George v State of New South Wales

Case •

[2025] NSWDC 292

•

06 August 2025

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: George v State of New South Wales [2025] NSWDC 292
Hearing dates: 28 – 31 October, 05 November 2024
Date of orders: 06 August 2025
Decision date: 06 August 2025
Jurisdiction:Civil
Before: Catsanos SC DCJ
Decision:

(1)   Judgment in favour of the plaintiff in the sum of $953,244.

(2)   I reserve the questions of costs and interest if claimed.

(3)   If orders for costs and/or interest are agreed, the parties are to provide my Associate with proposed Short Minutes of Order within seven days. To the extent there is an absence of agreement, I direct the parties to confer and approach my Associate within seven days for the purpose of re-listing the matter for argument, with an agreed timetable for the service of evidence if considered necessary.

Catchwords:

WORKERS COMPENSATION – work injury damages – negligence – psychiatric injury – bullying and harassment – scope and content of employer’s duty of care – whether employer vicariously liable for conduct of superior officer – whether duty breached – whether breach causative of injury

DAMAGES – competing causes of incapacity – whether tortious injury causative of loss of earning capacity – proper approach to the assessment of damages – discount to be applied to take account of unrelated causes of incapacity

STATUTORY INTERPRETATION – whether loss of superannuation benefits subject to cap under s 151I Workers Compensation Act 1987 (NSW)

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B

Law Reform (Vicarious Liability) Act 1983 (NSW), s 8

Superannuation Guarantee (Administration) Act 1992 (Cth)

Workers Compensation Act 1987 (NSW), Pt 5, ss 151D, 151G, 151I, 151IA

Cases Cited:

Allianz Australia Ltd v Sim [2012] NSWCA 68

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20

Bonnington Castings Ltd v Wardlaw [1956] AC 613

Campton v Centennial Newstan Pty Ltd [2015] NSWSC 410

Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14

DNM Mining Pty Ltd v Barwick [2004] NSWCA 137

Duffin v Mount Arthur Coal Pty Ltd [2020] NSWSC 229

Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284

Government Insurance Office (NSW) v Rosniak (1992) 27 NSWLR 665

Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60

Kempsey District Hospital v Thackham (1995) 36 NSWLR 492

Keogh v CPB Contractors Pty Ltd & Ors (No 2) [2024] NSWDDT 9

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15

Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12

McGoldrick v Dendrobium Coal Pty Ltd [2022] NSWSC 1341

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344

State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Category:Principal judgment
Parties: Ralph George (Plaintiff)
State of New South Wales (Defendant)
Representation:

Counsel:
R Sheldon SC / E Welsh / W Lidden (Plaintiff)
D Stanton / N Hogan (Defendant)

Solicitors:
Brydens Lawyers (Plaintiff)
Bartier Perry Lawyers (Defendant)
File Number(s): 2023/00120433
Publication restriction: Nil

JUDGMENT

The Claim

  1. The plaintiff brings a claim in negligence for damages in respect of psychiatric injury allegedly caused as a result of bullying and harassment in the course of his employment as a police officer.

  2. As the defendant correctly points out, strictly speaking, the office held by the plaintiff does not make him the defendant’s employee as such (see State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 at [44]). However, the defendant admits that the plaintiff was at all times in a position analogous to that of an employee and accepts it owed him a duty of care. It is common ground that the plaintiff’s claim is regulated by Pt 5 of the Workers Compensation Act 1987 (NSW). Accordingly, damages are limited to economic loss only.

  3. The defendant denies breach of duty, or alternatively, denies any causal connection between breach and damage. Beyond that, the defendant disputes the quantum of the plaintiff’s damages. While pleaded, defences of failure to mitigate and contributory negligence were not pressed in the running of the case.

  4. The defendant also raised a defence under s 151D of the Workers Compensation Act, namely, that the proceedings had been commenced more than three years after the alleged date of injury without the Court’s leave. That was dealt with as a preliminary matter, and in a separate judgment at the commencement of the trial I determined that the plaintiff was entitled to a grant of leave under s 151D, nunc pro tunc.

The Evidence

  1. To understand the issues thrown up in this case, it is necessary to consider the factual evidence as it unfolded before me. What follows is not an exhaustive account of that evidence but rather a summary of some of the more significant matters informing the disposition of the plaintiff’s claim.

The Plaintiff’s Evidence in Chief

  1. The plaintiff gave evidence over three days, punctuated by breaks due to his expressed difficulty in coping. I make the observation that the plaintiff impressed me as a genuine and straightforward witness, and I formed the view that he did his best to answer questions honestly and was struggling with his emotions at times.

  2. The plaintiff was born in 1979. After finishing high school he obtained a Bachelor of Computer Science and then in 2002 joined the NSW Police Force, commencing general duties as a Probationary Constable in May 2003. He undertook numerous roles over the years that followed, eventually being promoted to the rank of Detective Constable in 2007 and Detective Senior Constable in 2008. In 2009 the plaintiff commenced working with the Terrorism Investigation Squad before being promoted to the rank of Detective Sergeant.

  3. There was no issue that between 2002 and 2009 the plaintiff was exposed to numerous distressing events in the course of his work as a police officer performing general duties.

  4. In December 2012 the plaintiff injured his lower back when arresting a suspect. This led to time off work, surgery and ongoing treatment, with the plaintiff being placed on restricted duties, which predominantly reflected the fact that he was not able to carry a gun.

  5. In February 2014 the plaintiff, by then a Detective Sergeant, commenced working with the Professional Standards Command (PSC). At that time the plaintiff was still having treatment for his lower back and was taking part in a pain management programme being run by Dr Wood. He was also seeing a back specialist, Dr Bentivoglio. The plaintiff described taking pain medication and sometimes having cortisone injections. He was also participating in a return-to-work programme aimed at getting him back to unrestricted duties.

  6. The plaintiff gave evidence that when he started at the PSC he was working full-time hours plus a little bit of overtime, performing internal investigations in connection with police corruption and misconduct. The plaintiff said that in his first few months at the PSC his back “wasn’t good, but it was bearable”.

  7. At the PSC the plaintiff came under the supervision of Detective Inspector Robert Duncan (DI Duncan). He had not known DI Duncan before, although they had a common acquaintance in a fellow police officer, Anthony Beckett.

  8. The plaintiff said initially his working relationship with DI Duncan was good. In his words:

“He liked me, because Anthony Beckett put a good word in for me, and he treated me really well and worked all my cases, and I worked all his cases” (Tcpt 31.13 – 31.15).

  1. The plaintiff described DI Duncan as being like his partner. He said:

“so every time we went out, we went out together. If my matter needed any follow-up, he’d help me with it, if any of his matters needed following up, I’d help him with it” (Tcpt 31.19 – 31.22).

  1. Over his time at the PSC the plaintiff continued having treatment for his back. He changed from seeing Dr Bentivoglio to Dr Parkinson but continued seeing Dr Wood at the Prince of Wales Hospital.

  2. The plaintiff was asked whether he saw his doctors during work hours and said:

“I would just – like everybody else, I would just tell Inspector Duncan that I’ve got a doctor’s appointment, and then I would just go to it, and then come back to work” (Tcpt 32.39 – 32.41).

  1. The plaintiff said he would use a police vehicle to attend those appointments.

  2. The plaintiff described a seminal event in March 2015, concerning a police motor vehicle which had been detected speeding by a speed camera (the speeding incident).

  3. According to the plaintiff, up to the time of the speeding incident his relationship with DI Duncan had been “perfect” and he was continuing to see his doctors for treatment in an arrangement which he described as very flexible.

  4. The plaintiff explained that there was uncertainty as to who had been driving the police vehicle at the time of the speeding incident. He said from the beginning DI Duncan kept saying it was either the plaintiff or another officer, Senior Constable Moore. According to the plaintiff, DI Duncan would approach him and Senior Constable Moore saying that one of them had been responsible and they should work it out and let him know who was driving.

  5. Although the plaintiff checked his duty book, he was unable to determine if he had been driving the vehicle at the time.

  6. The plaintiff said he could tell the incident upset DI Duncan, who appeared fraught and frustrated.

  7. At one point, DI Duncan said to the plaintiff:

“You probably had a doctor’s appointment. I wouldn’t be surprised if it was you… You need to take responsibility for it” (Tcpt 35.38 – 35.40).

  1. The plaintiff says to this day he does not know if he was the person responsible but, in the circumstances, he paid the speeding fine within weeks of it having been issued.

  2. The plaintiff described how everything changed after the speeding incident. Whereas before, DI Duncan had communicated with the plaintiff verbally, afterwards, communications were by email. When the plaintiff arrived at work in the morning he was no longer greeted by DI Duncan, unlike before the speeding incident when DI Duncan would invite the plaintiff into his office to talk socially and have what the plaintiff described as a “small chitchat”.

  3. As the plaintiff put it:

“The friendly Robert Duncan wasn’t there anymore. He was purely professional, so, everything was done by email” (Tcpt 36.43 – 36.44).

  1. The plaintiff’s evidence as to the events which followed the speeding incident and their effects on him included the following:

  1. On one occasion DI Duncan called the plaintiff into his office and told him he was no longer allowed to see his doctors in work hours and he would have to see doctors in his own time (the meeting with DI Duncan). DI Duncan also told the plaintiff “he had [an] issue with my back injury and me being restricted, and that I may be removed from the command” (Tcpt 37.23 – 37.24). This left the plaintiff feeling anxious and confused.

  2. Following the meeting with DI Duncan the plaintiff went back to his desk and wrote an email to DI Duncan, copying in his Injury Management Officer and his Superintendent, Kerry Lewis (the email in response).

  3. Following DI Duncan’s directive the plaintiff stopped attending his medical appointments, saying:

“I stopped, because I wasn’t able to see them before work or after work or during work. My flexible roster was taken away from me and I was locked into a start time and a finish time that – where I just – they’re all specialists; I can’t see them on weekends, so I stopped seeing doctors” (Tcpt 38.12 – 38.15).

  1. The whole command was on a flexible roster which enabled people to adjust starting times, go home early, or work only four days a week, provided they worked a designated 38-hour week. However, after the meeting with DI Duncan the plaintiff no longer had that flexibility. There were “plenty” of other officers having medical treatment during work hours and the plaintiff was not aware of any other person in the PSC who had their flexible roster removed. He was the only person not permitted to see medical practitioners during work hours.

  2. This made the plaintiff feel hopeless and captive of DI Duncan. As he put it:

“I felt, ultimately, everything rested in his hands and, by making me start at 8am every morning, I couldn’t make an appointment before work, I couldn’t make an appointment after work, I couldn’t see him during work, I couldn’t take part in the recon program, [1] and I didn’t know what to do” (Tcpt 38.45 – 38.48).

1. The “recon program” referred to by the plaintiff was a multi-discipline rehabilitation program involving physiotherapy and some gym work, aimed at returning police officers to work

  1. Although the plaintiff did not think the change in his roster and the interruption to his medical treatment caused his back problem to get worse, he said it definitely did not get better and the progress he had been making stopped.

  2. The plaintiff said that after he sent the email in response a meeting was arranged involving Superintendent Lewis, DI Duncan, the plaintiff’s Injury Management Officer, the Human Resources Manager, and a support person, Detective Sergeant Ralph (the meeting with Superintendent Lewis). That meeting took place within a week of the meeting with DI Duncan.

  3. The plaintiff gave evidence that when he attended the meeting with Superintendent Lewis, he felt attacked by DI Duncan who continually brought up the speeding incident. The plaintiff was told he should cut his work hours and see doctors, effectively, during time which would be paid by the workers compensation insurer. The plaintiff understood that to mean he would be working less than 38 hours a week and would be paid the shortfall by the workers compensation insurer, which would enable him to see his doctors.

  4. The plaintiff described how following the meeting with Superintendent Lewis, DI Duncan called a team meeting which included all of the Detectives and Senior Constables that reported to the plaintiff, as well as the other Detective Sergeants. In that meeting DI Duncan said the plaintiff would be working less hours, he would no longer take on any cases and would be an assistant to the Detective Senior Constables. Instead of reporting to DI Duncan, the plaintiff would now report to another Detective Sergeant.

  5. The plaintiff felt he had been unofficially demoted. In his words, he felt “belittled, embarrassed, anxious, really stressed and hopeless” (Tcpt 40.40 – 40.41).

  6. After this, the plaintiff had no involvement with DI Duncan. He considered it had been implied in the team meeting that he would no longer have any more cases. The plaintiff described feeling punished, in trouble and not trusted.

  7. Whereas DI Duncan had been involved in ongoing investigations with the plaintiff prior to the speeding incident, those investigations were subsequently reallocated to other Detective Sergeants and the plaintiff was not told why that was done. Again, to quote the plaintiff:

“As a Detective Sergeant, he stripped me. I felt any authority that I had was gone. I felt boxed in. I just felt like there was no hope, like there’s nothing I can do about this” (Tcpt 41.45 – 41.47).

  1. The plaintiff said he had been physically able to cope with the investigations he had been doing prior to the reallocation. He had been completing all of his work, including during the weeks when he attended medical appointments.

  2. The plaintiff said the email in response included a request to see a psychologist. He described how after this DI Duncan came to the plaintiff’s desk and flicked a copy of the email in response at him, saying, “How dare you. I disagree, but you can go” (Tcpt 42.32). The plaintiff said that, as a result, he was shaking, scared, and extremely anxious. He was also embarrassed because everyone around heard what had been said.

  3. The plaintiff interpreted DI Duncan’s comments of “How dare you” to be a reference to the plaintiff going over DI Duncan’s head and bringing the matter to the attention of Superintendent Lewis. The plaintiff felt that DI Duncan did not want him to go see a psychologist, but because it had been put in writing, he was forced to let the plaintiff go.

  4. The plaintiff’s evidence was that after the meeting with Superintendent Lewis, while on reduced hours he did manage to see some treating doctors but he would also have to see them on his rostered days off and sometimes had to move his roster around.

  5. This could be problematic. As the plaintiff described it:

“So I’d make a doctor’s appointment, but the roster would roster me on the same day, so I would need to do a shift change. So to do that, I had to go and ask Duncan, and he’d either approve it or not approve the shift change. Then I’d have to go through the rosters. A lot of it was put in writing, and the whole process became very complex” (Tcpt 43.29 – 43.34).

  1. The plaintiff was no longer allowed to use police vehicles when he went to appointments during work hours. Again, he said the restrictions imposed on him in relation to seeing doctors during work hours did not apply to other officers in the PSC.

  2. The plaintiff described how DI Duncan would also demand to know what doctors he was seeing:

“He would – so on my day off, he would write me an email and say, ‘where did you go yesterday; which doctor, where is his phone number?’, and I took that he wanted to check that I actually had a doctor’s appointment on my day off” (Tcpt 43.39 – 43.42).

  1. The plaintiff felt this was unnecessarily intrusive. It felt like a whole new low and his anxiety went “through the roof”. He said:

“I didn’t want to come into work anymore. I’d wake up – I remember waking up to my alarm every morning and I’d be like not this again, I don’t want to go in anymore” (Tcpt 43.46 – 43.48).

  1. In the weeks and months which followed the meeting with DI Duncan the plaintiff’s communications with DI Duncan were purely by email. This made him feel unworthy of being spoken to. As he put it:

“I wasn’t worthy of even being spoken to. I was dead wood, I was useless. I was unofficially demoted. I remember a lot of anxiety, I remember a lot of anxiety. I just didn’t want to be there anymore” (Tcpt 44.10 – 44.13).

  1. The plaintiff contrasted this treatment of him by DI Duncan with other officers in the unit. He described seeing DI Duncan speaking with other officers in a casual way, saying:

“Yeah, they’d go into his office and talk about the footy and stuff that continued. I wasn’t allowed to do – to do that anymore. He’d never come to my desk and talk socially about the weekend, or anything of that; that’s completely stopped. He wouldn’t make eye contact with me. If I tried to make eye contact and say hello, he wouldn’t respond, or he’d – he’d give me an angry look. I was so uncomfortable being there. I was paranoid about everything that I did because I was getting reprimanded for everything, even stuff that was unreasonable” (Tcpt 44.20 – 44.27).

  1. The plaintiff described how following the meeting with Superintendent Lewis he had taken a month off work, describing his anxiety as “through the roof” and “uncontrolled” (Tcpt 45.31). The plaintiff said it was nothing like he had felt before in his life. He was withdrawn and did not want to talk to anyone or be around anyone.

  2. The plaintiff described his time off work for that month of stress leave following the meeting with Superintendent Lewis in the following terms:

“I was always worried about when I had to go – when I eventually had to go back. And that made the anxiety worse, or it was a month of my brain not stop thinking. It was just like a CD on repeat, and my brain would just be reliving everything that I had experienced beforehand. My brain just wouldn’t stop” (Tcpt 45.46 – 45.50).

  1. The plaintiff also spoke of his sleep being disturbed at that point, of not being able to achieve deep sleep, and “reliving work stuff in my head. It’s like my brain didn’t even stop during my sleep” (Tcpt 46.05). He described nightmares in which he was arguing with DI Duncan or other people at work. These, he said, occurred on a weekly basis, sometimes a few times a week.

  1. The plaintiff spoke of his fear of being reprimanded and removed from the PSC. That fear, he said, was always present.

  2. Within a few months of his meeting with Superintendent Lewis, the plaintiff started feeling that nothing had changed so he would have to leave.

  3. It is fair to say the timelines became somewhat blurred during the plaintiff’s evidence. This is perhaps understandable given the emotional content of the evidence and the effluxion of time since the events in question. Nonetheless it is clear that the speeding incident, the meeting with DI Duncan and the meeting with Superintendent Lewis provide points of reference for the plaintiff’s allegations.

  4. The plaintiff gave evidence of seeing Dr Jacobs, psychiatrist, who prescribed him Prozac, although he was unsure when he first saw Dr Jacobs.

  5. At a point a few months after the events involving DI Duncan the plaintiff went to Goulburn to undertake a course. Whilst on that course, the plaintiff said the problematic disc in his lower back ruptured. He described having surgery at the hand of Dr Parkinson on 13 April 2016, which he believed was the next day. Following that the plaintiff had a period of recovery at home, during which he continued to see his psychiatrist, Dr Jacobs. On 18 July 2016 the plaintiff eventually got back to work with the PSC on restricted duties. The plaintiff said that when he returned to work nothing changed so far as his relationship with DI Duncan was concerned.

  6. It is clear the plaintiff has misremembered timeframes, as that surgery occurred more than 12 months after the speeding incident and the records indicate that DI Duncan last worked in December 2015 (see Exhibit DX-18).

  7. In any event, having pursued other positions following his decision to find alternative work, the plaintiff eventually found a position with the Australian Criminal Intelligence Commission (ACIC). This was an executive management position which involved the plaintiff undertaking investigations and carried a rank equivalent to Detective Inspector. Whilst working at ACIC the plaintiff took leave without pay from the NSW Police Force.

  8. The plaintiff started at ACIC in November 2016. He described his back at that time as not being 100% “but was very manageable”. He was working full-time plus overtime and said he had no problems working.

  9. When asked how he was feeling emotionally before starting at ACIC, the plaintiff said:

“Not good. Things changed after the speeding thing. Everything changed after that, and it never got better” (Tcpt 49.05 – 49.06).

  1. The plaintiff had been working at the PSC until the time he started at ACIC. He was unable to remember when he last worked under DI Duncan who at some point suffered a stroke. As noted earlier, DI Duncan last worked in December 2015. In any event, the plaintiff said that up until the time DI Duncan last worked there was no change in his relationship with DI Duncan or the way that made him feel.

  2. Whilst working for ACIC the plaintiff was operational and carried a gun. He had other investigators reporting to him. He continued to see doctors, including Dr Jacobs, and described his anxiety as “still there”, as was his paranoia. The plaintiff was unable to explain what he was anxious about, saying he got to the point where he had extreme anxiety all the time which never went away. That anxiety, he said, had started after the speeding incident.

  3. Eventually the plaintiff ceased working at ACIC in circumstances where his security clearance became an issue. This arose towards the end of 2018 when Dr Jacobs sought approval from the defendant’s workers compensation insurer for the plaintiff to have electroconvulsive therapy (ECT). Eventually this, and the fact that the plaintiff was having suicidal thoughts, filtered through to the plaintiff’s supervisor at ACIC. In short, having spoken to his supervisor the plaintiff understood that if the extent of his psychiatric problems were documented, he would never obtain another security clearance anywhere. This led the plaintiff to resign from ACIC rather than run that risk.

  4. At the point of his resignation from ACIC the plaintiff remained on unpaid leave with the NSW Police Force. However, he said he could not bring himself to go back to work there. In his words:

“I did not want – the thought of going back to Duncan – I was having – I was going to – having, like, a nervous breakdown. I just – the anxiety just – it’s like someone put petrol on my anxiety, and going back and being known as the person that’s suicidal now, I didn’t want to face anyone” (Tcpt 52.14 – 52.17).

  1. The plaintiff described feelings of profound hopelessness at that point. With no employment options he worried how he was going to provide for his family and meet his responsibilities. He described significant anxiety which he could not escape and felt his career was at an end. The plaintiff has not worked since leaving ACIC.

  2. After the plaintiff left ACIC he went to the Sydney Clinic where he underwent the ECT treatment recommended by Dr Jacobs. He felt his psychological condition got worse following that treatment.

  3. The plaintiff gave evidence that, as well as working as a police officer, since 2015 he had been a councillor on the Campbelltown City Council. He said he gave that position up after two or three years because he could not function properly as a result of his anxiety. When asked as to his aspirations, the plaintiff said he had intentions of working his way up to mayor or “maybe something bigger” if the opportunity arose.

  4. In describing his current state, the plaintiff said he cannot be around anyone, including his children and his wife. He and his wife sleep in separate rooms and he is in his room in bed all the time because he does not want to talk to anyone. The plaintiff said that, except for two good friends who have stuck by him, he has lost all his friends. He described his children, aged 13, 11, and 5, coming into his room and said:

“I can’t even talk to them for more than a minute/minute and a half, and then I say, ‘Sorry, baba needs to go to the toilet’, so I cut the conversation short and I pretend to go to the toilet, when I don’t need to” (Tcpt 55.03 – 55.05).

  1. When asked about the possibility of going back to police work, the plaintiff said:

“I struggle to even leave my bedroom, let alone the house. I’m sedated most of the time, sleep in three-hour blocks. I struggle to be around people or talk to anyone” (Tcpt 55.14 – 55.16).

  1. The plaintiff continues to take medication for his psychological problems as well as medication for his back. He said his back problems are bearable and managed with medication. They would not have stopped him working with ACIC, nor the PSC, nor as a councillor or mayor.

Cross-Examination of the Plaintiff

  1. The plaintiff was challenged as to what was said to be an inconsistency between his professed anxiety and his ability to give evidence for periods of over an hour in relation to things he found distressing. This, it was suggested, highlights the exaggeration embedded in the plaintiff’s evidence that he could only talk to his children for a minute or a minute and a half when they came into his room. In response, the plaintiff said he had massive anxiety as a result of giving evidence but “pushed through”. He maintained that whilst he might be able to last long enough to talk to his children for five minutes, the time he could spend talking to them was nonetheless to be measured in minutes only.

  2. Deliberate exaggeration was also said to underlie the plaintiff’s evidence as to loss of opportunity to be a councillor or mayor on the Campbelltown City Council. It was put to the plaintiff that he was only elected to the Council because he had aligned himself with the Liberal Party and was on their ticket, whereas when he previously ran in his own right, he only received 30 or 40 votes from the 80,000 voters. In 2016 when he was elected, it was put that he received only 16 primary votes.

  3. The plaintiff was asked about the support structure that existed for police officers and the fact that in 2008 and 2009, after attending a fatal accident involving a child, he had availed himself of the Employees’ Assistance Program which provided access to psychologists. The plaintiff remembered the incident and whilst he did not dispute the availability of such assistance, he did not recall having used it.

  4. The plaintiff was cross-examined in detail about consultations with his general practitioner, Dr Tang. The thrust of those questions was to advance the proposition that the plaintiff’s emotional problems in 2013 and thereafter were a byproduct of frustration and stress associated with his back problems.

  5. Whilst it was not controversial that the traffic offence which gave rise to the speeding incident occurred on 3 March 2015, it was put to the plaintiff that the meeting with DI Duncan was in June 2015, not March 2015. This is relevant to the defendant’s submission that the timeline, when married with clinical records and complaints to doctors, establish the source of the plaintiff’s psychiatric condition to lie in his back problems rather than his interactions with DI Duncan.

  6. In that vein, the plaintiff was cross-examined about seeing Dr Parkinson in late 2014 and Dr Wood in February 2015. The plaintiff was also asked about a consultation with Dr Tang in January 2015 when, according to the clinical notes, he told the doctor about his lower back pain being unbearable and causing poor sleep. Similarly, the plaintiff was asked about records indicating he told Dr Tang he was becoming frustrated and depressed because of his back becoming bad, and a history to Dr Wood in February 2015 that his problems were affecting his sleep, mood, and energy.

  7. The plaintiff was then taken to March 2015 and a history to Dr Tang that, in conjunction with some medication he was taking, he was suffering extreme anxiety. At that time, it was put the plaintiff had given a history of back pain being nine out of ten.

  8. The plaintiff was asked about an entry in the clinical notes of Mr Kearney, psychologist, on 11 June 2015 referring to recent work conflict and stress. The plaintiff agreed that this was a reference to the meeting with DI Duncan.

  9. The plaintiff also accepted that on 13 June 2015 he probably told Dr Tang about “the new commander” wanting him to attend various doctors and see physicians in his own hours. The plaintiff accepted that the “new commander” he referred to was probably Superintendent Lewis.

  10. The plaintiff accepted that on 23 June 2015 he told Dr Wood he had reduced his hours on advice from his employer in order to attend medical appointments, that his depressive symptoms were increasing, and that he was due to see Dr Jacobs.

  11. It was put to the plaintiff that on reduced hours he was able to see doctors and physiotherapists as needed. However, the plaintiff, much as he had said in chief, described encountering difficulties in arranging medical appointments. He went on to say that he had been “reprimanded” by DI Duncan for starting late or finishing early while on restricted duties.

  12. The plaintiff was taken to what was said to be his first consultation with Dr Jacobs on 24 June 2015, and was reminded that in his evidence in chief he had described his anxiety at that time as being “through the roof”. The plaintiff was reluctant to accept that it was June 2015 when he first saw Dr Jacobs, however he accepted he would have told the doctor about his back when he first saw him. The thrust of the proposition put to the plaintiff was that at his first consultation he complained to Dr Jacobs predominantly about his back problems, and that the emotional problems he described to Dr Jacobs had started after he hurt his back in 2012. The plaintiff said:

“Look, when I hurt my back, I do have to admit there was a psychological component. It wasn’t all physical. I didn’t feel like a man. I couldn’t do things at home and stuff like that. But that was nothing compared to after the incident, the speeding ticket incident. It’s two different things” (Tcpt 106.07 – 106.10).

  1. The plaintiff rejected the proposition that his description to Dr Jacobs of the effects of the meeting with DI Duncan reflected the fact that any upset caused by that meeting was short lived. Again, the plaintiff accepted he had experienced some mood problems before the speeding incident as a result of his back, however he said it was “chalk and cheese” when compared to problems suffered after the speeding incident.

  2. The plaintiff was taken to clinical entries of Dr Tang on 10 July 2015 suggesting he had been told to take time off work following the meeting with Superintendent Lewis because of problems with his back. The plaintiff firmly rejected that proposition, saying Superintendent Lewis had told him to take time off work because he was “clearly stressed”.

  3. Similarly, the plaintiff was asked about a medical certificate issued by Dr Tang dated 10 July 2015, on the face of it, putting him off work until 10 August 2015 because of lower back pain, without reference to any psychological injury. The plaintiff however remained steadfast in the position that his psychological problems were incapacitating him at that time.

  4. The plaintiff was asked about clinical entries made by Dr Jacobs in July 2015 which refer to flashbacks and nightmares associated with traumatic scenes experienced much earlier in the plaintiff’s employment. It was put to the plaintiff that he never told Dr Jacobs of nightmares involving DI Duncan.

  5. The plaintiff became somewhat confused with the dates and had difficulty recalling what was said at specific consultations. However, he maintained that he had complained to Dr Jacobs about stress and nightmares associated with the events involving DI Duncan.

  6. Whilst the plaintiff was generally prepared to accept propositions based on Dr Jacobs’ notes, he questioned whether those records were a summary rather than a verbatim account of what he said.

  7. In response to questions exploring causation and the duration of stress associated with DI Duncan, the plaintiff agreed that in January 2016 he sat what was known as the ROSA test in order to become operational and wear a gun. The plaintiff passed that test and accepted that by January 2016 he was back working full duties and full hours. He could not recall telling Dr Tang on 19 March 2016 that he was managing full duties but had experienced some recent flare-ups of back pain.

  8. The plaintiff was asked about the episode of back pain whilst doing a course at the Police Academy in April 2016. He could not remember telling Dr Tang on 30 May 2016 he had suffered depression since that injury and had withdrawn from friends and family. Nonetheless, the plaintiff generally accepted the accuracy of the doctor’s records.

  9. The plaintiff agreed he underwent psychological screening and assessment on 23 August 2016 in order to join ACIC which, he assumed, was to determine whether he was psychologically fit for that work.

  10. For the purposes of that assessment, the plaintiff disclosed problems with his back. It was put to the plaintiff that he told the examiner during the assessment he had no issues relating to interpersonal difficulties, work performance or conflict, although he did disclose a situation where he had been targeted by some colleagues for confronting them about bullying a female supervisor. The plaintiff, however, could not remember what he told the examiner. Specifically, it was put to the plaintiff that he did not make any reference to DI Duncan during the assessment. Again, the plaintiff was unable to remember. In respect of those disclosures, the plaintiff said:

“I know that I was honest, but at the same time I didn’t want to minimise my chance of getting in” (Tcpt 123.07).

  1. Whilst the plaintiff was prepared to accept that when he undertook the psychological assessment for ACIC he made no reference to the significant anxiety he described in his evidence before me, he nonetheless rejected the proposition that he was not suffering from anxiety as a result of his interactions with DI Duncan. The plaintiff also accepted that he might have disclosed becoming depressed because of his back injury.

  2. The plaintiff was directed to a Health Declaration which he had completed on 24 October 2016 as part of his application to join ACIC. In that declaration the plaintiff was required to address pre-existing injuries, diseases or conditions which could be exacerbated by his work, or which might prevent or restrict him from carrying out his duties. The only disclosure made was the plaintiff’s back injury of December 2012.

  3. The plaintiff explained these apparent omissions by saying the back injury was the only “WorkCover” injury claim he had made. The cross-examiner pointed out that the document was not limited to WorkCover injuries, and it was put to the plaintiff the reason he made no disclosure of his psychological problems is because there were in fact no psychological problems at that time. Whilst the plaintiff disagreed with that proposition, he agreed that he may have wished to keep it from ACIC. In any event, the plaintiff said he did not feel his psychological problems would have prevented him from carrying out his duties at that time.

  4. This was a matter which in due course was the subject of some focus in submissions, with the defendant arguing the plaintiff was prepared not to tell the truth in order to achieve his end or, at the very least, that the absence of reference to DI Duncan in the document is powerful evidence that the conduct of DI Duncan was not significant in the plaintiff’s mind.

  5. On this issue, the plaintiff in submissions drew attention to an allied document, being a Pre-Placement Medical Assessment which was completed on 26 October 2016 as part of the ACIC employment process. In that document the plaintiff did disclose a history of anxiety and depression. However, I observe that on the face of the document, the plaintiff did not associate any anxiety and depression with causes other than his back injury.

  6. The plaintiff was then taken to his time with ACIC. He agreed he was working there full-time and enjoyed the work. Specifically, he accepted that any physical or psychological problems did not stop him from performing that work.

  7. The plaintiff could not remember whether he was continuing to see Dr Tang while at ACIC but accepted he was. He could not recall telling Dr Tang about a flare up of lower back pain which occurred in August 2017, and similarly, could not remember whether he had suffered left sciatic pain at that time, or whether there had been an increase in medication for his back problems.

  8. The plaintiff did recall that he continued to see Dr Jacobs whilst at ACIC, as he still does. He was asked about telling Dr Jacobs in November 2017 of increased anxiety, which Dr Jacobs put down to the interaction between the analgesia and anti-depressants the plaintiff was taking. The plaintiff could not remember that. He could not remember telling Dr Jacobs about work related stress and politics at ACIC, nor reporting that he had some suicidal thoughts. In the way the questions were answered, I took the plaintiff to be unable to remember precise details, rather than being unable to recall the fact that he was suffering problems at that time. As the plaintiff put it, “The dates and what words I – what conversation I had with him I can’t remember” (Tcpt 127.33).

  9. The plaintiff accepted he had flare ups of his back pain, which in general was “up and down” while he was working full-time at ACIC. He accepted he was possibly “withdrawn and isolated” at work and at home in February 2018 and accepted he told Dr Jacobs at that time he was having some self-harm thoughts.

  10. The plaintiff agreed that in 2018 things started going downhill for him and Dr Jacobs wanted to admit him to hospital for treatment, in circumstances where the plaintiff was having suicidal thoughts. It was around this time that the plaintiff resigned from ACIC to protect his security clearance, as he had explained in his evidence in chief.

  1. The plaintiff accepted that before he underwent the ECT treatment recommended by Dr Jacobs, he obtained a second opinion from Dr Edema, although he could not in fact recall seeing that doctor. Notwithstanding his inability to recall those consultations, the plaintiff was firm in rejecting the proposition that the problems he was suffering in 2018 were an extension of long-term psychological problems associated with his back condition. In response to questions put, he gave the following evidence:

“Q. And that the depression emerged in the context of a back injury. That’s what you told him [Dr Edema] wasn’t it?

A. I can’t remember that.

Q. That was the truth, wasn’t it?

A. No. Actually, there was a little bit of mood change when I had my back injury, but that was nothing. That was bearable.

Q. Nothing?

A. Compared to the Duncan thing, oh, it was nothing.” (Tcpt 135.04 – 135.13)

  1. The plaintiff described how following the ECT treatment he struggled for some months. As he put it:

“For a few months after the ECT, you’d ask me about something that happened yesterday, and I couldn’t tell if that had happened or not, or if it was a dream, or – I struggled to tell what was reality for a little while” (Tcpt 136.33 – 136.35).

  1. The plaintiff was asked about his ongoing back problems and restrictions which had affected his ability to do household chores and outdoor maintenance. It was put to the plaintiff he has regarded himself as unfit for work because of his back since November 2018 and had claimed workers compensation payments accordingly. However, the plaintiff believed that his entitlement to compensation for those problems would have expired in 2017. He agreed he had been assessed as having a 27% whole person impairment because of his back problems. The plaintiff was shown medical certificates and accepted that he has, until the present time, continued to present certificates to the workers compensation insurer certifying that his 2012 back injury prevents him from performing any work. The plaintiff said this was “technically” correct. As he explained:

“What prevents me from working is my psychological, and you will find that – that the date that Dr Tang changed the capacity of employment from, ‘has a capacity of some type of employment’, and it changed to, ‘has no current work capacity of employment’, would have been exactly the same date that he issued my first psychological certificate of capacity, so they don’t contradict each other” (Tcpt 142.08 – 142.13).

  1. Amongst the medical certificates upon which the plaintiff was cross-examined was a certificate from Dr Tang certifying him unfit during December 2018 and January 2019 because of what is said to have been a psychiatric condition resulting from the plaintiff dealing with distressing and stressful scenes in the course of his work as a police officer.

  2. It was put to the plaintiff that on his claim form to the workers compensation insurer he had disclosed his problems up to November 2016 as arising from distressing and stressful events in dealing with offenders and investigating crimes. The plaintiff disavowed that proposition and pointed out that the document, which never found its way into evidence, was not signed by him.

  3. The parties took opposing positions in relation to what ought be made of the many, arguably inconsistent, medical certificates issued over the years. I will come to that evidence when I consider questions of causation and damages. It is of little, if any, assistance for present purposes in understanding the factual narrative.

Re-Examination of the Plaintiff

  1. In re-examination, the plaintiff clarified the position in relation to his role as a councillor and his aspirations to become mayor.

  2. In short, the plaintiff said his brother-in-law had been a long-time Liberal Party councillor on the Campbelltown Council and when he decided to retire, there was an agreement supported by the members of the Liberal Party branch in Campbelltown that the plaintiff would take his brother-in-law’s spot. Accordingly, as part of this succession plan, the plaintiff was put on the ticket in what he descried as a winnable position, so his brother-in-law could teach him. They would then both serve as councillors for a term and the plaintiff would replace his brother-in-law as number one on the ticket. From there, the plaintiff believed he could have become mayor.

  3. The plaintiff described how his emotional problems changed those plans, and he could not remain on the Council. As a result, his brother-in-law could not retire as planned and had to stay on for one more election. His brother-in-law was in fact elected and was then made mayor for four years. According to the plaintiff, had it not been for his psychological problems, he would have replaced his brother-in-law and gone on to become mayor. The reasoning behind the plaintiff’s conclusions is that the path to being mayor was galvanised by the fact that the Council had a lot of independents who threw their support behind the plaintiff’s brother-in-law and would have, had it been the case, supported the plaintiff.

Evidence of Francine Ralph

  1. The plaintiff called Francine Ralph, a Sergeant in the NSW Police Force who worked with him at the PSC. She was unable to fault the plaintiff’s work, describing him as professional and honest. In terms of his demeanour, she said:

“Just a really nice guy. Big, happy, gentle bloke. Just, you know, really helpful. Not a bad word to say about it to be honest. He’s a lovely bloke” (Tcpt 163.47).

  1. Sergeant Ralph was also under the supervision of DI Duncan. She was asked whether she observed anything about the relationship between the plaintiff and DI Duncan and said that whilst there did not appear to be any issues at first, as time went on “there certainly were issues between the two of them” (Tcpt 164.25). She described this in the following terms:

“Well, it was mostly what – well, mostly what sort of – the feedback I was getting from Ralph in terms of issues he was having around Rob and management, he had obviously got a back injury at some stage. I don’t know whether he brought that in with him or whether he – I don’t know how that injury came about. But I do know that after a certain period of time whilst at PSC it was – it was quite – his back was quite poor. And I believe the deterioration in the relationship happened around that back injury and around his medical requirements and needs” (Tcpt 164.30 – 164.37).

  1. Sergeant Ralph was generally aware that there had been an issue involving the plaintiff and another officer in relation to a traffic infringement notice issued for a police vehicle.

  2. She was asked about her experience in relation to police officers attending appointments during working hours at PSC and said:

“In my experience at PSC there was flexibility in going to medical appointments and doctor’s appointments, but it was at the discretion of the Commander” (Tcpt 165.25 – 165.27).

  1. Sergeant Ralph confirmed that she was the plaintiff’s support person at the meeting with Superintendent Lewis. As Sergeant Ralph recalled it, the plaintiff had attended the meeting wanting some clarity around what doctors’ appointments he could attend, if any. She said that at the meeting there was a list of all the doctors the plaintiff was seeing, including rehabilitation and physiotherapists, and her recollection was that the plaintiff was told the only appointments he could attend during work hours were with the police rehabilitation or to see a police doctor. Sergeant Ralph recalled that after the meeting the plaintiff had heightened anxiety and it was, in her view, apparent he was finding it more and more difficult and was becoming increasingly stressed. She said:

“He was, you know, teary and upset. He was, you know, just a lot of conversation around not being able to attend his appointments and how stressful that was going to be. What was he going to do, how was he going to get to them, the logistics of how he manages these appointments” (Tcpt 166.28 – 166.32).

  1. Sergeant Ralph was clear in her view that the plaintiff had become quieter, more reserved and less communicative. She recalled that the plaintiff and DI Duncan became less able to communicate.

  2. According to Sergeant Ralph, Sergeants might work on each other’s jobs if an officer is on leave or otherwise not available. Usually, Sergeants would report to the Inspector except if the Inspector was on leave and was being relieved by a Sergeant. She said that generally all Sergeants would have been allocated their own investigations.

  3. Nonetheless, Sergeant Ralph accepted that the division of work was very much at the discretion of the Commander and Inspectors.

Liability

  1. Against that background I turn to consider the question of liability.

The Duty of Care

  1. For reasons to which I will come, I am satisfied that the plaintiff suffered a recognised psychiatric illness, namely the significant exacerbation of an existing depressive condition, caused by the conduct of DI Duncan. Given the complexities involved, those reasons are best explained when considering the interrelated questions of factual and medical causation which I must determine in the assessment of the plaintiff’s damages, irrespective of the outcome of the liability dispute.

  2. The starting point in the inquiry as to liability is to articulate the duty of care resting upon the defendant.

  3. As was earlier noted, it is common ground that the duty the defendant owed to the plaintiff was analogous to that owed by an employer. Although not presently relevant, there may be a departure from that duty having regard to the nature of the office and the responsibilities held by police officers (see State of New South Wales v Briggs at [44] – [61]).

  4. At a level of generality, the duty of an employer has been said to be an obligation to take reasonable care to avoid unnecessary risk of injury. [2]

    2. See eg Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; [1986] HCA 20 at [10]; Czatyrko v Edith Cowan University (2005) 214 ALR 349; [2005] HCA 14 at [12].

  5. However, as was made clear by the High Court in Koehler v Cerebos (Australia)Ltd (2005) 222 CLR 44; [2005] HCA 15 at [33] – [35], an employer’s duty of care is owed to each employee, and in the present context the relevant duty is engaged if psychiatric injury to the particular employee is foreseeable, in the sense that it was not far-fetched or fanciful.

  6. As the High Court pointed out in Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12, it is a misconception of the ratio in Koehler when considering foreseeability to suggest that an employer has no responsibility to guard against psychiatric injury unless on notice that the employee is manifesting evident signs of the possibility of such injury.

  7. At the end of the day, the scope and content of the employer’s duty will depend upon the prevailing facts and circumstances of the particular employment relationship. However, as the High Court points out, the obligation of an employer in the performance of its tortious duty to maintain a safe system of work is to exercise reasonable care to avoid a foreseeable risk of psychiatric injury to a class of employees. [3]

    3. Kozarov at [28].

  8. Justice Edelman made the following observations on the question of duty in Kozarov (at [103] – [104]) (citations omitted):

“[103] … the employer’s duty to ensure the ‘protection of mental integrity from the unreasonable infliction of serious harm’ is imposed by law and is not dependent upon any undertaking by the employer. In this sense, it is no different from the employer’s duty to protect an employee’s physical integrity from the unreasonable infliction of harm. It has long been recognised that psychiatric injury ‘is just as really damage to the sufferer as a broken limb … and equally ascertainable by the physician’. It was this imposed duty that Ms Kozarov’s case was based upon, with her plea that the respondent’s liability arose as a consequence of the ‘reasonably foreseeable risk of Ms Kozarov suffering psychiatric injury whilst undertaking her employment duties’.

[104] Because there is no negligence ‘in the air’, the imposed duty to take reasonable steps to avoid allocating work, or creating a workplace, that causes or exacerbates psychiatric injury to an employee will only be ‘engaged’ when there is a reasonably foreseeable risk of psychiatric injury to the employee of the general kind that occurred. Whether a risk of psychiatric injury is reasonably foreseeable will depend upon (i) ‘the nature and extent of the work being done by the particular employee’ and (ii) any ‘signs given by the employee concerned’.”

  1. In the context of the potential for bullying to cause psychiatric injury, Spigelman CJ in Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 at [23] observed:

“It may well be the case that it is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury.”

  1. In my view, as the proliferation of legislative protections and workplace policies attest, it is now a matter of common acceptance, knowledge and experience that there is a risk of psychiatric injury occurring as a result of what has generally come to be described as bullying and harassment.

  2. Nonetheless, as the defendant points out, “bullying and harassment” is a general description and not a term of art, making it necessary to consider the nature and quality of the conduct in question in order to determine the question of foreseeability.

  3. The defendant contends that the decision made to require the plaintiff to attend medical appointments outside work hours was consistent with standard operating procedures in relation to injury management within the NSW Police Force. Similarly, it is contended the fact DI Duncan had a discretion as to when and how the plaintiff could attend medical appointments is a matter of which the plaintiff must be taken to have been aware when commencing at the PSC, having regard to his prior experiences of injury management over many years. The defendant argues that the conflict generated by the plaintiff believing he was entitled to attend doctors during work hours and being directed otherwise, was a product of reasonable and necessary management decisions and were far from bullying or harassment. This, it is said, is particularly so when one has regard to the fact the plaintiff was allowed to reduce his work hours while being paid workers compensation for time off work to give him the opportunity to attend medical appointments.

  4. The defendant says the reassignment of the plaintiff’s workload whilst he was on restricted duties was, as Sergeant Ralph confirmed, unremarkable.

  5. Likewise, the defendant contends the inability to use a work vehicle to attend medical appointments in the plaintiff’s own time could hardly be regarded as bullying and harassment. These were command decisions which the defendant says were not unreasonable in the circumstances.

  6. Finally, the defendant argues that if DI Duncan was bullying and harassing the plaintiff as pleaded, Sergeant Ralph would have been expected to be able to give evidence regarding that behaviour, which she did not.

  7. The defendant encapsulated its position in the proposition that the events complained of simply represent “the ebb and flow of normal work interaction surrounding a person’s work and the expectations of the Command of such a person in returning to work with rehabilitative assistance”.

  8. The plaintiff, unsurprisingly, sees it quite differently, and points out that the allegations underpinning the claim are based upon a course of conduct by DI Duncan. It is said the restrictions on the plaintiff attending medical appointments or using police vehicles ought not be seen as stand-alone stressors, but are illustrative of a bigger picture of bullying perpetrated by DI Duncan.

  9. There is considerable force in the plaintiff’s submissions on this point. The Statement of Claim articulates 14 particulars of the behaviour said to constitute bullying and harassment. It is, in my view, too simplistic to say that the plaintiff’s psychological problems were a product of him being unable to see doctors during work hours, or being prevented from using a police vehicle, or having his workload and work practices modified when on restricted duties. Alone, each may potentially be regarded as unremarkable. However, they may be seen very differently when considered as components of a course of conduct.

  10. The plaintiff’s case is effectively that after the speeding incident his work environment changed dramatically and became quite toxic.

  11. DI Duncan and Superintendent Lewis did not give evidence, and whilst the parties agreed that there would be no Jones v Dunkel inference drawn as a result, the fact remains that the plaintiff’s allegations as to the behaviour of DI Duncan are not contradicted.

  12. As indicated earlier, I found the plaintiff to be a straightforward witness. He has an impressive work history and over the years demonstrated a commitment to return to work despite adversity. I found no reason to doubt his genuineness and I reject the propositions challenging his honesty. Nonetheless, for the reasons which will be developed in due course, I have come to the conclusion that the plaintiff is inaccurate in some respects in terms of timelines, and his evidence is unreliable in some instances as to the relative causal impact of the stressors occurring before and after the interactions with DI Duncan of which he complains. These shortcomings, I am satisfied, reflect the failings in memory which arise as a result of the passing of time, as well as the effects of the plaintiff’s emotional problems and a focus on the significance of the speeding incident and its aftermath, which has gained importance in his mind.

  13. The point is well made in the plaintiff’s written submissions that the plaintiff’s evidence demonstrates a stark difference between DI Duncan’s treatment of the plaintiff before and after the speeding incident.

  14. I accept the plaintiff’s description of what was a collegiate, pleasant and satisfying work environment prior to the speeding incident. I accept that the plaintiff worked closely with DI Duncan, as he described it, effectively as “partners” working each other’s cases and helping each other out.

  15. Similarly, I accept the evidence of the plaintiff that before the speeding incident DI Duncan was friendly towards him and would, for a simple example, invite him into his office for a chat.

  16. I do not doubt the plaintiff’s unchallenged evidence that there was a dramatic change in his work environment after the speeding incident. This saw DI Duncan continue to speak with other officers in a convivial way, talking socially in his office, whereas the plaintiff was excluded from those interactions. I am satisfied that, as the plaintiff described, DI Duncan would no longer acknowledge him when he said hello, or otherwise would give him angry looks, with communication being largely by email. The plaintiff’s description about feeling uncomfortable is, in my view, entirely understandable and I have no difficulty in accepting this could have taken an emotional toll on the “happy, gentle bloke” described by Sergeant Ralph, as would the threat that he would be removed from the PSC.

  17. It was in this context that the plaintiff was no longer allowed to attend medical appointments during work hours, nor use a police vehicle for that purpose. They were far from stand-alone command decisions.

  18. The evidence makes it clear that DI Duncan had a discretion, and if he chose to, he could have allowed the plaintiff to continue with the flexible rostering arrangements he had enjoyed prior to the speeding incident. I accept that unlike the plaintiff, DI Duncan allowed other officers to attend medical appointments during work hours after the speeding incident. I find that for those reasons, the plaintiff was singled out, discriminated against and treated differently to other officers.

  1. In applying a discount, I consider it appropriate in the circumstances to deal with past and future loss differently. As the period from the date of injury to the present time is significantly shorter than the period of future loss, the percentage discount for past ought be less than the future. This is because, given the shorter timeframe, there was necessarily less potential for the unrelated problems to come against the plaintiff in the past as opposed to the future. Additionally, weekly payments of compensation received in respect of the plaintiff’s back injury will be deducted when assessing past economic loss, whereas they are a matter of speculation to be included in the discount for future loss. Similarly, the potential for early retirement because of pre-existing conditions is a discount factor more relevant to the future rather than the past.

  2. For those reasons, in all the circumstances I propose to apply a discount of 25% for past loss and 65% for future loss in the assessment which follows.

Assessment of Past Economic Loss

  1. The parties have been unable to reach agreement as to the plaintiff’s earnings as a police officer but for injury. I have been provided with supplementary submissions in support of the respective positions. There appears to be two points of contention. The first relates to the appropriate rate of pay for the plaintiff at the time of his incapacity commencing in November 2018, and specifically whether it ought be the rate applicable to a Level 6 Detective Sergeant, as contended by the plaintiff, or a Level 4 Detective Sergeant as contended by the defendant. At the heart of that dispute is the fact that when the plaintiff went to ACIC his progression through the different levels of seniority for a Detective Sergeant within the NSW Police Force stopped. The plaintiff argues that but for the bullying and harassment by DI Duncan he would not have gone to ACIC and therefore he would have progressed to Level 6 by 2018. The defendant argues that one simply looks at the plaintiff’s earnings level at the date of incapacity, which was Level 4. The issue appears to evaporate after 2021 when, on their respective schedules, both parties accept the plaintiff would have been on Level 6, which as best I can ascertain, appears to be the highest pay Level for a Detective Sergeant.

  2. The second issue concerns the plaintiff’s progression to the rank of Inspector. The plaintiff argues that from January 2022 he would have been an Inspector and paid accordingly, whereas the defendant contends that the appropriate measure is the plaintiff’s rank at the date of incapacity.

  3. Returning to the first issue, namely whether one should assess the plaintiff at the level he was at in 2018 or the level he would have been had he not gone to ACIC. As it turns out, the argument is a somewhat sterile one. In their respective schedules and submissions the parties applied different rates. However, as I understand it, the defendant’s rates set out in the Defendant’s Supplementary Submissions on Earnings are in fact, for most years, higher than those in the Plaintiff’s Submissions on Economic Loss. Accordingly, the loss for a Detective Sergeant until the end of 2021 is actually slightly greater on the defendant’s schedule than the plaintiff’s.

  4. Otherwise, in terms of the second issue, there is no evidence to satisfy me that the plaintiff would have progressed to the rank of Inspector. I have no evidence as to the requirements of promotion and the probabilities of the plaintiff being promoted.

  5. In the circumstances, I propose to apply the defendant’s submission as to pay rates for the period up to 30 June 2024, which are premised on Award rates. These have since been supplemented by some agreed “comparable earnings” Award rates for the rank of Detective Sergeant for the period since 1 July 2024. I have done the best I can to assimilate the latest information provided to me and have applied the Award rates within that material I understand to be applicable to the relevant pay level for a Detective Sergeant. Against that background, I assess past loss of earnings as a police officer at $684,591 in accordance with the schedule set out below.

Period

Rates (net per week)

Loss (net per week)

6 November 2018 – 31 December 2018

8 weeks x $1,662

$13,296

1 January 2019 – 31 December 2019

52 weeks x $1,748

$90,896

1 January 2020 – 31 December 2020

52 weeks x $1,891

$98,332

1 January 2021 – 31 December 2021

52 weeks x $1,940

$100,880

1 January 2022 – 31 December 2022

52 weeks x $1,973

$102,596

1 January 2023 – 31 December 2023

52 weeks x $2,008

$104,416

1 January 2024 – 30 June 2024

26 weeks x $2,043

$53,118

1 July 2024 – 30 June 2025

52 weeks x $2,116

$110,032

1 July 2025 – 6 August 2025

5 weeks x $2,205

$11,025

Total

$684,591

  1. The plaintiff also claims loss of income as a councillor progressing to the position of mayor, which on a weekly basis would, for the most part, take his earnings above the statutory maximum for calculating loss allowed under s 151I of the Workers Compensation Act. The evidence in support of this aspect of the claim discloses that the plaintiff was elected in 2015 for a four-year term. The plaintiff says he did not see out that term because of his psychiatric problems.

  2. The plaintiff advances a substantial claim for loss of allowances as a councillor. However, it is acknowledged that a credit of around $29,000 needs to be allowed when assessing that loss to reflect the fact that allowances were paid to the plaintiff during the period of the claim he makes. Factoring in that credit, on the figures advanced by the plaintiff, the claim for loss of earnings as a councillor probably starts from sometime in 2020.

  3. I consider the claim for the plaintiff’s loss of earnings as a councillor to be embedded with a significant amount of speculation beyond 2019, when his term of office would have otherwise expired. The plaintiff being re-elected depended on a succession plan coming to pass and beyond that, depended on him being endorsed and elected as the mayor. Other than the plaintiff’s optimism, I have little to go on.

  4. On the figures before me, in rough terms, the plaintiff’s earnings as a police officer generally sat around $350 - $400 below the statutory cap prescribed under s 151I of the Workers Compensation Act. It is that gap which realistically fixes the limit of the weekly amount recoverable for lost earnings as a councillor/mayor. Notwithstanding the speculation involved, I accept there has been a loss of opportunity to pursue elected office. In the circumstances, having regard to the prevailing statutory limits and the period of the claim, I propose to allow $15,000 as a buffer for that loss of opportunity.

  5. Accordingly, I would assess the mathematical past economic loss reflecting lost earnings as a police officer ($684,591) and loss of opportunity to be a councillor/mayor ($15,000) to total $699,591.

  6. The plaintiff also claims loss of superannuation benefits in respect of his lost earnings as a police officer, but not in respect of lost earnings as a councillor/mayor. The defendant argues that the plaintiff is not entitled to loss of superannuation benefits beyond the cap applied under s 151I of the Workers Compensation Act. In light of the plaintiff’s salary, that effectively means, on the defendant’s argument, he has little entitlement to loss of superannuation benefits.

  7. The statutory cap in s 151I is relevantly worded as follows:

“In awarding damages, the court is to disregard the amount (if any) by which the injured or deceased worker’s net weekly earnings would (but for the injury or death) have exceeded the amount that is the maximum amount of weekly payments of compensation under section 34...”

  1. The defendant’s argument is that “net weekly earnings” includes superannuation payments. In support of that proposition, the defendant relies upon the decision of Hall J in Campton v Centennial Newstan Pty Ltd [2015] NSWSC 410 at [4] – [7].

  2. The plaintiff argues that employer’s contributions under the Superannuation Guarantee (Administration) Act 1992 (Cth) are not contemplated by s 151I of the Workers Compensation Act as being net weekly earnings. The plaintiff says that the decision in Campton is of no utility because in that case the plaintiff conceded that superannuation was caught by the cap and so the matter was not the subject of any judicial determination.

  3. I agree that the ratio in Campton does not involve any consideration of the application of the section. The fact that superannuation was considered part of net weekly earnings for the purpose of s 151I was a result of a concession rather than a determination of that issue. The defendant also invokes the decision of Harrison AsJ in Duffin v Mount Arthur Coal Pty Ltd [2020] NSWSC 229 [304] – [306] where her Honour referred to Campton in adopting the same approach. However again, the issue does not appear to have been controversial, and her Honour did not engage in any consideration of the correctness of the agreement which informed the approach taken in Campton.

  4. The parties did not provide any other authorities on the point.

  5. In my view, it is a tenuous proposition to suggest the plaintiff’s net weekly earnings included superannuation, particularly in a case such as the present where the plaintiff was a government employee who was separately paid superannuation benefits. The plaintiff’s net weekly earnings were no doubt received after the application of the applicable tax rates to his gross salary. It is well known that superannuation payments do not form part of actual weekly remuneration and are paid on a gross basis. Superannuation payments are paid into a superannuation fund and are not available to a worker such as the plaintiff until sometime later when the worker qualifies for release of the funds. In my view, net weekly payments do not contemplate superannuation payments in a case such as the present. For that reason, I do not consider the cap under s 151I applies to the plaintiff’s entitlements to lost superannuation benefits.

  6. If I am wrong in that conclusion, I note that in Keogh v CPB Contractors Pty Ltd & Ors (No 2) [2024] NSWDDT 9, his Honour Judge Russell SC was also confronted with an argument in relation to the application of the cap in s 151I to loss of superannuation benefits. In dealing with the dispute his Honour referred to the decision in Glover v Australian Ultra Concrete Pty Ltd [2010] NSWSC 1284. In that case, Harrison J did not engage with the submission presently under consideration but concluded that loss of superannuation benefits is not subject to any limitation, having regard to the operation of s 149(1) of the Workers Compensation Act which, inter alia, in sub-s (g) excluded “any sum payable under a superannuation scheme” from the definition of damages. Harrison J said at [11]:

“… In my opinion the definition of damages in that section clearly excluded superannuation from the operation of the modified common law damages regime in Division 3. The availability of superannuation as an unmodified head of common law damages remained.”

  1. The reasoning of Harrison J was applied by Garling J in McGoldrick v Dendrobium Coal Pty Ltd [2022] NSWSC 1341 at [156]. As Judge Russell noted in Keogh, it is arguable whether payments out under a superannuation scheme, as described in s 149(1)(g) of the Workers Compensation Act, is in fact synonymous with payments into a superannuation fund by an employer. There may well be other aspects of that part of the decision in Glover which are open to debate.

  2. Nonetheless, as a matter of judicial comity, like Judge Russell, I would follow the decision in Glover, which provides further support for the plaintiff’s entitlement to recover damages for loss of superannuation benefits.

  3. Accordingly, I assess total past economic loss, before any discount, at $466,741 [7] calculated as follows:

    7. In assessing damages generally, all figures are rounded to the nearest dollar.

Past Loss of Earnings as a Police Officer

$684,591

Past Loss of Superannuation Benefits at 11.5% [8]

$78,728

Buffer for Loss of Earnings as a Councillor/Mayor

$15,000

Subtotal

$778,319

Less net weekly payments of workers compensation to date in relation to the plaintiff’s back injury, agreed at

$311,578

Total

$466,741

8. The plaintiff asserts a rate of 12% and the defendant contends it ought be 11%. In the absence of definitive evidence, I have allowed the mid-point.

  1. For the reasons explained earlier, I apply a 25% reduction to that loss for contingencies and vicissitudes and award $350,056 for past economic loss.

Assessment of Future Economic Loss

  1. The plaintiff was born in August 1979. Assuming a retirement age of 67 but for injury, which I do, in conformity with s 151IA of the Workers Compensation Act, the plaintiff has a theoretical employment work life of 21 years. The plaintiff’s current net earnings but for injury are, as detailed earlier, $2,205.

  2. Having regard to the plaintiff’s total incapacity and his prognosis, it is appropriate in assessing his total future loss of earning capacity to do so on the basis of total incapacity. Applying a 5% multiplier for 21 years of 685.6, that amounts to $1,511,748. As discussed earlier, the various contingencies and vicissitudes which apply in this case lead me to consider a 65% reduction to be appropriate. This results in a loss of $529,112. Accordingly, I assess the plaintiff’s future loss of earnings by reason of the injury the subject of the defendant’s negligence at $529,112.

  3. For the reasons outlined earlier, the plaintiff is entitled to loss of superannuation benefits on that sum which I allow at the agreed rate of 14%, being $74,076.

  4. Accordingly, total future economic loss, including loss of superannuation benefits, amounts to $603,188.

Summary

  1. For the above reasons, I calculate the plaintiff’s total damages as follows:

Past Economic Loss including Loss of Superannuation Benefits

$350,056

Future Economic Loss including loss of Superannuation Benefits

$603,188

Total Damages: 

$953,244

Costs and Interest

  1. As requested, I will reserve the question of costs and any claim for interest to afford the parties the opportunity to consider their positions in light of the judgment.

Orders

  1. I make the following orders:

  1. Judgment in favour of the plaintiff in the sum of $953,244.

  2. I reserve the questions of costs and interest if claimed.

  3. If orders for costs and/or interest are agreed, the parties are to provide my Associate with proposed Short Minutes of Order within seven days. To the extent there is an absence of agreement, I direct the parties to confer and approach my Associate within seven days for the purpose of re-listing the matter for argument, with an agreed timetable for the service of evidence if considered necessary.

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Endnotes

Decision last updated: 06 August 2025

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Statutory Material Cited

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Allianz Australia Ltd v Sim [2012] NSWCA 68
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20