John Northfield v The Commissioner of Police

[2006] NSWDC 39

CITATION:	John Northfield v The Commissioner of Police [2006] NSWDC 39
HEARING DATE(S):	07/02/2006-10/02/2006
EX TEMPORE JUDGMENT DATE:	02/10/2006
JURISDICTION:	Civil (Residual Jurisdiction)
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	The decision of the Commissioner of Police is set aside.; The suffering by the plaintiff of the infirmity of chronic post traumatic stress disorder as specified in the certificate of the Police Superannuation Advisory Committee was caused by the plaintiff having been hurt on duty.; The defendant to pay plaintiff's costs.; Exhibit L to be returned to appropriate subpoena packet.
CATCHWORDS:	Police Regulation (Superannuation) Act 1906 - Hurt on Duty claim - Court bound by certificate of Police Superannuation Advisory Committee and implications arising from diagnosis
LEGISLATION CITED:	Police Regulation (Superannuation) Act 1906 (NSW)
CASES CITED:	Saad v The Commissioner of Police 12 NSWCCR 70 Gannon v The Commissioner of Police 1 DDCR 380 Murray v The Commissioner of Police 2 DDCR 31
PARTIES:	John Northfield (Plaintiff) Commissioner of Police (Defendant)
FILE NUMBER(S):	RJ664/03
COUNSEL:	Mr T Ower (Plaintiff) Ms E Glover (Defendant)

JUDGMENT

1 HIS HONOUR: The plaintiff, Mr John William Northfield, is a former Detective Senior Constable of Police. He was attested as a Probationary Constable on 19 December 1986. On 31 July 2003 the Police Superannuation Advisory Committee established by the Police Regulation Superannuation Act 1906 (“the Act”) certified that the plaintiff was incapable of discharging the duties of his office on account of the infirmity of “chronic post traumatic stress disorder”.

2 On 8 August 2003 the defendant, the Commissioner of Police, determined that the suffering by the plaintiff of chronic post traumatic stress disorder was not caused by the plaintiff’s having been hurt on duty. From that decision of the Commissioner of Police the plaintiff brings an appeal pursuant to s 21 of the Act.

3 It is important in this case to bear in mind the diagnosis made by the Police Superannuation Advisory Committee. By that diagnosis I am bound. So much was held by the Court of Appeal in Saad v The Commissioner of Police (1995) 12 NSWCCR 70. The authorities make it clear that I am also bound by the implications that arise from such diagnosis. I had cause to consider this aspect at some length in Gannon v The Commissioner of Police (2004) 1 DDCR 380 between paras 4 and 27. I commence that discussion by saying this:

“The first submission raised by the defendant is that, as a matter of law, the Court is not bound by all the implications arising from the certified infirmity. As is fairly typical in these cases, there are a number of differential diagnoses and often one, and sometimes more than one, of those diagnoses becomes the certified infirmity. Some diagnoses suggest that the cause of the diagnosed condition itself, that is, suggest the cause of the infirmity. For example, whilst it is not here relevant, a diagnosis of post traumatic stress disorder implies that the disorder has been induced by trauma. Equally, in the current matter, where the diagnosis is an adjustment disorder, an adjustment disorder is, according to the accepted psychiatric definitions, a condition that has been induced by some psycho-social stressor”.

4 In para 27 of that judgment I pointed out that I considered myself bound by the diagnosis of the plaintiff’s infirmity and also bound by the implications arising from the use of the formal diagnostic terminology.

5 In a similar vein is the decision of the Court of Appeal in Murray v The Commissioner of Police (2004) 2 NSW DDCR 31. In that case the former member of the police force had been diagnosed as having post traumatic stress disorder. Her Honour Judge Ashford held that that condition resulted from the circumstances of the former policeman’s transfer from being the sergeant in charge of the Dog Squad at Menai back to general duties. Her Honour’s decision was overturned. The basic reason for overturning her Honour’s decision was that the medical evidence did not admit that the condition of post traumatic stress disorder could be caused by such a transfer.

6 It is important to bear in mind what can cause a post traumatic stress disorder. Exhibited before me is the entry in the Diagnostic and Statistical Manual, Mental Diseases, Fourth Edition, Text Revised of the American Psychiatric Association. This is generally known as DSM-IV TR. It commences its discussion of post traumatic stress disorder thus:

“The essential feature of post traumatic stress disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury or other threat to one’s physical integrity, or witnessing an event that involves death, injury or a threat to the physical integrity of another person, or learning about unexpected or violent death, serious harm or threat of death or injury experienced by a family member or other close associate (Criteria A1). The person’s response to the event must involve intense fear, helplessness, or horror (or in children, the response must involve disorganised or agitated behaviour) (Criteria A2). The characteristic symptoms resulting from the exposure to the extreme trauma include persistent re-experiencing of the traumatic event (Criteria B), persistence avoidance of stimuli associated with the trauma and numbing of general responsiveness (Criteria C), and persistent symptoms of increased arousal (Criteria D). The full symptom picture must be present for more than one month (Criteria E), and the disturbance must cause clearly significant distress or impairment in social, occupational, or other important areas of functioning (Criteria F).

Traumatic events that are experienced directly include, but are not limited to military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural manmade disasters, severe automobile accidents, or being diagnosed with a life threatening illness.

Witnessed events include, but are not limited to, observing a serious injury or a natural death of another person due to a violent assault, accident, or disaster or unexpectedly witnessing a dead body or body parts. Events experienced by others that are learned about include, but are not limited to, violent personal assault, serious accident, or serious injury experienced by a family member or a close friend, learning about the sudden, unexpected death of a family member or a close friend or learning that one’s child has a life threatening disease. The disorder may be especially severe or long lasting when the stressor is of human design (eg, torture, rape). The likelihood of developing this disorder may increase as the intensity of and physical proximity to the stressor increase [sic]”.

7 I have quoted from DSM-IV TR at some length because here there are a number of competing stressors. The stressor relied upon by the defendant is the existence of an extra-marital affair which ended on the initiative of the plaintiff leaving him exposed to the ire of his former lover. The scorned woman had made threats against the plaintiff and eventually made complaints about his conduct to the police force which carried out certain investigations. In carrying out those investigations the police force was doing that which it was required by law to do.

8 The defendant has submitted that in doing what the defendant was required to do it was taking reasonable action with respect to the discipline of the worker, here a policeman, that its actions were proper and therefore reasonable and that those actions were the cause of the plaintiff’s medical condition.

9 The only problem with that submission is that there is no medical evidence to support the fact that PTSD can be caused by the existence of an extra-marital affair or by the potential break-up of a marriage or by threats to a person’s livelihood as there was here or threats to cause an estrangement between a man and his children as there was here. There were also threats made by the scorned woman to the plaintiff’s life which would, of course, fall within the traumata accepted by DSM-IV TR provided that those threats were perceived by the plaintiff as being real.

10 The plaintiff was born on 6 April 1967. He is currently thirty-eight years of age. He did his training at the Goulburn Police Academy and was attested as a Probationary Constable on 19 December 1986. Between 20 December 1986 and 31 March 1990 he performed general duties at Queanbeyan Police Station. During that period he rose to the rank of Constable First Class.

11 On 1 April 1990 the plaintiff commenced work as a member of the Accident Investigation Squad at the Warilla Police Station. The plaintiff had been born and had grown up in the Wollongong area and his future police career was served in the Illawarra. The plaintiff stayed with the Accident Investigation Squad until February 1993.

12 Between February 1993 and October 1993 the plaintiff performed beat police duties at the Port Kembla Police Station and also detective’s duties. On 10 October 1993 the plaintiff commenced a one year secondment to the Major Crime Squad South. After that the plaintiff performed criminal investigation duties at Port Kembla and later, commencing in November 1994, at Corrimal.

13 In January 1996 the plaintiff commenced criminal investigation work at Wollongong Police Station. In June 1996 the plaintiff commenced criminal investigation duties at Warilla Police Station and formally achieved the designation of detective on 6 December 1996.

14 On 20 August 1999 the plaintiff transferred to detective’s work at Lake Illawarra and performed that work until August 2001 when he was attached to the Region Target Action Group, an anti-theft unit, at the Dapto Police Station. The plaintiff remained in that role until ceasing work in February 2002.

15 One can readily accept that in performing general duties policing and performing accident investigation work and in performing detective’s work the plaintiff was exposed over many years to scenes of death, carnage and horror. The first paragraphs numbered 6 to 26 of the plaintiff’s affidavit, exhibit A, list a large number of such gruesome events to which the plaintiff was exposed in the course of his police service.

16 The plaintiff in his affidavit refers to a number of those events as causing him stress or anxiety. However, the plaintiff did not need to take any time off work as a result of those events nor did he seek any medical treatment and although the plaintiff deposes to not being offered counselling or the like there was no evidence that he ever sought any.

17 The circumstances which I have just described are circumstances to which multitudes of former policemen regularly depose in this jurisdiction. When one looks closely at the article concerning PTSD in DSM-IV TR one notes that a relevant diagnostic specifier is “with delayed onset” and that specifier indicates that at least six months have passed between the traumatic event and the onset of symptoms.

18 Typical examples of those who have suffered post traumatic stress disorder are those who have survived the Nazi concentration camps, of those who survived Cyclone Tracey, of those who survived the Port Arthur massacre, of those have lived through active service in the Vietnam war. The symptoms are generally proximate to the stressor.

19 Although the plaintiff did suffer stress and anxiety because of his police service prior to 1996 such would be a normal description of an ordinary human reaction to a gruesome or horrific thing. There is no suggestion that the plaintiff, following upon any of those gruesome horrific scenes, was psychiatrically disturbed or dysfunctional.

20 The first event which appears to me to be of significance in the current matter is the plaintiff’s being involved in an investigation of a prominent local businessman accused of paedophilia. That man was found not guilty of the alleged crimes. In his affidavit the plaintiff said this:

“Between March 1997 and July 1998, I was responsible for a protracted high profile paedophile investigation involving a prominent local businessman. I experienced a high level of stress as a result of my attempts to conduct a thorough investigation and my attempts to assist the victim. In addition, the case marked the first occasion that I experienced potential harm to my family. On one occasion the accused person asked me if I wished to sell my house at Kiama Heights. I was required to change my young son’s habit of playing in the front yard due to [the] nature of allegations against the accused person and the inquiry as to the selling of my house. Investigation of the case was complicated and intense. The case received a high level of media attention. I felt responsible for the welfare of the teenage victim. I experienced chest pains, tightness to the chest, and breathing difficulties. I experienced a rapid pulse on occasions. About May 1998, I consulted my general practitioner Dr Keith Khan. I underwent tests”.

21 Medical histories suggests that the victim of the alleged paedophilia was a street child and that the plaintiff became disillusioned when the alleged paedophile was found not guilty. The clinical records of Dr Khan confirm that the plaintiff attended upon him on 13 August 1998 complaining of retrosternal chest pain being present for some time. Dr Khan organised investigations. They included a full blood count and a chest X-ray. It would appear there was no diagnosis of any cardiac condition or of any physical condition to account for the plaintiff’s symptoms.

22 The inference to be drawn and I do draw it is that the symptoms were psychosomatic and indicative of the plaintiff’s experiencing stress at the time.

23 The investigation of the complaint of paedophilia is the first specific matter about which the plaintiff complained when he saw Dr Gordon Davies, a psychiatrist, on 21 March 2002. According to Dr Davies’ histories after the investigation and trial had been concluded the plaintiff had taken three months long service leave and travelled with his family around Australia and the plaintiff had returned to work feeling much better.

24 In 1998 the plaintiff attended the scene of the mutilation murder of David O’Hearn. The plaintiff was the first investigator to reach the scene of the murder. On arriving he noticed a headless body lying on the loungeroom floor. The deceased’s intestines were located on a silver platter. A hand was located on the lounge. Blood was spattered all over the walls. The deceased’s head was located in the kitchen sink.

25 The plaintiff in his affidavit refers to being extremely disturbed by the images to which he was exposed at that scene. After it he was offered counselling, counselling in the form of the group debriefing which the plaintiff said he did not find helpful. The plaintiff in his affidavit deposed to experiencing nightmares, tearfulness, irritability and depression following attending upon that murder scene.

26 That event certainly has the potential to cause post traumatic stress disorder and the symptoms which the plaintiff set out in his affidavit that he then experienced are symptoms consistent with post traumatic stress disorder.

27 In paras 32, 33 and 34 of his affidavit the plaintiff sets out three further traumatic deaths involving children which would not only be horrific but extremely saddening. However, in the grand scheme of the current matter they did not appear to be of great moment. Of historical moment at least is the fact that in April 2000 the plaintiff arrested one Richard Ryall for firearms offences and offences of kidnapping, malicious wounding and supplying a prohibited drug. The kidnapping offence involved acts of torture committed in company upon two victims.

28 At the time of the plaintiff’s arresting of Ryall, Ryall was found in the possession of police uniforms and false police identification. Ryall was eventually sentenced to imprisonment for five years. Whether that was the head sentence or the non parole period the evidence does not disclose.

29 The investigation into the Ryall matter was not itself distressing but the consequences of Ryall’s incarceration were to play a large part in the plaintiff’s subsequent history.

30 On 20 August 2000 there occurred the murder of Jack Van Krevel. As I understand it Mr Van Krevel was the father of the murderer of David O’Hearn and also of the late Frank Arkell. In his affidavit the plaintiff said “I was confronted by a very disturbing scene” when describing the murder scene of Jack Van Krevel. What the scene was is not spelt out in any great detail. A history obtained by a psychologist, Mr Guilfoyle, describes a “very disturbing sight of the house and body” which made the plaintiff physically ill. In his affidavit the plaintiff went on to say this:

“I later interviewed the offender. During the interview, the offender provided a graphic account of the murder. As a result of his attendance at the scene and the interview with the offender, I suffered stress and anxiety. I was only provided with an informal group debriefing during which I was not able to divulge my personal thoughts. The Jack Van Krevel murder investigation was extremely demanding. As the investigation progressed I was required to conduct investigations on my own. Such was the nature of the investigation that a team of detectives should have been deployed throughout the course of the investigation”.

31 The plaintiff was challenged about his solely being responsible for the investigation of this murder. A police record indicates that the person in charge of the investigation was Detective Senior Constable Neil Pepper who was the supervisor and the plaintiff himself was the officer in charge. Detective Senior Constable Pepper was in fact the crime manager and generally had the oversight of the plaintiff’s work in any event.

32 There are then listed thirteen other members of the New South Wales police force who also worked on the investigation. The plaintiff explained the role of each of those investigators or members of the police force in the whole of the investigation of the Jack Van Krevel murder. Clearly, initially, there are a number of people assigned to the job. After a few days that number reduced essentially to one man, the plaintiff, who from time to time had the assistance of others.

33 I accept that the plaintiff was the officer in charge of the investigation of the Jack Van Krevel murder and that for a large part of the time involved he, in between 20 August 2000 and 1 June 2001, was the sole investigator.

34 It would appear that the person most implicated in the murder of Jack Van Krevel was one Keith Schreiber who appears to have actually performed the murder. However, the deceased’s daughter, Belinda Van Krevel, was also a suspected person.

35 On 27 October 2000 the plaintiff attended a committal hearing at the Wollongong Local Court of the charges against Richard Ryall. Whilst at court the plaintiff was approached by an informant whose name has been disclosed in the evidence about which I made a suppression order. The informant told the plaintiff that Ryall intended to kill the plaintiff if Ryall were released from custody. That information was conveyed not only to the plaintiff but also to Kim Stanley, a solicitor acting for the Director of Public Prosecutions.

36 When he returned to Warilla Police Station the plaintiff notified Acting Inspector Donnelly and later Acting Inspector Cassar and Acting Superintendent Woods. A computer entry was prepared on 27 October 2000, the day on which the committal hearing was held at the Wollongong Local Court. The COPS entry clearly records a threat, the intention of Ryall to kill the plaintiff and of that threat being communicated not only to the plaintiff but also to Ms Stanley.

37 The plaintiff was not challenged about the occurrence of the threat and if it had not occurred Ms Stanley could have been called. She was not. I therefore accept that the threat of death was communicated to the plaintiff by the informant and that the plaintiff believed that Ryall had the intention of killing the plaintiff were he able to do so on his release from custody.

38 This threat was categorised as a level four threat on a scale of one to five, the highest threat level being one. In the evidence the plaintiff did not disagree with the level four status attached to the threat. The problem with increasing the threat level of course was that the threatener, Ryall, was a guest of Her Majesty and would remain so for some time.

39 Ryall’s background must also be borne in mind. He was not merely a local criminal, he was a former member of the Australian Army who had served in Vietnam and also had worked as a mercenary. The evidence before me describes him as a mercenary in either South America or South Africa. The evidence also discloses that Ryall had criminal connections, a small criminal empire and had ready access to firearms.

40 He, therefore, had the ability and means of carrying out a stalking type execution of the plaintiff if he wished to do so, provided he was out of custody. It must also be accepted, as the plaintiff told me, that Ryall had criminal connections who could also carry out a murder if Ryall had managed to persuade any one of them to do so. At the committal hearing of Ryall he was ordered to appear for trial in this Court at Wollongong in the exercise of its criminal jurisdiction on 19 March 2001.

41 The next significant thing to affect the plaintiff was an attempt by Belinda Van Krevel to stalk the plaintiff. According to a report prepared by the plaintiff on 7 February 2001 Ms Van Krevel had developed a delusional fixation about him. The report goes on to say this:

“She has been having fantasies and telling other people that she is having sex with me. She has developed a fascination for detective work and police forensics and has even applied to the New South Wales police for a recruitment package”.

42 On Friday 4 February 2001 Ms Van Krevel had contacted a distant relative of the plaintiff who had the same surname and was the only Northfield noted in the Telstra directories. Apparently that distant relative was able to give Ms Van Krevel the telephone number of the plaintiff’s parents. Ms Van Krevel then contacted the plaintiff’s mother and, using the same pretext as she had when discussing the matter with the distant relative, advised the plaintiff’s mother that she was an old school friend of the plaintiff’s and wished to catch up with him. Eventually the plaintiff’s mother, who is elderly, was persuaded to give Ms Van Krevel the plaintiff’s home telephone number and mobile telephone number and identify the suburb in which the plaintiff lived.

43 The plaintiff formed the view that this was a threat to himself and his family. Clearly, having a murder suspect trying to be in contact with him with a view to some sexual contact would be threatening in itself. However, the threat was somewhat greater in that Ms Van Krevel was thought to be mentally unstable by the plaintiff and she had a number of criminal associates who might do harm. In fact Ms Van Krevel herself was suspected of doing harm in being part of the murder of her father.

44 If a woman formed a delusional fixation about the plaintiff one might accept and I do accept that such a woman might seek to interfere in the relationship between the plaintiff and his wife and children with the view of forming a relationship with the plaintiff to the exclusion of his wife and children. I therefore do accept that the plaintiff viewed Ms Van Krevel’s interest in him as a threat.

45 Certainly that was communicated by the plaintiff to the police force formally by a report of 7 February 2001 and that was supported by the Detective Chief Inspector on the day it was written and the police service agreed to pay for fitting four security doors and four security lights to the plaintiff’s home with a view to minimising any risk that might happen to the plaintiff because of Ms Van Krevel’s interest in him, but also bearing in mind the threat that had earlier been made by Richard Ryall. Business records of the police service indicate that the work was carried out and completed by 6 March 2001.

46 Immediately prior to 7 February 2001 when the plaintiff made his report the plaintiff had taken four days leave which he claimed it to be the result of the plaintiff’s having been hurt on duty. The plaintiff’s claim form in asking how the plaintiff’s condition arose states the circumstances of Ms Van Krevel’s threatened stalking of the plaintiff.

47 The police psychology section was involved and the plaintiff was contacted by Dr David Mutton, the chief psychologist, who arranged for the plaintiff to see a clinical psychologist, Dr Susan Ballinger. It is clear from exhibit D that the police service was prepared to pay for counselling for the plaintiff and the members of his family and the inference to be drawn is that the police accepted that the Van Krevel threat arose out of the plaintiff’s police service which is the only real finding available to me on the evidence.

48 Dr Ballinger saw the plaintiff on 15 February 2000 and she confirmed the plaintiff had “anxiety symptoms”. However, she also confirmed that the plaintiff was “experiencing some symptoms of traumatic stress for several days” prior to seeing her. However, Dr Ballinger thought the plaintiff’s symptoms had resolved and that he could return to his normal work and was able to cope. Dr Ballinger also interviewed the plaintiff’s mother who was significantly distressed, no doubt because she perceived that she may have put her son in a position of threat.

49 The next significant event in the plaintiff’s life occurred on 15 May 2001. On that day the plaintiff attended a police reunion at Queanbeyan where he had previously served. There he met another member of the police force, Ms Lauren Johnstone. The evidence suggests that the reunion was in fact a party at which alcohol was served. There is no doubt a certain amount of that was consumed by both the plaintiff and Ms Johnstone and they then proceeded to Ms Johnstone’s place of abode where a liaison commenced. Ms Johnstone was then estranged and in the process of conducting litigation in the Family Court. The affair which commenced on 15 May 2001 endured to the end of July 2001. The affair appears to have been a torrid one. There was daily communication between the plaintiff and Ms Johnstone, either by telephone or the police memo system, I assume by email, and also by text messaging on mobile telephones.

50 There were clearly a number of assignations between the plaintiff and Ms Johnstone during this period which involved sexual intercourse. The plaintiff suggested in his evidence and also suggested to medical practitioners that he became involved in the affair because of his pre-existing psychiatric problem.

51 Clearly at the time of commencing the affair the plaintiff was having matrimonial difficulties. After the affair ended the plaintiff sent to Ms Johnstone an undated letter which is exhibit 7. The letter was an attempt at closing the relationship and trying to reassure the scorned lady and perhaps to offer her some comfort in an explanation of the plaintiff’s behaviour.

52 The letter does show some personal insight but it also does display some attempts at self justification in blaming the lady for taking up with a married man, although the married man ought to have been more conscious of his relationship with his wife.

53 In any event, there is no suggestion that the letter was concocted for the purpose of this litigation or in contemplation of this litigation or in contemplation of any hurt on duty application. The second paragraph of the letter commences thus:

“I should start at the beginning I guess. When I met you at Queanbeyan that night I was going through a very difficult period. I had had a crazy six months with my cases at work and under so much pressure and stress in that regard. I’d come to a stage with my wife where we had too many years adding up and not communicating properly with each other and not having a totally fulfilling relationship like we once had. On top of all of that, I was of the frame of mind at that stage (which I am no longer) that if you can get away with some extra marital sex why not. A bit of the police mentality which I now have such low respect for”.

54 I do not know that “police culture” encourages extramarital sexual intercourse; all that I know is it is prevalent amongst adolescent youth and university students.

55 Later in the letter the plaintiff refers to his being emotionally fragile and that he and Ms Johnstone were leaning on each other for emotional support. The letter says this:

“I think I kept up with you because I was getting the support from you, the physical closeness to you that I was really wanting to have with her [the wife]. In that way I now know I used you. You also used me as an emotional crutch to lean on”.

56 That letter of course must be approached cautiously because in many way it is an attempt by the plaintiff to justify himself. However, that letter as I said does show insight and of the plaintiff’s awakening to his moral obligations. I do, therefore, accept what the letter says about the plaintiff’s position immediately prior to commencing the relationship, of his having had a “crazy six months,” of his being under pressure and stress as well as experiencing matrimonial difficulties. This of course cannot be in any way justify for the marital infidelity which I am sure the plaintiff realises.

57 In embarking upon the affair with Ms Johnstone the plaintiff failed to acknowledge the maxim that hell hath no fury like a woman scorned. Ms Johnstone clearly was unhappy about the breaking up of the relationship or should I say of the plaintiff’s breaking off the relationship. She contacted the plaintiff’s wife, threatened the plaintiff, threatened his relationship with his wife, made threats that she would seek to sever the plaintiff’s relationship with his two sons, made threats to attempt to ruin his career.

58 Some of those threats were carried out. Eventually Ms Johnstone made a complaint that the plaintiff had given to her a set of earrings belonging to Belinda Van Krevel which the plaintiff had confiscated in executing a search warrant against Ms Van Krevel and had been placed into police custody. Essentially Ms Johnstone alleged that the plaintiff stole the earrings from police custody and gave them to her as a gift.

59 Ms Jonstone was later to allege that the plaintiff made a threatening or harassing phone call to her in January 2002. The plaintiff was after each of those complaints formally interviewed by other members of the New South Wales police force and in each case an ERISP was made. Transcripts of the ERISPs are before me.

60 It is clear from what the plaintiff himself said in the first interview that threats were made by Ms Johnstone against the plaintiff, not only against his relationship with his wife and children and against his career but also against his life. The defendant relies very much upon the threats made by Ms Johnstone against him.

61 A real question in this case is whether the threats made by Ms Johnstone to the plaintiff concerning his life and health were intended to be taken literally by the plaintiff or perhaps rather whether he took them to be literally true.

62 The acrimonious ending of personal relationships can often bring with it threats. Threats are often made by people in close personal relationships to another in the close personal relationship. One need only sight the remarks attributed to the wife of a former Archbishop of Canterbury who was asked whether during her long marriage to the former Archbishop she had ever considered divorce. Their recorded response was “Divorce never, murder frequently”.

63 A threat such as “I’ll kill you” or “I’ll castrate you” or words to similar effect are often made in anger and are not meant to be taken literally. Equally, one need only attend a rugby match or a football match to know that spectators often encourage players to “kill” somebody on the opposing team. This is not meant to be taken literally. Equally, members of the rugby team might go out onto the field with the expressed view of “killing, thrashing or destroying” the opposite team when those terms are only used metaphorically and not literally.

64 The evidence does not persuade me that the plaintiff himself formed the view that Ms Johnstone would physically harm him. I do not accept that he took the threats she made against his person to be literally true. She was out for “payback” but I do not accept that the plaintiff believed that she was out to physically harm the plaintiff himself, rather Ms Johnstone’s threats were to harm his interests and in particular to harm his relationship with his wife, his relationship with is children and his job, no doubt in the expectation, futile though it may have been, of winning back the plaintiff’s affection.

65 One thing that is clear from the definition of post traumatic stress disorder is that it does not extend to a threat to the interests of the patient such as a relationship with a wife or children or an employment relationship.

66 Furthermore, when objections were being made during the course of the cross-examination of the plaintiff, I asked learned counsel for the defendant, who said all that could be said on behalf of the defendant, whether it was intended to adduce evidence to the effect that such threats could cause a post traumatic stress disorder.

67 Counsel was not able to point me to any such opinion in writing and eventually no medical evidence was adduced by the defendant to suggest that a post traumatic stress disorder could result from a threat to such interests.

68 The threats made against the plaintiff by Ms Johnstone were to some extent successful. The complaints she made about the theft of the gold earrings and the harassing phone call were taken seriously by the police service, and quite properly so, and a need to the plaintiff being taken into custody and formally interviewed in relation to the first complaint and at least being interviewed in relation to the second complaint. The plaintiff himself told me of feeling embarrassed, intimidated and demeaned. Humiliated was the word the plaintiff himself used.

69 The nature of the complaints and their being taken seriously by the police force was no doubt well known to members of the police force in the Illawarra region and would have led to the plaintiff’s being held in a lesser regard than he otherwise would have been. Especially is that so when to explain the nature of the allegations being made the plaintiff had to explain in some detail the nature of his relationship with Ms Johnstone and the nature of his relationship with his wife at that time. It would have all been extremely embarrassing and upsetting and as the plaintiff said, humiliating.

70 The defendant maintains a defence under s 11A of the Workers Compensation Act 1987 and says that its actions in investigating the complaints were reasonable. I accept that its actions were reasonable. However, in my view the post traumatic stress disorder could not result from such investigations. Those investigations were secondary to the primary complaint or threats made by Ms Johnstone to the plaintiff and they in themselves could not cause a PTSD.

71 One can accept the attitude taken by the defendant in this matter. For example, it is abundantly clear that immediately after the first ERISP the plaintiff went on sick leave. The first ERISP was conducted on 20 December 2001. The plaintiff saw his doctor on Christmas Eve, 24 December 2001 and then went on sick leave. He returned to work on 10 January 2002 but ceased in the following month, on 7 February 2002 and has not worked in the New South Wales police force since.

72 On one view of it, the immediate precipitating cause of the incapacity was the allegations raised against the plaintiff and the investigation by the Police Service. The problem, however, is that the diagnosis of PTSD cannot be explained by the complaints and the investigations nor is there any medical evidence to that effect.

73 However, there were other matters still concerning the plaintiff. For example, during the currency of the affair with Ms Johnstone a further threat from Richard Ryall was conveyed to the plaintiff. On 18 June 2001 at 5.15pm the plaintiff registered a complaint that the informant had advised him that Richard Ryall and perhaps an acquaintance of his, another offender called “Fred” whose full name is Fouad Ekermawi, had solicited the informant to murder the plaintiff and that either Ryall and/or Ekermawi had access to a firearm.

74 Paragraph 38 of the plaintiff’s affidavit is this:

“The informant opined [sic] that the death threats against me were genuine. The informant advised that he had visited Ryall in prison and he had been introduced to a male by the name of “Fred”, an offender by the name of Fouad Ekermawi who was incarcerated for the offence of “shoot with intent” and whom I had arrested for that particular offence”.

75 After stopping work on 7 February the plaintiff again saw Dr Khan and obtained a referral to a psychiatrist. The first psychiatrist to whom the plaintiff was referred was not immediately available and that led to the plaintiff’s consulting Dr Gordon Davies.

76 Dr Davies interviewed the plaintiff on 21 March 2002. According to Dr Davies the plaintiff appeared to be emotionally “down and flat”. Dr Davies’ diagnosis was of an adjustment disorder which, as should be clear from what I said at commencement of these reasons, is the diagnosis of a condition caused by a psychosocial stressor, that is, it is externally caused.

77 Dr Davies expressed the view that the plaintiff had developed his symptoms of depression and anxiety particularly over the preceding five years although he thought the plaintiff had periodically had some symptoms of acute stress disorder prior to that time.

78 Dr Davies appears to have accepted that the gruesome and horrific events that the plaintiff was exposed to in his early years in the police service, that is, prior to the investigation of the complaint of paedophilia may have caused a stress disorder.

79 However, it is to be noted that the plaintiff had, before seeing Dr Davies, some psychological counselling. That was provided by Mr Liam Guilfoyle, a forensic psychologist. Mr Guilfoyle first saw the plaintiff on 1 August 2001 immediately after the break-up of the affair. He saw the plaintiff again on 2 and 8 August 2001 and then again on 5, 12, 19, 26 January 2002 and then on 2, 9, 15, 22 February 2002 and then once in March and a few further times in 2002.

80 Mr Guilfoyle had a history of the plaintiff’s involvement in the affair with Ms Johnstone which the psychologist appears to have attributed to the plaintiff’s pre-existing psychiatric condition. He said this:

”He also is demonstrating poor impulse control problems, hence the extra-marital activity engaged in that almost destroyed his marital relationship. His inability to meet life’s demands adequately were exacerbated his feelings of dejection and reinforcing his pessimism”.

81 Mr Guilfoyle diagnosed four conditions, chronic post traumatic stress disorder, major depressive disorder with recurrent psychotic features, a generalised anxiety disorder and a panic disorder with some features of agoraphobia. He diagnosed that on basis that there was a pre-existing dependent personality disorder. A personality disorder is intrinsic, innate or constitutional, it is not caused by an external stressor, it is something with which the patient is born, it is part of their essential make-up as a person.

82 Dr Clark would not accept a “dependent personality disorder” although I note from Dr Clark’s first report that he noted that a treating psychiatrist, Dr Gregory Pearson, the tender of whose reports was vehemently opposed by the defendant, diagnosed narcissistic and dependent personality traits. Again a personality trait is something which is constitutional, something that a person is born or lives with throughout his life. There of course is a difference between a dependent personality trait and a dependent personality disorder. A dependent personality trait is an attribute, a disorder is a sickness.

83 Whilst it is not necessary for me to formally deal with those matters from what I have seen and heard from the plaintiff I would not have diagnosed a dependent personality disorder, although one can accept the plaintiff has certain personality traits.

84 In Mr Guilfoyle’s most recent report, which appears to have followed upon an examination of 12 August 2005, the psychologist comments at length on PTSD but again diagnoses the four conditions to which I have earlier referred. I myself like to apply Occam’s razor. It is difficult to see how the plaintiff could be suffering from four psychiatric conditions at one time. It appears to me likely that the psychologist was not quite sure of the correct diagnosis.

85 On 20 November 2002 the plaintiff came under the care of Mr Christopher Rippingale, also a clinical psychologist. By that time the plaintiff had moved to the far north coast of New South Wales and Mr Rippingale practises at Lismore. The diagnosis offered by Mr Rippingale is of an adjustment disorder with mixed anxiety and depressed mood.

86 On 20 June 2003 the plaintiff was seen by Professor Philip Morris, a consultant psychiatrist, at the request of the administrator of the Police Superannuation Scheme. No doubt Professor Morris’ opinion was that relied upon by the Police Superannuation Advisory Committee in certifying the infirmity which led to the plaintiff’s medical discharge.

87 Professor Morris also has a history of the plaintiff developing difficulty in his marriage and of having had an extra-marital affair, although it is unclear to me from the doctor’s report whether the doctor had a detailed and extensive history of the nature of that relationship and its aftermath.

88 Professor Morris diagnosed a chronic PTSD. He added this comment in addition to the formal diagnosis:

“In addition to the work traumatic exposures, he had some difficulties in his marriage in 2001/2002. Marital problems in the form of an extra-marital and a distant relationship with his wife contributed to stress in those years. These marital problems have now resolved and are not an issue”.

89 The plaintiff’s evidence is consistent with the marital problems going away in the year 2002, particularly after the move to the far north coast of New South Wales and the difficulties caused by Ms Johnstone evaporated essentially when the plaintiff stopped working and certainly after he had moved to the far north coast of New South Wales.

90 If the plaintiff was incapacitated or suffering from an infirmity in 2003 it is hard to see that that infirmity was then mediated by the marital difficulties and the extra-marital affair and its aftermath.

91 I have to accept that the plaintiff has a chronic post traumatic stress disorder and even if it could have been contributed to by the marital problems in the opinion of Professor Morris it was no longer an operative or contributing factor at the time that he saw the plaintiff, that is, on 26 June 2003 and the time of the certification by the Police Superannuation Advisory Committee on 31 July 2003.

92 The further opinions available to me are from Dr Peter Clark, forensic psychiatrist qualified by the plaintiff’s solicitors, who diagnoses a chronic post traumatic stress disorder and also a major depressive order. Dr Clark expressed this view:

“As is common with a chronic post-traumatic stress disorder he has developed a co-morbid depressive disorder and this has been in the form of a major depressive disorder”.

93 Whether the plaintiff has a major depressive order or not I do not know. That is the diagnosis of a bio-chemical imbalance in the brain. It cannot be caused by any external stressor although most psychiatrists accept that in about forty per cent of cases an episode of major depressive disorder can be triggered by a psycho social stressor. Because it is due to a chemical imbalance it cannot be explained by an external stressor. However, I do not have in this case to deal with a diagnosis of major depressive order.

94 Dr Clark most recently examined the plaintiff on 7 December 2005. He then expressed the view that the plaintiff’s chronic PTSD was in partial remission and that the major depressive disorder which he diagnosed was in “substantial remission”.

95 The final opinion before me is from Dr Leonard Lee, a consultant psychiatrist qualified by the defendant. Dr Lee did not accept that the plaintiff was suffering from PTSD. However, the doctor does not give me any formal diagnosis. He did express the view that “performance review” may have predominantly caused the development of whatever the condition was and I assume the doctor there is referring to the investigations into the complaints made by Ms Johnstone.

96 However, there is no evidence before me that those investigations or the complaints antecedent to the investigations is a possible cause of a PTSD.

97 Clearly, the threat which the plaintiff perceived to his family when he was investigating the paedophilia complaint, the threats received by the plaintiff indirectly from Richard Ryall and the threat that the plaintiff perceived from his being stalked by Ms Belinda Van Krevel have the ability to cause a PTSD as indeed do the many events that the plaintiff was exposed to over the years involving gruesome and horrific scenes.

98 The outcome of this case may have been different if the plaintiff, for example, had been medically discharged with a diagnosis of adjustment disorder, formerly known as reactive depression. The complaints made by Ms Johnstone and their investigation and the preceding matrimonial difficulties and the extra-marital affair might have a large part to play in the development of such a condition.

99 However, on the evidence before me they have no part to play in the development and maintenance of a chronic post traumatic stress disorder. The evidence really in that regard is all one way. The Court’s hands are largely tied by the decision of the Police Superannuation Advisory Committee which I pointed out in Gannon’s case is a committee the majority of whom are policemen with no medical expertise.

100 I have inquired of counsel for the defendant were there any further reasons for judgment required and I am told none is so required.

101 For those reasons I set aside the decision of the Commissioner of Police made on 8 August 2003 and I determine the suffering by the plaintiff of the infirmity of chronic post traumatic stress disorder as specified in certificate of the Police Superannuation Advisory Committee dated 31 July 2003 was caused by his having been hurt on duty.

102 I order the defendant to pay the plaintiff’s costs. I direct that exhibit L be returned to the appropriate subpoena packet in matter number 2682 of 2004.

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