anger, and E1, which refers to angry outbursts. Such criteria are, in my view, satisfied by the Plaintiff's angry performance and presentation at times, but more importantly might explain his feelings of anger and bad mood, and negative beliefs and expectations.

165. Furthermore, the Plaintiff’s early presentations, in particular to Dr Lewin, which was clearly filled with anger on both occasions, clearly point to the Plaintiff having a condition which involves an angry, hostile, attitude to a person such as Dr Lewin, and explains the views which the Plaintiff expressed to him about the NSW Police. It is clear from the Plaintiff’s presentation to me and from what he told me that he is now aware from his treatment by Dr Bhandari, and by Ms Sharkey, and he now realises why he behaves at times in that fashion. Furthermore, it would explain why he became so sensitive and upset to what he considered as “bullying” by the manager of the ODPP at Newcastle.

166. One will also note in Criterion D1 that the Plaintiff failed to tell some medical practitioners at any length of the traumatic events to which he was exposed and no doubt that may be due to his alcohol intake and perhaps to his anger, and a failure to realise that his anger resulted from those traumatic events. It is clear, however, that when interacting with Dr Lewin that the Plaintiff was very upset about what he perceived to be the lack of support by the NSW Police, the inference being of course that he had given his life to the NSW Police, which ought to have been valued and respected by the Force, which value or respect appears not to have been acknowledged. Deep down that may represent his feeling of being owed by the NSW Police for his exposure to the traumatic incidents in question, but not having that recognised. That may, of course, have been subconscious.

167. Having thoroughly considered all the evidence, I am prepared to accept that the Plaintiff was exposed to the incidents relied upon which I discussed in an earlier part of this judgment, and that they did have the effect upon him that he now tells me about.

168. Another matter which has concerned me about this case is the question of iatrogenesis of the Plaintiff's condition having been bought about by the treatment afforded to him. This is especially so when one considers the interaction of the Plaintiff with Dr Roger Peters that I discussed yesterday. However, I have also heard and seen cross‑examined Dr Bhandari, Ms Anne Sharkey and Dr Paisley and I accept that they are honest, qualified, reliable practitioners, Drs Bhandari and Paisley being psychiatrists and Ms Sharkey a psychologist, and that they would not do or continue to do anything which had in any way the ability to simulate or prolong the plaintiff’s psychiatric illness. Furthermore, it appeared to me that each Dr Bhandari and Dr Paisley, and probably even Ms Sharkey, would be able to ascertain whether some patient was simulating a condition which he or she did not have. I accordingly accept that the genuineness of the Plaintiff's various psychiatric complaints are dutifully recorded by practitioners from time to time.

Alternative Traumata

169. The further thrust of the Defendant's arguments is that there were two traumatic events which might be the cause of the Plaintiff's condition, or at least a significant cause of the condition, and which are more recent than the traumata that the Plaintiff relies upon as pleaded in the Statement of Claim. The first of these additional traumata is the death of Detective Wayne Johnson (discussed previously). Each of Dr Bhandari, Ms Sharkey, and Dr Paisley, accepted that that traumatic event had the potential to cause a PTSD. However, there are many assumptions made by the Plaintiff about the suicide of former Detective Johnson which are not established by any evidence and appear to rely purely on assumptions made by the Plaintiff himself.

169. The first assumption is that the transfer from Tamworth to Moree was some form of “disciplinary” transfer, some form of punishment. That, of course, is possible, but there are worse places for a police officer to go than Moree (Bourke, Kings Cross, Darlinghurst, and Redfern come to mind). There is just no evidence that this was in fact a transfer made as some form of punishment. Equally, the failure of the attempts by Detective Johnson to return to Tamworth have not been either adequately detailed or explained. One does not know why he sought the transfer back to Tamworth, or the reason for which it was rejected.

170. Another assumption implicit in the Plaintiff’s mindset was that the estrangement of Detective Johnson and his wife came about as a result of their physical separation, his being in Moree and her being in Tamworth, but there can be many dynamic aspects in a relationship between any two people. The reality, of course, could be something such as the wife of Detective Johnson having a relationship with another man which was quite unknown to the Plaintiff. The reason for their estrangement is another matter that the Plaintiff has assumed.

171. The next thing which is to be observed is that the Plaintiff did not see or hear, that is physically see or hear, the murder/suicide itself. He did not go to the scene of that horrible event, and he did not see the bodies in situ and knew nothing of it until four days prior to the funeral of Detective Johnson, which information is easily gleaned from Doctor Lewin’s first report. No doubt there would have been a lengthy police investigation in Brisbane, and probably a formal post‑mortem prior to the bodies being released for burial or cremation. However, I do know that Detective Johnson’s body was interred because the Plaintiff was seeking to visit his grave.

172. In assuming all the Plaintiff’s assumptions were correct, the next thing to note is that the only way that the Plaintiff could bring the horror of the murder/suicide into detail is based not upon what he did not see and did not actually hear happen, but based upon his previous experiences in the Police Force of observing bodies where there had been gunshot wounds to the head and, for example, suicides. In that regard, one must bear in mind the Ross family murder that occurred on or about 3 March 1982, being the fourth trauma particularised in the Statement of Claim.

173. Absent prior experience of, for example, gunshot wounds to the head, the mere report to the Plaintiff of the murder/suicide involving Detective Johnson may not have satisfied the Criterion A for PTSD because the Plaintiff did not directly experience the traumatic event. He did not witness in person the event as it occurred and, although he learnt of the traumatic offences, they were not of a close family member, albeit that the Plaintiff considered Detective Johnson to be a close friend.

174. Furthermore, the submission falls down when one remembers that the murder/suicide involving Detective Johnson occurred well prior to the Plaintiff’s consultation with Dr Bettersworth commencing on the 23 August 1995, and well before the Plaintiff gave her a history of traumatic events in the latter half of 1995. In other words, the condition of the PTSD had already then been raised.

175. Another traumatic event that the Defendant relied upon was of the death of a client of the Plaintiff when he was a solicitor in sole practice. Between 2006 and 2007, the Plaintiff was acting for a woman involved in family law proceedings. That lady wished to either stop or grossly curtail the access to her two children by their father. She instructed the Plaintiff about certain events which she maintained could be used to prevent the father’s access. The Plaintiff, dutifully as a solicitor, investigated those and obtained affidavits and statements and the like, and firmly came to the view professionally that the grounds were inadequate, and that the application that the female client wished to make to the Court would be unsuccessful. He so advised her. The next thing he knew, was being told that she had driven with her two children, both girls as I understand it, to Coffs Harbour, where she murdered them in a motel, and then she drove Dorrigo where she committed suicide.

176. The Plaintiff did not attend the site of either the murder or the suicide and did not see the bodies in situ or have anything to do with, for example, the investigation into the murder-suicide. However, he was, as one could expect, upset by the event, and, indeed, it was thought at one stage that he ought to have advised the Family Court of Australia of the allegations of abuse that his client was seeking to put before the Court, and that if he had done so the murder/suicide would not have occurred. However, the Plaintiff told me, and I accept that he thought he had acted professionally, and since he did not believe the woman’s allegations about her former husband, he did not believe her application to the Family Court of Australia would have been successful had he drawn it to the Court’s attention prior to the murder-suicide.

177. Many of the same considerations applying to the murder-suicide involving Detective Johnson apply to this former female client who was involved in a murder-suicide. The event happened when the Plaintiff was working as a sole practitioner in 2006 and/or 2007. The diagnosis of the PTSD had been raised by Dr Bettersworth and she was treating the Plaintiff between the 23 August 1995 and June 1996 and, of course, again, raised fairly in October 2003 by Dr Kipling Walker when the Plaintiff was consulting in Tamworth in late 2003, the diagnosis being well-established by 2003. The murder-suicide involving the Plaintiff’s family law client in 2006/2007 could not be causative of PTSD occurring prior thereto. There is no suggestion, for example, that the Plaintiff has had two separate episodes of PTSD; for example, one resulting from his work as a NSW police officer, and then a further PTSD resulting in the traumatic event of the murder-suicide involving one of his family law clients.

178. The doctors accept that it has been the same PTSD all the way through. The real problem for the Defendant in the current case is that the Plaintiff is being treated by Dr Bhandari and Ms Sharkey for PTSD, which they say was caused by his exposure to traumatic events when he was a member of the NSW Police. In that regard, they are supported by Dr Paisley and there is really no medical evidence to the contrary. The only medical evidence which the Defendant could rely upon is really that of Dr Lewin who prepared a report dated 30 March 2020 which, as the doctor conceded in the heading of the report, was “A paper assessment”. That is an assessment made by referring to the medical evidence provided to him, which included a brief report of Dr Kipling Walker bearing the date 9 October 2003, the Cooks Hill Family Medical Practice records, and records from Dr Bhandari and Ms Sharkey. The Defendant asked Dr Lewin three questions. He answers those on pages 4 to 5 of his report. The questions and answers are these:

“I now turn to the three questions you posed. The formation of a detailed opinion regarding diagnosis depends upon a proper examination. I note the observations of the colleagues who have seen Mr Ferguson in the meanwhile. This is important information but is not sufficient for me to reach any definitive conclusion with regard to diagnosis. I expect that you will rely upon the materials before you. The diagnosis I made in 1997 was based upon the available informaation [sic] at that time. I note that I could speculate upon the current state of affairs based upon the opinions of others. However, I prefer not to do this, considering questions of reliability.

In question 2 you asked about causation. I note that I offered an opinion regarding causation in 1997 having specifically undertaken a further examination with that question in mind, The review of further documentation makes reference to his wife’s circumstances, his father’s health and multiple episodes of work-related stress “both in the police service and more recently whilst working as a solicitor and whilst employed by the DPP”. I note that it is usual for psychiatric conditions such as a chronic depressive illness to have multiple contributing factors. This appears to be the case in regard to Mr Ferguson. I note that I did not diagnose Post Traumatic Stress Disorder in his case.

I now turn to your third question. You asked me to accept that there was a prior diagnosis of Post Traumatic Stress Disorder and Major Depressive Disorder by the time Mr Ferguson commenced work with the DPP. You then made reference to his report of bullying and harassment and his “workload” with the DPP.

It is well-known that individuals who have already experienced either chronic Post Traumatic Stress Disorder or a Major Depressive Disorder have much heightened vulnerability to recurrence in response to subsequent stressors. When considering the time course you outlined in you letter of instruction and the assumptions in question 3 I note that by the time he started at the DPP, the prior events are events which could have contributed to such an outcome. Further, issues derived from other parts of his life such as his wife’s condition, his father’s difficulties and temperamental factors are factors which also may have played a significant role. Dr Bettesworth identified obsessional character traits. This character traits are well known to render an individual more vulnerable to the later development of a depressive condition.”

180. The question arising from the last paragraph which I have just quoted is whether the Plaintiff was suffering from PTSD and a major depressive disorder ever since both were first diagnosed by Dr Bettersworth, or whether there was a complete recovery from both followed by a recurrence of each, such recurrence being independent of the earlier course of PTSD/major depressive disorder.

181. Having spent considerable time reviewing the evidence, I am persuaded that PTSD/major depressive disorder diagnosed back in 1995 and 1996 by Dr Bettersworth continued throughout and, although it may not have been as acute in the period when the Plaintiff was working as a solicitor working with the ODPP, his prior experiences clearly played a part in his irritability and his inability to get on with others at the ODPP. That is, the symptoms that arose from his work with the ODPP were caused by the underlying persistent PTSD/major depressive disorder persisting from the Plaintiff's work as a detective and detective sergeant in the NSW Police.

Determination

182. I am persuaded on the balance of probabilities that the need for the treatment by Anne Sharkey, commencing on 20 July 2021 as summarised in Exhibit D was reasonably necessary as a result of the Plaintiff’s contracting PTSD/major depressive disorder in the course of his service as a member of the NSW Police prior to the cessation of work on 15 December 1994. The last relevant traumata identified in the evidence were the Plaintiff’s involvement in the investigation of the abduction, torture, and murder, of Peter Aston on 4 May 1982, and in the Plaintiff’s involvement in the death of Dean Wilson near Inverell, in September 1989. When the Plaintiff ceased to be involved in that investigation, cannot be ascertained currently in any detail, but it clearly would have been completed at the end of the trial of the deceased’s father, Norman Howard Wilson, who was tried at the Supreme Court in Grafton. The Plaintiff’s involvement in that probably should be seen as ending when the jury returned its verdict at Grafton following the trial of the father for the murder of the son. Clearly, that would have been in 1990 or 1991. Accordingly, in seeking to find some date of injury, perhaps the best thing to rely upon is the last day of physical service by the Plaintiff in the NSW Police which, on the evidence before me, appears to be 15 December 1994.

183. For those reasons I set aside the determination of the Defendant made on 28 June 2021, and I determine, pursuant to s 12D(4)(a), that the suffering by the Plaintiff of PTSD and Major Depressive Disorder were caused by the Plaintiff’s having been hurt on duty whilst working as a detective constable, detective senior constable, and detective sergeant of NSW Police with a deemed date of injury of 15 December 1994.

184. I find that the need for the treatment referred to in Exhibit D was caused by the Plaintiff’s having been so hurt on duty. I order the Defendant to pay the Plaintiff’s costs.

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Decision last updated: 06 June 2024