Kristine Soutar v The Commissioner of Police

[2006] NSWDC 95

CITATION:	Kristine Soutar v The Commissioner of Police [2006] NSWDC 95
HEARING DATE(S):	05/09/2006-07/09/2006
EX TEMPORE JUDGMENT DATE:	09/07/2006
JURISDICTION:	Civil (Residual Jurisdiction)
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	The decision of the Commissioner of Police made on 9 February 2005 is confirmed
CATCHWORDS:	Finger Print Expert had become de-skilled - Placed on Work Performance Agreement - Certified psychiatric infirmity held to result from plaintiff's reaction to a modification of the Agreement - Whether defendant's action "discipline" and/or "performance appraisal" within the meaning of section 11A of the Workers Compensation Act 1987
LEGISLATION CITED:	Police Regulation (Superannuation) Act 1906 Workers Compensation Act 1987 Police Act 1990 Police Regulation 2000
CASES CITED:	Davie v The Edinburgh Magistrates 1953 SC 34 Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 Mercer v ANZ Banking Group Limited (2000) 48 NSWLR 740 Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339 Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 Ritchie v Department of Community Services (1998) 16 NSWCCR 727 Department of Education and Training v Sinclair [2005] NSWCA 465 Hunt v Department of Education and Training (2003) 24 NSWCCR 642 Bottle v Wieland Consumables Pty Limited (1999) 19 NSWCCR 135 Yeo v Western Sydney Area Health Service (1999) 17 NSWCCR 573
PARTIES:	Kristine Soutar (Plaintiff) The Commissioner of Police (Defendant)
FILE NUMBER(S):	RJ 287/05
COUNSEL:	Mr T Edwards (Plaintiff) Mr G Beauchamp (Defendant)

JUDGMENT

1 HIS HONOUR: The plaintiff, Mrs Kristine Soutar, is a former Detective Senior Constable of Police. The plaintiff was attested as a Probationary Constable of Police on 27 June 1977 and thereupon became contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906, (the Act).

2 On 27 January 2003, the Police Superannuation Advisory Committee established under the Act certified that the plaintiff was incapable of discharging the duties of her office on account of the infirmity of “adjustment disorder with anxiety and depression”. That led to the plaintiff’s being discharged from the New South Wales Police Force on 4 February 2005. On 9 February 2005, the defendant, the Commissioner of Police, determined that the suffering by the plaintiff of the specified infirmity of mind, was not caused by her having been “hurt on duty” as that term is defined in the Act. From that decision of the defendant, the plaintiff brings this appeal, pursuant to s 21 of the Act.

3 One unusual aspect of this case is that all the medical practitioners involved agree on the diagnosis.

4 The diagnosis of the plaintiff’s general practitioner, Dr Terri Peters, is of “reactive depression” which is now known as the adjustment disorder. On 12 March 2004, the plaintiff came under the care of Dr Karl Koller, a psychiatrist and his diagnosis was of an adjustment disorder with anxiety and depression. The same diagnosis is made by Dr Leonard Lambeth, who saw the plaintiff on 3 August 2005, at the request of her solicitor. Dr Lambeth however qualified the diagnosis with the adjective “chronic”. Nothing turns on that.

5 The plaintiff has been seen for the defendant, by Dr Kathryn Lovric, a consultant psychiatrist and as I read her report, she agrees with the diagnosis of an adjustment disorder.

6 Adjustment disorders are of their nature exogenous, to use the old terminology. They do not arise because of any constitutional or idiopathic problem, but are caused by an external stressor.

7 In one respect the parties are ad idem. The defendant has submitted that the plaintiff’s condition results from what occurred to the plaintiff at a meeting on 27 November 2003. That is also accepted by the plaintiff. There is a dispute between them as to whether there was any input, in the events of 27 November 2003, of any earlier, ongoing problem.

8 The plaintiff was born on 31 August 1957 and is currently 49 years of age. She began a ten-week training course at the Police Academy, which was then at Redfern, on 14 April 1977. On 27 June 1977, she was attested as a Probationary Constable of Police. On 30 June 1977, she commenced a period of 18 months at what was called the Safety Advisory Section of the New South Wales Police Force, that had formerly been called the Police Lecturing Section. After that engagement, the plaintiff moved to a section known as the ‘Women Police Section’. That involved her working in plain clothes and dealing in all matters which involved women and children. The plaintiff worked there for two and a half years. It would appear that the amount of work available in that section was decreasing, owing to the fact that there were a larger number of female police officers, who were gradually performing general duties throughout the New South Wales Police Force. As work in the Women Police Section was coming to an end, the plaintiff decided that she did not wish to go into general duty work and she successfully applied to join the Central Fingerprint Bureau. She joined it in July 1981. The Central Fingerprint Bureau was then based in the Remington Building in Sydney.

9 For five years the plaintiff worked as a fingerprint technician. In August 1986, after a vigorous viva voce examination, the plaintiff gained a qualification as a fingerprint expert. In that year, a number of things also occurred. The Fingerprint Bureau moved from the Remington Building in Sydney to the Ferguson Centre at Parramatta. That coincided with the implementation of a new computer program, which was called the NEC NAFIS. The plaintiff was trained in that computer system.

10 In 1986, although it may be in either 1987 or 1988, the plaintiff was called upon to give expert evidence in a trial conducted before his Honour Judge Court. The allegation was of sexual assault. The plaintiff had been involved in the investigation of the offence in 1981. That was in her first year as a technician. She attended the crime scene as an observer. She, herself, made no note. The fingerprint expert who did conduct the examination had been transferred to Coffs Harbour and was unwilling to return to Sydney to take his part in the trial. The plaintiff was directed to prepare an expert’s report for use in the trial and to give appropriate evidence. Clearly, that was not a proper thing to do. The plaintiff was not challenged about it and the only inference to be drawn is that she was unaware that it was not a proper thing to do, but clearly she was directed to do so by the defendant.

11 Not surprisingly, the plaintiff did not fare well at the hearing. In a report prepared by the plaintiff on 18 September 2003, she said this of the event:

”I prepared myself as best I could by consulting Senior Experts and examining the scene photographs. The defendant was committed to attend Parramatta District Court. After several adjournments, due to him [sic] alleging several different alibis which were all rebutted, the trial commenced. When I was called to the witness box, the Judge questioned my Certificate of Expertise, inferring that I had been awarded it by my colleagues. I found this strange coming from a Judge in front of the Jury. Throughout my evidence he interrupted and asked questions of me in an abrupt manner, which startled me. The following witness, a Pathologist, also had her evidence belittled, so not surprising that he declared to the Foreman that he should find the defendant ‘not guilty’ as, in his opinion, there was insufficient evidence to convict. I was very distressed by this experience.”

12 The plaintiff goes on in her report to outline the persons with whom she discussed what had occurred to her in the District Court at Parramatta and then continues thus:

“As a result, I lost my confidence in giving evidence. My Doctor informed that I had high blood pressure and for quite a time I kept thinking about the incident and became upset”.

13 The identity of the doctor who diagnosed hypertension has not been given in evidence, nor has any medical material relating to this event been put into evidence.

14 The plaintiff was later to tell her general practitioner, Dr Terri Peters, that it took the plaintiff “a long time to recover” from her experience in the District Court at Parramatta. That history was given on 20 May 2003. The only inference to be drawn from the history is that the plaintiff did in fact at some stage recover from the adverse criticism directed to her by the Judge in the criminal trial.

15 One must be very careful in cases of this nature in which an allegation of “stress” is made. Many events can cause a human being to feel either physical or emotional stress or distress. It does not necessarily mean that some pathological process of either body or mind has been initiated. Athletes train and often cause their muscles to ache. The purpose of that is not to inflict an injury, but rather to strengthen the muscles. Likewise, doing a thing for the first time can be very stressful, but as one does it repeatedly and repeatedly, it becomes easier to do. Merely stating that something was “stressful” does not help in ascertaining what caused a pathological process.

16 This trial in either 1986, 1987 or perhaps 1988, is not suggested to have caused the need for any time off work or the like. It is so far removed from events happening in 2003, as to be quite remote. In any event, the plaintiff’s evidence to me is that relevant symptoms commenced about one or two years prior to October 2001, which would place them at the earliest in October 1999. The event in Court is a relevant part of history but it is not suggested and cannot be suggested here, to have any significance in the plaintiff’s psychiatric condition. However, it may have caused her abnormal anxiety about going to Court because when she did go to Court for the first time, things went badly for her.

17 In 1989 the plaintiff married her current husband, Detective Senior Constable Ross Soutar. Both the plaintiff and her husband were fingerprint experts and worked together. That is how they met.

18 On 1 August 1990, both the plaintiff and her husband were transferred to the Lower Hunter Valley. Mr Soutar was appointed to Maitland Police Station and the plaintiff was appointed to the Newcastle Police Station, where she acted as a supernumery in the fingerprint section.

19 The plaintiff suggested in her evidence, and it is really not disputed, that there was a lot of work at Newcastle and that the staff were hard worked and had a backlog.

20 In about June 1991, after being at Newcastle for less than a year, the plaintiff went on maternity leave. Her first child, Grant, was born on 15 July 1991. The plaintiff took a further five months maternity leave after giving birth to her son. The plaintiff has told me that after the birth of her son, she noticed depression which can be easily explicable as post partum depression. The plaintiff was subsequently to tell Dr Peters about that, but it is clear that at the time the plaintiff did not seek any medical treatment or mention her depression to any medical practitioner.

21 The plaintiff, after ending her maternity leave, returned to work in what would have been late 1991 or early 1992, but working only three days per week for eight hours each day. That was then called part-time maternity leave, the Police Force not recognising permanent part-time work until 1996.

22 In about March of 1994 the plaintiff stopped her part-time work, again on account of maternity leave. On 26 April 1994, her second child, a daughter, Hayley, was born. After Hayley’s birth, there was still period of five months maternity leave available to the plaintiff, which she took and in probably September or October 1994, she returned to work, again working only three days per week.

23 In the year 2000 the plaintiff changed from working for three days per week at eight hours a day to working four days per week for six hours per day. It would appear that both her children were then at school and shorter hours over a greater number of days, no doubt, would have assisted her in getting her children to and from school. However it remains the fact that the plaintiff was still working 24 hours per week.

24 In the early part of the current decade a new computer system was introduced. It was called Sagem and the plaintiff did receive training for that computer system.

25 Some time in the period from 1991 to the early part of the current decade, the plaintiff slowly underwent a change in her work practices. In her statement of 18 December 2003, the plaintiff said this:

“I have also asked over the years for more training. I mentioned many times that since my transfer to Newcastle, I had never been offered any formal training from our Headquarters. Once we are an Expert, formal training was forgotten except for one opportunity, the Advanced Chemical Training, which everyone else but me was allowed to attend. There never seemed to be any money for formal training. Management were more occupied in installing new technology, Sagem and Live Scan rather than training. Also, because Fingerprint Offices were so busy, a culture existed, that the work at hand had to be done. No time for training. Consequently, I gradually withdrew to tasks that were more menial in the office than my other colleagues that my other colleagues preferred not to do. This arrangement worked well for a while. I could do the administration work much quicker. I enjoyed it. They preferred to go to the Serious Crime, the Statements and the Court work. I still did the routine, “volume crime” like Break Enter and Steal and Stolen Motor Vehicle jobs. Occasionally it meant that I went to Court. I was still very nervous due to my past experience. I feared that I would fail and be embarrassed in the Court room.”

26 Earlier in the report from which I have just quoted the plaintiff had made comments about a reduced staff level, about a glacial rate of replacing staff who had resigned or been transferred or otherwise left and of constant changes in management and other changes in the police force. It is clear from what I have just quoted that the plaintiff made a niche for herself in doing the administrative work for the fingerprint section at Newcastle, but in the process of doing that she was losing her skills to perform the work that she was supposed to do, that of a fingerprint expert. Implicit in what I have quoted is the fact that this was not working well. The plaintiff said, “This arrangement worked well for a while”. The inference to be drawn is that after a while things were not working so well.

27 On 27 March 2001, the plaintiff made a telephone call to her general practitioner, Dr Terri Peters about depressive symptoms. The plaintiff had been seeing Dr Peters or her husband since 28 September 1990. The first time that the plaintiff mentioned any depressive symptoms was on the phone call of 27 March 2001. To understand that telephone call, it must be noted that on 9 March 2001, the plaintiff had attended Dr Peters’ about a gynaecological problem which required the prescription of a new oral contraceptive. The doctors notes of the telephone call are these:

“Has typical full hand of depressive symptoms since starting [oral contraceptive] and PMT symptoms. Patient given explanation. Can either persist and see if mood levels out over next few cycles or can cease. Either way, review in month or so and assess need for further treatment.”

28 It is clear from what the plaintiff told me and from what is recorded in Dr Peters’ notes that this onset of depressive symptoms was chemically induced by the new oral contraceptive medication. In her evidence in cross-examination she said that her symptoms at this time included dragging herself out of bed, headaches, general lethargy, poor sleep, irritability, and problems interacting with the members of her family.

29 The plaintiff did not see Dr Terri Peters again until 24 August 2001. Her presentation was for gynaecological problems. Dr Peters’ notes indicate that the plaintiff’s mood was, “back to normal” and that the plaintiff had ceased the oral contraceptive because it “aggravated”. I assume she means because it appeared to be mediating the change of mood.

30 The next significant event in the plaintiff’s history is a meeting that was held at the Maitland Golf Club in October 2001. The meeting was called by Chief Superintendent Flogel, who as I understand it was the commander of the Crime Scene Operations Branch of the New South Wales Police Force. According to the plaintiff’s report of 18 September 2003, the main concern at the meeting was a crisis at Maitland where there were two staff left who were folding under the pressure of their work and a decision had to be made to ease the situation. The decision that was taken was to move those two staff to Newcastle. The staff in question were of course fingerprint staff and one of those staff was the plaintiff’s husband.

31 In her statement the plaintiff continued thus:

“I became increasingly frustrated as the day wore on because no-one acknowledged that the Newcastle Fingerprint staff was in crisis also and nothing was being done about it. We had spent years while they decided how they were going to advertise Wayne Mortimer’s sergeant’s position and at that point our office was surviving on two point six units instead of four and no decision on who the next Fingerprint Sergeant was.”

The plaintiff referred to her outburst at the meeting in the presence of Superintendent Flogel when she called out words to the effect, “What about us?” The plaintiff told me that she lost control, that she started to cry and that she was flushed and agitated. It was at that point the plaintiff told me that she had had symptoms of one sort or another for one or two years prior to that time and those symptoms had come on gradually. That is not borne out by the records of the plaintiff’s general practitioner, especially when Dr Peters’ commented upon the presence of depressive symptoms on 27 March 2001 and then their absence on 24 August 2001.

32 It may well be, as often happens in cases of this nature, that the plaintiff has reconstructed things or looked at things with the benefit of hindsight. Such is very common in personal injury litigation. However, one can accept that by October 2001 when the plaintiff made the outburst at the meeting in the presence of Superintendent Flogel that she was suffering some symptoms of anxiety or depression.

33 In December 2001 the change occurred when the two fingerprint experts from Maitland, which included the plaintiff’s husband, moved into the Newcastle office. According to the plaintiff’s statement or report of 18 September 2003, the staff of both the Maitland and Newcastle fingerprint offices had been told that they needed to combine their resources until the backlog was under control. The plaintiff’s report continues thus:

“We pulled out all stops to get our backlog up to date and did so within two months. The Maitland staff wanted to return, but were told they needed to stay until our staff level was at strength. They were very disappointed. I was placed in a situation where I needed the security of extra staff there to share around the workload. I had no confidence to attend serious crime or examine exhibits. I was in fear of taking on anything serious in case I made a mistake. Because one of those people was my husband, he understood how I was feeling and that I needed support, but I also felt terrible that he was being made to stay in our office because of me.”

One can accept that the conflicting desires of the plaintiff and of her husband would cause the plaintiff to feel guilt.

34 More importantly, it is to be noted that at this stage, one is looking at early 2002, the plaintiff had no confidence to attend serious crime scenes or to examine exhibits in order to take fingerprints, that she was in fear of taking on any serious case, lest she made a mistake. To that must be added her earlier expressed anxiety about giving evidence in court. The plaintiff had by this stage lost a large number of the skills that a fingerprint expert needed to have.

35 Towards the middle of 2002 there was a lecture given on stress management to the scientific staff, or forensic services staff, at Newcastle. The lecture was given by somebody from the ‘Healthy Lifestyle’ office and by a police psychologist. At that lecture the plaintiff made a further outburst. In her report of 18 September 2003 the plaintiff said this:

“The psychologist asked us to fill out a booklet, which wanted us to identify stress. All of a sudden I started to feel hot in the face and neck, I could feel my veins pounding, I blurted out remarks about how ‘I know what stress is like. I don’t need to be reminded of it. I am living it in the office upstairs’. Later, I was embarrassed about my outburst and discussed with Ross that I needed to find help.”

36 On 20 June 2002 the plaintiff attended upon Dr Terry Peters. The first complaint made by the plaintiff was about the condition of Morton’s neuroma, for which he had earlier attended on 6 June 2002. The doctor’s notes continue thus:

“Stress related to work. Years. However reaching a crescendo at the moment. Has counselling system at work. Patient has been volatile and teary. Overwhelmed. Having trouble hiding feelings. Has actually lost control in a meeting recently. Lots of angst in the office. Boss is using projection. Everyone in the office is affected in some way. Issues are to deal with management and change generally. Loss of control and loss of professionalism. Powerless to change. Personnel taking too long to be replaced. Those remaining had to do the extra load. Working with husband in the same job, so feels that she has to keep going or husband will suffer. Patient sleeping excessively. Not walking. Appetite not controlled. Comfort eating. No libido. Cries easily. Memory poor. Concentration poor. Sleeping not restful. Too sensitive. Still gets pleasure like planning trip and is excited, but not over the last week. Suffers from excessive mood changes with PMT for a long time. Had a depressive illness after birth of first child, which did not get presented to the medical profession.”

37 Dr Peters prescribed Cipramil. That appears to have given the plaintiff some relief from her symptoms. I take the matter referred to by Dr Peters as ‘Loss of control and loss of professionalism’ to be a reference to the plaintiff losing the skills that she had originally had to be a fingerprint expert.

38 The plaintiff attended upon Dr Peters again on 5 July 2002. The plaintiff told the doctor that she had only some minor side affects from the use of Cipramil. The plaintiff went on to tell the doctor that she thought medication was ‘Amazing’. According to the doctor’s records, the plaintiff had a lot more positive things to say, she had more patience with her children, that ‘dramas at work’ were not overwhelming her any more and that the plaintiff felt happier in herself. However, the plaintiff was not sure if her pre menstrual tension, or pre menstrual syndrome, was in control as yet.

39 In the month of July 2002 some psychological testing was performed on the plaintiff by Mr Harrison, a police psychologist, but the report of that investigation has not been put before me and no inference can be drawn as to what it may have disclosed.

40 In September 2002 the plaintiff and the other members of her family went on a lengthy overseas holiday for some seven weeks. The plaintiff told me, and I accept, that she enjoyed that trip enormously. She returned to work in November of 2002 and thought that she was suffering from jet lag, but the jet lag did not go away and the plaintiff formed the view that it was a recurrence of the earlier symptoms she had and that it was related to her work.

41 On 6 December 2003 the plaintiff saw Dr Peters again. That was her first visit to a medical practitioner after the overseas trip. The plaintiff told Dr Peters that she had been struggling to cope both with work and her home life since her return from overseas. The plaintiff told the doctor that she was still taking the anti-depressant, Cipramil. The plaintiff made complaints about loss of memory, loss of concentration, sleep problems, loss of pleasure, feeling just as depressed as she initially was, presumably as she presented to Dr Peters on 20 June 2002.

42 The plaintiff also complained of comfort eating and of a lack of exercise. There is also reference to very greatly increased pre menstrual tension. According to Dr Peter’s notes the plaintiff identified her work and her husband’s work situation as a precipitant for these symptoms. There is reference in the notes to a complaint of being short staffed, a change of work structure, of inappropriate management decisions and of others at work feeling the same as the plaintiff.

43 However, it is clear that by that stage the plaintiff may have been considering leaving her job. The doctor’s notes contain this matter:

“Has too many financial advantages in staying in the job, rather than taking a career change.”

That of course might also reflect the thinking of the general practitioner that the plaintiff may find a way out of her dilemma by changing her job. The dosage of Cipramil was increased to one and a half per day. The plaintiff was also referred by Dr Peters to a psychologist, Miss Lisa Sales.

44 The plaintiff first saw Miss Sales on 13 December 2002. The plaintiff told Miss Sales that she under much stress, both individual and departmental. The distinction that may have been made at the time has not been explored in evidence before me. Significantly, the notes of Miss Sales indicate that the plaintiff told Miss Sales that she felt ‘unskilled’. The plaintiff was then to continue to see Miss Sales roughly on a monthly basis.

45 In January 2003 Dr Tony Raymond, the director of Forensic Services of the New South Wales Police Force visited the plaintiff’s workplace. A few weeks later the workplace was visited by Detective Carlene York who interviewed not only the plaintiff but all members of the crime scene office at Newcastle. Eventually a report was generated, which became exhibit J. Although the interviews would have been conducted by at least the end of February 2003 the report bears date 15 July 2003.

46 The plaintiff told me that subsequent to the interview with Detective Inspector York she also had the opportunity of an interview with Superintendent Flogel. As I understand it Superintendent Flogel would have reported to Dr Tony Raymond. Amongst the complaints, which the plaintiff made to either a Detective Inspector York, or Superintendent Flogel, the plaintiff said that she wanted to obtain help to increase her skills to regain her confidence and that she was not happy with her work output.

47 There is matter in the report of Inspector York of 15 July 2003, which supports the plaintiff’s allegations of a large amount of work and an inadequate number of staff. However, these are really not two problems, but one. If one has adequate staff, or work at hand, one does not have an overload.

48 The report of Inspector York indicates that Mr Raymond requested a review of general issues regarding personnel at the Newcastle Zone Crime Scene office. The director had advised the inspector that there were issues affecting the functioning of the office. The report by the inspector was seeking to identify any causes for the dysfunctionality of the office and to provide some possible solutions.

49 One of the first things noted was that the accommodation was inadequate. Approval was given to renovate the office and to provide examination rooms, presumably for the examination of exhibits that had to be updated to a requisite standard.

50 Under the heading ‘Consultation with staff members’ the inspector listed three areas, she referred to them as ‘Cultural element’, ‘Practice element’, and ‘Management element’. Under the heading ‘Cultural element’ there was reference to the personalities of some officers who had influence within the office, who sometimes caused conflict and created distress for other members who felt caught in between the two conflicting parties. There is also reference to a recent promotion and the inspector commented on it, that there was a need for all members of the office to accept the decision in relation to the promotion and to ‘move forward as a team’.

51 The final thing noted by the inspector under the heading ‘Cultural element’ is this:

“There is a strong emphasis placed on historical ‘people’ issues to the detriment of the team. Although this issue is not delved into due to the age of the matters, there are clearly issues impacting on some officers relating to past staff movements and requirement/dischargers where there is a need by some to place blame. This leads to a constant simmering distrust within the office. No substantiated claims could be identified and no management action that should be taken in relation to these issues.”

52 Under the heading ‘Practice element’ the inspector made a number of pertinent observations. One of those is this:

“Work practices within fingerprint operations required improvement to ensure quality, timeliness, process improvement and sharing of workload are addressed.”

53 Further in the report there is reference to there being an ad hoc allocation of workload, which led to an inconsistent workload between the various officers. The final point made under this heading is this:

“All staff have been placed on performance agreements. Any staff identified as not meeting the objective set within the business unit should be placed on a remedial Work Performance Agreement. This is in line with NSWP objectives.”

That observation is important. Here the plaintiff was eventually placed on a ‘Performance Management Scheme, Personal Achievement Plan’. Oral evidence was given in the defendant’s case by Chief Inspector Sweeney. The Chief Inspector referred to there being two schemes, one the Personal Achievement Plan and the other the Remedial Work Performance Plan. It would appear that what Inspector York was referring to were those two plans.

54 According to the chief inspector all staff were placed on ‘Performance Agreements.’ The only staff of whom I am aware was placed on such an agreement was the plaintiff. However, it is clear from what Inspector York says, that if the Personal Achievement Plan was not performed adequately there would be then set in place a Remedial Work Performance Agreement.

55 Under the heading ‘Management element’ there appears to be acceptance by the inspector that there was an inadequate staff number and that that need had been identified earlier by Superintendent Flogel. There was also reference to the lack of a specific sergeant for the fingerprint discipline had led to difficulties in consistent work practices, allocation of work and adequate supervision.

56 The inspector also reported that there was a complaint by staff members of a lack of information from the Forensic Services Group perspective being distributed leading to information being received through informal means and often being delayed, misleading, or confusing. There was a request that the information be supplied from on high in a timely manner and that the information be not only general information, but improvements in specific discipline areas.

57 There was suggestion that development of a current Forensic Services Group Intranet site would assist in that regard. The report then goes on to comment that there were budgetary considerations in having country staff members attend courses in Sydney, but still there should be a consideration and ‘vigilance’ in making such courses available to country staff members.

58 Under the heading ‘Recommendations’ there was reference to ‘Performance Agreements are reviewed’ and further ‘Any poor performers should be placed on Remedial Performance Agreements’.

59 In either April or May 2003 the plaintiff was required to prepare a statement to be used in a criminal case to be heard by a magistrate. The plaintiff had attended to the investigation in the matter in 1996. The culprit was never identified till either 2002 or 2003. The plaintiff referred to the identification of the offender as being a ‘cold hit’, by which is meant the fingerprints related to a crime being identified much later by a random check, presumably of a person whose fingerprints were not available at the time of the original offence in police records.

60 The plaintiff made her statement. In her report of 18 September 2003, the plaintiff continues thus:

“I sent it to the detective who requested it and a short time later a solicitor, Mr G Cleary, rang me to find out why I hadn’t put how many points of identity this fingerprint had in the statement. I replied that we weren’t required to. He insisted and I told him that I would make enquiries. My peers in my office, in our office at Parramatta and our training office, all told me that I should not supply another statement, that I would set a precedent. I had Ross ring the solicitor to explain the situation with no satisfaction. I was then told a short time later the matter was mentioned in court and the solicitor explained that I was being non-compliant. The magistrate told the prosecutor they had better comply or I will be seen in a bad light and costs would be awarded against us. I was devastated. I felt I was being pulled in two different directions. I had flashbacks of the court case that I mentioned before and I suffered the same sense of distress. I contacted our training officer and he made enquiries with the prosecutor’s training office. They also said that we were not required to comply to the request, referring to the Justices Act, but that we should consult the Policy Unit for a decision. They also informed me that I didn’t need to supply, but because the magistrate had made orders that I should, then I should bear in mind to include literature on how I came to the conclusion that the fingerprint was of the offender charged. So I spent many hours collecting literature, looking on the Internet and compiling an informative subsequent statement. I send it directly to the solicitor. Several days before the hearing date I received a letter from him stating that he had received my statement and that I wasn’t required for court. I felt a huge weight had been lifted from my shoulders. On the court date, I was on duty, but wasn’t called to court, so assumed that he had pleaded guilty. The next day I received an email from the OIC of the case telling me that we had lost the court case due to a technicality that could have been explained had we been called to court. The whole incident described caused me much distress and when talking to my husband about it he couldn’t understand that I could be so upset. I realised then that emotionally I was not coping at all and that without professional help my career was in ruins.”

61 One can understand the plaintiff being told not to provide a second statement, because if there are two statements one can be examined about any inconsistencies. However, it appears clear to me from reading what the plaintiff has stated, that she failed to carry out the role of an expert as described by Lord President Cooper in Davie v The Edinburgh Magistrates. That she needed to go to the Internet and research for hours the literature in order to compile her statement indicates to me that she had become quite de-skilled in her role as a fingerprint expert.

62 Furthermore, the plaintiff’s reaction, if it is adequately set out in the report of 18 September 2003, would appear to be ‘over the top’, to use the vernacular, and one can understand her husband’s lack of comprehension of the extent of the plaintiff’s upset. After all any member of the Bar is used to losing cases.

63 Furthermore, if there was a ‘hole’ in the plaintiff’s statement the person who should have realised that and cured the remedy by calling the plaintiff was the learned Crown Prosecutor. The fact that there was a ‘hole’ in the case should have been apparent to him and he could have corrected it. It was not the plaintiff’s role to realise that there may be a chink in her statement. However, this incident is again the evidence of the fact that the plaintiff had become de-skilled for her role as a fingerprint expert and clearly it was now being drawn firmly and squarely to her attention.

64 On 20 May 2003 the plaintiff saw Dr Peters again. The plaintiff told Dr Peters that she was progressing quite well, using her anti-depressive medication and counselling from Lisa Sales when there had been a ‘substantial setback’ in the previous month and the doctor then has a history of the court matter to which I have just referred. The plaintiff referred to having lost all her confidence and of suffering from a lot of anxiety symptoms, some of which included headaches. It would appear that there was a suggestion that the headaches could in part be due to a cervical problem and appropriate physical therapies were devised to try to cope with that.

65 It was at that time that the plaintiff told Dr Peters about the earlier matter at Parramatta District Court, from which it had taken the plaintiff ‘a long time to recover’. At that time Dr Peters noted that the conditions of the plaintiff’s workplace were largely unchanged in regard to stress, staffing matters and an ‘autocratic boss’. The plaintiff made no complaint to me at any time of any conflict with an autocratic supervisor at the Newcastle office, although she did make a complaint of arrogance against Chief Inspector Sweeney. However, that is not the person to whom reference was made in Dr Peter’s note of 20 May 2003.

66 The plaintiff on 24 June 2003 had a telephone conversation with Dr Peters, which lasted ten minutes. The doctor’s notes are these:

“Is holding her own. No worse, but feeling that she is not making any progress. Would like to try reduced hours. Also wonders if she should access psychiatric services from within the police. I agree. Still seeing Lisa Sales, locally. Not feeling well enough to [undertake] regular training session for firearm. Issued certificate. Sees her supervisor as very helpful, wanting to solve the problem for her, but he is the problem and many colleagues feel the same.”

67 On that day Dr Peters issued a certificate on a ‘WorkCover’ form certifying that the plaintiff was fit for suitable duties from 26 June 2003 to 1 August 2003 and that she was capable of working for 18 hours per week. Furthermore, it states that the plaintiff was not well enough to undergo a firearm assessment. It would appear that that certificate issued without the plaintiff ever seeing Dr Peters, the consultation was over the telephone. Furthermore, the plaintiff merely said that she would ‘like to try reduced hours’ and the doctor accommodated the plaintiff.

68 The plaintiff was to stay on restricted duties until 11 August 2003. Again the ‘supervisor’ referred to must be a reference to the ‘autocratic boss’ referred to in the consultation 20 May 2003. As I understand it that was Detective Senior Sergeant Wayne Parkes, but the plaintiff herself made no complaint to me about his conduct. It would appear to me that the certification of incapacity by Dr Peters was merely at the plaintiff’s request and the doctor could not have obtained any adequate clinical information to make an assessment of incapacity based merely on a telephone call, especially one at which there was no complaint of any increased symptoms, or any adverse effect, merely a decision by the plaintiff that she wasn’t getting any better and therefore she herself devised the therapy of working reduced hours.

69 On 13 July 2003 there was a meeting at Newcastle between the plaintiff, Detective Chief Inspector Mark Sweeney and Detective Acting Sergeant Redpath. Chief Inspector Sweeney was the then acting commander of the Crime Scene Operations Branch, in effect he was standing in for Chief Superintendent Flogel. The Acting Sergeant Redpath would appear to have been standing in for Senior Sergeant Parkes.

70 The plaintiff told me that this was a happy meeting. She said that the chief inspector started the meeting by saying that he believed that she was not well, to which she made a positive response and the chief inspector continued that he wanted to try to assist the plaintiff and that he and the police force generally did not wish to lose the plaintiff’s experience, she being the first female fingerprint expert in the New South Wales Police Force.

71 The plaintiff said that she was asked what could be done to assist her and she indicated to me in evidence five things. They were generally all to do with obtaining better skills, or relearning her earlier skills. She wished further training on the Sagem computer. She wished to accompany experts to major crime scenes and refresh her memory about those. She wished to redo or enhance her chemical enhancement skills. She wished also to improve her ability to give evidence by going to a court expert evidence presentation in Sydney and to go to the moot court run by police where she would go through her paces as an expert witness.

72 It appears that all those matters were agreed to. The matter was contained in a ‘Performance Management Scheme, Personal Achievement Plan’, that bears the date of the interview 23 July 2003. The document gives four personal achievement targets and four achievement indicators. The first achievement indicator was not really that. It merely noted that the scheme was to commence on 4 August 2003. Under the second achievement indicator the plaintiff was to perform ten scans every week on the Sagem computer system and to increase the number of scans each week.

73 The plaintiff was to attend crime scenes, both volume crime scenes and major crime scenes, with an experienced fingerprint investigator and she was to undertake a moot court at the Fingerprint Expert’s Forum as an observer and then as a participant. On the achievement targets there is again reference to refresher and retraining on the Sagem system, a mentoring and coaching in crime scene examinations, undertaking chemical targeting and treatment for exhibits and there is to be a weekly debriefing with Detective Acting Sergeant Redpath, or Acting Detective Sergeant Day, or Detective Senior Sergeant Parkes.

74 On the following day the plaintiff attended Miss Sales. Miss Sales’ notes indicate that the plaintiff told her that she was not coping, but there were positive changes being made at work. There was a discussion about the meeting at work and about the plaintiff’s decreasing level of coping and decreasing level of work performance. On 8 August 2003 the plaintiff saw Dr Peters again. The notes record that the plaintiff told the doctor that there had been substantial changes in the work structure after a meeting organised by management.

75 The plaintiff told the doctor that she had been offered a course to increase her skills and the plaintiff told the doctor that she was feeling much better, that her confidence was improving and that she was much happier at work and feels that she continued to work now, although she had been at the point of not going on with her work. Dr Peters then gave the plaintiff a certificate for ‘normal duties’ so that she could return to 24 hours per week, with effect from 11 August 2003. In other words the plaintiff had told both Miss Sales and Dr Peters that the intervention of Chief Inspector Sweeney and the Personal Achievement Plan had buoyed the plaintiff up.

76 The Personal Achievement Plan required there to be reviews. The first review is carried out on 20 August 2003. The review was carried out by Detective Acting Sergeant Redpath, although it may have been done by Detective Acting Sergeant Day. Both those gentlemen appear to have signed that entry.

77 Under the heading ‘Progress to date’ it was noted that the plaintiff was meeting the requirements of Sagem retraining. It was noted that the plaintiff had attended a major crime in the field. It was noted that the chemical enhancement course was organised for the 28 and 29 August 2003 at Westmead and the plaintiff would also be at a training unit between the 25 and 27 August. It also went on to note that the plaintiff’s return to full duties at 24 hours per week.

78 Under the heading ‘Difficulties experienced’ it was noted that the moot court scenario was not available until December in Sydney. On the day after that review the plaintiff again attended upon Miss Sales. Miss Sales’ notes indicate that the plaintiff felt very much supported at work and with the plans to train her to increase, or update her skills. The plaintiff told Miss Sales that her motivation was returning, that there was workplace support for her and that this was very, very important to her. The notes end with these words:

“Feels valid”

Again things were progressing well at this time.

79 On 18 September the plaintiff had another consultation with Miss Sales. There was a discussion about work options and discussion about support and Miss Sales noted the plaintiff was ‘positive’. On that day the plaintiff completed the document, which I have referred to as either a statement, or a report, of 18 September 2003. That report was to accompany a claim for ‘hurt on duty’ benefits. The benefits claimed were for gratuities under section 12D of the Act, being the same benefits as are payable under section 60 of the Workers’ Compensation Act 1987.

80 On the foot of page 7 and top of page 8 of that report the plaintiff makes reference to the meeting with Chief Inspector Sweeney. In it the plaintiff speaks of being offered a ‘Work Achievement Plan’, that she ‘willingly accepted’. The report continues thus:

“Since that meeting I have spent time in the Parramatta Training Office studying, accompanying other Experts at Serious Crimes and Examining techniques. I have appointments to attend the Westmead Laboratory and to observe a ‘moot court’. These opportunities have made a huge difference to my confidence and satisfaction in the workplace. I now know that the pressure is totally off until I feel that I have totally recovered and can fact a court case, a serious crime, in fact anything that I will confront in the future being a fingerprint expert. I have now an interest in learning new things, taking part in general work discussions and completing tasks that were so difficult for me not long ago, quite quickly and easily. I realise how rock bottom I was only a short time ago and could see no way out, yet now, I am looking forward to my career being a rewarding one again.”

Clearly by that time the plaintiff felt that she could fulfil her full role as a fingerprint expert.

81 I read the word ‘until’ used after mentioning the words ‘the pressure is totally off’ to mean ‘such that’ it appears to be an abbreviation for ‘until the point that’. The plaintiff told me a number of times in her evidence that at that stage she did not have symptoms and that she felt she could cope with her work. On the following day the plaintiff saw Dr Peters again. The doctor’s notes indicate that the plaintiff told her that things were going well.

82 The plaintiff told the doctor that she was sleeping well, that she was not grinding her teeth at night, that she had no headaches, that she was learning to monitor anxiety and gauge stress.

83 The plaintiff told the doctor that she is happy to reduce her Cipramil to one per day, so that the usage was reduced from one and a half per day to one per day. The doctor’s notes go on to record that the plaintiff had been able to separate herself from other people’s stress, in particular from her husband’s stress. The rest of the notes at the consultation concerns some gynaecological problems.

84 Although it has not loomed large in the current matter, the material before me clearly indicates that the plaintiff’s husband was suffering from complaints almost similar to the plaintiff’s and was in fact under medication at the time the plaintiff was under medication.

85 The plaintiff’s next consultation upon Dr Peters was for a gynaecological problem, but it was only a telephone conversation. There was no suggestion of any complaint by the plaintiff at the time of any ongoing psychiatrically mediated symptoms.

86 The second review of the ‘Personal achievement plan’ was conducted on 16 October 2003 by Superintendent Flogel. Under the heading ‘Progress to date’ there is reference that there was a focus on meeting the Sagem scans target, according to the note of the Superintendent Flogel, a minimum of 40 were to be done each month. That is really a relaxation of the earlier requirement of at least ten scans per week, increasing each week. The superintendent went on to note that the plaintiff was attending major crime scenes, was able to do exhibits independently again, was able to get more work done now and that the plaintiff’s exhibit training had been very good.

87 Under the heading ‘Difficulties experienced’ it was noted that the plaintiff had difficulties doing the scan because there was a requirement to make statements and to attend to exhibits. The plaintiff told the superintendent that she was able to do more and would probably improve further and the inspector noted that he expected that.

88 Under the heading ‘Follow-up action’ the superintendent noted the training really improved the plaintiff’s confidence. A little bit of training was yet to be done and in particular that moot training had yet to be done. In a margin there is a note that the moot training could not be completed until January 2004.

89 On that day the plaintiff, in addition to having the second review, saw Miss Sales. There was a discussion about the plaintiff’s earlier hurt on duty claim, and a discussion about the training the plaintiff was undertaking. The notes go on to state that there was less stress at home and that that had caused a positive impact on the children.

90 It is not clear whether that stress is the same stress as the plaintiff experienced at work, or whether it was due to some stress perhaps with her husband, or due to the fact that both of them were claiming to have been stressed by their work.

91 On the following day the plaintiff saw Dr Peters again. Again the consultation was only about a gynaecological problem and there was no complaint of any psychiatric problem. The lack of a complaint is consistent with the fact that the plaintiff had been improving steadily in her work performance since the commencement of the ‘Personal achievement plan’.

STOOD OVER PART HEARD TO FRIDAY 8 SEPTEMBER 2006

FRIDAY 8 SEPTEMBER 2006

92 HIS HONOUR: The next event to occur is the most significant event as far as this case is concerned. That event was the third progress review under the personal achievement plan that had been set on 23 July 2003. That progress review was held on 27 November 2003. The meeting was convened by Chief Inspector Sweeney, who by this time was again Acting Commander of the Crime Scene Operations Branch. The meeting was attended by the plaintiff, by Senior Sergeant Parkes as the Zone Commander, and by Detective Senior Constable John Evans, whom I understand to have been a support person or observer. The plaintiff says, and I wholly accept, that she was not forewarned of the meeting. The substance of what occurred at the meeting is not controversial. However, the tone of the meeting and the language used are.

93 The contemporaneous note of the meeting is contained in ex M under the title “Third Progress Review” on the third page of that exhibit. It is as follows:

“Follow i ng a meeting with Mrs K Soutar and Detective Senior Sergeant Wayne Parkes and Senior Constable John Evans, it identified that the achievement indicators were not being met. Corrective action is required.

CORRECTIVE ACTION

· That Detective Senior Constable K Soutar attend the time/stressmanagement workshop within two months of this meeting. · That Detective Senior Constable K Soutar work achievement goals be linked to 40 per cent of the overall average output of experts, i.e. A Korting, John Evans, R Soutar and D Redpath.

1. That Detective Senior Constable Soutar meet with the management of the Hunter zone to reflect upon monthly returns and Detective Senior Constable K Soutar performance goals and report directly to Mark Sweeney.

2. That Detective Senior Constable K Soutar complete moot court by 17 March 2004.

3. That the next review 15 December 2003.”

That notation of the meeting has been signed by each of the participants, that is, by Chief Inspector Sweeney, by the plaintiff, by Detective Senior Sergeant Parkes, and by Detective Senior Constable John Evans.

94 The next record of the meeting is contained in ex N, an e-mail transmission which the plaintiff sent on 9 December 2003 at 2.29pm to Dr Tony Raymond, the Director of Forensic Services Group, to Chief Superintendent Flogel, to Inspector Carlene York, to Chief Inspector Sweeney and to Detective Senior Sergeant Parkes. The relevant part of the e-mail transmission is this:

“On 27 November, Mr Sweeney attended our office and after a presentation, asked if he could have a chat. With us in the office were Senior Sergeant Wayne Parkes and Senior Constable John Evans. I instantly felt uncomfortable because any meeting I have had before, I had been informed about prior to the meeting and with my supervisor in attendance. My belief was that my husband, Ross, was my supervisor. Mr Sweeney went on to tell me that my work performance was not sufficient in September according to the statistics sheet that our office fills out. I was completely floored and became upset to the degree that I could not maintain an intelligent and meaningful dialogue. I had felt that my work level had improved in October but that month had not been referred. Later, during a break I showed him the figures but because I had not completed one of the indicators (scans), there was no credit unit to the other work and training completed. Mr Sweeney then explained that, “Corrective Action” of the Work Performance Plan was required and it was agreed by all present that the Scan Indicator be replaced. From now on I was to complete 40 per cent of the average total of work completed by the other four experts in our office. I was relieved by this part of the meeting as I felt I would meet this target. Also, I was offered to attend a time management workshop which I readily agreed to.”

95 That is the plaintiff’s own document. That document makes no complaint about the tone of the meeting, the language used by Chief Inspector Sweeney, or makes any complaint of Chief Inspector Sweeney’s attitude to the plaintiff.

96 Prior to that e-mail transmission the plaintiff had attended upon Ms Lisa Sales, her psychologist. That attendance was on 2 December 2003. Ms Sales has not made very full notes. Those notes indicate that the plaintiff was very much distressed by a recent work meeting. The plaintiff told Ms Sales that management was not happy with her progress. The plaintiff asked for an appointment in the following week and a short appointment was scheduled for later. That appointment was on the same day of the e-mail transmission, whether before or after the transmission, I do not know. Ms Sales records that the plaintiff was teary, that she reported decreased sleep and decreased eating. She also reported a decrease in professional confidence. There was a discussion about the management “corrective action required”. The therapy provided by Ms Sales was to discuss sleep strategies, to “revisit” coping strategies re her increased stress, and there was discussion about self care. There was a reference made to a plan of the plaintiff to discuss this issue further at her request. Whether that was with management or with the psychologist is unclear.

97 No complaint is recorded by Ms Sales about the plaintiff having been addressed in abusive language or of having been insulted or of having been harshly or arrogantly dealt with.

98 On 11 December 2003 the plaintiff attended upon Dr Terri Peters shortly after 3pm. Dr Peters’ notes are these:

“Recent meeting with superiors. Turns out they are not happy with patient’s performance. Patient not meeting their requirements with work volume. Initially very upset with recurrence of old symptoms. After a week now feels differently. For the first time feels that wants to get out. Doesn’t want to do this job anymore. Feels quite calm about this decision. See copy of letter patient has written describing the events over the last few days. No suicide ideation or intent. Wants to fight however for the recognition that her illness is work related. Long discussion re workers compensation and its prime aim will be rehabilitation, back to work of some sort.”

99 Again, there is no complaint recorded by the general practitioner of any abusive language or insulting language or any harsh or arrogant behaviour on the part of the Chief Inspector. There was also no reference to any such material in Dr Peters’ report of 31 December 2003. Indeed, the same can be said of Ms Sales’ report of 12 February 2004.

100 On 12 March 2004 the plaintiff came under the care of Dr Karl Koller, a consultant psychiatrist. In his report of 14 May 2004 Dr Koller refers to this incident in the following way:

“She was put on a work performance programme which she embraced. But her Superintendent was not impressed and had high expectations which could not be met to the Superintendent’s standards. She was accused of malingering and ‘not worth her money’.”

Whether the plaintiff told Dr Koller that she had been called a malingerer or whether the plaintiff gave Dr Koller a history which led him to take the view that she had been accused of malingering, I do not know. The only direct speech attributed by Dr Koller to the plaintiff is a statement that she was “not worth her money”.

101 On 3 August 2005 the plaintiff saw Dr Lambeth for her own solicitor. Referring to this meeting, Dr Lambeth has this history:

“Then, in November 2003 she was called in again and she said that they, ‘tore strips off me, saying I wasn’t living up to my agreement’. She said she was called a malingerer.”

102 On 3 February 2006 the plaintiff saw Dr Kathryn Lovric for the defendant. Dr Lovric prepared a lengthy and detailed report. The relevant part of the history recorded by Dr Lovric is this:

“At the third meeting, in December 2003, Mr Sweeney asked to see her. The two other Sergeants were not present. Mr Sweeney ‘believed I was not doing enough work’ and ‘he called me a malingerer’. She told me that she did not believe that the indicators of her performance were reflective of the amount of work she had been doing and was ‘floored by that - I started howling’. He said, “We are here to help you and to recognise the work agreement.”’ She left the meeting to compose herself but ‘I lost all control of myself’. Then she re-entered the meeting and attempted to persuade Mr Sweeney that his figures were incorrect whereupon Mr Sweeney adjusted the work plan and signed off.

Ms Soutar noted that after the meeting ‘I felt threatened’. I asked her to elaborate. She continued, ‘If I did not come up to that level - the pressure was on.’ She interpreted this to mean some threat to her continued employment, if her performance did not improve.”

103 The first thing to note about that history is, of course, that the meeting was on 27 November 2003 and not in December 2003. The plaintiff had by that stage forgotten the date of the meeting. A statement was made to the doctor that the other two Sergeants were not present, when it is clear that they were.

104 The plaintiff told me that Chief Inspector Sweeney said to her that she was “a malingerer”. The plaintiff also told me that the Chief Inspector said to her words to this effect:

“I had to put out my hand every fortnight. ‘You ought to be able to feel that you have earned it.’”

Chief Inspector Sweeney was also accused of being arrogant.

105 Chief Inspector Sweeney gave evidence. He frankly admitted that he did not remember the conversation and said that he would not have used the word “malingerer” because it is not a word which he normally used. Those of us who have spent a lot of time involved with personal injury litigation are used to that word. However, it is not often used by the general public. The usual Australian way of communicating the concept would be to refer to a person as a “bludger”. The case law of workers compensation has an old-fashioned word to embody the same concept and that word is the verb “to shirk” with a noun form of “shirker”. That word can be found, for example, in judgments of Sir Frederick Jordan. That word is not much used now except when citing old authority. To have the word “malingerer” thrown at one is, in fact, to be insulted or abused.

166 But if I be wrong in that, then the provision of remedial training, if I can put it in those terms, is precisely the extended meaning I gave to discipline in Kushwaha. But, as has been submitted by the defendant, the same conduct might find itself under a number of statutory heads, that is, a number of the various items referred to in s 11A.

167 For those reasons, I confirm the decision of the Commissioner of Police made on 9 February 2005.

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