Guff v The Commissioner of Police (No 2)

[2007] NSWDC 290

CITATION:	Guff v The Commissioner of Police (No 2) [2007] NSWDC 290
HEARING DATE(S):	15 October 2007 - 25 October 2007
EX TEMPORE JUDGMENT DATE:	24 October 2007
JURISDICTION:	Civil (Residual Jurisdiction)
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Decision of the Commissioner of Police set aside; Death of the late David James Guff was caused by his having been hurt on duty; Defendant to pay plaintiffs' costs
CATCHWORDS:	Police Sergeant attached to Police Rescue and Bomb Disposal Squad commits suicide whilst off duty - Whether psychiatric condition of deceased was caused by his having been "hurt on duty" - Whether psychiatric condition resulted from injury arising out of or in the course of the deceased's police service - Consideration of various stressors alleged by parties to be the cause of the psychiatric condition - Whether deceased's "volition was overthrown" at the time of suicide - Held: if deceased's psychiatric condition deprived him of the ability to choose between death and life his volition was overthrown and death was not a wilfully self inflicted injury - Workers Compensation Act 1987 section 9A, section 11A, section 14(3) - Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 - Soutar v Commissioner of Police (2006) 3 DCLR 351 - Smith v Commissioner of Police (No 2) (2000) 20 NSWCCR 27 - Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629 - Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342 - Mercer v ANZ Banking Group Ltd (2000) 20 NSWCCR 70 - Bottle v Wieland Consumables Pty Ltd (1999) 19 NSWCCR 135 - Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339
LEGISLATION CITED:	Workers Compensation Act 1987 Police Act 1990 Police Regulation (Superannuation) Act 1906
CASES CITED:	Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Soutar v Commissioner of Police (2006) 3 DCLR 351 Smith v Commissioner of Police (No 2) (2000) 20 NSWCCR 27 Holdlen Pty Ltd v Walsh (2000) 19 NSWCCR 629 Simeon Wines t/as Buronga Hill Winery v Bobos [2004] NSWCA 342 Mercer v ANZ Banking Group Ltd (2000) 20 NSWCCR 70 Bottle v Wieland Consumables Pty Ltd (1999) 19 NSWCCR 135 Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339
PARTIES:	C. Guff, L. Guff, E. Guff, M. Guff by their tutor J. Marshall (First Plaintiffs) D. Guff (Second Plaintiff) S. Erichsen by her tutor D. Guff (Third Plaintiff) D. Erichsen by her tutor D. Guff (Fourth Plaintiff) The Commissioner of Police (Defendant)
FILE NUMBER(S):	RJ 139/05
COUNSEL:	P Stockley (First Plaintiffs) P Barnes (Second, Third and Fourth Plaintiffs) R Hanlon (Defendant)
SOLICITORS:	Coleman & Greig (First Plaintiffs) Baker & Edmunds (Second, Third and Fourth Plaintiffs) Henry Davis York (Defendant)

JUDGMENT

1 HIS HONOUR: On 15 September 1987 the late David James Guff was attested as a probationary constable of police and thereby became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906. On 17 August 2004 the then Senior Constable David James Guff took his own life by hanging himself at his home whilst he was off duty. On 24 August 2004 the defendant, the Commissioner of Police, by his delegate, determined that the death of the late Senior Constable David James Guff was not caused by his having been hurt on duty. From that decision of the Commissioner of Police the plaintiffs bring this appeal pursuant to s 21 of the Police Regulation (Superannuation) Act 1906 (“the Act”).

2 There are two groups of plaintiffs. The first set of plaintiffs are the children of the deceased by his first marriage, namely, Claire Elizabeth Guff, Laura-Anne Guff, Ellen Louise Guff and Mitchell David Guff. Those plaintiffs bring these proceedings by their tutor, Jennifer Louise Marshall, their mother and the former wife of the deceased. At the time these proceedings were commenced each of the first four named plaintiffs was a minor. However, Claire Elizabeth Guff has now achieved her majority. However, it is not necessary to amend the pleadings because of that technical change. The second set of plaintiffs are the widow of the deceased, Denise Mary Guff, and her children, Samantha Karen Erichsen and Dominique Mary Erichsen, the children of her first marriage. At the time of his death, the deceased stood in loco parentis to those children.

3 Each of the seven plaintiffs claims to have been dependent upon the deceased at the time of his death. In these proceedings it is not necessary for me to determine whether the dependants were totally or partially dependent and, if only partially dependent, as to the extent of the dependency. Should the present appeal be successful, those matters will be determined by the SASTC and if any of the alleged dependants is dissatisfied by a decision of that body, there will be a further appeal to this court pursuant to s 21 of the Act.

4 It ought be obvious from my preliminary remarks about the nature of this action that it is not alleged that the actual suicide of the deceased arose in the course of his employment. The deceased took his own life whilst off duty, on unpaid sick leave. The allegation in this case is that the death of the deceased arose out of his employment as a consequence of one or a number of allegedly compensable events.

5 Paragraphs four and five of the present statement of claim are in the following terms:

“4. While performing the inherently stressful duties of a police officer, David experienced the following events:

a) 25 September 1988 whilst on a journey to work he was injured in a motorcycle accident sustaining a head injury, injuries to his right knee, wrist, both shoulders and damage to kidneys.

b) in about September 1990 he attended a motor vehicle accident in or around Marrickville in which he witnessed serious injury to a young child, her father and pregnant mother.

c) 12 February 1993 in the course of a rescue he was exposed to blood from a person whom he believed to be HIV positive.

d) 5 May 2002 he attended a plane crash at Violet Street, Revesby in which he assisted in the recovery of the bodies of a family of two adults and two children.

e) 15 September 2002 David involved in a motor vehicle accident on the Pacific Highway, Brooklyn when he failed to give way at an intersection and hit a motorcyclist with the police truck he was driving, causing severe injuries to motorcyclist.

f) 31 January 2003 he assisted in the rescue operation following a train derailment at Waterfall including the retrieval of bodies and body parts.

g) 2 June 2003 while performing recovery of a dead body at Mooney Mooney sustained injury to right knee.

h) 12 November 2003 assisted in the rescue of a person impaled through both legs on decorative wrought iron fence, Oxford Street, Roselle.

i) 13 February 2004 he participated in euthanasing a police horse and recovery of its body.

5. Following the motor vehicle accident of 15 September 2002 David’s conduct investigated.”

6 By his amended defence, the Commissioner of Police denies that the death of the deceased was caused by his having been hurt on duty. The Commissioner also raises a defence under s 14(3) of the Workers Compensation Act 1987 (“the Compensation Act”) that the deceased’s death was caused by an intentional self-inflicted injury.

7 The defendant also alleges that even if the deceased’s death was in some way related to a compensable injury, his employment was not a substantial contributing factor to his death as required by s 9A of the Compensation Act and the defendant also raises a defence under s 11A of the Compensation Act that the deceased’s death was caused by the reasonable action taken by the defendant in regard to either performance appraisal or discipline of the deceased member of the police force.

8 In addition to the stressors pleaded by the plaintiffs it is clear that there was a large number of other events which occurred in the course of the deceased’s police service, in particular in his work as a member of the Police Rescue and Bomb Disposal Squad. I will refer to that squad hereafter merely as the Rescue Squad. The defendant was at pains to exclude from the evidence any unpleaded stressful event; however, nothing turns on that. However, the evidence from a large number of members of the police force does indicate that the work of a member of the rescue squad is inherently stressful, exposing its members to many traumatic events involving death and serious injury and the search for and the recovery of dead persons.

9 David James Guff was born on 15 October 1962. At the time he took his own life he was forty-one years of age. The deceased attended Catholic schools and left school at the completion of Year 10 having obtained his School Certificate. The deceased then completed an apprenticeship as an electrician and became a qualified electrician. He completed a number of further tertiary educational courses. It appears that he was qualified both as an electrician, as an electrical engineer and also qualified in electronics. The deceased had an ambition to join the New South Wales Police. His final work as an electrician was for the Department of Aviation. He was eventually admitted to the Police Academy and on 15 September 1987 was attested as a probationary constable of police. His initial posting was to general duties at Petersham.

10 Prior to his joining the police force, the deceased married his first wife who is now known as Jennifer Louise Marshall. The couple met when they were working together at the North Ryde RSL Club. Each of David and Jennifer held jobs at that club as second jobs. The deceased was working in his trade as an electrician and Jennifer was working as a clerk. They met at the North Ryde RSL Club in 1984. They started dating and on 29 November 1986 they were married. At the time that Jennifer and David met, David was the owner of a vacant block of land at 8 Jordan Close at Mount Colah. After their engagement, the couple pooled their monies and they built a two-storey brick home on the land at Mount Colah. That address became the matrimonial home.

11 There were four children of the marriage. They were Claire Elizabeth who was born on 4 May 1988 and is currently nineteen years of age. The second child was Laura-Anne who was born on 25 October 1990 and is approaching her seventeenth birthday. Their third child was Ellen Louise who was born on 7 May 1993 and is currently fourteen years of age. Their fourth child was a son, Mitchell David, who was born on 23 February 1995 and is currently aged twelve.

12 On or about 8 December 1985 the deceased was injured on a periodic journey between his place of abode and his place of employment. He fell from his motorcycle, injuring his hip, knee and hand.

13 He was injured in a further motor vehicle accident on a periodic journey to his place of employment on 25 September 1988. He sustained a number of orthopaedic injuries at that time, but importantly an injury to his right knee which required surgery. All told, the deceased appears to have been absent from work for seventy six days following upon that motor vehicle accident.

14 The evidence of Jennifer Marshall indicates that during his absence from work, the deceased drank more alcohol than he normally did and he was sometimes intoxicated at the end of the day when Jennifer returned from work. In her statement Jennifer also said that the deceased became moody when intoxicated. However, the deceased’s more frequent use of alcohol ceased when he returned to duty.

15 In 1990, the deceased was transferred from Petersham to Pennant Hills Police Station. He commenced there performing general duties. However, whilst stationed at Pennant Hills, the deceased completed a police rescue operators course and became a member of the Pennant Hills Police Rescue Squad. He commenced work in the rescue squad on 22 September 1991. Thereafter, whilst at Pennant Hills, the deceased performed both general duties and rescue squad duties. By the time of his posting to Pennant Hills, police officers were working three twelve hour shifts per week with four days absent from work. However, because of the deceased’s membership of the rescue squad, he was often called out to perform work out of the rostered three twelve hour shifts and earned overtime money.

16 On Anzac day 1991 the deceased appears to have spent a day drinking alcohol with his work mates at the Drummoyne Rowing Club. When he came home he was drunk. According to Jennifer, the deceased punched holes in the walls of the house, smashing the gyprock as he sought to mount the stairs, no doubt to go to the bedroom. Jennifer told me that after that time until the time of their separation, the deceased often punched holes in the walls of their home, no doubt when drunk and when he was angry. The evidence does not disclose why the deceased was angry on Anzac day 1991.

17 On 15 August 1992, the deceased, with his wife, attended a barbecue on the Central Coast at the home of one of his superiors in the police force. This was clearly a social event. Alcohol was consumed and the deceased had some himself. There were a number of members of the police force and their spouses present at the barbecue. The deceased was rostered for duty on that evening. He was involved in a collision whilst driving a police vehicle whilst he was on duty that evening. It appears that the deceased may have caused his police vehicle to collide with a tree. In the accident, the deceased sustained a serious laceration of his left hand which required surgery. The deceased, following the event, was not discharged from hospital, until 21 August 1992.

18 Jennifer was aware that a police officer, who was a passenger in the vehicle, made a complaint against the deceased. In cross-examination Jennifer was asked whether a police officer who attended the scene of the accident asked a paramedic, who attended the scene of the accident, to withhold taking a blood sample until the deceased had been taken to Hornsby Hospital. She was also asked whether another police officer asked a nurse at Hornsby Hospital to delay taking a blood sample. She was also asked as to whether she knew that an allegation was made that the deceased had threatened a nurse at the hospital after his admission on 15 August 1992.

19 It became clear from further cross-examination that the allegation made against the deceased, of threatening a nurse, was dismissed by the Ombudsman. However, that line of questioning of Mrs Marshall at the end of the day became irrelevant as there was no medical evidence adduced to establish the relevance of the deceased’s being suspected of threatening a nurse or the deceased’s being cleared of the allegation by the Ombudsman, or of any alleged impropriety by other members of the police force.

20 That piece of cross-examination and subsequent pieces of cross-examination, none of which appeared to be relevant on medical evidence, suggested to me that the approach of the Commissioner of Police was conditioned by the principle that de mortuis nil nisi malum: speak only ill of the dead. For example, Mrs Marshall was also cross-examined about an allegation that on 15 November 1992, a Sergeant Mitchell alleged that the deceased had urinated on the rear nearside door and wheel of a police vehicle whilst other police were within the vehicle. There is no medical evidence to suggest the relevance of that event and appear merely to be another attempt to blacken the reputation of the deceased.

21 On 12 February 1993, the deceased again lacerated one of his hands whilst on duty. He attended a motor vehicle accident in which a person had been severely injured. In order to clear the air passage of the injured person, the deceased had to put his hand through a broken car door window and lift up the injured person’s head. In the process of doing that, the deceased lacerated his hand and there was a blood spillage also from the injured person. The injured person was known to the deceased to be a drug addict and the deceased was afraid that he may have contracted the HIV virus and/or a Hepatitis virus. Blood tests two days later at the Hornsby Hospital were negative for the HIV virus, but as that blood testing report states, a further test needed to be carried out in a period at least three months later and up to six months later to positively exclude a diagnosis of the acquisition of the HIV virus. Other evidence suggests that the further blood testing occurred in May 1993 and was found to be negative.

22 It is clear from the evidence that the deceased made a hurt on duty claim following his injury of 12 February 1993 and it is clear that the deceased was extremely stressed by the occurrence. On 27 March 1993 he attended upon Dr Healey complaining of stress and anxiety. He was referred to Dr Eaton, a psychiatrist. There is no evidence before me from Dr Healey or Dr Eaton about the deceased’s psychiatric condition at that time. However, there are reports from Dr Allen White, Psychiatrist, who was due to see the deceased on 18 October 1993 and also from Dr R J Schureck, consultant psychiatrist who did see the deceased on 9 December 1994.

23 It is clear to me from reading Dr Schureck’s report of 15 December 1994 that Dr Schureck had available to him reports from Dr Eaton. Dr Eaton appears to have diagnosed the deceased as suffering from a reactive anxiety state as a result of his putative exposure to the HIV virus. Dr Schureck himself formed the view that the deceased had a moderately severe mixed anxiety depressive state. Dr Schureck expressed this view:

“I consider Mr Guff to have suffered from an anxiety depressive reaction arising from the belief that he had sustained a possible HIV infection in the course of his police work. There was no evidence of psychiatric illness prior to this, and the condition itself ameliorated rapidly following confirmation of his HIV negative status.

I consider the treatment given by Dr Eaton to be entirely appropriate, and this, together with the removal of the underlying cause, indicates that the prognosis should be excellent.”

24 Dr Schureck clearly saw the deceased more than a year after his HIV negative status had been confirmed. In raising the diagnosis, Dr Schureck used the perfect tense, indicating that as far as he was concerned, the deceased had recovered from the anxiety depressive reaction. There was no suggestion that Dr Schureck thought, at the time he examined the deceased, that he was psychiatrically disturbed.

25 On the day after the deceased had first seen Dr Healey, namely on 18 March 1993, there was an incident which occurred at the Pennant Hills Police Station. That was a matter that was the subject of cross-examination of Mrs Marshall. She did recall the deceased’s turning up at the Pennant Hills Police Station intoxicated one evening. She recalled that her husband had been asked to leave the premises and she was aware that there was an internal police inquiry. She was unaware that in July 1994, the deceased had been found guilty of two departmental charges, one of misconduct and the other of disobedience, and she was unaware that the deceased had been fined $400 for those offences and she was unaware that the deceased had applied to pay the penalty by fortnightly instalments of forty dollars.

26 Again the medical evidence does not establish that that event is at all relevant to the deceased’s death. However, a history of the event was taken by Dr Schureck. It is this:

“While on sick leave, Mr Guff returned to his station in the company of other officers after having consumed alcohol. A sergeant apparently criticised one of the group, and Mr Guff took it upon himself to defend his friend, so that some sort of altercation arose. Mr Guff considers that the officer concerned was not held in high repute because he was not and had not for some time been on active duties, and was considered ‘out of touch’, especially by officers who were on active duty on an everyday basis. This incident was the subject of a complaint, and as I understand it currently under investigation.”

It can be seen therefore that the deceased had been out drinking with his work mates, the group returned to the police station, there was some criticism levelled by a sergeant at one of his work mates and the deceased stood up for his work mate and that eventually led to the departmental charges.

27 It would appear that the deceased’s inhibition about confronting a superior officer was lessened by his consumption of alcohol, but that history does not paint the deceased in the negative way that the cross-examination of Mrs Marshall suggested. However, what the history of the deceased so far that I have considered, does suggest is certain underlying personality traits. Dr Schureck himself referred to the deceased as being “somewhat resentment prone” and to have a “somewhat truculent temperament”.

28 There was a discussion of personality traits of the deceased in the medical evidence before me. The deceased’s treating psychiatrist, Professor Phillip Boyce, told me that the depressive illness which he diagnosed would have exacerbated any mild, abnormal personality traits that the deceased had. He said that the personality traits were probably impulsiveness, a tendency to ruminate on matters and a need to use alcohol to cope leading to a problem with alcohol consumption. He also thought that the deceased was prone to manipulative behaviour.

29 In her report of 5 March 2007, Dr Yvonne Skinner said this commencing on page 12:

“Personality traits interact with other factors in the aetiology and management of psychiatric disorders. Mr Guff was described by Dr Schureck in 1994 as ‘a truculent individual’. His wives have given accounts of his aggressive behaviour. His treating psychiatrists, Dr Vaughan and Professor Boyce, have commented on his use of denial as a psychological defence mechanism, minimising the nature and extent of his problems. Dr Vaughan also commented on his anti-social traits. These personality traits were probably exaggerated when Mr Guff was experiencing an episode of mood disorder and would have adversely affected his ability to form and maintain relationship with others and to access help to deal with his problems.”

30 The existence of personality traits is universal. We all have them. Some people think that, for example, personality traits of obsessiveness and compulsiveness, are abnormal. However, evidence that one constantly hears when dealing with matters in the Special Statutory Compensation List shows that such tendencies, such personality traits, are ideal for persons such as judges and surgeons and other professional people.

31 Merely to have a personality trait is not a cause of any alarm. However, as Professor Skinner herself pointed out, when there is a mood disorder such as depression, personality traits can affect the way in which the patient reacts to the mood disorder. However, clearly by 1994 the deceased’s problems related to alcohol were evident and his problem with denial was evident. The deceased and Jennifer were first estranged in December 1996. According to Jennifer, the deceased first became abusive towards her, both verbally and physically, some two years prior to that time.

32 Mitchell was born on 23 February 1995. That would indicate that Jennifer became pregnant with Mitchell in about May 1994. In paragraph 12 of a statement made by Jennifer Marshall on 24 February 2004, the day after the deceased’s first suicide attempt, Jennifer said this:

“The violence that David displayed when I fell pregnant with Mitchell was unbelievable. He would emotionally and physically abuse me, he would push me around and threaten me with physical harm. This mainly happened when he was drinking. David was at times uncontrollable.”

That statement was a statement made to the police in an attempt by Jennifer, which was successful, to obtain an apprehended violence order against the deceased. In those circumstances, I must be careful to accept what the statement says at face value. It may contain hyperbole and it may be a reconstruction of events of ten years earlier. However, it does tie in with Jennifer’s oral evidence to me that the relationship between herself and the deceased became abusive some two years prior to December 1996. It ought be clear from what I have already said that the relationship clearly failed.

33 A question that was debated in this matter was the cause of the failure of the marriage. However, again the medical evidence does not disclose that that is at all relevant to matter which I must determine. It is clear from the evidence that Jennifer herself and from the evidence of a large number of other witnesses that the deceased had not only a desire to be a policeman, but also that he was a passionate and committed policeman. The deceased loved his work. The deceased spent a lot of time at his work. It is clear that Jennifer resented the amount of time and the amount of commitment that the deceased invested in his work as a policeman.

34 It would appear that in the early nineties both the deceased and Jennifer were very busy people. The deceased was busy with his work in both general duties and the rescue squad, and Jennifer herself was a mother with a young family and a growing family, who was working as a bookkeeper in her own business. According to Jennifer, the deceased lost interest in her and family life and devoted himself to his work. Ultimately that appears to have led to the failure of communication between the deceased and his wife and to the breakdown of the marriage. It would appear that the time that the marriage broke down or commenced to break down the deceased turned to alcohol and became violent at times.

35 In the first part of the 1990s the deceased had continuing troubles with his right knee and also a problem with his shoulders. It appears that the problem with the right knee was particularly burdensome and required repeated amounts of surgery. However, the orthopaedic problems that the deceased had do not appear to have been a material cause of the psychiatric condition which appears to have led to the deceased’s death.

36 On 8 August 1996 the deceased ceased performing duty as a member of the Pennant Hills Rescue Squad. That was because the squad was decommissioned. Although this was not canvassed in the evidence, the proximity between the decommissioning of the rescue squad at Pennant Hills and the first estrangement of David and Jennifer some four months later could indicate that the two are related. It is clear that the deceased was passionate about his work in the rescue squad. After the Pennant Hills Rescue Squad was decommissioned, the deceased would from time to time relieve at the Police Rescue and Bomb Disposal Squad which was then and still is based at Zetland.

37 In December 1996 the deceased left the family home, and according to Jennifer, moved in with his second wife, Denise, who was an acquaintance of his at the time. That is not consonant with the evidence of Denise Guff. According to her, she commenced her relationship with the deceased on 15 October 1997 and did not commence to cohabit with him until 1998. According to Jennifer, during the absence of David from the family home, she met her current husband, Mr Michael Charles Marshall. There would appear to have been some reconciliation between David and Jennifer, but on 13 July 1998 Jennifer referred to the deceased as having thrown her out of the family home. There appears to have been one short period in October 1998 when Jennifer returned to live in the family home, but the couple did not live together as man and wife for those few weeks in October 1998. Their final separation was on 29 October 1998.

38 It is clear from a number of sources of evidence that the deceased believed that Jennifer had been unfaithful to him by commencing her relationship with her current husband during the subsistence of the marital relationship between Jennifer and the deceased. However, that was not the subject of any cross-examination of Jennifer whose evidence was that she only commenced her relationship with Mr Marshall after the breakdown of her marriage with the deceased. Equally, what Mrs Marshall said in her evidence is not consistent with what Mrs Guff said in her evidence as to the commencement of her relationship with the deceased. Again, there was no attempt by counsel to reconcile those areas of the evidence, and that is understandable in the light of the fact that Jennifer Marshall was the tutor of the first four plaintiffs and Mrs Guff was a plaintiff herself. They had a common interest.

39 Where the truth of the matter lies, I am unable to determine. The only thing I can determine is the deceased believed that Jennifer had been unfaithful to him. As I sought to point out to counsel, it may well have been that in the mind of Jennifer, the marriage was over and she commenced her relationship with Mr Marshall, but it may not have been the perception of the deceased that the martial relationship had irretrievably broken down and that he may have hoped for a reconciliation, and therefore he could view Jennifer’s relationship with Mr Marshall as being an adulterous one. It is merely a question of perception, not reality.

40 On the medical evidence, the breakdown of the relationship between the deceased and Jennifer is not relevant. Again, one wonders why it needed to be canvassed. At one stage it appeared to me that it might be relevant that the breakdown of the first marriage was the cause of the psychiatric illness. However, no medical evidence was adduced to that effect.

41 Furthermore, the evidence really is to the contrary. A marriage breakdown can be stressful for any married person, whether husband or wife, and can be extremely stressful for each of the couple. The breakdown of marriages often leads to anger, disappointment, disillusion, despondency and general upset. One perhaps can liken break up of marriage to the death of a close relative. It does not necessarily involve a psychiatric illness but it may involve something akin to a normal grief reaction.

42 The question I ask myself is whether the break up of the relationship between the deceased and Jennifer led to a psychiatric illness. In my view, it did not. For reasons to which I shall in due course turn, the medical evidence persuades me that the development of a depressive illness will lead to personality changes which severely disrupt and impede normal human interaction between the person suffering depression and, for example, the person’s spouse, children, relatives and the wider community. Although there is evidence of bitterness, anger and resentment between Jennifer and the deceased, the evidence of Denise Guff and the deceased’s mother, Sylvia Guff, clearly establishes that the deceased was interacting positively and appropriately with, in particular, Denise Guff at the time of the stressors resulting from the breakdown of the marriage of David and Jennifer.

43 In chief, Denise Guff told me that she commenced cohabiting with the deceased in or about 1997. In her statement of 24 November 2004 to the coroner, Denise said that that cohabitation commenced on 15 October 1997. This evidence was given:

“Q. When you first met David, what can you tell his Honour about his general demeanour and personality?
A. Dave was happy, happy-go-lucky, Mr Busy, Mr Community, Mr Family. He was just larger than life and just - just an amazing sort of character that you couldn’t help but love.

Q. At this point at the beginning of the relationship did you notice or observe Mr Guff to consume excessive amounts of alcohol?
A. No.”

44 Later, Denise was asked about the relationship of the deceased with his children:

“Q. At the time, at the very beginning, were you able to make any observations regarding Mr Guff’s relationship with his own biological children?
A. Fantastic. Dave was a great father. He loved his children, you know. Dave loved his family. He just had a good relationship with his children.

Q. In respect to your children, Samantha and Dominique, what was the relationship like between those and Mr Guff?
A. In the beginning?

Q. At the beginning?
A. Yeah, great, great, you know. Six kids, they all got on really well. It was - it was a good relationship.”

45 In cross-examination, at page 140, Denise said that when she and the deceased started the relationship they were “very happy, and life was good”. Again, on the following page, she made the point that the marriage between David and Denise was a happy one.

46 According to Denise, there was only one argument that occurred prior to 2003. That argument occurred prior to the family boarding an aeroplane to fly to Fiji where the couple were married on 12 December 2002. I will, in due course, need to consider that argument but suffice it to say the medical evidence persuades me that it was the result of a phobia that David had developed following upon his participation in the recovery of bodies at an unfortunate plane crash and was not the result of any matrimonial disharmony.

47 In other words, from 1997 to 2002 the relationship between Denise and David was a happy and harmonious one and completely inconsistent with the deceased’s suffering from a psychiatric illness during that period of time. Therefore, the unhappy relationship between Jennifer and David that commenced in 1994 and appears to have persisted until the time of the deceased’s death was no more than conflict between estranging, divorcing and divorced people and was not in any sense the cause of any pathological mental condition.

48 Initially, David and Denise lived at Denise’s home at Ryde. In 1999 they moved to the house at Mt Colah. There was a need to do that as the house at Mt Colah was large and could accommodate Denise and David, David’s four children by his first marriage and Denise’s two children by her first marriage. It appears that Denise’s children lived predominantly with Denise and arrangements had been reached between Jennifer and David that they should have the children on alternate weeks. Accordingly, every second week there were six children to be cared for by David and Denise and the larger home at Mt Colah was more appropriate than the house at Ryde.

49 In either 1996 or 1997, the deceased was transferred from general duties at Pennant Hills after the decommissioning of the Pennant Hills Rescue Squad and was transferred to general duties at Gladesville.

50 On 8 August 2000 the deceased commenced full-time work with the rescue squad at Zetland. He remained attached to the rescue squad at Zetland until the time of his death. According to Senior Sergeant Stewart Woodward, the database of the Rescue Squad indicates that the deceased during his membership of the rescue squad at Zetland responded to 1034 rescue “situations” during the period from 8 August 2000.

51 I have earlier commented upon the deceased’s passion for his police work and I believe on his passion for rescue work. One of the police witnesses to give evidence told me that as far as the deceased was concerned, he wanted to see out his police career in the Rescue Squad and did not wish to return to general duty policing in which he had spent, to paraphrase what the witness said, an adequate apprenticeship.

52 Shortly before the deceased’s assignment to the rescue squad at Zetland, Jennifer and David were divorced on 13 April 2000. It is clear from Jennifer’s evidence that at that time or before that time the couple had reached agreement without the intervention of any court as to the residence of their children and as to the disposition of the matrimonial property.

53 On 1 October 2000 an incident occurred at the Kirribilli Ex-Serviceman’s Club. That was the subject of a cross-examination of Denise. A social function involving members of the police force was taking place at that club and the purpose appears to have been to observe the fireworks which marked the culmination of the Sydney Olympics. At the time Denise Guff was working as a roster clerk at the Granville Police Station. An inspector attached to Granville Police Station was present at the club. It appears that a number of people were drinking alcohol and in some moment of “joviality” the inspector put his arm around the shoulder of Denise and David became upset about that.

54 According to Denise, a “lot of police” were acting inappropriately and that caused her to leave to go home. She was then cross-examined about what her husband may or may not have done on that occasion.

55 There was an Internal Affairs investigation into the deceased’s conduct. Proceedings were commenced in the Local Court at Parramatta against the deceased for the crime of common assault. Apparently they were commenced irregularly because they were commenced against a member of the police force without appropriate authorisation. Further proceedings were commenced in the North Sydney Local Court and were first returnable on 13 February 2001 after authority to commence proceedings had been given by Commander West of the Endeavour Region on 18 January 2001.

56 The breach report for the common assault is this:

“On the evening of 1 October 2000 the [deceased] was in attendance with a number of other off duty police officers at Kirribilli Ex-Serviceman’s Club. This venue was selected for those gathered to view the fireworks display associated with the Closing Ceremony of the Sydney Olympic Games. During the course of the night the [deceased] was involved with a number of other persons in a dispute and was spoken to by a number of persons concerning his actions.

Some time during the course of the evening, the [deceased], Guff, was spoken to by the victim and it is at this point that a conversation took place between Guff and the victim, Nicole Leo. The person was allegedly advised by Leo that he should leave the premises due to his behaviour.

At this point, both persons have become involved in a physical altercation which resulted in both persons falling to the floor.

Evidence adduced from witnesses, both civilian employees of the club and those gathered at the function (off duty police) reflect that the offender was seen to strike the victim to the head area with a closed fist. The offender was restrained by a number of persons and a short time later left the club premises.

The victim in this matter sustained swelling and bruising to her left eye in addition to other bruises to her legs and arms consistent with a fall to the floor.

The [deceased] was interviewed by way of ROI in the absence of ERISP equipment operating correctly at Castle Hill Police Station on 22 November 2000, in the presence of an independent support officer. He declined to make any comment specific to the assault allegations. He has been informed that the matter would be reported.”

Ultimately that charge was withdrawn. No evidence was given by Constable Leo before me. The only inference to be drawn is that there was some interaction between off duty police when in their cups at the RSL. It does not speak of any psychiatric illness.

57 In April 2001 the deceased is alleged to have made threats against Jennifer and her husband, Mr Michael Marshall. That caused Jennifer to go to Gladesville Police Station where the deceased had been working until 2000 and to make a statement on 28 April 2001. The purpose of making the statement was to seek an apprehended violence order. Jennifer decided not to proceed with the application for the apprehended violence order because the deceased gave her an undertaking that he would not threaten her or her husband any more and that he would mend his ways. The reason that the deceased gave that undertaking was because he did not wish to get himself into trouble with the police, which could affect his job. According to Jennifer, the undertaking that the deceased gave to her caused him to modify his conduct.

58 That evidence was given in cross-examination after Mrs Marshall had been cross-examined by counsel for the defendant about certain threats which had been made by the deceased to Mrs Marshall. Those threats are set out on pages 54 and 55 of the transcript and I will not recite them. They would appear to have been based on allegations contained in affidavits filed in Family Court proceedings.

59 Importantly, from the defendant’s point of view, they establish that the deceased liked to set rules which he expected others to obey. One of the rules was that the deceased did not wish to see Jennifer in the company of her new husband, that he did not wish to see his children in company with Jennifer’s new husband and that if his rules were broken he would not be “responsible for his actions”. They are clearly threats made in the climate of ill will between a divorced couple waging war over their children. Again, it is not suggested that that is pathological behaviour on the part of the deceased arising from some disordered cognition due to psychiatric illness.

60 On 26 September 2001 the police force delivered to the deceased a formal notification that he was being considered under s 181D of the Police Act 1990. On 27 December 2001 the deceased was served with a notice under s 181D(3)(a) of the Police Act 1990. The document had been signed by the then Commissioner of Police, Mr Peter Ryan, on 29 November 2001.

61 The document gave the deceased notice that the Commissioner was considering his suitability to continue to serve as a police officer, taking into account seven items of conduct. The first five items all allege incidents at the Kirribilli Ex-Serviceman’s Club on 1 October 2000. The first was deliberately destroying the spectacles of Inspector Steven Mathews. The second was gripping Constable Bradley Johnston’s throat and threatening him in an aggressive manner. The third was tearing the clothing of Inspector Christopher Ashton. The fourth was of spitting upon the back of Inspector Mathews and the fifth was physically and verbally assaulting Constable Nicole Leo, however, the document goes on to note the charge making that allegation had been withdrawn.

62 The sixth item of conduct was that on 21 November 1999 he received an inappropriate image on the police memo system which he failed to report to his supervisor. Whatever the image was, I do not know. The seventh and final matter charged was that on 18 March 1993, he attended Pennant Hills Police Station whilst intoxicated and verbally abused and threatened to assault Constable Mark George and Sergeant Wayne Mitchell. That is the event for which the $400 fine was imposed eight years earlier.

63 After service of that notice on 27 December 2001, the police force initiated an “individual employee welfare plan”. That appears to have been initiated on 2 January 2002 by a civilian employee of the police force at Gladesville. On 10 January 2002, the deceased and his wife were visited by that civilian employee, Chrissiejoy Marshall. It appears that the idea of the plan was to assist the deceased and his wife; however the documents relating to it before me, merely show an abundance of, indeed an exuberance of, bureaucratic language.

64 On 25 February 2002 the Commissioner of Police referred the 181D nomination to the Employee Management Branch of the police force for consideration under s 173 of the Police Act 1990. By making that referral, the Commissioner finalised his nomination under s 181D. I am unsure as to what the outcome of the consideration of the matters was under s 173. I am aware of subsequent consideration of s 173, but not relating to those matters referred to in the s 181D notice which was dated 29 November 2001 and served on 27 December 2001.

65 On 5 May 2002 the deceased attended the scene of a plane crash at Violet Street, Revesby. The plane was a light plane containing a family of four: mother, father, son and daughter. The two principal rescuers sent to retrieve the bodies were the deceased and Senior Constable Mark Adam Bieder. Paragraphs nineteen and twenty of Senior Constable Bieder’s statement are these:

“19. On 5 May 2002, with Dave and other police I attended the scene of a plane crash in a factory complex in Violet Street, Revesby, where an entire family, husband wife and two children had been killed. The extent of the damage to the plane and the deceased was extensive. I was called there originally to provide lighting and to assist with the initial investigation. I realised that we needed experienced operatives and our special equipment to extract the bodies. The Pathologist was on site and they wanted the plane to be as little damaged as possible by the extraction process.

20. I noticed a mood change in Dave during the job. Dave became very upset after we recovered the little boy, who was the body we cleared first and then his sister. It was the first time that I had seen Dave actually distressed at a job scene and you could see that his usual skills were being affected by his emotions. Sergeant Woodward had to take Dave aside to try and settle him down before we went on to retrieve the bodies of the parents. We had problems locating those two bodies in the wreckage, which you have to do of course before you start cutting into structure.”

66 Senior Constable Bieder also gave oral evidence about that rescue. Senior Constable Bieder said that the deceased was “rattled by what had gone on”. He said that the deceased’s discomfort at this accident scene was obvious and the deceased needed to be spoken to by Sergeant Woodward in relation to doing the job in a different way to the way in which the deceased wished to do it, the deceased’s having a one sided approach to that job, contrary to his usual approach to jobs of that nature.

67 Senior Constable Bieder spoke of the deceased’s undergoing a “definite decline” because normally the deceased was a very happy, a happy go lucky type of fellow who was always prone to making a joke and never really succumbed to stress. Senior Constable Bieder said the deceased and he spoke about this rescue a few times subsequently and in particular it was of moment to Senior Constable Bieder because that was the first incident which he attended that involved a deceased child after he had first become a father. Furthermore, later in the same year Senior Constable Bieder almost lost his child and that gave memory of this accident scene greater poignancy.

68 Senior Sergeant Stewart Woodward also gave evidence of this incident. He said that the deceased made comments that the dead boy reminded the deceased of his own son, being of his son’s age. He told me that he had never heard the deceased make such a comment before and it was out of character. He said this:

“Q. Shortly thereafter whilst on duties did Mr Guff express to you any misgivings of a personal nature concerning his involvement in the particular operation?
A. No, after the comments that he passed to me in relation to the children I did make an effort to talk to him about it and that was on away from work type basis.

Q. Would you be good enough then, if it’s not in the formal debriefing sense, to explain to his Honour what you mean by that if that’s what was said?
A. Owing to the comments that were raised by David we had a - or we both went up to the local club and sat there and had a discussion about the job. We were only there for probably an hour, an hour and a half.

Q. What led you, within the context of these discussions, you’ve had to speak one on one with Mr Guff?
A. Just the comments that he made in relation to the children.

Q. How did you interpret those comments from a supervisory position?
A. I had - at the end of the day he was the only person that actually raised those sort of comments, although I understood a lot of police may think along those lines, but for him to have mentioned it there at that time I thought I would attempt to press him further on to see if he had any issues with it.”

69 Later this question and answer was given:

“Q. Was the reason that you went and discussed this with him at the local club because you were concerned that he had some affect on him?
A. I was concerned by the comments that he said there at the scene, so I - the club thing was his idea to get away from everybody being the family involvement and just to have a discussion, and they were the comments that he passed out there at the scene and I know, like I have children and I know that other police within our squad have children and we all have similar misgivings when dealing with kids around our own kids age but for David to have said it was a concern.”

70 The evidence before me clearly establishes that the modus operandi of the rescue squad is for members not to show any emotion, to act, even if it be not the fact, as if they were in total command of all their senses and faculties and to behave as if they are completely enured to scenes of carnage and mayhem. One of the reasons, of course, for that is to instil public confidence in the rescue squad and not to upset any bystanders or for example, relatives of a deceased person, who might be nearby.

71 Any distress is thereby internalised and it would appear from accounts of other witnesses before me on this application that the attitude is to show machismo and if there be any problems to discuss them afterwards with a beer or two or more at licensed premises after work. For the deceased to have said what he said was clearly unusual for him, an experienced rescue squad member, and of concern to his superior, Senior Sergeant Woodward.

72 Shortly after her husband’s death Denise Guff made a statement to the Coroner which is dated 24 November 2004. It was a statement she made herself in order to try to explain to the Coroner the circumstances that led to the deceased’s tragic death. It is not, for example, a statement obtained by a policeman. On page 3 of her statement the following appears:

“There were also work issues that caused him stress, most notably a plane crash that he had attended where all the occupants were deceased. A family was lost in this accident, one member of the family was a young boy who Dave said was the spitting image of his son, Mitchell. Dave didn’t sleep properly for weeks after that incident, he twitched in his sleep for most of the night for the first week after that. Dave had started to recognise that he was having some issues and had tried to talk to some type of psychologist from work - but when he came home he told me this bloke had just told him to count sheep to get some sleep and that was the end of that. Dave was not one to ask for help - so that was a huge step for him to even talk to this guy - which was probably more destructive for Dave than help.”

73 The evidence before me does not show any attendance by the deceased upon a police psychologist or anyone retained by the police force shortly after the plane crash of 5 May 2002. One must note in the Denise’s statement that she said that the deceased did not sleep properly for weeks after the event and that he twitched in his sleep for most of the night for the first week after the event itself, that is twitching for one week, not sleeping properly for a number of weeks after that. In her evidence to me Denise maintained that the deceased’s sleeping patterns were interrupted from 5 May 2002 until the time of his death and that the twitching lasted not one week, but the number of weeks referred to in her statement. As could be imagined Denise was cross-examined about the inconsistency. In-chief Denise told me in addition that after this plane crash the deceased became “a little bit more watchful over the children” and that he, “probably started to drink a little bit more in the afternoon.” She also said that after this event the deceased started from time to time to drink a beer before attending work, which she understood to be a “settler”, although the deceased told her he merely imbibed the beer in order to ingest its sugar content.

74 When cross-examined about the inconsistency between the statement and what she was saying in evidence, Denise said that she slept every night beside her husband and she definitely knew that his sleeping problems resulted from the plane crash.

75 What is the more likely position? The first thing to note is that the statement of Denise was made on 24 November 2004, some two and a half years after the plane crash. She gave evidence to me about the plane crash almost five and a half years after it occurred. One would expect that her memory of events in 2002 would have been better in 2004 than it was in 2007.

76 Furthermore, no doubt since the deceased’s tragic death and over the last three years, Mrs Guff has had cause to ruminate over what has happened to her late husband and as to the circumstances that led to his death and rumination can often lead to reconstruction. I do not mean deliberate reconstruction, that is, making up a story deliberately, but often in the course of human recollection, stories are reconstructed with the passage of time.

77 That the deceased’s sleep patterns were interrupted there is no doubt. They were clearly interrupted by at least the middle of 2003. It is quite possible now that Mrs Guff’s recollections are a year out of kilter with the reality. Furthermore, the medical evidence persuades me that the reason for the sleep disturbance is the depressive illness. Once the depressive illness arose, there was sleep disturbance and also conflict between the deceased and others and inability of the deceased to maintain proper social relations with his family members and others.

78 It is clear from the other evidence of Mrs Guff that prior to 2003 the marriage was good. In those circumstances I am unable to accept the evidence of Mrs Guff that the sleep disturbance persisted from 2002 until the deceased’s death. It appears to me that what she said in her statement is more likely to be accurate, merely because of the closeness in time of the statement to the event. However, that does not gainsay the effect of the plane crash on the deceased’s psyche.

79 It is clear that that is the first event which caused alarm for the deceased’s superior, Senior Sergeant Woodford, and indicated that he was not coping as well as he had previously with exposure to trauma involving mayhem and carnage. There is another telling factor about the plane crash. I have earlier mentioned the argument between Denise and her husband prior to their marriage in Fiji on 12 December 2002. That was explained by Denise thus in her evidence:

“Well the night before we were going to Fiji and Dave was agitated we were all getting ready like to go, and the kids were all packing the bag, and, I don’t know, Dave - Dave kind of started picking a couple of fights with the kids. I think he wanted me - told me to go and wash the dog or something and then - anyway he was sort of saying, well, ‘Well we’re not getting on the plane. No one is going.’ Lots of stuff and then I said, ‘Well it’s okay, you know, we’ll still go.’ When I just thought it’s pre-wedding jitters and that, and anyway so that then he - well he didn’t want any of us to get on the plane, and he said to the kids that we weren’t going and that he - that he was going to sprinkle gun powder on their bags so that they’d never get to check out and they wouldn’t be able to get on the plane, and then, yeah.”

80 The evidence of Dr Phillips makes it clear that that may have been a phobic reaction on the part of the deceased to plane travel especially for his children following upon the event of 5 May 2002.

81 On 15 September 2002 the deceased was involved in a motor vehicle accident. He had commenced a twelve hour shift at 7.30pm on Saturday 14 September 2002. That shift ended at 7.30am on 15 September 2002. However, he was called to perform overtime work to assist in the recovery of a body near Brooklyn. He was required to take a police rescue vehicle up the Pacific Highway and to collect now Senior Sergeant Woodward from his home in the northern suburbs and then proceed to Brooklyn. He was driving a fully marked police rescue truck, and at all material times the emergency lights of the police vehicle were flashing.

82 The deceased travelled along the F3 freeway to Brooklyn and had left the freeway north of the Hawkesbury River. His route took him underneath the F3 to return him to the Old Pacific Highway to cross the old bridge in a southerly direction to reach Brooklyn. After travelling underneath the freeway the deceased was faced with a give way sign at the intersection of the connecting road with the Old Pacific Highway.

83 At the intersection the deceased needed to make a right hand turn. When he reached the intersection, the deceased did not stop and commenced to make a right hand turn at the speed of fifteen kilometres per hour. At the same time Ms Karen Smith was travelling north on the Pacific Highway at a speed not in excess of the marked speed limit of sixty kilometres per hour. She was approximately fifteen to twenty metres from the intersection when the police truck driven by the deceased turned in front of her. Ms Smith collided heavily with the rear of side of the police vehicle.

84 Ms Smith suffered a displaced pelvic ring disruption and a displaced fracture involving her left knee. Both those injuries required surgery with internal fixation. There were multiple operations to achieve that fixation. Ms Smith also sustained internal damage to her bladder and bowel which required both internal and external stitching. She also suffered what she referred to as bruising to the brain, perhaps a subdural haematoma. All told at the time of making a statement on 17 November 2002 Ms Smith had had five operations. The evidence before me persuades me that the deceased was severely affected by this motor vehicle accident. Indeed I believe I could use the word “devastated” without overegging the pudding.

85 A number of consequences followed upon this motor vehicle accident. The first is that it had to be investigated by the police as any motor vehicle accident involving injury to a person is investigated. It was investigated irrespective of the fact that the driver of one of the vehicles was a policeman and that one of the vehicles was a police rescue squad truck. On 7 March 2003 Sergeant M A Bogg of the traffic services branch wrote a report requesting permission to commence proceedings against the deceased relating to the serious motor vehicle accident that occurred at Brooklyn on 15 September 2002. Part of Sergeant Bogg’s report says this:

“On reviewing the available evidence, it is my opinion that the offence of Dangerous Driving Occasioning Grievous Bodily Harm is the most appropriate offence. This charge is under section 52A of the Crimes Act. The criminal charge should be backed up with Negligent Driving Occasioning Grievous Bodily Harm and Not Give Way at Give Way Sign both under the Australian Road Rules.”

86 That advice was accepted by the commander of the Crash Unit on 10 March 2003. Informations were then prepared by Sergeant Bogg as principal informant. There were three informations, one for each of the offences referred to by Sergeant Bogg in his report. From the informations it is clear that they were first returnable before the Downing Centre Local Court on 3 June 2003. The brief that was prepared for the charges was a police brief and the brief was made by Sergeant Bogg.

87 In connection with the investigation the deceased had been interviewed on 24 April 2003. That was an ERISP. After having been advised of his right to maintain silence, the deceased advised his interviewer, Sergeant Bogg, that on legal advice from the Police Association he wished to exercise his right to silence. However, the deceased was well aware that there were certain obligations under the Australian Road Rules that a driver involved in a collision must answer. The deceased obviously was aware of those obligations and he answered each of the questions put to him by Sergeant Bogg appropriately.

88 It is clear from what he said in the interview that he did not see the approach of the motorcycle driven by Ms Smith. He did observe another motorcycle, red in colour, with its headlight on travelling north on the Pacific Highway approximately one hundred metres from the intersection but he thought it was safe to turn in front of that vehicle owing to its distance from the intersection. It is clear that he did not see the motorcycle driven by Ms Smith.

89 Earlier the deceased had made a statement on 20 September 2002 giving his version of the event. Again in that statement he made the point that he did not see the vehicle being driven by Ms Smith. The matter came ultimately before Magistrate M Price in the Downing Centre Local Court on 19 August 2003. The deceased pleaded guilty to the negligent driving charge. It appears that the Crown, represented by Ms M Knowles for the Director of Public Prosecutions, accepted that plea of guilty in answer to the more serious charge of dangerous driving.

90 The deceased himself gave evidence after his plea of guilty in relation to sentence, as did Senior Sergeant Paul Thomas Smith of the rescue squad. Evidence was also given by Senior Constable Stephen John Adams who also gave evidence to me. The learned Magistrate’s reasons for decision are before me in Exhibit L. Towards the end of those reasons he said this:

“The defendant’s counsel has submitted that this was an accident in the true sense of the [word] and represents little more than momentary inattention so far as his failure to appreciate how close the cyclist was, that is the victim, Ms Smith. It is for those reasons that in the somewhat peculiar or unique circumstance of this matter, and appreciating the almost catastrophic injuries sustained by the cycle rider, the court is prepared to find the offence proved, but in the circumstances extend to the defendant the provisions of section 10 of the Crimes (Sentencing Procedure) Act 1999 and I make no order as to costs.”

91 The back up charge of failing to give way at the stop sign was then withdrawn.

92 It appears that the order under s 10 of the Crimes (Sentencing Procedure) Act was vigorously opposed by Ms Knowles who was seeking a custodial sentence. It is clear that a notice of appeal from the sentence imposed by Magistrate Price was filed in this court. At some stage, probably in late September 2003, it was decided not to prosecute the appeal. However, the papers before me indicate that the appeal was not formally disposed of by this court until 3 December 2003.

93 The officer with the carriage of the matter at the Office of the Director of Public Prosecutions, Ms Knowles, clearly thought that a custodial sentence was appropriate and had advised the rescue squad of her intention that a custodial sentence ought be imposed and asked the rescue squad to suspend the accused pending the outcome of the appeal. For reasons to which I will come in due course, the event of 15 September 2002 and its sequelae are of critical moment in the current matter.

94 The effect of this event on the deceased needs to be carefully considered. I shall do so after a half hour adjournment.

SHORT ADJOURNMENT

95 There were a number of consequences for the deceased as a result of his involvement in the collision on 15 September 2002 of which he must have been aware very shortly after it occurred.

96 The first was that it was highly likely that there would be criminal charges proffered against the deceased. He would have realised that from his general duty work and from general knowledge, where there was any form of collision such as that which occurred on 15 September and where serious injury was suffered by another motorist it was likely that some criminal proceedings would be commenced.

97 Those criminal proceedings could affect the deceased’s job security in that, for example, he might lose his licence which would impinge upon his ability to carry out his job in the rescue squad and if the charge proffered against him were serious enough, could involve a gaol sentence. The effect of a gaol sentence on a serving police officer cannot be underestimated.

98 One can have recourse to the decision in Holovinsky v Commissioner of Police (2006) 4 DDCR 123 at [28] and [59] to see the effect of a gaol sentence upon a policeman. However, in this case one merely needs to consider what the deceased told his neighbour, Mr Nick Triantafilis.

99 On 26 May 2004 Mr Triantafilis watched a State of Origin football match with the deceased at the deceased’s home. During refreshments and discussions, Mr Triantafilis asked the deceased about the car accident. Mr Triantafilis’ statement says this:

“I also asked him about a car accident he had at work, where he [hit] a girl on a [omit personal pronoun] a girl on a bike hit him and he said, ‘That was the start of my problems’ and something like the DPP wanted to gaol him. He said something about looking at seven years. ‘Police in gaol are dead meat’.”

In other words, the deceased communicated to his neighbour that a policeman sent to gaol was “dead meat” by which clearly the deceased meant were likely to be the subject of lethal violence.

100 A gaol sentence would clearly have been very harsh for the deceased and would no doubt have ended his police career. There was also the prospect of the police force taking internal action against the deceased, such as the service of a s 181D notice.

101 A question which arises is whether the deceased’s concerns about this motor vehicle accident were only concerns about his own wellbeing or were otherwise centred.

102 As I have already mentioned, Senior Sergeant Woodward was the deceased’s passenger in the police rescue truck on 15 September 2002. At the time of the collision Senior Sergeant Woodward was making a telephone call and was not looking out the window of the vehicle but he was looking down. In paragraph 11 of his statement Sergeant Woodward said this:

“Dave was devastated at the injuries suffered by the poor woman and was very shaken up about it all. He was very visibly upset.”

103 In his oral evidence he said that he could only describe the deceased’s reaction as being “in shock”. He referred to the deceased standing there on the roadway, looking down at the motorcyclist lying on the road. He gave this evidence:

“Q. When you reacquainted yourself with the deceased during the course of that shift, did you make any further observations about his demeanour?
A. He - just to say that he was - he seemed to be physically upset about what had transpired with this lady. He felt guilty.

Q. Did you have a conversation with him regarding his feelings?
A. No, well, he had mentioned to me that he - without going into depth, he had mentioned comments along the line of he could have killed her, like the lady on the bike, that was - that’s what his main concern was.”

104 In his statement a workmate of the deceased, Senior Constable Ray, said that “Dave was very upset about the damage he did to her”. In his oral evidence Senior Constable Ray said this:

“Q. What did he say as best you can recall?
A. He was really cut up about it, he had seen a couple of bikes coming, he had the revolving lights on, I’m not sure if he had the sirens on, but it was a T intersection so a terminating road. He’s turned right, he’s let a couple of bikes go through and then he’s - that he saw and he just said, ‘Look, I just didn’t see the other one’, he’s pulled out in front of it, the bike has collided with the rear of the truck, yeah and he was shot to pieces over it because she was fairly badly injured.

Q. Did he say to you in terms of this conversation what his feelings were towards the rider of the motorcycle?
A. Yeah, just so sorry for her you know, yeah, like I say he was devastated.

Q. So in terms of consequences did you observe any reaction from Mr Guff at this time in terms of his mental wellbeing?
A. Like I say he was shot to pieces, he was really - he was stressed over it. He was really badly stressed.

Q. How long did you notice this stress reaction from Mr Guff?
A. For some time because he spoke about it for weeks afterwards. He knew, because the matter had to be investigated, he was interviewed over it, he ended up being charged over it, he had to go to court.”

105 Another workmate, Senior Constable Bieder, also gave evidence about the effect of this accident upon the deceased. After having his attention turned to the accident of 15 September 2002 this evidence was given:

“Q. As best as you can observe, did that have a deleterious impact upon David’s personality or work performance?
A. That came after a lot of this other stuff we’ve just been talking about and that was the straw that broke the camel’s back from my observations. It - the accident itself was - it was just an accident, it was just one number of those things that happened and he was extremely upset and concerned about the girl involved in the accident, more so for the fact that it looked like she may not be able to have children, and he spoke to me numerous times about the - that that really worried him more than anything, you know, the broken bones and stuff can be - and then she’d be - you know, will repair and what not but the fact that she may not be able to have children really upset him. And he spoke to me about wanting to send flowers to the hospital but thought it would be construed as an ulterior motive in those actions. And he also wanted to speak to her you know because he felt so bad about it and it was - there was no malice, I mean he was only doing about 5 kilometres an hour when it happened, it was just an accident.

Q. You’re aware that there was some subsequent charges laid against him?
A. Yes.

Q. And that those charges were eventually dismissed pursuant to section 10?
A. That’s right.

Q. Between the time that Constable Guff was involved in the accident and the time the charges were heard, did you have any conversations with him concerning the impending charges?
A. Yeah. I mean I think he was more concerned the rider of the bike than the charges themselves because I think, as everyone did, that the accident was always going to be construed as just an accident and then nothing more. Although obviously he was worried about it, but when the DPP appealed the section 10, that really knocked him around. That’s - he definitely went downhill when they appealed the section 10.”

106 Mrs Denise Guff was also asked about the effect upon the deceased of the event of 15 September 2002. This evidence was given:

“Q. What can you tell his Honour concerning the effect that had had upon David at the time?
A. Dave was very upset about that because he was a rescuer and he was upset that this woman had been caused you know had major injuries and Dave was the fixer, he wasn’t so it upset him that he caused somebody some sort of - well, it was just an accident and she had physical injury and he was a rescuer and he just didn’t - upset--“

Later in her evidence in chief Mrs Guff said that he was concerned about the victim’s injuries and worried that it might put him out of his job.

107 What comes through loud and clear from the evidence I have just quoted at some length is that the deceased’s primary concern was not about the consequences for him of this accident but the consequences for the victim of the collision, Ms Smith. Clearly, the deceased was upset immediately at the time of the accident and shortly thereafter, a long time before charges were considered, a long time before charges were laid. Clearly, the effect upon the deceased was that he, a rescuer, should cause harm to a person to whom he normally would be in the position of being the saviour. Clearly, he was concerned, not only for the external injuries that Ms Smith had sustained but also for her internal injuries and definitely concerned about a potential loss of her fertility.

108 I have no hesitation in finding that the primary concern of the deceased was for his victim and not for himself.

109 Furthermore, it is clear that the deceased foresaw that there would be charges but in what he told his work colleagues it appears that he thought that there would be no dire consequence because it was “just an accident” and that was the way it was approached by the learned magistrate who gave the deceased the benefit of s 10. However, another blow to the deceased’s psyche was the decision by the Office of the DPP to appeal against the order under s 10 and to seek a full-time custodial sentence. That only occurred some time after the sentencing hearing on 19 August 2003. However, it is clear from other evidence that I will discuss that by that time the deceased was ill and suffering from the depressive illness with which he was eventually diagnosed.

110 To return to matters in a chronological order, the next major event after 15 September 2002 was the marriage of David and Denise Guff in Fiji on 12 December 2002 to which I have already referred.

111 On 31 January 2003 the deceased attended the Waterfall train disaster in which seven persons were killed and eighty injured. The deceased relieved Sergeant Raymond Constable who was one of the first Police Rescue Squad members to attend the scene. He was the senior person present and was co-ordinator for the operation. He was at the scene for approximately twelve to fifteen hours and the late Senior Constable David Guff was his relief and replacement.

112 When Senior Constable Guff arrived at the scene there was a “debrief” and a change over where Sergeant Constable informed the deceased what he had completed and what he had planned to do and what was yet to be done. According to Sergeant Constable, the deceased took what he had been advised “on board” and then took command of the scene. He was to be responsible for the recovery of further deceased bodies and body parts and to oversee the righting of the railway carriages into the upright position.

113 After that event it appears that the deceased formed a phobic view about travelling on the railways. He made an application for his children, who normally travelled to school by rail, to obtain a bus pass so that they could travel to school by bus rather than by train. That appears to be a phobic reaction in much the same way as a phobic reaction which I have already discussed to plane travel following upon the plane crash of 5 May 2002.

114 The event of 15 September 2002 caused the commander of the rescue squad to report the incident to the employee management branch of the police force as a s 181D nomination. That was referred to the internal review panel, which first convened on 30 April 2003. The matter was then adjourned until after the completion of court proceedings.

115 On 17 September 2003, after the deceased had obtained the benefit of s 10, but whilst the DPP’s appeal was still pending, a safe driver panel convened to address the “driving” aspect of the matter. That caused the deceased to be formally reminded of his responsibilities when driving police vehicles and for the safe driver system to be updated. The internal review panel then met and decided to issue to the deceased a “commander’s warning notice”, which bears date 25 September 2003. That warning notice is pursuant to s 173 of the Police Act 1990 and accordingly negated the earlier referral of the matter as a s 181D matter.

116 I return to events before the passing of sentence on 19 August 2003.

117 A number of persons noted changes in the deceased’s personality after 15 September 2002. Denise Guff said that after this motor vehicle accident the deceased was becoming less active around his house, more over-protective of his children and he started to drink a little bit more. She also then said that she and her husband started to argue about “silly things”.

118 In answer to questions that I put to her, Denise said that the arguments started in early 2003. She said that she had started to see counsellors after July 2003. In cross-examination Denise said that she started to see counsellors in mid 2003 because of the stresses that her husband was under. She noted that he was moody, that he could not sleep, and that was affecting their home life and something needed to happen, and the deceased was not being assisted with any help from his employer.

119 Mrs Guff told me that she saw a Susan Cribb and later she saw Sonia Gallard. Mrs Guff made the point that those counsellors were for her, but her husband came along to one or two counselling sessions. She pointed out that the deceased attended one counselling session with Susan Cribb and she suggested to the deceased that he see his general practitioner and get some help for his sleeping problem.

120 Later on in her evidence Mrs Guff said that problems developed between the deceased and Mrs Guff’s daughter, Samantha, by December 2003. She admitted that at one time her daughter had told the deceased to “fuck off”. She said that her daughter had said that when the deceased was being unreasonable. She continued thus:

“Dave was under a lot of stress and things were just not right at home. Dave was different. I don’t know what was going on, for some reason he started to focus on Samantha. I don’t know why.”

121 I do know that the deceased attended upon his general practitioner, Dr Justin Healey, on 24 July 2003 and gave him a history of significant social and work related problems and a history that he could not sleep. The doctor prescribed Temaze, a sleeping tablet, and advised the deceased to discuss his problems with a psychologist. There is reference in subsequent hospital records to a Dr, or Mr, Tan, who is referred to in some places as a psychologist, or other places as a psychiatrist. However, it is clear that the deceased’s attendance upon Mr or Dr Tan were prior to his first suicide attempt on 23 February 2004. It would appear, therefore, that the deceased was seeing either Mr or Dr Tan between late July 2003 and February 2004. It appears to be more likely that Tan was a psychologist, as that is how he is referred to in the general practitioner’s notes.

122 In his statement, the deceased’s work colleague, Senior Constable Bieder, said this about the deceased:

“I worked a shift with Dave on 18 February 2004 which was only five days before his first suicide attempt. I would have to say that in the last 12 months Dave was not himself. He just did not seem to [be] as focussed, as on the ball as he used to be. I can remember conversations with him that were really not conversations at all. He would say something. I would respond. He would start talking again as though he had not heard what I said. It was so unlike him. I could not work out what was happening to him. There were dramatic mood swings. There was just a change in his personality over this time. He was not as bright or as cheerful. He always seemed to be looking for the negatives in a situation which where before he had been so upbeat and positive; always with a ready solution to whatever the problem was.”

In his oral evidence, Senior Constable Bieder made it clear that by the last 12 months, he meant the 12 months prior to the deceased’s first suicide attempt, putting back his recollection of the personality change to which he referred to early 2003. He amplified the evidence in his statement in this fashion in his evidence in chief:

“Q. Just finally, reference is made in paragraph 34, you say Dave was not being himself for the last 12 months. As best you can recall in any conversations if you need to, how do you arrive at that conclusion?
A. Just the fact that when you spoke to him, or you were having a conversation with him, he would say something and basically you’d respond and he’d start talking again as if you hadn’t said a word. At that time we were both working on a project together which was something for - federally, for a bomb technician’s Australia-wide in relation to producing a training course in relation to mobile phone bombs. Dave and I are the only two electricians who were in the bomb disposal unit who had the knowledge to be able to bring other bomb technicians in Australia up to that level. As a result of what we did then we now run, or I now run a course through TAFE, rather covertly, for bomb technicians in relation to that technology, and he worked a lot with me on that. And trying to put a course together like that together with him during that time was extremely difficult because we were both - he was very good with electronics, and better knowledge of electronics than I did, yet I had to run the course because Dave wasn’t a fully qualified bomb technician, he was only a bomb appraisal technician, which is a step down. And trying to sort of put this knowledge on paper and put a course together with him when he was in that frame of mind was very difficult because he wasn’t listening to what I was saying and when you’re having a conversation with him. And, I mean I didn’t really realise what was going on at the time, I just knew that he was becoming harder and harder to work with in that sense.

The episode of snapping is the event of 12 July 2003 when the deceased threw Denise and her children out of the house.

198 It was later in his evidence that the Professor referred to the event of 12 July 2003 as probably being a panic attack which was an additional feature of a major depressive illness.

199 Further in cross-examination this evidence was given:

“Q. And that stressor by itself [the conduct of Denise’s daughter seeking to drive a wedge between Denise and David] may have led to Mr Guff’s first attempt at suicide on 23 February 2004?
A. I think his wife Denise leaving and the conflict, and I think I said that in my notes were triggers for that suicide attempt but you have to put that into the context of him having an ongoing depression. When people are well they cope better with those sorts of stressors. I think his coping ability was at its limit because of his depression and these stresses certainly added to that.

Q. But, doctor, we know that back in July 2003 when he attended Dr Healey work stressors and family stressors were operating?
A. Yes.

Q. You can’t say that the family stressors were not operative in the period at least from 12 July 2003?
A. I’m not saying that, I think that the family stressors were there. But his capacity to deal with them was worsened by his what I would speculate was his depression at the time. We can cope with adolescent daughters and their behaviours if we’re functioning well but if we’re depressed those become far more difficult to deal with. And I reported as well part of his symptoms, his constant worrying and ruminating about things so that these would have been playing on his mind, they were significant stressors there’s no question.”

200 In an answer given on page 262 the Professor said this:

“When people suffer from depression they will often not recognise they are depressed and they may not be aware of what they’ve been experiencing in the previous twelve months were depressive symptoms. It takes the average time between an onset of depression and a person first seeking help is around six months. When we’re assessing a large number of people, we’re seeing people on maybe five years before they’ve sought help, before they got depression. They suffer from depressive symptoms but they didn’t recognise them as depressive symptoms. When we see them at that point then we can elicit all those symptoms and they’ll say, ‘You mean my poor appetite’ or those other things, ‘might have been a depression I had through six months ago’.”

Here, the depressive illness triggered by the deceased’s reaction to the motor vehicle accident of 15 September 2002 clearly led to his being withdrawn which led to conflict with both his wife and his daughters, led to breakdown in communication with his workmates, as I have already cited, and led to the matrimonial separation with Mrs Denise Guff which led to his first suicide attempt. Ultimately, the deceased could not cope and eventually successfully committed suicide.

201 In my view, there is a causal chain between the motor vehicle accident of 15 September 2002 and the deceased’s death by suicide on 17 August 2004. That causal chain is mediated by the diagnosis of major depression with melancholic features which was triggered off by the motor vehicle accident, or perhaps one should say the deceased’s reaction to the motor vehicle accident.

202 Furthermore, although the immediate precipitant for the suicide attempts was family or matrimonial conflict, that conflict arose because the deceased was depressed. Neither the deceased nor Mrs Guff probably realised that at the time.

203 Furthermore, I have little doubt that especially after the first suicide attempt the deceased took more alcohol and the ingestion of alcohol, as both Professor Boyce and Dr Vaughan state, compounded the problem. However, it compounded a pre-existing problem, not created a new one.

204 The remaining issues for my determination are the defences raised by the defendant.

ADJOURNED PART HEARD TO THURSDAY 25 OCTOBER 2007

THURSDAY 25 OCTOBER 2007

PART HEARD JUDGMENT FROM WEDNESDAY 24 OCTOBER 2007

205 HIS HONOUR: When I adjourned shortly before six yesterday evening I indicated that I had reached the position where I would discuss the defences pleaded by the defendant. However it appears to me that I should add a few further reasons in respect of findings that I have already made.

206 The first matter that I should point out with respect to my finding that the deceased’s primary concern following upon the motor vehicle accident of 15 September 2002 was concerning the injury that he, the deceased, had caused to the motorcyclist Ms Smith. In that regard I also have regard to the evidence which the deceased gave on oath to Magistrate Price at the sentencing hearing on 19 August 2003. Part of that evidence was as follows:

“Q. Did you see the cyclist that collided with the truck?
A. No I didn’t, I didn’t see the - the poor girl on the bike in the middle - in between Mr Clifford and the intersection at all.

Q. You used the expression ‘poor girl’. Have you - I know you haven’t spoken to Ms Smith, but I think you have spoken to her parents?
A. Yes I have, I spoke to them shortly after it - afterwards - after the accident.

Q. Why did you do that?
A. Being a bike rider and - as I said I have had difficulties coming to terms with it. As I said is that they wrote me a letter and I spoke to them, inquiring how she was and to tell them how sorry I was and how remorseful I was, and explained to them it was nothing more than an accident, and that was the view that they took but I still had a lot of remorse and a lot of sorrow coming to terms with myself for being there. And yeah, as I said, that’s why I spoke to them.”

As has been submitted by, I believe it was Mr Stockley in addresses, I might approach that evidence sceptically given as it was at a sentencing hearing. However it was evidence given on oath by the deceased, the only sworn evidence from him that has been able to be placed before me and is to be given appropriate weight.

207 Furthermore, as I now regularly hear pleas of the Crown and regularly sentence offenders it is not uncommon when offenders give evidence on sentence that they express remorse and regret, but not for the victim of their crime. They often express remorse and regret for the impact their offending conduct has had on themselves and the members of their family, those who are dependent upon them, or those to whom they have strong family ties. Clearly that was not the remorse the deceased was expressing to the learned magistrate, rather it was remorse for the victim of his crime. I again believe that that supports my finding that the deceased’s primary concern following the collision was for the damage he inflicted upon the motorcyclist Ms Smith.

208 Yesterday I made a finding that the deceased’s psychiatric condition resulted from the effect on his psyche of this motor vehicle accident. I relied on the opinions of Professor Boyce, Dr Vaughan, and Dr Skinner. However I also bear in mind what the deceased himself told his neighbour Mr Triantafilis on 26 May 2004 when they were watching a State of Origin football match, a statement I quoted yesterday when discussing the deceased’s fear of having a gaol sentence imposed upon him. I need not recite that but clearly at that time the deceased said to Mr Triantafilis that his problems all resulted from the motor vehicle accident of 15 September 2002 and it was highly unlikely that the deceased was prescient enough to make a self serving statement at that time when one would not expect Mr Triantafilis to be giving evidence at a hearing of this nature.

209 Finally, before going to the defences, I should discuss shortly the opinion of Dr Phillips. In his report at p 13 Dr Phillips said this:

“the evolution of a psychiatric disorder is rarely sudden. A person who develops a psychiatric disorder will defend against the onset of psychiatric symptoms for quite some time. In consequence the person will develop a number of (sometimes intermittent) symptoms initially, but with the symptoms not reaching the threshold for the diagnosis of a psychiatric disorder (using DSM nosology). However, over a period of time a group of symptoms will emerge, and continue and will take the form where a psychiatric diagnosis can be made.

In keeping with the above, an individual will have a particular level of psychological resilience. Psychological resilience is determined in considerable part by genetic factors, but earlier experiences also become of considerable importance. The greater the psychological resilience of the person, the more delayed will be the onset of diagnosable symptoms.”

210 In the next paragraph of his report Dr Phillips points out that no-one will be ultimately able to resist all psychological stressors. The thesis of Dr Phillips was that the deceased’s resilience to psychological stressors was eroded away with by the large number of stresses to which he was exposed over the years. In particular the doctor referred to the HIV scare occasioned by the injury of 12 February 1993. However it became clear that what the doctor was saying was that that event made the deceased more vulnerable to subsequent stressors. As I pointed out in Soutar v Commissioner of Police (2006) 3 DCLR (NSW) 351 at 372, merely making a worker vulnerable to further trauma is insufficient to establish causation in compensation cases. At [120] I said:

“The leading case on causation in workers compensation law is the decision of the Court of Appeal in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452. The judgment of the Court was delivered by Kirby P (as he then was) with whom Sheller and Powell JJA concurred. At 810C of the NSWCCR Kirby P said this:

‘The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which pre-disposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury.’

The mere causing of a pre-disposition or vulnerability is insufficient in law to enable me to attribute the plaintiff's condition to events antecedent to 27 November 2003.”

In that case I found that it was the events of 27 November 2003 which caused Ms Soutar to decompensate suffering her psychological injury.

211 In this case it can be seen, therefore, that if there was a gradual erosion of the deceased’s resilience to psychological trauma then that was merely creating a pre-disposition or vulnerability. Nevertheless there is much to be said for the view of Dr Phillips, especially in light of how the deceased reacted to the plane crash of 5 May 2002. However I leave for determination in a more appropriate case whether the gradual erosion of resilience to psychiatric trauma is sufficient to ground causation where for example the final trigger or the proverbial “straw that broke the camel’s back” was a non-compensable injury, for example in the current matter, if the event of 15 September 2002 was whilst the deceased was off duty driving his own vehicle for pleasure. However, in this case it appears to me that there is much greater significance in the event of 15 September 2002 than in many other traumata to which the deceased was exposed. In particular the trauma of 15 September 2002 had the added weight of turning the deceased who appears to have described himself as “a rescuer” into the person who caused the need for the rescue. It is very different to other traumata to which the deceased was exposed in that he was only reacting to what had occurred, not through his own fault, but on this occasion he was the cause of the trauma to the victim.

212 I turn now to the defences raised by the defendant. The first defence which I should consider is that under s 14(3) of the Compensation Act because if the deceased’s suicide was due to a wilfully self-inflicted injury the death is not compensable. Section 14(3) of the Compensation Act is in the following terms:

“Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury.”

213 The law that I intend to apply is that which I stated in Smith v Commissioner of Police (No 2) (2000) 20 NSWCCR 27. In that case commencing at [132] I discussed the then recent decision of the Court of Appeal in Holdlen Pty Limited v Walsh (2000) 19 NSWCCR 629. I pointed out that the ratio of that decision relevant to the decision in Smith appeared to be that it was open to the trial judge to hold that the deceased’s volition was overthrown on the evidence before him, even absent specialist evidence to that effect. I then went on to point out that there was a significant obiter dictum of Giles JA in Holdlen Pty Limited v Walsh which I set out in [132] of my judgment. However I went on to point out that in my view the obiter dictum was just that and was inconsistent with earlier authority. I note that on 28 September 2004 the Court of Appeal relied on Holdlen Pty Limited v Walsh in Simeon Wines trading as Buronga Hill Winery v Bobos [2004] NSWCA 342. However the Court there relied on the traditional approach to suicide cases which I relied upon in Smith v Commissioner of Police (No 2) and did not rely upon the obiter dictum of Giles JA in Holdlen Pty Limited v Walsh. If the obiter dictum of Giles JA be correct then it is not necessary for me to make any finding as to whether the deceased’s suicide was the result of his having his volition overturned because according to the obiter dictum of Giles JA such would not be necessary. The plaintiffs in the current matter formally relied upon the obiter dictum of Giles JA but did seek to adduce evidence relevant to the deceased’s volition being overturned. Evidence on this point was given by Professor Boyce, the doctor whose evidence I have already discussed and whose opinion I accept.

214 Commencing at p 233 the Professor gave this evidence:

“Q. Professor before you gave evidence this morning you were provided by my learned friend with a copy of the decision of this court in the matter called Smith v Commissioner of Police. As I understand it the reason you were provided with a copy of that decision was to adduce your opinion on the question of volition at the time of Mr Guff’s suicide. Are you able to tell his Honour what the relationship between his psychiatric illness and his volition was at the time he successfully hanged himself?
A. It’s very hard to sort of define what you mean by volition. We know that people when they suffer from melancholic depression or severe depression believe that things are hopeless, there’s no solution. They also experience and I think the term is psychic pain associated with their depression and in that sense see that killing themselves as a rational act. If you call that volition then I think that’s what you see happening in people with melancholia and certainly would be in this case as well. There’s no alternative way out for a person with this form of depression. Yet when they recover from the depression they would say that that was an illogical decision.

HIS HONOUR: Q. This of course raises one of the questions that I discussed in Smith v Commissioner of Police that the law says that a wilfully self-inflicted injury is not compensable. Now suicide by definition is taking one’s own life. So for it to be compensable the courts recognise that the wilfulness has to be taken out of it. So that led to the concept of volition being overthrown. That is, he was acting under the stimulus of the medical condition rather than of natural willpower?
A. Yes, I would agree with that. I mean he was operating under the sort of false perception of the world he had at the time which arose as to the consequences of his major depression.

Q. Motivated by the delusion created by the medical condition. I don’t mean delusion in the - it’s a bad choice of words because it’s got medical consequences. His power to reason normally and his power to act as one normally would was overturned by the or certainly affected by his psychiatric condition?
A. Yes, yes. I think in common and sort of psychiatric terminology would probably call that a dysfunctional cognition, which we know occurs in depression. Sometimes we work at trying to change those cognitions, but often we can’t, particularly when it’s melancholic, where the person has a confirmed belief that everything is hopeless.

Q. When in reality it’s not?
A. Yes.”

215 The Professor was cross-examined about that and in particular I refer to pages 270 and 271 of the transcript. At 271, the Professor pointed out that it was possible that as a result of the deceased’s depression he could have seen suicide as the only way out not an easy way out. The Professor was cross-examined to suggest that that was mere speculation on his part and he agreed. But said it was based on his knowledge of depression that was based on his medical expertise and experience. I do know from what the deceased told a doctor at the Hornsby Ku-ring-gai Hospital on his admission there on 23 February 2004 after his first suicide attempt, he then saw suicide as “the only way out.” That ties in very well with the Professor’s evidence. He made two further suicide attempts, the final one, of course, being successful. It appears to me more probable than not that the deceased on each of the occasions he sought to take his own life saw that as the only way out for him in his then position.

216 Volition is the power to choose between alternative courses of action. Anyone with a smattering of theology knows about free will, the ability to choose between right and wrong. Here, if the deceased was unable to choose between life and death because his psychiatric condition made the only decision open to him to choose death then his will to choose between life and death had been overthrown. His psychiatric condition had made the choice of death not a real choice at all but the only way out of the situation in which the deceased saw himself. I therefore accept that his will was overthrown as the learned Professor suggested.

217 It has been submitted on behalf of the defendant that making such a finding I am applying a value judgment. That is probably correct. However, it is fundamental to human existence to prefer life to death. It is a fundamental tenet of our society and, with great respect, it is a fundamental principle of existence. Looked at in a rational fashion there were other ways out for the deceased. He could have persisted with treatment, sought appropriate counselling and recovered from his psychiatric condition. There was always a prospect of reconciliation with his wife Denise. The thesis of the defendant was that the deceased had lost his wife and the deceased had lost his career. Clearly by the time of his death he would never be accepted back into the police force. I accept that he had lost his career. However, although he was estranged from his wife, I do not accept that permanent estrangement from his wife was inevitable. He clearly loved his wife as the suicide note establishes, as the attempt to send her twelve red roses shows, and from the letter that Mrs Guff wrote to the Coroner and from the evidence she gave to me. It is clear that she loved her husband although there were difficulties between them in 2004 mediated by the deceased’s psychiatric illness. Furthermore looked at rationally, even though the deceased had lost his career in the police force he still had his qualifications as an electrician and could on recovery from his psychiatric illness return profitably to the workforce. Furthermore, the deceased had four children of his body whom he clearly loved and for contact with whom he was actively fighting in 2004. Children bring meaning to life as the evidence of Dr Phillips establishes. Looked at rationally there were reasons for the deceased’s life rather than death but he chose death because he could not see the alternative choice. As Professor Boyce said in cross-examination by Mr Barnes, the decision of the deceased to take his own life was most likely because he was bereft of reason. Essentially the same point was made but in an alternative way by Dr Phillips. At page 16 of his report Dr Phillips said this:

“DG’s decision to kill himself by hanging warrants comment. Suicide acts can broadly be divided into two groups, these being rational suicide and irrational suicide. Rational suicide is a relatively rare event and exists where a person, usually with a painful terminal illness, considers the issue of life and death in a dispassionate, objective and relatively untroubled manner, and who comes to the conclusion that death (and thus avoidance of further intolerable pain and suffering) is preferable to continuing with life. Irrational suicide exists where a person suffers a potential reversible mental health disorder, or perturbation of mind, and is not in situation where he can think in a dispassionate, objective and relatively untroubled manner, but comes to the conclusion that he should end his life. The person who moves towards rational suicide can be said to have essentially normal cognition and volition. The person who moves towards an irrational suicide is deprived of both normal cognition and normal volition.”

218 The only caveat I would add to the comment made by Dr Phillips is that the law requires volition to be “overthrown” not for it to be impaired. However, where the psychiatric illness prevents the patient from being able to choose between life and death, where the psychiatric condition puts the patient in the position where the only way forward is death in my view the volition is overthrown. An alternative view is stated pithily by Dr Skinner on p 16 of her primary report where she said this:

“You have asked whether ‘at the time the deceased took his own life was his volition overthrown?’ I am not able to find any evidence that Mr Guff was psychotic, (ie. hallucinating or delusional), or that he did not know what he was doing. He had previously attempted suicide and was aware of the consequences of his actions. There are suggestions from his behaviour and comments made prior to his suicide that he had been preparing himself. Although his actions might be perceived by some people as being irrational, I do not think that his volition was overthrown.”

219 In a further report she commented upon the opinion of Dr Phillips. In that further report she said this:

“I disagree with Dr Phillips with respect to his opinion concerning ‘rational’ and ‘irrational’ suicide. Some troubled persons suicide after considering that their lives are so emotionally painful that they do not wish to live. The decision might be considered ‘irrational’ by another person who believes that the problems could have been resolved. However, Mr Guff had made previous suicide attempts and was aware of the possible consequences of his actions. Neuropsychometric testing shortly before his suicide attempt showed no abnormality of reasoning and judgment.”

However, that opinion ignores the evidence contained in the hospital records that at the time of his first suicide attempt the deceased saw suicide as ‘the only way out’. That in itself speaks of a failure to consider at all the alternatives that might be available to the deceased.

220 There are two further things which ought to be considered. The first is the deceased’s career in the police force. He was ‘a rescuer’. He gave his working life to preserving life, to rescuing people from impending serious injury and death. It seems contrary to that entire ethos for him to choose death itself. He must have rescued people who were very badly injured, people for example who might live in pain for the rest of their lives even if their lives are preserved, or people who would live with serious bodily injuries such as paraplegia and quadriplegia. Nevertheless he sought to preserve their lives. It is completely contrary to that mindset that he should take his own life.

221 As I have already mentioned the deceased also attended Catholic schools and identified himself at each hospital admission as a Catholic. For a Catholic to take his or her own life is a major sin which traditionally was thought to lead to damnation. But it is clear from the suicide note dated 10 March 2004 which was received by Mrs Denise Guff on the following day that the deceased believed in an afterlife and ended his note with these words, “See you on the other side”. That is, he looked forward to reunion in the afterlife with his wife and children.

222 Those further considerations lead me to make the finding that the deceased’s volition was overthrown. Therefore his suicide can be seen to have been involuntary and not the result of wilfully self-inflicted injury.

223 The next defence to be considered is that raised under s 9A of the Compensation Act. It has been submitted that the deceased’s employment was not a substantial contributing factor to his death. The Compensation Act requires that the employment be a substantial contributing factor to the injury. Here the injury was 15 September 2002, the deceased’s employment placed him in the police rescue truck, placed him at the intersection at Brooklyn and he was in the course of his employment when the accident occurred which so affected the deceased’s psyche that led to his involuntary death. In my view the deceased’s employment was a substantial contributing factor. However, learned counsel for the defendant relied in particular on s 9A(2)(d) and (e). Paragraph (d) is in the following terms:

“The probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment.”

224 Paragraph (e) is in the following terms:

“The worker’s state of health before the injury and the existence of any heredity risks.”

The submission is largely based on the opinion expressed by Dr Phillips. If the deceased’s resilience to psychiatric trauma was so eroded away, so attenuated, that any trauma to the deceased’s psyche could have led to psychological decompensation, such could have occurred after any event that affected the deceased’s psyche. In particular the defendant relies upon the fact that the deceased could have decompensated merely because of problems at home, that is, on the domestic front.

225 However, those submissions overlook the fact that the relevant traumata according to Dr Phillips were the traumata due to his experience as a member of the rescue squad. Furthermore those submissions also overlook the fact that the domestic problems experienced by the deceased with his wife and children were the secondary effect of the traumatically induced condition and were not themselves primary stressors.

226 For example I have rehearsed at some length the deceased’s matrimonial difficulties with his first wife, Mrs Jennifer Marshall. It is not suggested that that domestic upset affected the deceased’s psychiatric condition at all or induced a psychiatric condition. If he could weather the trauma of separation, divorce and dispute about custody, access and property then one would expect that he could weather it again. Why he could not weather it again was because of the psychiatric illness engendered by the effects of the motor vehicle accident of 15 September 2002.

227 Furthermore, the defendant’s submissions about s 9A overlooked a very salient aspect of the trauma of 15 September 2002 that was absent from the other traumata to which the deceased was exposed: the fact that in the trauma of 15 September 2002 the rescuer had become the perpetrator of the need for rescue, that this was the deceased’s creating the danger and the need for rescue rather than merely responding to it as the rescuer. As I have sought to analyse it, that must have had a much greater effect on the deceased’s psyche than many of the traumata to which he had been exposed in the course of his employment.

228 I have no hesitation in finding therefore that the deceased’s employment was a substantial contributing factor to the development of his psychiatric illness. Indeed, on one view of it, it is not necessary to find that because to even consider that defence, because on my analysis of the matter what occurred to the deceased on 15 September 2002 was injury that arose both out of, and in the course of his employment and ipso facto there is sufficient to establish a substantial contributing factor in accordance with the decision of the Court of Appeal in Mercer v The ANZ Banking Group Ltd (2000) 20 NSWCCR 70, 48 NSWLR 740.

229 The other defence relied upon by the defendant is under s 11A of the Compensation Act. Section 11A(1) is in the following terms:

“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominately caused by reasonable action taken or proposed to be taken by or on behalf of the employer with a respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

The submission that has been made by the defendant is that the investigation of the crime committed by the deceased and his prosecution for that crime was either “performance appraisal” of the deceased or “discipline” of the deceased. Furthermore, the defendant has submitted that insofar as an action was taken by the Director of Public Prosecutions to appeal the original sentence imposed by the learned magistrate, that was not causally related to the injury in question. Those, in my view, were very brave submissions.

230 I have had cause to consider the question of performance appraisal in Bottle v Wieland Consumables Pty Limited (1999) 19 NSWCCR 135 and in Soutar v Commissioner of Police (2006) 3 DCLR (NSW) 351. I have also considered the meaning of discipline in Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339 and also in Soutar. In Bottle and Soutar I relied on the decision of my colleague, Judge Geraghty, in Irwin v the Director General of School Education. In that case his Honour said:

“It is important to consider the meaning of the term ‘performance appraisal’. The respondent submitted that it should receive its ordinary street meaning, that it is not a term of art. But it seems to me to be a rather precious and precise expression. It is framed within the context of other processes, of crises [sic] points in a worker’s life. It is placed in a context of processes like transfer, demotion, promotion, retrenchment or dismissal of workers. It must be seen in this context. Furthermore, performance appraisal in any work situation is a process, an established process involving various steps. Perhaps it would involve the completion of questionnaires and forms. It requires discussion between various parties about performance, written appraisal, sometime even self-appraisal, maybe even a score. It’s a process in which the parties are engaged and knowingly engaged.

Performance appraisal is not a vague, continuing, informal process which begins on the first day of employment although, in a sense, we can say that we are continually under scrutiny and being appraised in somewhat the same way as students in a classroom are being scrutinised on a day to day basis. But ‘performance appraisal’ is somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited, discreet process, with a recognised procedure through which the parties move in order to establish an employee’s efficiency and performance.”

231 The same process in the context of the police force can be discerned in the decision of Soutar to which I have referred. However, the important point to note is that performance appraisal is a process engaged in between employer and employee.

232 What was happening in the investigation of the crime committed by the deceased and his prosecution was not such a process. If the deceased were an ambulance driver driving an ambulance rather than a policeman driving a police rescue truck and the same accident occurred the police would have investigated the deceased’s crime and prosecuted him. If instead of being a policeman the deceased was a fireman driving a fire engine with its lights flashing and the same accident occurred, the police would have investigated it and prosecuted the deceased. The same would have occurred if the deceased were a truck driver driving a truck for a common carrier. The fact that the prosecuting authority happened to be the deceased’s employer was but coincidental.

233 I accept that the service of the s 181D notice and the subsequent warning letter under s 173 of the Police Act 1990 was a disciplinary procedure engaged in by the police force. In light of the authorities I have discussed in Soutar, to hold otherwise would be perverse. However, the submission also ignores the fact that the primary concern of the deceased was the health and welfare of the victim of the crime, rather than the process of the deceased’s conduct being investigated and his prosecution.

234 As to the action of the DPP, I point out now, as I pointed out yesterday, that the deceased’s psychiatric illness was well established prior to the DPP becoming involved in the prosecution of the deceased. In particular I pointed out that when the deceased completed the MMPI 2 personality inventory on 14 May 2003, it showed clear evidence of depressive illness existing at that time. The only thing which might be said is that the service of the s 181D notification on the deceased on or about 30 April 2003 preceded the MMPI 2 assessment. However, it is clear to me from the evidence the deceased was not so much concerned about that because this was only an accident and it was very hard to see how it could lead to a dismissal under s 181D and, even if it did, it is extremely difficult to see how such a dismissal could survive in the Industrial Relations Court of this State.

235 Returning to the role of the DPP, that role is the inevitable consequence of the crime committed by the deceased. It is still part of the chain of causation. In my view the proper way of categorising what occurred on 15 September 2002 is that the deceased may have performed an act which was contrary to the requirements of his employment and contrary to statute and subordinate legislation. It could amount to misconduct. However, under s 14(2) serious and wilful misconduct is not a defence where the injury results in death or serious and permanent disablement. The misconduct therefore is inapplicable. In any event it is very hard to categorise a negligent act as either being serious or wilful misconduct. Negligence of course is usually a lack of wilfulness, a failure to do what one ought to do, and in failing to do what one ought do, one is usually not acting wilfully.

236 I therefore am not persuaded on the balance of probability that the deceased’s injury was due to any of the matters referred to in s 11A(1) of the Compensation Act.

237 There is one thing that I should have stated earlier in discussing that submission in that the only difference between the deceased’s being a policeman and the crime committed on 15 September 2002 and his being for example an ambulance driver or fireman or lorry driver was the fact that as he was a policeman, special permission was needed from “on high” to prosecute him. However, that may have only led to a delay of a day or two in obtaining the necessary permission, permission which, no doubt would have to be given because otherwise it could be perceived that the police force was acting in a way more favourable to its own officers than it would be to any other member of the community and bring the police force itself into disrepute.

238 I have spent now seven hours and forty minutes giving judgment. Any further reason for judgment required?

STOCKLEY: No, your Honour.

HANLON: Your Honour I do have an application for a stay for twenty-eight days.

HIS HONOUR: There’s nothing to stay. I haven’t made any orders yet. I can’t stay a decision.

HANLON: I understand.

239 HIS HONOUR: I have inquired of counsel for the parties of any further reasons for judgment are required. I am told that none is so required. For those reasons I set aside the decision of the Commissioner of Police made on 24 August 2004 and I determine that the death of the late Senior Constable David James Guff on 17 August 2004 was caused by his having been hurt on duty on 15 September 2002. I order the defendant to pay the plaintiffs’ costs.

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