Lanham v Commissioner of Police

[2009] NSWDC 89

CITATION:	Lanham v Commissioner of Police [2009] NSWDC 89
HEARING DATE(S):	29 and 30 April 2009
JUDGMENT DATE:	22 May 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	(1) Order that the decision of the delegate of the defendant dated 7 April 2008 that 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 dated 27 March 2008 was not caused by the plaintiff being hurt on duty, in terms of section 10B(3)(a) of the Police Regulation (Superannuation) Act 1906, be set aside. (2) Order that 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 dated 27 March 2008 was caused by the plaintiff being hurt on duty in terms of section 10B(3)(a) of the Police Regulation (Superannuation) Act 1906 and the date of injury was 12 June 2007. (3) Order that the defendant pay the plaintiff’s costs of the proceedings in an amount as agreed or assessed.
CATCHWORDS:	POLICE - Psychological injury - Chronic post traumatic stress disorder - Hurt on duty - Whether caused during employment - Employment as a substantial contributing factor to injury - Disease contracted by a gradual process - Date injury occurred
LEGISLATION CITED:	Police Act 1990, ss 14(1) and 181D Police Regulation (Superannuation) Act 1906, ss 1(1), 10, 10B(2)(c), 10B(3)(a), 21(1)(b), 21(4), 21(5), 21(6) and 21(8) Workers Compensation Act 1987, ss 4(a), 4(b)(i), 9A(1), 11A(1) and 15(1)(a)(i)
CASES CITED:	Murray v Commissioner of Police [2004] NSWCA 365; (2004) 2 DDCR 31 Saad v Commissioner of Police (1995) 12 NSWCCR 70
TEXTS CITED:	American Psychiatric Association, "Diagnostic and Statistical Manual of Mental Disorders, 4th ed, DSM-IV-TR"
PARTIES:	Ian Alan Lanham - Plaintiff Commissioner of Police - Defendant
FILE NUMBER(S):	No RJ460 of 2008
COUNSEL:	Mr TM Ower for Plaintiff Mr G Levick for Defendant
SOLICITORS:	Walter Madden Jenkins for Plaintiff Rankin Nathan Lawyers for Defendant

JUDGMENT

1 This is an application by way of statement of claim filed in this Court on 4 September 2008 by the plaintiff, Ian Alan Lanham, for a determination in relation to a decision made on 7 April 2008 by the delegate of the defendant Commissioner of Police that the infirmity of “chronic post traumatic stress disorder” suffered by him as a former police officer was not in fact duty-related. The challenged decision, made pursuant to s 10B(3)(a) of the Police Regulation (Superannuation) Act 1906, followed a certificate issued by the Police Superannuation Advisory Committee (PSAC) as delegate of the SAS Trustee Corporation (STC) on 27 March 2008 under s 10B(2)(c) of the statute that the plaintiff was incapable, from the specified infirmity, of discharging his duties as a police officer as referred to in s 14(1) of the PoliceAct 1990.

2 For the plaintiff, the unfavourable decision by the defendant meant that the specified infirmity of chronic post traumatic stress disorder could not be taken into account in determining his level of entitlement to an annual superannuation allowance under s 10 of the Police Regulation (Superannuation) Act. That was so because a qualifying injury had to be an injury caused by the police officer being “hurt on duty” which was defined in s 1(1) of the statute to mean injured in such circumstances as would, if the officer were a worker within the meaning of the Workers Compensation Act 1987, entitle the officer to compensation under that Act. In other words, the injury, consistent with s 4 of the Workers Compensation Act, had to be one arising out of or in the course of employment for characterisation as “hurt on duty.” The decision by the defendant here, even though the STC certified that the plaintiff indeed had the infirmity, meant the injury was not duty-related and so could not be a relevant consideration for superannuation purposes.

3 It ought be interposed that the plaintiff was also certified by the STC on 27 March 2008 that he was incapable of exercising the functions of a police officer due to the infirmity of lumbar spondylosis or degenerative disease in the lumbar spine. The defendant on 7 May 2008 decided that that specified infirmity was caused by the plaintiff being hurt on duty on 30 October 2006 so that he thereupon became entitled to an annual superannuation allowance of 72.75 per cent of the salary of office as a senior constable. In any event, because the plaintiff had in excess of 20 years’ service as a police officer he was entitled to the 72.75 per cent level of benefit. However, if the specified infirmity of chronic post traumatic stress disorder were to be the result of being hurt on duty then that would assist the plaintiff in the next step of seeking an increase in the superannuation allowance of up to 85 per cent of the salary of office commensurate with his work capacity outside the Police Force.

The issue

4 The sole issue in this case is thus the causation of the specified infirmity of chronic post traumatic stress disorder, that is, whether or not it was duty-related, as arising out of or in the course of employment. In respect of that infirmity, the Court is bound by the STC certificate of incapacity issued on 27 March 2008 that the plaintiff was incapable of discharging his duties as a police officer as a consequence of such infirmity: see Saad v Commissioner of Police (1995) 12 NSWCCR 70 at 75 and Murray v Commissioner of Police [2004] NSWCA 365; (2004) 2 DDCR 31 at 40 in para [29].

The claim and defence

5 The application in relation to the defendant’s decision of 7 April 2008, effectively an appeal against it, was brought pursuant to s 21(1)(b) of the Police Regulation (Superannuation) Act by the plaintiff as a person aggrieved. Section 21(4) empowers this Court to make a determination that the defendant’s decision be either confirmed or set aside and replaced by a different decision; s 21(5) limits any such different decision to one which the defendant could make, relevantly here, under s 10B(3)(a); and s 21(6) makes a decision deemed to be made by the defendant and to be carried into effect.

6 The form of relief sought by the plaintiff was for orders that the impugned decision be set aside and that the infirmity of chronic post traumatic stress disorder as specified by the STC was caused by the plaintiff being hurt on duty; costs of the proceedings were sought under s 21(8). I should only add, as I understand it although not expressly referred to in the orders sought in the statement of claim, that if the plaintiff be successful then any order should include, consistent with s 10B(3)(a), the date or dates on which he was hurt on duty. The STC in its certificate stated the date of incapacity for him to perform the functions of a police officer as “the time of his resignation.”

7 Against the claim, the defendant raised two arguments: first, that the plaintiff did not contract a disease of the mind, chronic post traumatic stress disorder, during the course of his duties for which his employment was a substantial contributing factor; and, second, that the plaintiff’s psychological condition was wholly or predominantly caused by reasonable action taken by the defendant with respect to performance appraisal and/or discipline and/or dismissal. That second ground of opposition relied upon s 11A of the Workers Compensation Act, brought into operation by the definition of “hurt on duty” in s 1(1) of the Police Regulation (Superannuation) Act, to the effect that no compensation was payable in respect of “a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.” However, during final submissions counsel for the defendant, very fairly and properly if I may say so, abandoned that second ground because there was no evidence to support it. Therefore, as I have said, the case proceeded on the causation question alone.

Background facts and experiences during service

8 The plaintiff was born on 9 September 1967. At 19 years of age he commenced training at the Police Academy in Goulburn and was attested on 15 May 1987 as a constable of police in the State and during the following period of about one and a half years performed general duties at Hornsby and Chatswood police stations. On 18 September 1988 he commenced duties in the Highway Patrol stationed at Gosford police station. During his service, the plaintiff was awarded the National Police Medal and the NSW Police Medal with clasp for good conduct. In 1992 he married and there were two female children born from the marriage in 1994 and 1996.

9 In the years as a Highway Patrol officer the plaintiff experienced a number of disturbing events in attending motor vehicle accidents and other incidents. Those matters may conveniently be summarised from his evidence in the following way –

• In 1988 he attended a motor accident on the F3 freeway at Berowra after a car collided with a truck instantly killing a seven-year old girl: he was at the scene for about two hours directing traffic – as a young and relatively inexperienced constable the plaintiff said the effect on him was “shock.”
• Later in 1988 the plaintiff at home was called to attend a motor accident involving a police vehicle travelling to a robbery when the driver lost control and the vehicle “flipped over” on Pennant Hills Road in the north-western area of Sydney; a Constable Ashworth was killed instantly and a Constable Currie was seriously injured – the plaintiff became shocked and upset at the scene as he had in recent months worked with the deceased officer on a few occasions and the other officer, previously in the class below the plaintiff at the Police Academy, had been his patrol partner on occasions. Memories of the event arose as the wrecked police car was kept in a holding yard at the Hornsby police station for a week.
• In 1992 at the end of his shift, the plaintiff was called to attend with other police shootings at Terrigal and Bateau Bay following a domestic situation. First on the scene at Bateau Bay, the plaintiff found a dead man with gruesome gunshot head injuries slouched in a chair on the back verandah as a dog interfered with the body; a young woman was found dead in the bedroom. The plaintiff remained at the scene for about 20 minutes before going to Terrigal where the woman’s father was found shot dead on a road. The effect on the plaintiff was described by him as “not pleasant at all…very traumatic…I still see the face of the man at Bateau Bay.”
• On 6 August 1999, while patrolling alone, the plaintiff attended a motor accident at Kulnura (near Peats Ridge) where a car had left the road and struck a tree. A three-year old girl was being comforted by two local ladies as the mother gave mouth-to-mouth resuscitation but the girl, who had gross head injuries, died at the scene before an ambulance and rescue helicopter arrived. The plaintiff knew the mother and the child as the family of one of his friends. He investigated the circumstances at the scene for two to two and a half hours. The effect was stated by the plaintiff as “enormous” and he said he checked his own children when he went home; thereafter he became, and continues to be, very protective of them and has since been unable to read newspapers or watch television for fear of being reminded of this accident from similar incidents. Counselling, on a group basis with four or five other officers lasting one and a half hours, was received regarding this accident but there was no follow-up although promised by the Police Force. The plaintiff said he started to drink alcohol heavily after this and commented he still drinks too much.
• In April 2002 at home in the evening after finishing a shift, the plaintiff was telephoned by his station sergeant and told that Senior Constable Christopher Thornton, a good friend for 12 years and with whom he shared a patrol car for six years, had suffered fatal injuries in a motor accident as he was pursuing an offender and hit a pole. The plaintiff described the effect on him as “enormous” and said he started to question his own mortality with the fear of pursuing road users.
• On 30 October 2006 while undergoing riot training using a shield to repel rocks thrown at him, the plaintiff fell onto his back and two weeks later experienced excruciating pain. Earlier in 2004 he had fallen down an embankment chasing an offender after a car chase injuring his back and shoulder but no absence from duty was needed as the then injury was only a “niggling” problem. After the 2006 fall he was accepted as hurt on duty and placed on restricted duties at Gosford Police Station for eight hours a day over four days a week until the end of his police service.
• In November 2006 in the late evening at home while off duty, the plaintiff received a telephone call from his station sergeant to advise that Senior Constable Gordon Wilson had been hit by a car on the F3 freeway and died two hours later. The deceased commenced at Gosford Highway Patrol in 2004 and the plaintiff, who had paired with him on very many occasions, felt “extremely devastated…couldn’t believe it…it was surreal.” He immediately thought about his future in the Police Force, renewed his feeling of mortality and said returning to duty after the funeral was “the last thing on my mind.” Group counselling was provided after this incident but, again, there was no follow up.

10 The plaintiff’s marriage was dissolved in 2004 for which he had counselling; duties were continued. However, with the succession of incidents at work, the plaintiff admitted during the period from November 2006 to January 2007 to being “very depressed and low…mental process not good at all and my concentration was low.” He said he felt like staying home, drank to excess and did not sleep well; also, his back problems recurred.

11 In 1997, that is after the incident at Terrigal and Bateau Bay but before the Kulnura accident, the plaintiff said he started to experience panic attacks while shopping at Bateau Bay when he became shaky and felt he had to go outside; such attacks occurred initially once or twice a week and it was then he began to drink heavily. Thinking he could handle the situation, having had those feelings on about ten occasions before the Kulnura accident in August 1999, the plaintiff sought no treatment. He continued duties in the Highway Patrol and attended to very many motor accidents (some serious and involving fatalities) and dealt with traffic offences and alcohol affected drivers. However, on 26 April 2006 (this seemingly is an error and should be 2007) the plaintiff submitted a claim for hurt on duty benefits to the Workers Compensation Section of the Police Force in relation to the Kulnura motor accident on 6 August 1999 involving the three-year old child; he described he was “currently still suffering psychological disorders from this incident, which was made worse from the death of 2 colleagues in 2002 and 2006 and back injury 30/10/2006.” That claim followed an accident/incident notification of 1 February 2007 as to the Kulnura accident referring to “psychological factors” and that he was then seeing a psychiatrist, Dr David Butler.

12 On 15 January 2007 the plaintiff was given a random drug test by the Police Force and tested positive to cannabis. On two previous occasions random drug tests had each given a negative result. On 31 January 2007 he was interviewed by Chief Inspector Colin Brennan concerning the positive test for cannabis during which he outlined his service history and the effects of the traumatic events experienced and added:

“…I have felt very frustrated by not being able to return to full duties as a result of my back injury and have been further frustrated by seeing other members of the office carry the workload and operate unrestricted. It is because of these physical and psychological factors that I have sought some relief. Unfortunately I made a stupid decision, which I deeply regret…”

13 The plaintiff said he disposed of the cannabis after the drug test and had not since used it. He had obtained the drug one week after the death of Senior Constable Wilson in November 2006. In general terms, he said the medical and psychological effects of the use of cannabis were that “it made me relax” and he talked about thereby getting a break from the various incidents he had experienced during his police duties, particularly on the F3 freeway; he said he “continued to put on a brave face at work” but that that “was not working any more and was finding it harder and harder to cope.”

14 After a conference with the Gosford station commander, Maxwell Mitchell, the plaintiff put in a hurt on duty claim (presumably the document referred to earlier incorrectly dated 26 April 2006). For the complaints being experienced, he had been seeing his general practitioner, Dr Hendarto Husodo, who referred him for treatment to a consultant psychiatrist, Dr David Butler, whom he first saw on 2 April 2007 and then had five sessions of supportive psychotherapy until 12 June 2007 as approved by a Mr Dabscheck on behalf of the Police Force; Dr Butler was further consulted from time-to-time up to August 2008.

15 In the meantime, the plaintiff was referred to a psychologist, Mr IW Kilpatrick of the READ Clinic, as part of the Police Force’s Alcohol and drug Program for treatment. Mr Kilpatrick first saw him on 30 January 2007 and on six occasions thereafter until 23 April 2007.

16 On 10 June 2007 the plaintiff applied for medical discharge from the Police Force suffering lower back injury and psychological injury from being hurt on duty. On 12 June 2007 he ceased active duty and proceeded on sick leave.

Disciplinary action

17 The defendant, on 31 July 2007, served on the plaintiff a notice under s 181D(3) of the Police Act setting out the grounds on which the defendant did not have confidence in him to continue as a police officer following the positive drug test. This step, which under the sub-section requires the defendant to take into consideration any written submissions received from the officer within 21 days, precedes the power of the defendant under s 181D(1) to order the removal of a police officer from the Police Force if the defendant does not have confidence in the officer’s suitability to continue as a police officer. On 27 August 2007, the plaintiff so responded and asked that he be allowed to exit the Police Force as medically unfit rather than being removed under s 181D(1). On 21 September 2007, however, the plaintiff was served with an order of removal by the defendant but then, as was conceded and notwithstanding the order, the defendant agreed to reinstate him to enable the discharge on medical grounds to take effect.

Certificate of injury

18 On 27 March 2008 the STC duly certified through the PSAC as its delegate that the plaintiff’s two infirmities of chronic post traumatic stress disorder and lumbar spondylosis or degenerative disease in the lumbar spine incapacitated him for police duty. On 7 May 2008, the defendant through his delegate decided that the latter condition was duty-related but on 7 April 2008 the former condition was found not to be caused by being hurt on duty. Hence the present application to this Court.

Relationship between injury and disciplinary action

19 In resisting the application, counsel for the defendant closely questioned the plaintiff about the positive drug test and the s 181D process to suggest that it was not until those events he sought medical assistance for the psychological condition with the view to obtain a medical discharge on that ground. Indeed, counsel highlighted to the plaintiff that he had not informed any medical practitioner about the s 181D notice until he consulted Dr Husodo on 19 February 2007 and up to which time he had continued to perform duty, albeit on restricted duties because of the back problems, until mid-June 2007 when he ceased duty on sick leave. The back injury was suggested as the real problem for the plaintiff’s inability to continue police duty. For his part, the plaintiff expressed extreme embarrassment about his conduct in using cannabis, for both himself and his family. He emphasised too that he consulted Mr Kilpatrick about the drug issue on 30 January 2007 in order to benefit from the available programme. Further, and in an exculpatory way, the plaintiff in responding to the s 181D notice said:

“I have never tried to deny that I did the wrong thing and I am extremely remorseful for what I did.

In hindsight I know I should have sought counselling when I knew that I was unwell, but I could not bring myself to do that.

…

I have had ongoing counselling and that has been of great assistance to me, but I have no doubt that I will never be either physically or psychologically fit enough to return to the Police Force. …”

20 The plaintiff gave his evidence in a frank, straightforward and credible manner. I felt comfortably satisfied that his recitation of the relevant traumatic events over the years was accurate and that the effects on him were genuinely felt. I accept his evidence, specifically including his explanation for not raising the s 181D issue with the medical practitioners, and do not consider in any way the history given of his police service was a deliberate intent to best serve his own interests for present purposes.

Medical evidence

21 The medical evidence in this case was not all that extensive but it was quite focussed on the present issue. Given the requirement to accept that the plaintiff suffered from chronic post traumatic stress disorder it is thus only necessary to view the evidence in terms of the causation of that condition.

22 Dr Butler, as stated earlier, was the treating psychiatrist. First seen on 2 April 2007, the plaintiff had supportive psychotherapy in a number of sessions until 12 June 2007; he has since seen Dr Butler up to August 2008 from time-to-time. Dr Butler provided two reports on 3 April 2007 and 14 June 2007. In the first report the various traumatic events experienced by the plaintiff from 2000, perhaps this should more accurately have been the year 1999, were outlined together with his personal details; the report expressed the following diagnosis and cause:

“I diagnosed Mr Lanham as suffering from a Chronic Adjustment Disorder with Depression and Anxiety which has come on as a reaction to traumatic situations he has had to deal with during his work as a Police officer, particularly the death of the young girl in 2000 (August 1999 on the plaintiff’s evidence), as well as the deaths of two fellow Police Officers over the last few years. His condition was temporarily exacerbated in 2004 when his wife left him but he felt he had gotten over this and he has regular access to see his two young daughters. He also suffers from Chronic Alcohol Abuse, but he has been able to cut down his intake recently. He has developed chronic lower back pain since the injury to his back in October 2006 and this has led to an exacerbation of his feelings of depression and anxiety.”

23 In the second report, Dr Butler expressed the opinion that the plaintiff “will never be able to return to operational policing duties and also be unable to continue in the long term with even part time ‘restricted duties’ at the Police Station. I think it would be best for him to be ‘medically retired’ as soon as possible.”

24 Although Dr Butler diagnosed a different psychological condition than that found and certified by the STC, which condition is binding for present purposes, one should be careful not to be misled by “tags” in characterising a condition. In any event, Dr Butler’s views are directly applicable to the issue of causation of the plaintiff’s psychological condition, howsoever one might characterise it, and that was to relate it to his service as a police officer.

25 Dr Brian Potter, a psychiatrist, was asked by the defendant’s medical case officer to assess the plaintiff and he saw him for that purpose on 21 August 2007 with a report provided on 26 November 2007. Interestingly, Dr Potter was provided with the two reports of Dr Butler in which the diagnosis of chronic adjustment disorder with depression and anxiety appeared. Dr Potter took a history commencing with the incident at Terrigal and Bateau Bay in 1992 and with reference to the later August 1999 incident at Kulnura. In the report an outline of the plaintiff’s treatment history, current work history, current functioning, presentation/mental state and developmental history was given – it is to be noted, as Dr Potter recorded, that the plaintiff “stated no past history of psychological disturbance, other than that associated with his police work.” Dr Potter diagnosed from the history and presentation the plaintiff to be suffering from chronic post traumatic stress disorder as fulfilling the requirements of that disorder within the American Psychiatric Association’s Diagnostic Manual, DSM-IV-TR.

26 As to causation of the diagnosed condition, said to be “provoked by his police work”, Dr Potter said:

“He has faced, on many occasions, death and human morbidity. He has intrusive and troubling memories of this experience and has modified his life to avoid reminders. He has lived, and continues to live, in a state of hyperarousal with panic attacks and chronic anxiety and debilitation.”

27 A forensic psychiatrist, Dr Peter Klug, interviewed the plaintiff on 12 January 2009 and in his report of 13 January 2009 in reciting the history noted the service on the plaintiff of the s 181D notice related to the positive drug test. The history then dealt with the various incidents of a traumatic nature experienced by the plaintiff from the onset of the “panic attacks” in 1997/1998 through to the November 2006 incident and the resultant symptoms experienced; the back injury in October 2006 was referred to also. Dr Klug significantly noted the plaintiff had no prior psychiatric history. Relevantly, Dr Klug diagnosed under DSM-IV-TR chronic post traumatic stress disorder, together with associated conditions, and as to causation said:

“From the history he provided there appears to be a clear clinical and temporal link between the development of his chronic post-traumatic stress disorder and his work as a police officer. There is no doubt that severe alcohol dependence is a pre-disposing factor to psychiatric illness but I do not believe that alcohol dependence causes a post-traumatic stress disorder. The more likely explanation is that he was in a psychiatrically compensated state until he began developing symptoms in about 1997/1998 and was using alcohol as a form of self-medication. It is also of note that his deteriorated mental state probably contributed to the breakdown of his first marriage rather than the breakdown of his marriage being a primary stress in the development of his psychiatric conditions.

In my view his psychiatric condition of a chronic post-traumatic stress disorder has been substantially caused by his employment.”

28 Mr Kilpatrick, as part of the alcohol and drug assessment process, administered certain psychometric tests to the plaintiff and was concerned to examine his history. After noting the diagnosis of Dr Butler, Mr Kilpatrick concluded:

“It is my opinion that the workplace traumatic events have been a significant contributing factor in causing [the plaintiff’s] psychological injury, which in turn lead to him using cannabis in an effort to deal with his grief and depression.”

29 For the defendant, reliance was placed on the views of Dr Kathryn Lovric, a consultant psychiatrist, who assessed the plaintiff on 5 March 2009. Dr Lovric provided a comprehensive report the same day as to the history and clinical examination, including the drug and alcohol issues and the s 181D matter; she had access to the reports of Dr Butler and Dr Potter. However, Dr Lovric did not believe that the plaintiff’s symptoms satisfied the DSM-IV-TR criteria for any current psychiatric illness. Further, Dr Lovric did not consider employment to be a substantial contributing factor to the development of the panic attacks, which she said were constitutional in nature, and the plaintiff’s current condition was not incapacitating so as to prevent him from working full-time if he chose. In the result, Dr Lovric did not believe the plaintiff needed any further psychiatric or psychological treatment.

The parties’ cases

30 Counsel for the defendant, Mr G Levick, put the primary submission against the relief sought that the plaintiff’s specified psychiatric condition was not substantially caused by his employment as a police officer; he did not cease duty in June 2007 because of it, up to then he was a fully functioning police officer and he so contributed until the consequences of the adverse positive drug test in January 2007 were known. Counsel emphasised that it was important in considering the opinions of Dr Butler and Dr Potter as to causation that the plaintiff had failed to mention to them the s 181D situation so that their findings were not soundly based and thereby tainted due to that omission. I interpose, however, that in reaching his view Dr Klug was aware of it, as was Mr Kilpatrick; and Dr Butler was aware the plaintiff had had treatment at the READ Clinic by Mr Kilpatrick for drug and alcohol use. Mr Levick reminded the Court that the onus was on the plaintiff to establish the causation of his condition as being duty-related and the defendant did not have to establish any cause for it at all. In any event, counsel pointed out that the cessation of the plaintiff’s duty occurred shortly after the events concerning the s 181D notice. Dr Lovric’s evidence should be accepted so that the challenged decision of the defendant should be confirmed.

31 Mt T Ower of counsel for the plaintiff put that there was abundant medical evidence from Dr Butler, Dr Potter and Dr Klug, together with the evidence of Mr Kilpatrick as a psychologist, that the condition of post traumatic stress disorder was caused by the traumatic events during the plaintiff’s police service. Counsel referred to the plaintiff’s evidence by reference to the events as considered by the medical practitioners and diminished the value of Dr Lovric’s opinion because she did not accept the diagnosis of chronic post traumatic stress disorder so that her comments about the causation of any condition were of little utility – this submission was well made.

Conclusions

32 The overall weight of the medical evidence favoured Mr Ower’s approach. I prefer the views of Dr Butler, Dr Potter, and Dr Klug, together with that of Mr Kilpatrick, over the view of Dr Lovric as to causation of the plaintiff’s condition being duty-related. Those views were based on the historical evidence consistent with that of the plaintiff himself and, of course, Dr Butler was the treating psychiatrist. In any case, I do not see that the s 181D issue has relevance once it be accepted, which is appropriate on the state of the evidence, and as the defendant conceded, that the exclusionary provisions of s 11A of the Workers Compensation Act had no operation here. At most, Mr Levick relied on it as tainting the medical opinions relied upon by the plaintiff as to causation because they were unaware of it; but, as has been pointed out, Dr Klug and Mr Kilpatrick knew about it and so too may have Dr Butler due to his reference to the READ Clinic drug and alcohol programme undertaken by the plaintiff.

33 It is appropriate also to acknowledge, to the extent it may be necessary, that the essential diagnostic features of DSM-IV-TR say nothing about the psychological effect of a fear of losing employment. The Diagnostic and Statistical Manual of Mental Disorders, 4th ed in para 309.81 of the American Psychiatric Association states:

“The essential feature of Posttraumatic 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…”

34 Having in mind those features, I think, in light of the plaintiff’s experiences during his police service, that the medical opinions stating a diagnosis of post traumatic stress disorder and as it being duty-related are well understandable and logically credible. I so find.

35 The only remaining aspects to deal with concern the question of the degree to which the employment was a contributing factor to the plaintiff’s psychological injury and the date the injury occurred. The Workers Compensation Act in s 4(a) requires it to arise out of or in the course of employment and s 9A(1) requires the employment to be “a substantial contributing factor” – it is plain, in my reading of the medical opinions, and I so find, that those requirements have been met. The injury here, in my view, is a disease of such a nature as to be contracted by a gradual process during the course of the plaintiff’s service as a police officer from the first of the traumatic incidents in 1988 to the last in November 2006. As such, s 15(1)(a)(i) of the Workers Compensation Act provides that the injury shall be deemed to have happened at the time of the plaintiff’s incapacity which was, as I understand the evidence, when he ceased duty and commenced sick leave on 12 June 2007; he never returned to duty before his later medical discharge.

36 The plaintiff has established a case for the relief sought in the statement of claim and is entitled to orders accordingly.

Orders

37 I make the following orders –

(1) The decision of the delegate of the defendant dated 7 April 2008 that 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 dated 27 March 2008 was not caused by the plaintiff being hurt on duty, in terms of section 10B(3)(a) of the Police Regulation (Superannuation) Act 1906, be set aside.
(2) 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 dated 27 March 2008 was caused by the plaintiff being hurt on duty in terms of section 10B(3)(a) of the Police Regulation (Superannuation) Act 1906 and the date of injury was 12 June 2007.
(3) Defendant pay the plaintiff’s costs of the proceedings in an amount as agreed or assessed.

**********