Fox v SAS Trustee Corporation - [2019] NSWDC 277

District Court

New South Wales

Medium Neutral Citation: Fox v SAS Trustee Corporation [2019] NSWDC 277
Hearing dates: 13- 15, 17, 20-22 May 2019
Date of orders: 21 June 2019
Decision date: 21 June 2019
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
See [244].

Catchwords: POLICE - Member of police force resigned from force due to mental health illness - Plaintiff later rejoined police force - Whether the plaintiff was incapable from an infirmity of mind of discharging the duties of his office at his time of resignation
Legislation Cited: Evidence Act 1995 (NSW) s 136
Police Regulation (Superannuation) 1906 Act (NSW) ss 3, 5, 10, 10B(1A), 10B(2)
Cases Cited: Boland v SAS Trustee Corporation (1999) 97 IR 127
Ford, Roger v State Authority Superannuation Board (1994) NSWIRC 217
Ford v State Authorities Superannuation Board (unreported, Industrial Court of NSW, Marks J, 14 October 1994)
Harding v SAS Trustee Corporation [2011] NSWIRComm 4
Re Boothroyd (1986) 1 QDR 167
SAS Trustee Corporation v Ainsworth [2011] NSWIR Comm 128
SAS Trustee Corporation v Daykin (2002) 115 IR 172
SAS Trustee Corporation v Rossetti [2018] NSWCA 68
Wooden v State Authority Trust Corporation (Unreported, 28 July 1998, Industrial Relations Commission)
Texts Cited: N/A
Category: Principal judgment
Parties: Jeffrey Ronald Fox (Plaintiff)
SAS Trustee Corporation (Defendant)
Representation:
Counsel:
Mr P. O’Rourke (for the Plaintiff)
Mr M. Best (for the Defendant)
Solicitors:

File Number(s): RJ 230/18
Publication restriction: N/A

Judgment

Introduction

On 20 December 2010 the Plaintiff made an application to the Defendant for a superannuation allowance in terms of s 10 and s 10B(2) of the Police Regulation (Superannuation) 1906 Act, [1] such application relating to the Plaintiff’s duties as a police officer between 7 December 1984 and 3 November 1997.
1. Hereinafter the ‘1906 Act’.
Section 10(1A) of the 1906 Act makes provision for an annual superannuation allowance to be paid to a disabled member of the NSW Police in particular circumstances.
On 5 September 2017 the Defendant (through its delegate) decided that it:

“… is not satisfied that there is a sufficient basis to certify that [the Plaintiff] was, in terms of s 10B(2) of the Police Regulation (Superannuation) Act 1906, incapable of discharging the duties of his office at the time of his resignation on 3 November 1997 from the claimed infirmities of anxiety and depression and post-traumatic stress disorder.”

On 28 February 2018 the Plaintiff, being a person aggrieved by the Defendant’s decision of 5 September 2017, in terms of s 88 of the Superannuation Administration Act 1996 [2] filed an appeal in the Supreme Court of NSW.
2. Hereinafter the ‘1996 Act’.
On 10 April 2018 the NSW Court of Appeal handed down its decision in SAS Trustee Corporation v Rossetti. [3]
3. [2018] NSWCA 68.
On 24 May 2018, pursuant to an application brought by the Plaintiff (with the Defendant’s consent), the Supreme Court of NSW transferred the Plaintiff’s appeal to this Court.
On 3 September 2018 the Statement of Claim was filed in the Residual Jurisdiction of this Court.
Pursuant s 21(4) of the 1906 Act, the Plaintiff applies to have the Defendant’s decision set aside and replaced by decision made by this Court namely that in terms of s 10B(2) the Plaintiff, at the time of his resignation from the NSW Police on 3 November 1997, was incapable from an infirmity of mind of discharging the duties of the Plaintiff’s office at the time of the Plaintiff’s resignation; that infirmity of mind being either one or more of:

(Chronic) post-traumatic stress disorder;

Major depressive disorder (with or without melancholic features);

Major depression (with evidence of elements of chronic post-traumatic stress disorder);

Symptoms of anxiety and depression.

Section 10(1) of the 1906 Act defines as disabled member of the police force as:

(a) a member of the police force who is discharged after being certified, pursuant to section 10B (1), to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990, or
(b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B (2) at any time after the member’s resignation or retirement, was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member’s resignation or retirement,
that infirmity being determined, pursuant to section 10B (3) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be.

The Court is obliged to apply the version of s 10B of the 1906 Act that was in force at the date of the Plaintiff’s resignation. [4] That section reads as follows:

(2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless:
(a) the former member notified the Commissioner of Police before the member’s resignation or retirement and within 6 months of receiving the injury which has caused the member’s infirmity of body or mind, of that injury, and
(b) if the regulations so require, the notification was in the prescribed form, and
(c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member’s resignation or retirement.
4. SAS Trustee Corporation v Ainsworth [2011] NSWIR Comm 128.

For the purposes of sections 10 and 10B of the 1906 Act, having resigned his employment on 3 November 1997, the Plaintiff is a “former member of the police force”. Consequently, the Plaintiff’s entitlement to a certification as identified in the definition of “disabled member of the police force”, is to be determined pursuant s 10B(2) of the 1906 Act.
The parties accepted that an infirmity must have an enduring quality, although it may not be a permanent condition. [5] An infirmity of the mind can be a recognised psychiatric disorder, but it need not be. [6]
5. Re Boothroyd (1986) 1 QDR 167 at 174; Ford v State Authorities Superannuation Board (unreported, Industrial Court of NSW, Marks J, 14 October 1994 at p 13); Harding v SAS Trustee Corporation [2011] NSWIRComm 4 at [82]; SAS Trustee Corporation v Daykin (2002) 115 IR 172 at 181-2.
6. Ford v State Authorities Superannuation Board (unreported, Industrial Court of NSW, Marks J, 14 October 1994 at p 13).
It was not in issue that the word “incapable” is synonymous with the words “incapacitated for”. [7] Such incapability must exist at the time of the resignation, although incapability (as opposed to infirmity from which the incapability results) may be of short duration. [8]
7. Boland v SAS Trustee Corporation (1999) 97 IR 127 at 161.
8. SAS Trustee Corporation v Daykin (2002) 115 IR 172 at [23]-[24].
The Plaintiff’s case that at the time of his resignation on 3 November 1997 he was incapable (indeed, totally incapable) from an infirmity of mind of discharging the duties of his office and, as a consequence, is entitled to certification in terms of s 10B(2) of the 1906 Act.
On 13 May 2019 the Defendant was granted leave to file its Third Amended Defence.

EVIDENCE

The Plaintiff was born on 07 October 1963 and is presently 55 years of age.
He gave evidence of some familial psychiatric issues involving his mother and great grandmother and potentially his paternal great grandfather [9] There was however, no evidence of any symptoms in the Plaintiff prior to him joining NSW Police on 7 December 1984.
9. Exhibit B at [19]-[21].In his statement the Plaintiff said that he did not know the cause of his paternal grandfather’s death. Dr George however obtains a history of suicide (see Exhibit 2 p 24).
Upon joining he became a contributor to the Police Superannuation Fund. [10]
10. 1906 Act ss 3, 5.

Pre- Resignation

The Plaintiff’s evidence was that from at least 1989 he became increasingly aware that he was unwell, due to reacting to the distress and suffering of victims with whom he would deal. He stated that he would increasingly get angry and was suspicious of the motives of others. He described the job as busy with violent and traumatic events occurring and he continued to worry about victims. Driving past particular locations or seeing something on television would cause him to re-experience the criminal acts he had to deal with. He stated that whilst he tried to switch off, he was regularly experiencing nightmares of his own experiences dealing with trauma and distress. He stated that he would become distressed, wake up, and would not be able to get back to sleep. He would then feel tired and fatigued, and would ruminate about the circumstances of people with whom he had dealings. He increasingly perceived himself to be irritable and intolerant of others. He stated that most of the time he was feeling sad and depressed. [11]
11. Exhibit B at [82]-[84].
Up until late 1991, the Plaintiff had been working in parts of Sydney with high crime rates and was exposed to day to day trauma and violence associated with criminal activity, as well as experiencing several instances where his own life was in immediate danger or otherwise threatened. He stated that he felt a growing sense of injustice on behalf of victims and began to experience regular and volatile outbursts of anger towards others. He stated that he felt isolated and unable to explain himself to family and friends, and that he became increasingly anxious about performing his own duties whilst a police officer.
His wife Mrs Julie Scott gave evidence that at this time he was becoming withdraw, frightened and had nightmares and was restless sleeping at night. [12]
12. T 134.03-135.06.
In mid-1991, together with his wife the Plaintiff went to see Inspector Scott who was then the district personnel officer at Penrith. He said that he informed Inspector Scott that he was contemplating resigning unless he could be transferred to a quieter location. He said that he was told that he could not be transferred as he had only been in his present position for under 2 years. He was asked to seek the assistance of a psychiatrist. [13]
13. Exhibit B at [101].
Following the meeting with Inspector Scott, the Plaintiff gave evidence that he attended upon Dr Gabriel, who then referred him to a psychiatrist Dr Ahmed. He saw Dr Ahmed only on one occasion, as he was not happy with him. [14] Mrs Fox stated that she when with the Plaintiff when he went to the see the doctors although she didn’t go in to the consultation with Dr Ahmed. [15]
14. Exhibit B at [102].
15. T 135.13-.136.07.
Thereafter, the Plaintiff stated that he then went to see Dr Richardson, who referred him to a psychologist at Penrith. This psychologist he only saw on one occasion, and he does not remember his name. [16]
16. Exhibit B at [103].
The Plaintiff stated that following his discussions he had with Inspector Scott he formed the view that the only way to help himself was to win a position away from Mt Druitt and he accordingly applied and obtained a position as an investigator in the Building Industry Royal Commission and the subsequent taskforce that was formed. [17]
17. Exhibit B at [105].
In November 1991 the Plaintiff transferred to that Commission, stating that he felt some of the burden lifted from dealing with day to day criminal activities and trauma that he had been dealing with for the previous 8 years. [18] However, he was still obliged to attend court matters as they fell due and he stated that these matters required him to consider the detail of events which caused him anxiety and sadness. [19] Two matters to which he draws attention were murder trials in which he was required to give evidence in November 1991 and November 1992. He states that he had to relive the crime scene, which made him feel unwell, angry and sad. [20]
18. Exhibit B at [106]-[108].
19. Exhibit B at [109].
20. Exhibit B at [111].
During the Royal Commission Taskforce the Plaintiff was deployed to a picket line on 5 February 1993. Having been identified by reference to his position, he was the subject of threats of violence. He stated that he felt angry at himself and frightened of the men on the picket. [21] Mrs Fox gave evidence that she recalled the Plaintiff calling her from the picket line and when he came home she observed him to be quiet and told her that he was distressed whilst he was there. [22]
21. Exhibit B at [113].
22. T 136.33-137.05.
For about 6 months in 1991 the Plaintiff obtained permission to do investigation based part time work in relation to public liability claims. He discontinued this work as he found it hard to maintain due to his other commitments. [23]
23. Exhibit B at [117].
In January 1992 he commenced studying a Bachelor of Commerce degree at the University of Western Sydney by correspondence. [24] He stated that his motivation for enrolling in the course was to obtain promotion within NSW Police and potentially as a means of obtaining well-paying outside work. He stated that he found the study therapeutic as whilst he was doing it he was able to take his mind off police work. [25]
24. Exhibit B at [118].
25. Exhibit B at [118]-[119].
The Plaintiff stated that in undertaking this course he was informed by Dr Pusic that it would be good for him as it would therapeutic and a distraction from the Police. [26]
26. Exhibit B at [290].
Following the end of his contracted position with the task force, the Plaintiff was transferred to Katoomba Detectives. The Plaintiff’s evidence was that after arriving in Katoomba his emotional health declined. He attributes this to the fact that he undertook a majority of shifts without assistance and such shifts involved disturbing crimes and long hours of obtaining statements from traumatised people. [27] He stated that it caused him to become depressed and sad.
27. Exhibit B at [126]-[128].
Mrs Fox recalled that at around this time the Plaintiff had regular nightmares, was very angry, tearful and withdrawn. She stated that he mentioned things that he had witnessed at Katoomba and he didn’t appear to be coping very well. [28]
28. T 138.33-139.36.
By the end of 1995, the Plaintiff stated that he requested a transfer to deal with his declining emotional health. He also explained that he was required to investigate the death of a pregnant mother and this had a significant impact on him. [29] At the time, he was awaiting the expected arrival of his new-born daughter in January 1996 and became anxious about something catastrophic occurring to his wife and daughter. [30]
29. Exhibit B at [145].
30. Exhibit B at [146].
Upon his arrival at Penrith detectives on8 October 1995, the Plaintiff stated that he was suffering from a range of symptoms including anxiety, fear, anger and sadness. He stated that he continued to suffer ongoing problems with his sleep caused by nightmares. He felt lethargic and unenthusiastic. He further encountered personal difficulties with his new colleagues. [31] In particular, he encountered difficulties interacting with Detective Sergeant Jeans and submitted a report to his commander in relation to his interactions relating to equitable distribution of relieving duties. [32] The Plaintiff recounted that whilst he remained friends with his partner and other officers, he was subject to open hostility. [33]
31. Exhibit B at [149].
32. Exhibit B – Exhibit JR1 p 1-2.
33. Exhibit B at [160].
The Plaintiff stated that in May 1996 he was concerned for his family’s safety arising from two persons who were angry with him for pursuing inquiries in relation to a stolen vehicle. He consequently sawed the end of a shovel and placed it next to his bed to use it as a weapon if necessary. [34] He stated that he was on edge with anxiety, was concerned about a violent home invasion and would do anti-surveillance work at the completion of his shifts. [35]
34. Exhibit B at [164]-[166].
35. Exhibit B at [167].
Mrs Fox gave evidence recounting what had occurred at this time stating that the Plaintiff was upset and that when they went home the Plaintiff sawed an axe handle and put it in the in the wardrobe next to his bed. [36]
36. T 141.11-.15.
It appears that following this, a complaint against the Plaintiff was put in by the mother of the two persons he was pursuing, which was communicated to the Plaintiff by Superintendent Sheather. The Plaintiff was nonetheless required to carry out investigations in relation to those persons, who he regarded as having stalked his family and being responsible for a significant number of matters that he was required to investigate. [37] Eventually, in early 1997 he went to the home to the persons to arrest and charge them. Allegations were then made against him. [38] Following this, he was taken off all inquiries in relation to the women. [39]
37. Exhibit B at [173].
38. Exhibit B at [179]-[180].
39. Exhibit B at [182].
The Plaintiff indicated that after commencing work in October 1995 in Penrith he found that to maintain his case load he was commencing work early and leaving several hours late. He stated he felt vulnerable witnessing many police being criticised in the Royal Commission for inadequate investigations, particularly in relation to paedophile inquiries, which he had been undertaking in June of 1996. He stated that he was psychiatrically unwell. As a result of the accumulated pressure, he broke down at home over the course of 16-18 August 1996. He stated that he could barely sleep, would lie awake and worry and fret over the investigations that he was conducting and the potential ramifications and was anxious, frightened and depressed. Particularly, he had a sense of paranoia over the Royal Commission Paedophile Investigation, which overlapped with an inquiry that he had been making.
On 19 August 1996 the Plaintiff stated that he was due to return to work and by this stage his sleep had become chronic. He stated he couldn’t face going to work because of the level of fear and anxiety and he did not want anything more to do with the paedophile inquiry and the two woman stalkers. He thereafter consulted Dr Roberts.
Mrs Fox gave evidence that although she didn’t recollect the date it was she that suggested the Plaintiff going to see Dr Roberts. She observed that the Plaintiff was unwell having terrible nightmares, was angry, teary and withdrawn. [40]
40. T 139.45-140.04.
The Plaintiff saw his general practitioner Dr Roberts on 19 August 1996. The clinical notes indicate that he consulted him in relation to his psychiatric state and the Plaintiff informed him that he had previously seen Dr Ahmed and was suffering stress. The Plaintiff was given a certificate for one month off work and was referred to see a Dr Fisher, psychiatrist. [41]
41. Exhibit 4, p 53-7.
The Plaintiff says that at that time, he was informed by Dr Roberts that he should leave the Police force due to the impact of his work on him. [42] No such record appears in the clinical note although it does make reference to the Plaintiff’s 12 years as a police officer and 10 months as a detective. [43]
42. Exhibit B at [194].
43. Exhibit 5 p 356.
Be that as it may, the Plaintiff did not take one month off but rather three days off, during which he stated that he did not feel any better. He did not follow through on the referral with Dr Fisher, as in his own mind he only needed to change duties and he would be better. He returned to see Dr Roberts on 21 August 1996 and obtained an amended certificate which corrected an earlier error in relation to the commencement of his incapacity and provided that he could return to work on 22 August 1996. [44]
44. Exhibit 5 at p 357.

Following a return to work on 22 August 1996 the Plaintiff described how he was in poor emotional state of health and asked if he could be transferred to uniform duties. Superintendent Sheather agreed. [45] The same day he completed an application for leave of absence dated 22 August 1996. [46]
45. Exhibit B at [197].
46. Exhibit B; JRF1 at p 3.
On 03 September 1996 the Plaintiff formally submitted his transfer application to go to the beat unit at Penrith. [47] He stated that the transfer was discussed with and supported by Detective Sergeant Jeans. [48]
47. Exhibit B at [199].
48. Exhibit B at [199].
On 11 September 1996 the Plaintiff submitted a report to Superintendent Sheather requesting sick leave for the period of 19-21 August 1996 be recorded as “hurt on duty”, as:

The anxiety was a direct result of the nature and number of inquiries at work I was undertaking in the period prior to going off sick. [49]
49. Exhibit B; Exhibit JRF 1 at p 13; Exhibit C, p 1.

On 4 November 1996 the Plaintiff consulted Dr Roberts for the purposes of amending the medical certificate to record the correct dates of his incapacity in August 1996. [50]
50. Exhibit B at [204].
The Plaintiff described how his transfer to beat duties did not alter how he was feeling and he continued to have periods of depression, anger, anxiety and a sense of doom. He stated that he was regularly frightened and suffered intrusive thoughts related to his work and struggled to sleep a full night without regularly waking as a result of thoughts or nightmares. He stated that he continued to feel psychologically unwell, despite the fact that his colleagues in the beat unit at Penrith were good to work with. [51]
51. Exhibit B at [205]-[209].
In March 1997 the Plaintiff described that he attended a “shots fired” job at Londonderry and had a great amount of difficulty maintained composure. He was the Senior Officer at the scene until Detectives arrived and was required to stay at the scene for several hours to assist with the forensic examination. On returning to the Police station, he was advised that he would have to stay back to the completion of the next shift due to staff shortages arising from the incident. He stated that in his mind, this incident convinced him that he was not fit to continue work as a police officer. He struggled to continue to go to work and found it hard to concentrate as he had an overwhelming sense of anxiety and fear. [52]
52. Exhibit B at [210]-[214].
On the evening of 5 April 1997 the Plaintiff described struggling with nightmares that kept him awake and he could not cope with the violence or trauma any further. On 6 April 1997 he found that he could not go to work as a result of continuous feelings of anxiety, fear and depression. [53] Mrs Fox recalled an incident at Londonderry that prompted the Plaintiff to go and see Dr Roberts. She recalled the Plaintiff as unwell, having terrible nightmares, angry, sad, teary and withdrawn. [54]
53. Exhibit B at [216].
54. T 140.17.20.
On 7 April 1997, the Plaintiff consulted Dr Roberts. Dr Roberts certified the Plaintiff as unfit to work for a period until 6 July 1997. [55] Dr Roberts further wrote in this certificate:

This patient is suffering from significant anxiety associated with his work. I have suggested that he consider terminating his employment with the NSW Police Force. [56]
55. Exhibit B; Exhibit JRF 1 at p 4.
56. Exhibit B; Exhibit JRF 1 at p 5.

Dr Roberts clinical notes appear consistent with this although he also proposed the Plaintiff seeing the Police Medical Officer. [57]
57. Exhibit 5 p 239.
Following contact with the NSW Police Association in early April of 1997, the Plaintiff stated that he telephoned Sergeant Mark Basedow from the NSW Police Welfare Department. Sergeant Mark Basedow visited him on 11 April 1997, with the Plaintiff’s wife in attendance. The Plaintiff stated that he told him that Dr Roberts had advised him that he leave the police force. [58]
58. Exhibit B at [224].
On 14 April 1997 he consulted Dr Roberts again, who referred him to see Dr Augustus Pusic, psychiatrist. In the referral, Dr Roberts states:

He has a significant problem associated with his work and I have advised him to discontinue due to – periodically – on medical grounds. [59]
59. Exhibit B; Exhibit JRF 1 at p 7.

Around this time, the Plaintiff described how he had an appointment to see the Police Medical Officer which ultimately was a Dr Pearce on 15 May 1997. In preparation for the appointment, he made some hand written notes which he took with him to the consultation. [60] Those notes refer to a number of the symptoms and complaints which the Plaintiff encountered, including anxiety, sleeplessness, constipation, lack of concentration, fear of home invasion, suspicions of everybody, anger, headaches, irritability, and “can’t handle running into other police/crooks”.
60. Exhibit B at [226]; Exhibit JRF 1 at p 8.
On 1 May 1997 the Plaintiff saw Sergeant Basedow at his home and he stated that he signed a hurt on duty benefits document and an application for medical discharge. [61] The claim for hurt on duty benefits referred to the anxiety the Plaintiff encountered and in describing how this occurred, he stated:

The anxiety was a direct result of the nature and number of inquiries at work I was undertaking prior to going off sick. [62]
61. Exhibit B at [227]; Exhibit JRF 1 p 13-17.
62. Exhibit B; Exhibit JRF 1 at p 13.

Superintendent Sheather supported the hurt of duty claim on 20 May 1997, stating:

I am satisfied that the injury/illness was received in the matter reported. [63]
63. Exhibit B; Exhibit JRF 1 at 14.

In the application for medical discharge, the Plaintiff described:

Continuing anxiety (significant) state due to work related stress/trauma over a period of 8 years, in particular the last 12 months. See report by Dr Pusic pending.
Claim for hurt on duty – medical discharge lodged on 1 May 1997. [64]
64. Exhibit B; Exhibit JRF 1 at p 18.

On 5 May 1997 the Plaintiff was advised that it was not uncommon for processes in relation to an application for medical discharge to take in excess of 6 to 8 months for determination. [65]
65. Exhibit B; Exhibit JRF 1 at p 22.
The Plaintiff attended a consultation with the Police Medical Officer Dr Pearce on 15 May 1997. On that occasion, he took with him the hand written notes that he had prepared and had a discussion as to his circumstances with Dr Pearce. [66] That document outlined his symptoms. including:

Anxiety, sleeplessness, constipation, lack of concentration, fear of home invasion, suspicions of everybody, anger, headaches, irritability, can’t handle running into other police/crooks, job with Laver & Jones. [67]
66. Exhibit B at [231].
67. Exhibit B; Exhibit JRF1 p 11.

In the report prepared by Dr Pearce dated 15 May 1997, he stated under the heading of Brief History:

Senior Constable Fox has served for 12 years, found the exigencies of duties started to have an effect on him for the past 8 years. His coping mechanisms have broken down, though, I believe he will recover completely, given time and appropriate treatment. He is presently unfit for duty, but depending on treatment, I would expect Senior Constable Fox to reach alternative duty status perhaps in 3 months. [68]
68. Exhibit 2 at p 1.

Under the heading of Opinion, Dr Pearce stated:

Senior Constable Fox is a dedicated young officer who has not the capacity to serve as an operational police officer. A return to operational duty would almost certainly lead to relapse. [69]
69. Exhibit 2 at p 1.

Under the heading of Recommendation he states:

I do not believe medical discharge is an option as I believe that when recovered from his present illness, Senior Constable Fox will not have an ongoing disability.

In clinical notes, Dr Pearce’s records:

I pointed out, his obvious vulnerability to the experiences of the service + the anxiety to which he has progressively developed in attempting to cope. Broke down in tears at my suggestion that he really was too good a type of person to be doing this type of work – soft big hearted type – Julie agreed whole heartedly and we established good repore over 1.25 hrs approximately. He is obviously physically very well but mentally completely washed out due to a lack of sleep and worry. He has never thought of anything else except police work. I suggested that his claim for HOD will shortly be accommodated; I don’t think he stands a chance for medical discharge as he should recover over 3-6-12 months from the present anxiety state/traumatic stress disorder. [70]
70. Exhibit 6 at p 510.

On 11 June 1997 the Plaintiff received a letter from Superintendent Sheather, enclosing a copy of a letter dated 2 June 1997 from Ms Noble, Claims Co-ordinator Workers Compensation Section. The latter letter required the Plaintiff to forward a full manuscript report detailing the incidents he felt caused or aggravated his symptoms and the relationship that such instances have with his claimed condition. [71] The Plaintiff provided a detailed response on 1 July 1997. [72]
71. Exhibit B; Exhibit JRF1 p 23-4.
72. Exhibit B at [238]; Exhibit JRF1 at p 25-33.
During this time, the Plaintiff was completing his university degree and accepted that the Spring Term commenced in around July of 1997. [73]
73. T 43.31-.41.
The evidence was that on 3 July 1997 the Plaintiff went to see Dr Pusic, who provided him with a certificate which certified that he was suffering from, what was described as a diagnosis/provisional diagnosis as:

Depression (anxiety) related to work duties. [74]
74. Exhibit D p18.

The Plaintiff was certified unfit from 5 July 1997 to 5 October 1997. [75] The Plaintiff accepted that on 9 July 1997 he informed the police rehabilitation section of his certification. [76] On 3 September 1997 he spoke to an administrative officer at Penrith Police Station informing that he had been on sick report since 6 April 1997 and had exhausted his leave entitlements, including sick leave and other forms of leave available on 27 August 1997. [77] On 3 September 2017 he drafted an application for special sick leave to commence from 27 August 1997 which was forwarded to Penrith Police Station. [78]
75. Exhibit D p18.
76. T 44.4 and Exhibit C p13.
77. T 44.06-.26.
78. Exhibit B at [242]; Exhibit JRF1 at p 34. See also T 44.28-.33.
On 17 September 2017 the Plaintiff saw Dr Pusic again. He was then certified unfit until 31 December 1997. The certificate indicated that the Plaintiff was suffering from depression/anxiety and the cause of injury was identified cumulative stressors at work. The treatment recommended was psychotherapy and recommended retirement. [79]
79. Exhibit D, p 19.
On 9 October 1997 the Plaintiff received a letter from Mr Crellin, medical discharge coordinator of Workers Compensation Branch NSW Police Service. That letter indicated that the application for medical discharge had been forwarded to the Police Superannuation Advisory Committee for consideration, though it was noted that the Police Medical Officer expressed the opinion that he did not believe that he had been totally incapacitated to complete police duties. He was further advised that the service had advised that the committee did not support the discharge at this time. He was informed that if he was aware of other medical reports that he wanted considered by the committee, then he needed to ensure that a copy was available for their consideration. He was further advised that the committee may take some months to reach a determination on the application. It may also require him to submit to further independent medical examination. [80]
80. Exhibit B; Exhibit JRF1 p 5.
The Plaintiff states that on 16 October 1997 he contacted Ms Julie Carroll at NSW Police Association to raise concerns about the letter of 9 October 1997 and was advised by Ms Carroll “Don’t worry wait until something happens.”[81] On 17 October 1997 the Plaintiff received a phone call from Ms Player, the staff administration officer at Penrith Local Command, who informed him that his special leave application had been declined and he had been placed on extended leave from 20 October 1997 to 31 December 1997. [82] This was confirmed in a letter of the same date. [83] The Plaintiff stated that he understood that if he required further extended leave beyond 31 December 1997 he would have to reapply and that extended leave would only last until the first week of February of 1998, after which he would necessarily be on leave without pay. [84]
81. T 45.09-.19; Exhibit B at [246].
82. T 45.21-.35; Exhibit B at [247]-[248].
83. Exhibit B; Exhibit JRF1 p 36.
84. Exhibit B at [249].
The Plaintiff stated that at that time his financial position was precarious and he had no savings. His wife was not employed and his children were aged 4, 3, and 1 years. He stated that he understood that the application for medical discharge would take “some months” to determine and that NSW Police did not support the application. Accordingly, he anticipated that by the second week of February 1998 he would have no income. [85]
85. Exhibit B at [250].

Resignation

On discussion with his wife the Plaintiff determined that the only other source of income available to him was Centrelink benefits, and as he was employed by NSW Police, he would not be entitled to them. [86] In these circumstances he determined to resign and forwarded a letter to NSW Police on 21 October 1997. [87] His last day of service in these circumstances was 3 November 1997. [88]
86. Exhibit B at 251].
87. Exhibit B at [253]; Exhibit JRF1 at p 37.
88. Exhibit B at [254].
In his statement to Clare Bebbington dated 10 September 2009 the Plaintiff stated that he thought at the time that he thought he could not obtain sickness benefits whilst still employed. He subsequently found out that he could apply for sickness benefits and accordingly sought to withdraw his resignation during the notice period and proceed with his hurt of duty claim. He asserts that Superintendent Wilson told him this wasn’t an option. [89]
89. Exhibit B; JRF1 p 102 at [9].
Following his resignation on 4 November 1997 the Plaintiff began cold canvasing for work as a private investigator. [90] He contacted his accountant and sought advice as to the best way of pursing new work. This led to the incorporation of Fox Hunts Consultants Pty Ltd on 5 December 1997, of which the Plaintiff was the sole director, secretary and shareholder. [91] The work that the Plaintiff undertook was on a contract basis which allowed him to work at his own pace and hours. His first engagement in the new position was on 11 December 1997. [92]
90. T 47.29-.31; Exhibit B at [293]-[295].
91. Exhibit B at [233]-[296].
92. Exhibit B at [298].
The Plaintiff’s wife Mrs Julie Fox also gave evidence that her understanding was that her husband had been unwell and on and off work and his sick leave was coming to an end and both had discussed what they would do if that happened as she didn’t work. They decided that her husband would do investigation work. Although he was described as a strong person he was said to be not well and was still suffering nightmares. [93]
93. T 145.30-146.10.
The Plaintiff’s evidence was that following resignation he went to Centrelink and applied for sickness benefits. He stated that he received such benefits from November 1997 to March 1998. [94]
94. Exhibit B at [287].
The Plaintiff stated that at the end of 1997 he had qualifications to become a property valuer and other such associated employment. However, he elected not to pursue such a career as he did not wish to be directly employed due to the symptoms that he had. [95]
95. Exhibit B at [299].
In November of 1997, the Plaintiff also completed the final requirements for his Bachelor of Commerce degree. The Plaintiff acknowledges having worked on several subjects during the second half of 1997 and sitting 4 examinations. [96] As part of his final assessment, the Plaintiff was required to work on a major research project for which he did the bulk of the work in 1996 and 1997. He stated that such work and studying generally provided him with relief from ruminating the traumatic events which he was exposed to during his service with NSW Police. [97] The Plaintiff’s result in that were two distinctions two credits and a pass [98] Mrs Fox supported the Plaintiff’s account of him enjoying doing his university course. [99]
96. Exhibit B at [289].
97. Exhibit B at [291]-[291]. T 116.34-.36.
98. Exhibit B; Exhibit JRF1 p 40.
99. T 137.6-.23.
The Plaintiff saw Dr Roberts in relation to his psychiatric health on 25 November 1997. Dr Robert’s notes record that at that time, the Plaintiff was feeling well that he was out of the force and completing his university degree. [100]
100. Exhibit 5, p 364-5.
Dr Pusic had certified the Plaintiff as suffering from depression and anxiety related to work until 31 December 1997. [101] His clinical records dated 2 December 1997 report the Plaintiff as “settling”. He is then recorded as having issued a further certificate until 15 January 1998. [102]
101. Exhibit D, p 19.
102. Exhibit 4, p 206.
In his report of 17 March 2010, Dr Pusic records in relation to the Plaintiff’s resignation in 1997:

He did not feel adequately supported by senior management. I opined that Mr Fox’s symptoms of anxiety and depression were significantly contributed to by his employment as a policeman. I issued a necessary work cover certificate. Mr Fox told me that he was suffering from financial difficulties whilst the claim was being contested and he decided to simple resign from the Police service. [103]
103. Exhibit D p 22.

There is no evidence that at the time of his resignation the Plaintiff obtained medical advice. However in a report dated 12 July 2014, Dr Roberts stated:

In mid-1997 I was treating this patient for anxiety/depression. I believe that he was still suffering from the condition when he left the force in late 1997. [104]
104. Exhibit D p 11.

The Plaintiff’s evidence was that from November 1997 until late 1999 he continued to have significant and constant psychiatric symptoms, although the intensity of them varied and he remained anxious and sad.
On 1 December 1997, the Police has arranged for the Plaintiff to see psychiatrist Dr Dyball on 27 January 1998. That consultation did not proceed, however it can be accepted from the timing of that notification to the Plaintiff that the Defendant was not going to make a decision in relation to his application to be medically discharged until the receipt of that report. [105]
105. T 304.38-.48.
The Plaintiff withdrew his application for hurt on duty benefits on 15 December 1997. However, he asserted the right to submit a further hurt on duty claim at a later date if necessary. [106] The Plaintiff stated that at the time he was ill and it was all too hard for him to pursue the matter. He stated that Christmas 1997 was a very dark time and he contemplated suicide without taking active steps. [107] It is not apparent why it took such a lengthy time for the Plaintiff’s hurt on duty claim, which had been submitted in March, to be progressed by NSW Police. Be that as it may, in the notes of Dr Siegel [108] dated 17 February 2000 there is a recorded history that the Plaintiff’s wife Julie agreed not to pursue the claim against the Police. [109]
106. Exhibit B at [302]-[303]; JRF1 p 41.
107. Exhibit B at [303].
108. Being a psychiatrist that the Plaintiff subsequently came to consult.
109. Exhibit 1, p 4.

Work as an Investigator

Between 4 November 1997 and 6 May 2001 the Plaintiff undertook employment as an insurance investigator.
The Plaintiff in his statement described the work that he was performing as an being similar to clerical or other administrative positions. He stated it was significantly different to the work he performed as a Police Officer in that:

He was not subject to violence.

He did not have to attend on violent or horrific incidents.

He was not required to attend a workplace accident.

He was not exposed to the aftermath of trauma and did not have to deal with victims of trauma.

He did not have to deal with mutilated bodies or trauma associated with children.

He was not involved in domestic disputes, pub brawls or violent arrests.

He did not have to carry a firearm or other weapons

He was not subject to criminal sanction if he neglected his duty or refused to avail lawful order. [110]
110. Exhibit B at [309].

The Plaintiff indicated that in each of the financial years that followed his resignation, being that of 30 June 1999, 2000, and 2001, his taxable income was less than his earnings with the NSW Police and his family was only just getting by. [111]
111. Exhibit B at [310]-[315].
Mrs Fox gave evidence that she and the children travelled with the Plaintiff on his assignments including sometimes overnight She stated that she did this as she did not want the plaintiff to be alone and she thought that her presence would help. [112]
112. T 146.20-147.08.
During the time that the Plaintiff carried out the investigation work, he received several subpoenas to give evidence at trials. He stated that each time he did so, he had a worsening of symptoms and on 21 April 1998 obtained a medical certificate from Dr Roberts certifying that he was unfit to attend. [113] The Plaintiff acknowledged in evidence that this was done so that he did not have to go to court. [114] The Plaintiff stated that after June 1998 he contacted a former colleague at Penrith Police Station and advised him that he was too unwell to go to criminal trials. [115]
113. Exhibit D p 15.
114. T 110.21.
115. Exhibit B at [317].

Subsequent Health

From 25 November 1997 the Plaintiff had no consultation in relation to his psychiatric condition until 21 April 1998 when he saw Dr Roberts. The latter was for a one off consultation consequent to him receiving a subpoena to attend Court in connection with his police duties. Dr Roberts’ clinical notes record that the Plaintiff was unfit to attend on medical grounds. [116] Consequently the Plaintiff was certified him unfit for three months. [117]
116. T 110.17-.21 See clinical notes Exhibit 5 p 365.
117. Exhibit F p 15.
In early 1999 the Plaintiff stated that he had symptoms resulting in him seeing Dr Corbett at the Penrith Medical Centre, who referred him to a neurologist, Dr McManus. The Plaintiff saw Dr McManus on 15 June 1999 and was informed that from a neurological point, he was fine but it was suggested that he see a psychiatrist. [118]
118. Exhibit B at [320]-[322].
In late 1999, in light of continuing symptoms, the Plaintiff was persuaded by his wife to attend upon a doctor at the Emu Plains Medical Centre, who ultimately came to refer him to a psychiatrist, Dr Siegel. [119] The Plaintiff noted that at the time he saw Dr Siegel his symptoms remained significant and entrenched, and he was constantly sad, anxious, fearful and angry. He stated that he continued to have intrusive thoughts and ruminations about his police experiences which would cause him upset. His sleep was substantially disturbed and he experienced regularly nightmares about his previous employment, causing him to wake and be unable to get back to sleep. He stated that he would often lie awake and think about the jobs that he had been involved in and this would cause him anxiety and upset. He stated that when he was in the geographic locations of where he had worked in his years as a police officer his levels of anxiety would be raised. He stated that he was chronically tired and irritable, and he had no doubt he was incapable of performing the duties of a police officer at this time. [120]
119. Exhibit B at [326].
120. Exhibit B at [327]-[329].
The Plaintiff saw Dr Siegel a total of 12 times from 27 January 2000. [121] Dr Siegel’s clinical notes are in evidence as Exhibit 1. The Plaintiff accepted that he was prescribed doxepin on 20 March 2000 and although he was reluctant to take this medication, he commenced to take it. [122]
121. Exhibit B at [330].
122. Exhibit B at [331]; T 70.34-.40.

Re-joining NSW Police

By mid-2000 the Plaintiff stated that he explored the possibility of re-joining NSW Police as his symptoms were not that bad and he was concerned about a number of matters in his existing work as a private investigator. [123] The Plaintiff stated that he raised the option of re-joining the NSW Police with Dr Siegel, who advised him not to join. He recalled Dr Siegel saying to him, “a policeman’s life is not a happy one”. He stated that Dr Siegel also said to him, “you have already had one emotion breakdown due to work and you stand a high chance of suffering a second or more significant break down”. The Plaintiff also stated that he was aware his wife was against him re-joining. [124]
123. Exhibit B at [332]-[333].
124. Exhibit B at [337]-[339].
The Plaintiff stated that notwithstanding this, he convinced himself that the new NSW Police Force after the Wood Royal Commission Inquiry would be a better place to work, and he could use some psychological tools to assist him to overcome an unhealthy level of empathy that he might have towards victims. [125] He stated that he was uplifted by a conversation with Dr Siegel, where he told him “motivation can overcome and act as a resistance to further emotional breakdown”. [126] He was asked “Is it you, your wife or child that has suffered the trauma ?” When the Plaintiff responded “No’ Dr Siegel responded “who do you think you are absorbing their grief.” [127]
125. Exhibit B at [340].
126. Exhibit B at [342].
127. Exhibit B at [342]-[345]
Thereafter the Plaintiff stated that his thinking was the key to him returning to the Police Force and in June 2000 he did so. [128] At that point he requested Dr Siegel to provide a letter in support. He stated that Dr Siegel initially did not want to do so, but ultimately provided him with a letter dated 21 June 2000. [129] The letter of Dr Siegel read as follows:

I have seen Jeffrey Fox nine times since the 27/1/00. I have seen him mostly in the company of his wife Julie. He reported that he had been in the Police Force for 13 years with a good record. He had developed some depression and he resigned from the Police Force in November 1997. He has since then been self-employed working as an Insurance Investigator. He has successfully maintained his marriage and fathered three young children. He however reports that his anxiety and depression in 1997 had to do with stresses, working two jobs as a Police Officer and a full time correspondence student working towards a Bachelor of Commerce.
Since his resignation from the Force he has worked steadily and functioned well.
He entered therapy because of discomfort in his career. He was highly motivated in exploring the childhood antecedents of his later low self-esteem and lack of self-confidence. His mother suffered depression and was too self-preoccupied to validate her children and his father was a heavy drinker and was emotionally distant from the family.
As to treatment he has not required medication. There has been 9 sessions of psychotherapy. He has been highly motivated to understand himself and his early development. He is introspective and makes good use of psychotherapy. He has realised he is not happy as an Insurance Investigator and having resolved his childhood neurosis he is enthusiastic about re-entering the Police Force.
It is my considered professional judgement that Jeffrey has made a well thought through and considered decision and I would endorse his re-application to the Police Force.
128. Exhibit B at [345]-[346]; Exhibit JRF1, p 42.
129. Exhibit B at [348]; Exhibit JRF1, p 50.

The Plaintiff stated that in about August 2000 he suffered a deterioration in his symptoms and in particular his anxiety and depression symptoms. [130]
130. Exhibit B at [349].
On 30 August 2000, the Plaintiff went back to see Dr Siegel and informed him that he had changed his mind about returning to the Police Force and would instead try real-estate sales. Dr Siegel noted that Mrs Fox had supported the decision to try real estate. [131] . Ultimately the Plaintiff stated that this lasted for one week and he found out that he wasn’t suited to the task. [132]
131. Exhibit 1 p 8.
132. Exhibit B at [351].
At that point, the Plaintiff’s mind returned to joining the Police Force and on 12 September 2000 he was examined by Dr Tania Rogers as part of that process. Dr Rogers reported on 12 September 2000 as follows:

Jeffrey Fox was on sick leave from April to October 1997. He applied for HOD on the grounds of psychological injury in 1997 then withdrew his application after it was not supported by the Police Medical Officer and resigned in November 1997.
He now states that he has received further treatment and no longer blames the NSW Police Service for his psychological problems. He has been successfully working as a Private Investigator.
His condition does seem to be in remission, however I still have serious concerns about him re-joining the Police Service in the light of his previous history. He was consulting a psychiatrist as late as June this year which suggests that the condition was chronic to some extent. The psychiatric report also indicates a family history of depression. I think that his history suggests that he is may be at increased risk of psychological decompensation against should stressful incidents occur, as is likely in the course of operational police work. I also regard operational police work as considerably more stressful than the work of private investigator.
I have noted the report submitted from his psychiatrist, however the report does not make it clear whether the psychiatrist has considered the specific risks of work as a police officer.
Regrettably I cannot recommend Mr Fox as fit to be a Police Service rejoinee on the basis of the information submitted. [133]
133. Exhibit D, p 35.

On 18 September 2000 the Plaintiff received a letter from Senior Constable McKellar referring to the advice of Dr Rogers and the serious concerns she had about a return to duties. Senior Constable McKellar informed the Plaintiff that his application had failed to satisfy the guidelines established for the recruitment of rejoinees and the NSW Police was not able to offer him re-employment. [134]
134. Exhibit JRF1, p 52.
Subsequently, the Plaintiff telephoned Dr Rogers and asked her if she would be prepared to reconsider the application. She informed him that he would need to address the matters raised in the letter of Senior Constable McKellar. [135] Thereafter, the Plaintiff went to see Dr Siegel with a copy of the letter and discussed it on 10 October 2000. The Plaintiff conceded that he knew the purpose of another report would be to convince the Police Medical Officer to allow him to re-join the Police. The letter states:
135. Exhibit B at [356].

The PMO wrote “you were receiving treatment as recently as June this year.” The treatment re received consisted of psychoanalytically oriented psychotherapy which he had sought on his own volition. Such treatment might be thought of as a postgraduate university course in self-understanding making connections between childhood experiences and adult personality traits. It was not medically needed treatment for a disabling psychiatric disorder. The fact he elected to take this course should not be equated with his being disabled in any way.
The PMO wrote to Mr Fox, “you have a family history of depression”. This does not mean that he will inevitably develop a clinical disorder himself. It is not know which genes, whether dominant or recessive, are involved in depression nor is it known scientifically the percentage probability of offspring developing depressive symptoms. Mr Fox has never been disabled by depressive symptoms. Major Clinical Depression includes symptoms of insomnia, fatigue, anergia, lethargy, anhedonia, feelings of sadness and emptiness, and suicidal thoughts. In other words, he has never suffered from an inherited biological clinical depression.
The PMO wrote further that “police work is a more stressful type of work than that of a Private Investigator”. To the extent that this is a valid generalisation, it should be noted that Mr Fox served more than 12 years in high stress duties in the Police Force without having suffered either a clinical depression or post-traumatic stress disorder. He resigned from the Force not because he was disabled by depression but because at that time he was disillusioned and overworked by his heavy workload in both the police and university studies. This process of disillusionment was more a function of childhood trauma than of police work stress.
He voluntarily dropped his application for HOD which he had originally submitted. He dropped the HOD because he realised that pursuing the matter would be non-productive to his qualify of life.
The PMO wrote, “you may be at increased risk of psychological depression should stressful events occur, as is likely in the course of operational police duties.” It is true that police, armed forces, ambulance drivers, firemen, and train drivers are all subject to higher stress than other professions. On the other hand there is no valid evidence that Mr Fox is any more vulnerable to work-related depression than other police officers. He has never suffered from a clinical depression nor clinical PTSD. He resigned from the Police Force on his own volition.
The PMO wrote, “the report supplied by your treating professional does not make it clear whether he has considered the specific risks of work as a Police Officer.” I reply to this by stating that I am very well aware of the specific risks of Police Officers. I have worked intensively with at least eight Police Officers in the last five years. Many of them have been categorised as HOD. Some have been hospitalised at the PTSD Xavier Unit at St John of God hospital, Richmond and have required intensive treatment including residential treatment, medication and psychological treatment. I have completed an 80 hour course at St John of God Hospital, Richmond in the diagnosis and treatment of PTSD as it appears in aforementioned high-risk personnel. Some of the specific risks of Police Officers include threat to life and limb by offenders and to demoralising experiences at the hands of other police officers such as teasing, bullying and ostracism.
Mr Fox was subjected to threats to his life in his work as a Police Officer in high crime rate areas but he did not break down and develop symptoms of PTSD. Symptoms of PTSD include all depressive symptoms, anxiety, hypervigilance, irritability and aggressively, social withdrawal, increased startle response, avoidance of all triggers, nightmares and intrusive flashbacks.
It should be emphasised Mr Fox is a highly intelligent, humane and competent professional and has consistently been highly motivated to return to work in the Police Force. It is my considered professional judgement that he be reinstated in the Police Force. He does not require further treatment.
I note that in my report of 21 June 2000 I wrote “he however reports that his anxiety and depression in 1997 had to do with stressors working two jobs as a Police Officer and a full-time correspondence course working toward a Bachelor of Commerce.” His use of the word anxiety and depression were his own words and in my opinion he might have been in a state of disillusionment and overwork but not Clinical Depression.

The Plaintiff stated that he was surprised by the contents of the letter as it did not accurately portray his state as he perceived in October 2000 and did not accurately state the symptoms that he had relayed. [136] Nevertheless he achieved the object that he was seeking in that on 27 December 2000 he received a letter from NSW Police inviting him to commence as a rejoinee on 2 March 2001. [137] The Plaintiff states that thereafter he was very anxious and frightened about his decision to re-join. [138] He then decided not to re-join, and on 12 January 2001 sent a facsimile to the recruitment branch of NSW Police advising them that due to personal reasons he could not accept the offer. He described the personal reasons in evidence as his ongoing psychiatric symptoms and his consequent fear and anxiety about re-joining the Police. [139]
136. Exhibit B at [359]-[360].
137. Exhibit B at [361]; Exhibit JRF1, p 53.
138. Exhibit B at [363].
139. Exhibit B at [365].
The Plaintiff stated that he continued to do private investigation work but by March 2001 was feeling better and decided to reignite his application. Around 9 March 2001 he rang NSW Police and spoke to an Inspector at the Recruitment Branch. As a result, he wrote to Joselyn Petron in the education section of NSW Police, advising her that his circumstances had changed and he wished to re-activate his application. [140]
140. Exhibit B at [368]; Exhibit JRF1, p 55.
On 13 March 2001 the Plaintiff received a letter from NSW Police Force inviting him to recommence employment. [141] Ultimately the Plaintiff was re-attested into the NSW Police Force on 7 May 2001. He remained an officer from that time until 5 August 2010. The Plaintiff progressed from the position of Senior Constable in May 2001 to leading Senior Constable in October 2001, Sergeant in February 2004 and Inspector in April 2007. [142]
141. Exhibit B at [369]; Exhibit JRF1, p 56.
142. Exhibit B at [373].
On 7 May 2001 he commenced as a uniformed officer Senior Constable at Mount Druitt Police Station performing general duties. He stated that he used the strategy given to him by Dr Siegel every time he had a difficult job. He stated that he was happy mentoring junior officers and having financial security. [143]
143. Exhibit B at [374]-376].
In late 2001 the Plaintiff was required to investigate the death of an infant child. Following that investigation he stated that he started having difficulties sleeping. In particular he found himself ruminating about jobs as a police officer. Consequently he stated that he began drinking alcohol. This developed into what he described as on feelings of guilt. [144]
144. Exhibit B at [377]-382].
The Plaintiff described spending just over 2 ½ years at Mt Druitt. 26 months was as an Acting Sergeants pent inside the police station doing either station supervisor or custody manager’s duties. [145]
145. Exhibit B at [386].
Between 2002 to 2004 the Plaintiff said that he sought assistance from NSW Police Employment Assistance Program. This came about because he was concerned about his response to several jobs to which he had gone. He was referred to a psychologist and to his surprise that was the former Welfare Branch Sgt Mark Basedow who was in private practice at that point. He stated that he had difficulties trusting him and therefore did not return after the first session. He decided to push through any psychological difficulties he was experiencing. The psychological symptoms he described as being similar in nature to those that he experienced during first period 1997. He described them as sometime more florid and sometimes less so. [146]
146. Exhibit B at [387]-[389].
In February 2004 the Plaintiff was promoted to the rank of Sergeant in the general duties position at St Marys. After four weeks he was given the job of overseeing a “proactive team.” During this period about 80% of his working week was spent inside the police station undertaking administrative tasks.
In January 2005 he was given a leadership role in the Detective’s office which he did until November 2005. This limited his exposure to the public as he was performing office based work about 95% of the time. The Plaintiff described both jobs as difficult in that he was seeking to bring performance of various police officers up to an acceptable standard. [147]
147. Exhibit B at [395]-[396].

In November 2005 the Plaintiff took up the position of the Relieving Detective Inspector and Crime Manager at St Marys. He said that he did this for 6 months and following this was relieved as a Duty officer for 12 months. Both these jobs he described as office based and his exposure to traumatic incidents was limited. Notwithstanding this he described having reason to contact the Employee Assistance Programme to speck with a counsellor as a result of a period of depression and feelings of hopelessness. [148]
148. Exhibit B at [400]-[402].
In May 2007 he was promoted to the position of Inspector and transferred to Parramatta Police station as a duty officer. In this role he spent about 80% of his time inside the police station although he was required to police licensed premises and support subordinate staff instance of violence in public or situations in various premises. He found that he had to interact with members of outlaw motorcycle groups and having to attend brawls. [149]
149. Exhibit B at [403]-[404].
In October 2007 he attended an incident where a 17 year old boy had thrown himself off the third storey of Parramatta Westfield Shopping Centre. He attended the scene and had to speak to the mother and the 11 year old sister of the deceased. After this episode he found himself panicking at times (particularly at night) where he became concerned that one of his children could potentially take their life. He contacted the Employee Assistance Line and had a debriefing session with the counsellor. He thereafter was concerned about his drinking and ceased to do so until November 2012. [150]
150. Exhibit B at [405]-[410].
The Plaintiff had a verbal altercation with a Sergeant Ormes in July 2009 when he found that a can of soft drink that he had purchased had been taken without his consent. That led the Plaintiff to have to complete a report when Sergeant Ormes made a workers’ compensation claim. [151] He stated that he could not believe how he was being blamed for Sergeant Ormes’ situation and his distress levels began to escalate. [152] The Plaintiff’s circumstances were such that in September 2009 he suffered a breakdown and did not return to Police work. He saw Dr Sean Tan on 2 September 2009 who noted:

….symptoms of depression. He described feeling depresses and tired, lacked motivation to do anything and was having problems sleeping including having nightmares and flashbacks of old work cases. At this time he was working full time at NSW Police as an Inspector. He stated that he had been suffering from depression for the past 5 weeks and had just been putting up with it. He stated that his mood had worsened due to recent traumatic work cases and also a conflict with a work colleague. [153]
151. Exhibit B; JRF 1 at pp108-111.
152. Exhibit B; JRF 1 p 106 at [21].
153. Exhibit D at p 246.

Dr Tan’s clinical notes expand on this recording;

“Past 5 weeks depressed recent conflict with colleague and getting nightmares about a previous incident (stalked by criminals paedophile cases). In police force 1984-1997 an incident in the police force saw psychiatrist and meds. Got better returned to police force in 2001 on and off depression. Now past month stress at work Not sleeping well been working, putting up with it” “recently called to a shooting at Londonderry man and wife shot.” [154]
154. As far as can be made out.

As to the cause of the Plaintiff’s condition Dr Tan opined:

In my opinion, Mr Fox is suffering from depression due to work related post-traumatic stress. He has been employed with NSW police force for 20 years and handled multiple disturbing cases and traumatic events. He continues to suffer with nightmares and flashbacks of previous events. In my opinion, his employment has been a major contribution factor. I do not believe that he has any significant pre-existing or personality factors that have predisposed or caused his depression. In my opinion, his recent dispute with co-worker Sergeant Ormes did exacerbate his level of stress, but is not a cause. [155]
155. Exhibit D p 47.

On 18 September 2009 the Plaintiff completed a statement for Ms Clare Bebbington psychologist who was acting on behalf of Allianz Australia. [156] He did so in circumstances where he was invited to make changes to the draft that had been prepared following what the Plaintiff described as a three and a half hour meeting. The document that he prepared covered his psychological injury including that leading to his resignation in 1997.
156. Exhibit B; JRF1 at pp 99-107.
There is no report of Ms Bebbington in evidence however Dr Diamond commented in his report that the report he saw dated 7 October 2009 was deficient in eliciting any history in relation to the Plaintiff’s pre 1997 work related injury and psychiatric diagnosis. It notes that in the report was material form Mr Fox that described his pre 1997 workplace trauma but it seems to be ignored. [157]
157. Exhibit D, p 96.
Thereafter the Plaintiff was referred to psychologist Anne Jameson who he saw on 24 September 2009. [158] On the same day Ms Jameson recorded:

“Mr Fox reported that he had been previously employed by the Police Department from 1984 until his resignation in 19997. He noted that he had resigned as a result of experiencing anxiety and depression and post- traumatic stress symptoms at that time in relation to a number of workplace stressors as well as a range of critical incidents he experienced at that time. He stated that at that time (1997) he had been under the care of a psychiatrist (Dr Gus Pusic). Mr Fox also noted that he had been submitted a workers compensation; which was declined. His described the claims process at the time as having been extremely stressful. [159]
158. Exhibit D, pp 37-45.
159. Exhibit D, p 38.

Ms Jameson further recorded that when the Plaintiff resumed working with the Police he was highly motivated and had looked forward to it. She records that he described experiencing some difficulties in the first three years particularly after attending the homicide of an infant child. She recorded that he described becoming depressed following this incident but not wanting to admit he had a problem. Ms Jameson then added that the Plaintiff believed that an incident in July 2009 (accusations made against him by a subordinate colleague) marked the commencement of the rapid deterioration of his psychological symptoms. Ms Jameson noted that the Plaintiff believed his reputation had been discredited leading to him becoming helpless and powerless. He noted that his problems with his supervisor and described his career as threatened. [160]
160. Exhibit D, p 27.
Subsequently Ms Jameson was asked to respond to comments made by Ms Bebbington disputing that the Plaintiff’s symptoms meet the criteria for PTSD. In that context Ms Jameson concluded in a subsequent report dated 26 February 2010:

In my opinion as his treating psychologist his symptoms are clearly related to an accumulation of stressors (notably critical incidents) in the workplace Since 2001 that led him to be unable to any longer function effectively in the workplace. [161]
161. Exhibit D p 44.

The Plaintiff thereafter consulted Dr Pusic on 23 October 2009 and continued to see him until the present time. His evidence is further considered below.
On 25 March 2010 the Plaintiff came to be examined by Dr Graham George psychiatrist at the request of NSW Police. Dr George reported on 29 March 2010. [162] He found that the Plaintiff had major depression associated with elements of post-traumatic stress disorder. He recorded that There are numerous triggers in the environment which could affect him and he been treated for depressive disorder in the past and he may be subject to recurrent major depression. He stated that triggers in the environment could cause a relapse. [163]
162. Exhibit 2 p 20.
163. Exhibit 2 p 26.
On 05 August 2010 the Plaintiff was medically discharged from NSW Police as a result of what the Plaintiff stated was a diagnosis of post-traumatic stress disorder. [164] The Plaintiff stated that he was not able to work again until October 2012, when he obtained a role as a technical writer with “Lion”, a food and beverage company, which he continued on a contract basis until October 2013. In October 2014 he commenced work with NSW Fair Trading as an internal investigator. [165]
164. Exhibit B at [411]-[412].
165. Exhibit B at [413]-[415].

Plaintiff’s Medico Legal Reports

Michael Diamond, a consultant psychiatrist, was requested to report on the Plaintiff and to review to documents relevant to his previous treatment and assessment. [166] He saw the Plaintiff on two occasions, on 28 August 2015 for 2.5 hours and on 6 October 2015 for 1 hour and 25 minutes. In the course of preparing his report, Dr Diamond obtained a detailed history from the Plaintiff, including his personal family history, medical history, education history and work history. In referring to the report of Dr Siegel dated 21 June 2000, Dr Diamond opined:

The correspondence is in my opinion an attempt at being helpful to Mr Fox in his application to re-join the NSW Police Force.
When reading the clinical notes of Dr Siegel, enclosed with the statement of Mr Fox with annexures, the diagnosis with symptoms described is consistent with major depression, including anxiety with symptoms such as claustrophobia and depressive symptoms such as sadness and anhedonia, low energy and tearfulness. Triggers are identified as relating to confrontations at work, reactions to work related stressors and trauma are noted in the clinical notes. The description of Mr Fox’s psychiatric symptoms is not in keeping with the enthusiastic advocacy of Dr Siegel’s correspondence, aimed to support Mr Fox’s later decision to apply to the re-join the NSW Police Force. [167]
166. Exhibit D p 78.
167. This use of this evidence was limited under section 136 of the Evidence Act 1995 (NSW) to evidence of the fact of Dr Diamond’s interpretation.

When asked specifically as to what medical conditions Mr Fox had on his last day of service on 3 November 1997, Dr Diamond stated:

In my opinion, the available information derived from my interview and assessment of Mr Fox, the information and opinion provided by other psychiatrists who treated Mr Fox (Dr Pusic) and who assessed Mr Fox (Dr Anderson), the diagnosis relevant to Mr Fox on his last day of service on 3 November 1997 is chronic post-traumatic stress disorder with co-morbid and complicating major depressive disorder with melancholic features. The diagnoses are made in accordance with DSM4-TR diagnostic criteria. [168]
168. Exhibit D, p 103.

In response to the question of whether Mr Fox was incapable of a person exercising the functions of a police officer on his last day of service with the police force, Dr Diamond stated that on his last day of service Mr Fox was severely unwell and had been off work for many months earlier and was in receipt of a number of medical certificates from his GP and psychiatrist clearly stating that he was psychiatrically unwell to the point that his treating psychiatrist did not believe that he could work again in any capacity as a police officer.
In respect to his capacity to perform the work, Dr Diamond stated:

Regardless of the diagnostic formulation at the time, the severity of the illness clearly precluded Mr Fox from exercising the functions of a police officer on the last day of service with the Police Force. With reference to the actual requirements for adequate functioning of a police officer, Mr Fox was incapable of engaging in the effective day to day contact with the public. He was irritable, aggressive and angry. He was affected by depressive illness to the point of lacking stamina, composure and drive. His ability to exhibit patience, engage in appropriate conflict resolution and make appropriate decisions were all impaired. As a result of his depressed mood state and his hyperarousal state and propensity to avoid conflict issues, he demonstrated impaired empathy, impaired intolerance and an inability to assert himself appropriately. He was not functioning well within his work environment and was in conflict with his superior officer. All of these difficulties worsened towards the end of his period of service culminating in the ending of his employment as a police officer on 3 November 1997.
Mr Fox was probably capable of conducting simple inquiries as a police officer at that stage although his stamina and drive were impaired at that time. His ability to render a variety of emergency assistance was affected by his lack of interest, his disengagement from work and his depressed mood.
His ability to demonstrate a capacity to exercise discretion and judgment in the exercise of police powers, to observe and memorise effectively and to operate effectively in stressful, physically demanding and rapidly changing situations, were all impaired. He was struggling in the course of his investigation duties. He was preoccupied with thoughts of being set up and was worried about making errors. His judgment was impaired and his ability to tolerate stress was diminished. [169]
169. Exhibit D, p 104-5.

When asked if he agreed whether Mr Fox was incapable of exercising the functions of a police officer on 3 November 1997 for the “foreseeable future”, Dr Diamond stated:

The question of recovery and the question of Mr Fix’s state of being incapable of personally exercising the functions of a police officer at that time depended on the appreciation of the underlying and disabling chronic illness of Chronic Post-Traumatic Stress Disorder that was present but not sufficiently identified at that time.
…
The important feature is that the diagnosis of Chronic Post-Traumatic Stress Disorder is a disabling illness where an individual who is impaired by that illness is likely to manifest that illness in the long term.
I note that Mr Fox made a concerted effort to return to the workplace. He was assisted by occupying positions as a police officer from 2001 onwards whereby he was largely protected from repeated exposure to traumatic events. I note that when he was not protected however and when he was exposed to further traumatic events, he deteriorated significantly to the point where he developed further exacerbation of the existing Post-Traumatic Stress Disorder. I note that when he presented with those symptoms of illness in 2009, there was no difficulty in making the diagnosis at that time. The key elements to making the PTSD diagnosis is related to exposure to traumatic incidents in the workplace that occurred cumulatively before 1997 and clearly not as a result of the minor triggering event emanating from the theft of a can of soft drink.
It is significant to appreciate the way that Post Traumatic Stress Disorder [170] was viewed in 1997 was quite different from the way it was viewed in 2009.
In 1997 there was still considerable contention about the diagnosis of Post-Traumatic Stress Disorder as an entity and particularly when made in relation to the effects of cumulative trauma rather than as a specific response to an identified incident of trauma of great severity.
Many injured police officers who presented with obvious Post-Traumatic Stress Disorder in the late 1990s were diagnosed as having depression and anxiety of various forms. The diagnoses were sufficient at the time to meet the requirements for a psychiatric diagnosis related to workplace trauma. A diagnosis of Post-Traumatic Stress Disorder was often avoided in this way. Looking at the evolution of this concept since that time, it is obvious, in my mind, that many police officers were not properly diagnosed with Post-Traumatic Stress Disorder when they presented and it was only later that their diagnoses were properly recognised.
In my opinion Mr Fox clearly falls within this group. I am persuaded by the extensive history of significant trauma that he was exposed in the course of his police career before he resigned on 3 November 1997 and am further persuaded by the descriptions he gives of his reactions to the exposure to that trauma and the experience of obvious symptoms of Chronic Post-Traumatic Stress Disorder before he was properly diagnosed. In addition the superadded effects of coexisting Major Depressive Disorder that so often occurs in conjunction with Post-Traumatic Stress Disorder is frequently the presenting illness that causes individuals with Chronic Post-Traumatic Stress Disorder to become overwhelmed and to present for assistance and treatment. In my opinion this is what occurred with Mr Fox and so the depression and anxiety features of his illness were recognised without properly taking into account the underlying and more pervasive effects of the Chronic Post-Traumatic Stress Disorder that underlay his psychiatric illness. [171]
170. Hereinafter PTSD.
171. Exhibit D, p 105-7.

In a separate report of 1 April 2019, Dr Diamond drew attention to his expertise of treatment of individuals with a wide range of psychiatric disorders and conditions and his experience of treating injured police officers who suffer from psychiatric illnesses. [172] Dr Diamond confirmed that psychiatric diagnoses were consistent with the concept of an infirmity of mind and therefore represent an infirmity of the mind. [173] He confirmed that the history he elicited from Mr Fox was clearly one of a long term disabling illness with the primary diagnosis being that of PTSD in a chronic form:

Chronic post-traumatic stress disorder is a long term persistent psychiatric illness that does not reach a point of being cured. It is an illness that renders the sufferer susceptible to residual disabling symptoms in a best case scenario and susceptible to recurrences of acute exacerbations of acute post-traumatic stress disorder in response to further trauma exposure, triggering events of one sort or another and also susceptibility to re-experiencing psychological vulnerabilities in an excessive form as they occur subsequently. One cannot see post-traumatic stress disorder as an undercurrent condition that is likely to resolve once it has become established and entrenched over many years, as occurred in the case of Mr Fox prior to his resignation on 3 November 1997.
In addition Mr Fox developed associated comorbid major depressive illness that was associated with his underlying persistent chronic post-traumatic stress disorder. Major depressive disorder such as this is also a recurrent condition in that individuals who suffer this infirmity/psychiatric illness are susceptible to recurrences of the condition over time.
On this basis, my view is that the diagnoses that were present in November 1997 together with the associated symptom complexities are psychiatric illnesses/infirmities which were and remain likely to be enduring and to persist for the foreseeable future, as I identified when I saw Mr Fox in 2015. [174]
172. Exhibit D, p 111.
173. Exhibit D, p 111.
174. Exhibit D, p 112.

When asked about Mr Fox’s state of vulnerability, Dr Diamond opined:

At its heart, the pathology underlying chronic post-traumatic stress disorder is the result of a shift in the baseline level of arousal that occurs with individuals who have repeatedly been exposed to overwhelming traumatic experiences that have caused the illness that has not remitted. The heightened state of arousal is associated with persistent subjective feelings of vulnerability, fear of external events, environments and circumstances, and a need for hypervigilance, self-protection and ultimately the emergence of avoidant patterns of behaviour in an attempt to achieve some degree of protection
The condition is further entrenched because of the persistence of recall, intrusive memories, disturbed sleep and nightmares and other persistent propensity to re-experience the actual trauma or to be triggered by external events that cause the sufferer to be reminded of, and to re-experience, the subject traumas.

No, not really. I mean, no, not at all. This man, even though he was settling, he still had sufficient symptoms for me to certify him totally unfit for work and that certificate extended till mid-January and then I lost contact. I cannot say what happened to him after that but - so although there was a diminution, although he was settling, there was still significant symptomatology that this man could not return to work. [244]
244. T 204.37-.42.

He acknowledged that the reference to the medical certificate of 15 January 1998 did not say “unfit” and noted that such certificates refer to persons being totally or partially unfit. [245] However, he stated that in the event that he certified the Plaintiff fit for part time work, he would have recorded it in his notes. [246] He said that according to his notes, the medical certificate was given without any qualifications. [247] He conceded however that he did not recall in 2019 writing the certificate. [248] He stated that 2 December 1997 was a short consultation and was simply an extension of the certificate that had expired. [249] He accepted that the nature of the certificate that he issued on 2 December 1997 being for total incapacity was an assumption based on what he had read. [250] He acknowledged that thereafter he did not see the Plaintiff again until October 1999. He stated that between this time he did not have a clue whether the Plaintiff was ever fit to return to work as a police officer. [251]
245. T 205.25-.37.
246. T 205.39-.42.
247. T 206.03-.04.
248. T 206.35-.37.
249. T 206.50-207.02.
250. T 207.36-.39.
251. T 209.23-.32.
Dr Pusic was then taken to his report of 27 February 2012, where he stated:

In regards to Mr Fox’s illness back in 1997, it should be noted that even if his depressive episode were to resolve with or without treatment, he nevertheless would have continued to be unfit to work as a policeman as the acute stressors of being a policeman would more likely than note have exacerbated his PTSD and depressed state. [252]
252. Exhibit D, p 30.

Whilst Dr Pusic accepted that the Plaintiff relapsed between 2001 and 2009, he rejected the suggestion that this was due to the acute stressors in the course of his duty as a police officer between that time, stating that he had already had PTSD in 1997. [253]
253. T 212.20-.24.
Dr Pusic stated in the report he was not describing a depressive episode, as a person with PTSD can also have episodes of major depression, episodes of panic disorder, or excessive compulsive disorder and so on. [254] Dr Pusic rejected the suggestion that as at his consultation on 2 December 1997, the Plaintiff was capable of carrying out full operational duties as a police officer. [255] Nor was he able to comment on his capacity to work as a police officer prior to him seeing him in 2008. [256]
254. T 212.35-.41.
255. T 214.20-.31.
256. T 214.33-215.10.
Dr Pusic indicated that at the time that he saw the Plaintiff in 1997, if he could have given him a 12 month certificate, he would have given it. He stated that while he only gave a 3 month certificate and then another for 6 weeks, he believed that the Plaintiff remained totally unfit throughout that period of time and his expectation was that he was totally and permanently unfit to return to work as a police. [257] He stated that in providing a certificate for 6 weeks, he couldn’t really say why it was for a shorter period and perhaps it was because he was going on holidays. [258]
257. T 215.36-.47.
258. T 216.01-.03.
In re-examination, Dr Pusic was asked whether, looking at his clinical notes in 1997, there were any written signs or symptoms or complaints made and recorded that would have justified the diagnosis of PTSD. Dr Pusic responded:

I don't want to bore you and go through every line that I've written. He makes mention of the fear of - of being implicated in the Royal Commission and again, these are sort of extraordinary symptoms. More than symptoms of depression, generalized anxiety. It's almost like a paranoia; a preoccupation with the trauma that he has experienced as a police officer. So that certainly again would lead you to diagnosis of PTSD.
I mean, I say paranoia in the soft sense of the word. I'm sure Mr Fox is not paranoid but - but he was preoccupied; he was - you know - concerned; frightened; alarmed. He makes mention of the - the hypervigilance. He attributes innocent events in his - well, he is exposed to trauma and
immediately he recalls incidents in his life. You know - he's afraid his children might be badly affected - you know - in the way the child, I think that was trapped in the car or whatever happened or - you know - or sexually abused. So again, these are - these are not logical symptoms. These are not symptoms of major depressive disorder. These are symptoms of post-traumatic stress disorder.
Of course, you can be depressed. He can be deeply depressed, and people with post-traumatic stress disorder do commit suicide. They commit suicide because they're acutely depressed. They can't - you don't get any more depressed than that. So you can have all the - all the symptoms; all the - the syndromal depressive illness, but the diagnosis is still post-traumatic stress disorder, because that's what you're trying to take - and you treat it in a different way. You treat PTSD in a - in a different way to the way you would treat a major depressive disorder.
If I thought that Mr - if I could elaborate - if I thought that Mr Fox purely had a major depressive disorder and he was deluded that - you know - he was threatened or he was deluded that there was some mention of him in the Royal Commission of whatever, he should have ECT, electroconvulsive treatment. I mean, that's a treatment for psychotic depression. But that's not what was happening with Mr Fox. Mr Fox was traumatised and his anxiety and depression and so on was the result of the trauma that he experienced from being a policeman - and that's post-traumatic stress disorder. [259]
259. T 222.40-223.24.

During the course of submissions the Defendant advanced that the analysis made by Dr Pusic in 2010 could not be ascribed to the circumstances that existed in 1997. It was argued that when Dr Pusic had the opportunity to identify the diagnosis in 1997 the words he used were “depression (anxiety) related to work duties” and “depression/anxiety.” [260]
260. Exhibit D pp18 and 19.
The Defendant conceded that the certificates completed by Dr Pusic were to serve a different purpose not applicable the proceedings before this Court. [261] It accepted that if the question was asked as to whether the symptoms noted by Dr Pusic in 1997 would have supported a diagnosis of post-traumatic stress disorder in 1997 Dr Pusic’s answer in 1997 would probably be that the Plaintiff had post-traumatic stress disorder which was notified to the Commissioner. [262]
261. T 246.20-.37.
262. T 247.18-.20.
This view accords with Dr Diamond who stated that in 1997 there was still considerable contention about the diagnosis of PTSD and that in the late 1990’s many injured police officers who presented with obvious PTSD were diagnosed as having depression and anxiety of various forms. He observed that the Plaintiff fell in this group.
It also accords with the view expressed by Dr Anderson. Although he referred to an “evolving posttraumatic stress disorder” he did so by reference to the time the Plaintiff went off duty in 1997. [263] That was on 6 April 1997. As at 3 November 1997 Dr Anderson referred to it as “Post-Traumatic Stress Disorder.” [264]
263. Exhibit D p 64.
264. Exhibit D p 65.
Dr Siegel in his report of 18 October 2000 opined that Mr Fox did not develop symptoms of PTSD in 1997 and reiterated that the Plaintiff reported that his anxiety and depression in 1997 had to do with working two jobs as a police officer and a full time correspondence course working towards a Bachelor of Commerce.
Dr Siegel referred to the Plaintiff’s use of the word anxiety and depression, and stated that in his opinion he might have been in a state of disillusionment and overworked, but was not in a state of clinical depression. He recorded that the process of disillusionment was more a function of childhood traumata and not police work stress.
Whilst the report of Dr Siegel on 18 October 2000 is relied upon by the Defendant as evidence of the Plaintiff’s circumstances in 1997 in preference to the Plaintiff’s evidence, I do not accept this. The Plaintiff’s evidence accords with contemporaneous evidence recorded by Dr Pusic, Dr Roberts and to an extent, Dr Pearce. Dr Siegel did not have the contemporaneous clinical details of the Plaintiff’s previous medical interactions and his report was written in a different context. The Defendant conceded that the only reference to Dr Pusic in Dr Segal’s clinical notes was on page 1 of Exhibit 1. For reasons earlier given I do not accept the account given by Dr Siegel that the Plaintiff’s resignation was in fact because he was working two jobs as a police officer and working full time towards his Bachelor of Commerce degree. Nor can I accept Dr Siegel’s conclusions that the Plaintiff did not break down and develop symptoms of PTSD in light of the other evidence to the contrary.
Dr Dunn stated that he suspected the opinion of Dr Anderson was the most accurate but in his view there was no diagnosis of either PTSD or major depression with melancholic features before his resignation in November 1997.
Associate Professor Glozier opined that the Plaintiff had a depressive disorder of moderate severity in 1997 and diagnosed a recurrent Major Depressive Disorder as at the time of writing his report on 18 May 2011. In forming this view he stated that the Plaintiff was not hypervigilant or hyper aroused but had some safety concerns which have been around for two decades.
Subsequently to being informed that Dr Pusic had diagnosed the Plaintiff with PTSD “retrospectively”, Associate Professor Glozier stated that this was, if anything, an evolving PTSD, and that the symptomatic picture at the time was of a Major Depressive Disorder, or as Dr Pusic identified depression/anxiety”. [265]
265. Exhibit 1 pp 41-42.
The history referred to by Associate Professor Glozier appears in my view to understate the extent of the symptoms noted by Dr Pusic. Beyond that it was not put to Dr Pusic that as at 3 November 1997 the Plaintiff had an evolving PTSD. Nor was attention drawn to any symptoms that the Plaintiff either had or was lacking which were not consistent with a diagnosis of PTSD. Overall on this question I prefer the evidence of Dr Pusic which was tested but remained clear and succinct. He remained adamant that the Plaintiff’s symptoms were not logical symptoms that can be associated with Major Depressive Disorder. [266] In his view PTSD was the predominate syndrome that takes precedence to major depression but does not mean that the patient does not suffer from chronic or acute or severe depressive symptoms He accepted that Mr Fox had these. On the balance of probabilities I am satisfied that the Plaintiff at the time of his resignation suffered from PTSD with the features described by Dr Pusic. In my view this best accords with evidence I have referred to supported by Plaintiff’s treating doctors but also by Dr Anderson and Dr Diamond.
266. T222.40-223.24.
The Defendant advanced no submission in response to the Plaintiff’s argument that in determining infirmity the Court is entitled to look back as much as forward and the evidence supported that the Plaintiff had a psychiatric infirmity from at least some time prior to the middle of 1991. It did however contend that the Court would not accept the Plaintiff or Mrs Fox’s account in 2019 as to events in 1997 in light of time that elapsed since those events. [267] Beyond his evidence there is some support for the Plaintiff’s account in the clinical notes of Dr Roberts and the statement that he prepared in preparation for the consultation with Dr Pearce. Furthermore there was no challenge to the factual circumstances that the Plaintiff described in particular as to his movements within NSW Police leading up to his resignation and the reasons for those movements.
267. T 236.40-.43.
Leaving that aside, the Defendant focussed its attention on the events post resignation.
The Defendant thereafter submitted that that left the question of whether the infirmity left him incapable of discharging his duties for the foreseeable future or did the infirmity have an enduring element.
I accept that after the Plaintiff commenced work as a private investigator the particular stressors that he encountered in the police service were no longer present in his work. The job undertook as an insurance investigator cannot be equated with the duties of on operational Senior Constable of Police. I accept the evidence of both the Plaintiff and Dr Pusic in this regard. It accords with that of Dr Rodgers who recorded in her report of 12 September 2000:

“I also regard operational police work as considerably more stressful than the work of a private investigator.” [268]
268. Exhibit D p 35.

In the work the Plaintiff undertook as a private investigator, the uncontested evidence was that he was supported by his wife who attended with him.
There was evidence of the Plaintiff being reminded of his former police work in circumstances of pending court proceedings relating to matters that he had a previous involvement.
The Plaintiff contended that the certificate of Dr Roberts of 21 April 1998 obtained with reference to a subpoena issued to him to give evidence in Court established incapability and infirmity. [269]
269. T 324.05.
The Defendant rejected this argument. The recorded exchange was as follows:

HIS HONOUR: So what flows from that?
BEST: What flows from that, your Honour, is that
HIS HONOUR: He still had some infirmity, didn't he, in April 1998?
BEST: No. The submission I put to you is no.
HIS HONOUR: Why?
BEST: Because the purpose of the seeking the medical certificate was not because he was infirmed, not because he was incapable, but because he didn't want to go to give evidence. That's as far as you can take it.
HIS HONOUR: If you don't want to go to give evidence and there's no medical condition, why do you need to go to a doctor to get a certificate? You go there because you've got some medical condition that prevents you doing it. He obviously wanted some medical support to the fact that he was unable to attend. Why else would you go to a doctor? You're not suggesting that he would have given him the certificate if there was nothing wrong with him?
BEST: What I'm suggesting, your Honour, what I suggested was simply because he didn't want to go and give evidence.
HIS HONOUR: But you're not suggesting the doctor would have given him a certificate if there was nothing wrong with him, to prevent him giving evidence?
BEST: I'm suggesting that the plaintiff hadn't seen Dr Roberts in respect of any psychological consultation between 25 November 1997 and 21 April 1998, at which time he attended for the specific
HIS HONOUR: And he would no doubt argue through his counsel that he didn't need to because he was no longer at work in the police service until this issue re-emerged in April 1998, and he didn't want to go and relive the past events, and so he goes to the doctor and he gets a certificate.
BEST: This is at a time when the man is working full time as a private investigator.
HIS HONOUR: You're not suggesting that's the same duties as those he was performing as a police officer, are you?
BEST: No. But the submission I have made, and continue to make, is that he was not incapable of performing the duties of a senior constable. The fact that he made a decision not to does not equate to incapability beyond a short period time after. [270]
270. T 271.43-272.38.

The Plaintiff thereafter came to see Dr Siegel in January 2000. His clinical notes were tendered by the Defendant. [271]
271. Exhibit 1.
The Defendant’s submission was expressed in the following terms:

BEST: Dr Segal provides it to a degree, but what the thrust of Dr Segal's assertions that you can read and understand, are as contained with the reports of 21 June 2000 and 18 October 2000. The clinical notes are illegible and without greater elucidation from the doctor - and he's not available to do that because I understand him to be dead - your Honour has to rely upon that which is contained within the contemporaneous documents or other objectively established facts and the apparent logic of events.
The apparent logic of the events is this: that in 2000, the plaintiff wished to return to the police force. In June, he makes his application; he goes to Dr Segal; he gets the report of 21 June and he makes the representations that he makes in September 2000 to Dr Rogers. When given the opportunity to decline or accept the offer made on 27 January, he declines. The only reason that is proffered is "personal reasons". What the plaintiff would have you believe, in para 65, "The personal reasons were my ongoing psychiatric symptoms and my consequent fear and anxiety about re-joining the police."
HIS HONOUR: This was in January 2001?
BEST: That's right. Can I take your Honour to p 114 of the transcript because I can make the point once and then I can move on. It's in the context of questions about correspondence dated 9 October 1997, but the question that commences at point 20 and goes down to 35 are applicable in respect of every single aspect of the plaintiff's evidence.
"My understanding of that letter is certainly better today than what it would have been. This statement was made in January 19, I had a whole lot better understanding of the whole process then compared to what it was in October 1997."
That's the danger and that's the difficulty of the present recollections as described in the authorities that I cite on p 12 and following; the inherent unreliability of the present recollections because when one looks at the apparent logic of the events, he wants to go back to the police force. He's asserting that he is fit and ready to return. [272]
272. T 236.47-237.31.

The Defendant contended that the reason the Plaintiff entered into therapy with Dr Siegel in January of 2000 was because of discomfort in his career, a matter which was referred to by Dr Siegel in his report of 21 June 2000. [273] The Plaintiff’s evidence was that in January 2000 that was not the reason he went to see Dr Siegel, although in June 2000 when he applied to re-join the police he was dissatisfied with the being an insurance investigator. [274] To the extent Dr Siegel’s report asserted that the Plaintiff entered therapy (in January 2000) because of discomfort in his career as an insurance investigator it was inaccurate. The assertion that since resignation from Police the Plaintiff “worked steadily and functioned well” ignores the clear evidence that led him to be certified unfit for three months in April 1998 and led him to consult Dr Siegel himself in January 2000.
273. Exhibit D, p 31.
274. T 69.18-48.
At the time that the Plaintiff first saw Dr Siegel in January of 2000, there was no proposal for him to return to the Police Force. Such a proposal was not recorded until the consultation on 21 June 2000. I accept that at that time he was dissatisfied with his circumstances as they stood with his work as an investigator.
However there still appeared to be an issue about him re-joining the police
Dr Rogers’ description of the Plaintiff’s condition in recommending that he not be allowed to rejoin the Police was that the Plaintiff’s condition appeared to be in remission but she still had serious concerns about him re-joining the force in light of his injury. Dr Rogers obtained a history that the Plaintiff had no medications, which was clearly inaccurate.
When the Plaintiff was offered a position to re-join, he deferred accepting it, citing personal reasons. It is accepted that no personal reasons were communicated to Senior Constable McKellar. On his evidence there was some reticence as to him re-joining particularly in light of what Dr Siegel had told him. He thereafter had a short timed experience in real-estate. On 10 October 2010 however the Plaintiff informed Dr Siegel that he wished to commit to the police force.

Dr Siegel’s clinical notes in 2000 confirm that he continued to have symptoms reflective of exposure to his previous employment as a police officer. [275]
275. Exhibit 1.
The Defendant argued that Dr Siegel’s clinical notes were illegible and shouldn’t be given much credence. [276] Whilst the notes are difficult to make out this did not prevent Dr Diamond from stating:

Clinical notes recorded symptoms of described as consistent with Major Depression including anxiety with symptoms such as claustrophobia, and depressive symptoms such as sadness, anhedonia, low energy and tearfulness Triggers are identified as relating to confrontations at work. Reactions to work-related stressors and trauma are noted in the clinical notes. [277]
276. T 236.49-237.3, 253.07-.38, T 367.40.
277. Exhibit D p 95 (Dr Diamond) and Exhibit 1 p 50 (Dr Dunn) (leaving aside questions as to Dr Siegel’s motivation in writing the reports referred to.

Dr Diamond thereafter opined:

“the description of Mr Fox’s psychiatric symptoms is not in keeping with the enthusiastic advocacy in Dr Siegel’s correspondence aimed to support Mr Fox’s later decision to rejoin the NSW Police Force” [278]
278. Admitted as evidence of Dr Diamond’s interpretation.

Dr Dunn viewed the notes and noted that they were almost illegible. [279] Nevertheless having reviewed the other history in the case he expressed the view that Dr Sigel was almost bending over backwards so to speak to trivialise the Plaintiff’s psychiatric history. [280]
279. Exhibit 2 p 46.
280. Exhibit 2 p 50.
Associate Professor Glozier also noted that:

“Dr Siegel’s subsequent report was not contemporaneous and also has to be seen in the light that was trying to support Mr Fox’s reapplication and so would present a positive spin.” [281]
281. Exhibit 2 p 34.

Certainly to the extent I can make out Dr Siegel’s reports do not in a number of respects accord with the contents of his clinical notes.
For reasons already given I can have little regard to the reports of Dr Siegel as accurately stating the Plaintiff’s condition in 1997. Beyond that it is difficult to accept that Dr Segal’s reference to the treatment that the Plaintiff received in 2000 as being not medically needed treatment for a disabling psychiatric disorder, when on 3 March 2000 it was accepted that he prescribed Doxepin. [282]
282. T 70.34-.37 (Dr Sigel in his earlier report of 21 June 2000 stated “As to treatment he has not required medication”).
Following re-joining I accept that the Plaintiff was able to cope with operational duties in part by relying on the therapy which he had been provided with by Dr Siegel and also because operational duties appeared to be a relatively smaller component of his work. To the extent that he was provided with work related therapy it is difficult to correlate it with the description that Dr Siegel gave that:

“Such treatment might be thought of as a postgraduate university course in self-understanding making connections between childhood experiences and adult personality traits.” [283]
283. Exhibit D p 33.

The Defendant sought to draw some support for this view based on the views expressed by Dr Tan and Ms Jameson psychologist arguing that what occurred to the Plaintiff was the consequence of the accumulation of events leading to the breaking point which occurs on 2 September 2009 and at that point there was a meeting point of incapability and infirmity.
I do not accept this contention. Dr Tan’s evidence related the Plaintiff’s condition to events throughout his police career however he notes that he first presented on relation to symptoms of depression on 2 September 2009. Ms Jameson’s report of 26 February 2010 was done in the context of responding to a report by Ms Bebbington. Beyond that Ms Jameson’s two reports indicate that she obtained only a very brief history of events leading to 1997. I would not in any event accept her opinion as psychologist ahead of the medical professionals who have elicited the full history.
Nor can I accept Dr Dunn’s conclusions. Contrary to his views, not only was the Plaintiff certified unfit at the time of his resignation, but there has been a notification of injury given. Dr Dunn accepted that Dr Pearce diagnosed traumatic stress disorder but rejected his view because it did not have the criteria of “haunting” referring to being troubled by “Nightmares, flashbacks, intrusive memories. [284] Yet these type of symptoms were recorded by both the Plaintiff and Dr Pusic in the period leading to the Plaintiff’s resignation. [285] Dr Dunn’s opinion was that the question of whether the Plaintiff was medically incapacitated was debatable but on balance it could not be stated that he would have been disabled for the foreseeable future. That appears based on an acceptance that Dr Pearce believed that the Plaintiff could recover within months to return to work as a police officer. However Dr Pearce (who saw the Plaintiff once) did not envisage return to the operational duties that the Plaintiff had assigned at the time of his resignation. Furthermore to the extent that Dr Dunn relied on Dr Siegel’s reported opinion as to what had occurred in 1997 Dr Dunn himself recorded that Dr Siegel sought to “trivialise the patient’s psychiatric history.” Additionally Dr Dunn accepted what he believed was Dr Anderson’s opinion as to an evolving PTSD ahead of that of Dr Siegel that the Plaintiff had a childhood neurosis. The contention that the Plaintiff had completely recovered as he asserted in 2000 or 2001 overlooks the certification of three months unfitness in 1998 and the circumstances that led him to consult Dr Siegel in January 2000. Finally Dr Dunn completely discounts that the Plaintiff prior to his resignation had major depressive disorder with melancholic features. [286]
284. Exhibit 2 p 49.
285. Exhibit 4 p 197-205 and Exhibit B; Exhibit JFR1 pp 8-12 (provided to Dr Pearce) and pp 25-30.
286. Exhibit 2 p 62.
In the case of Associate Professor Glozier he does not appear to have referred to the events of 1998. He referred to the circumstances that the Plaintiff came to see Dr Siegel in terms ascribed to the Plaintiff as:

Mr Fox said it wasn’t until 2001 that he felt completely better when he entered into treatment again, this time he felt up and down with intermittent neurotic symptoms and at time hopeless. He said there were periods of great productivity and periods of reduced productivity,

Whilst Associate Professor Glozier found that the Plaintiff suffered a depressive disorder or major depressive disorder in 1997 his prognosis was expressed at one point “as impossible to state with any degree of certainty whether if he had undergone appropriate psychiatric treatment for his depressive episode at the time of his resignation it would be reasonable to believe that he could return to policing duties with a period of say six months.” After some analysis he then concludes “thus I would suggest that having been adequately treated with appropriate psychological and pharmacological treatments in November 1997 he would, on balance of probabilities, be expected to be back at work by the middle of 1998 some 6-9 months. He accepted nonetheless that the Plaintiff from April to September the Plaintiff was symptomatically unwell. [287]
287. Exhibit 2 pp 41-42.
In the context of describing events post the Plaintiff’s resignation I accept Dr Anderson’s opinion that it is incorrect to say that the Plaintiff had a recurrent depressive disorder with period of remission and good functioning in between episodes.
It follows that I am satisfied that as at 3 November 19997 the Plaintiff was incapable of discharging his duties as a police officer by an infirmity of mind being post-traumatic stress disorder being consequent the injury in respect of which notice had been given.

ORDERS

Accordingly for the reasons stated pursuant to s 21(4)(b) of the Police Regulation (Superannuation) Act 1906 (the said Act):

I determine that the decision of the Defendant dated 5 September 2017 declining to certify the Plaintiff in the terms of s 10B(2) of the said Act be set aside and replaced as follows in (2).

I certify in terms of s 10B(2) of the said Act that Jeffery Ronald Fox (the Plaintiff) a former police officer was incapable by infirmity of mind of discharging the duties of his office at the time of his resignation on 3 November 1997, that infirmity being post-traumatic stress disorder.

Subject to any application to my Associate within 14 days for any further or other order as to costs, I order the Defendant to pay the Plaintiff’s costs as agreed or assessed pursuant to s 21(8) of the 1906 Act.

Endnotes

Decision last updated: 26 June 2019

Medium Neutral Citation:	Fox v SAS Trustee Corporation [2019] NSWDC 277
Hearing dates:	13- 15, 17, 20-22 May 2019
Date of orders:	21 June 2019
Decision date:	21 June 2019
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	See [244].
Catchwords:	POLICE - Member of police force resigned from force due to mental health illness - Plaintiff later rejoined police force - Whether the plaintiff was incapable from an infirmity of mind of discharging the duties of his office at his time of resignation
Legislation Cited:	Evidence Act 1995 (NSW) s 136 Police Regulation (Superannuation) 1906 Act (NSW) ss 3, 5, 10, 10B(1A), 10B(2)
Cases Cited:	Boland v SAS Trustee Corporation (1999) 97 IR 127 Ford, Roger v State Authority Superannuation Board (1994) NSWIRC 217 Ford v State Authorities Superannuation Board (unreported, Industrial Court of NSW, Marks J, 14 October 1994) Harding v SAS Trustee Corporation [2011] NSWIRComm 4 Re Boothroyd (1986) 1 QDR 167 SAS Trustee Corporation v Ainsworth [2011] NSWIR Comm 128 SAS Trustee Corporation v Daykin (2002) 115 IR 172 SAS Trustee Corporation v Rossetti [2018] NSWCA 68 Wooden v State Authority Trust Corporation (Unreported, 28 July 1998, Industrial Relations Commission)
Texts Cited:	N/A
Category:	Principal judgment
Parties:	Jeffrey Ronald Fox (Plaintiff) SAS Trustee Corporation (Defendant)
Representation:	Counsel: Mr P. O’Rourke (for the Plaintiff) Mr M. Best (for the Defendant) Solicitors:
File Number(s):	RJ 230/18
Publication restriction:	N/A