Mason v Commissioner of Police

[2013] NSWDC 274

District Court

New South Wales

Medium Neutral Citation:	Mason v Commissioner of Police [2013] NSWDC 274
Hearing dates:	4-5 April 2013; 5,13 May 2013; 28-31 October 2013
Decision date:	31 October 2013
Before:	Neilson J
Decision:	Decision of the Commissioner of Police made on 23 December 2011 confirmed.
Catchwords:	POLICE SUPERANNUATION - Hurt on duty - Whether plaintiff received injury arising out of or in the course of employment i.e. his police service - Engaged in "drinking culture" - Neglecting duty to "wine and dine" or just to take alcohol - Falsifying records to cover neglect of duty - Acting contrary to requirements of duty - Acting contrary to Police Rules - Failing to disclose misconduct of other police - Whether invitation to engage in such conduct by superior officers causes such behaviour to be part of duty WORKERS COMPENSATION - Workers Compensation Act 1987 section 14 not a provision entitling plaintiff to benefits ESTOPPEL - Estoppel by conduct - Estoppel by inaction - Whether estoppel can be relied upon by present defendant or only by SAS Trustee Corporation
Legislation Cited:	Police Act 1990 Police Regulation Act 1899 Police Regulation (Superannuation) Act 1906 Police Rules 1977 Police Service Regulation 1990 Superannuation Administration Act 1906
Cases Cited:	Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 Commonwealth v Verwayen (1990) 170 CLR 394 Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 Cunningham v Tobin & Ors trading as The Stingray Café (2001) 21 NSWCCR 524 Henderson v The Commissioner of Railways (WA) (1937) 58 CLR 281 Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 Love v Lysaghts Works Pty Ltd and Wheeler v The Commissioner for Railways Page v The Commission of Police (No 1) [2012] NSWDC 130 Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365
Category:	Principal judgment
Parties:	Reginald Edward Chater Mason
Representation:	H Hammond (Plaintiff) T Ower (Defendant) Kim Smith & Associates (Plaintiff) Turks Legal (Defendant)
File Number(s):	RJ143/12
Publication restriction:	No

Judgment

1. HIS HONOUR: The plaintiff, Mr Reginald Edward Chater Mason, is a former detective senior constable of police. He was attested as a probationary constable of police on 10 December 1979. He last physically worked as a police officer on 10 July 1991. On 30 September 1991 he made an application to the Police Superannuation Advisory Committee ("PSAC") to be certified as incapable of performing the duties of his office. The form which he completed was a form that could be used for discharge under s 8 or s 10B(1) of the Police Regulation (Superannuation) Act 1906 ("the Act").

1. However, in that document he said that the conditions which he was claiming which rendered him incapable of performing the duties of his office were not claimed as "hurt on duty", as was at that time defined in the Act. In a further document which appears to me to have been completed at or about the same time and countersigned by Dr T P Nolan, a Police Medical Officer, the plaintiff again stated that he was not claiming that either of the conditions upon which he relied, namely "stress" and "paroxysmal tachycardia," was claimed as "hurt on duty".

1. In a letter to the SAS Trustee Corporation bearing date 13 April 1992, the plaintiff reiterated his earlier decision not to claim either of the conditions upon which he relied as being hurt on duty. On 29 April 1992 PSAC certified that the plaintiff was incapable of discharging the duties of his office pursuant to s 8(1) of the Act. That led to the formal termination of the plaintiff's service as a police officer on 6 May 1992.

1. However, by application dated 13 October 2010, received by the agent of the administrator of the Police Superannuation Fund, the plaintiff claimed that his suffering of "stress, paroxysmal tachycardia, anxiety and psychological/psychiatric conditions" was caused by his having been hurt on duty. On 15 December 2011, PSAC determined that the plaintiff had been, at the time of his discharge, back in 1992, incapable of performing the functions of a police officer on account of "major depression and secondary anxiety disorder".

1. The administrator of the Police Superannuation Fund then asked the current defendant, the Commissioner of Police, to make a decision under s 10B(3)(a) of the Act as to whether the suffering by the plaintiff of major depression and a secondary anxiety disorder was caused by the plaintiff's having been hurt on duty. On 23 December 2011, the defendant decided that the suffering by the plaintiff of the infirmity certified by PSAC was not caused by the plaintiff's having been hurt on duty. Aggrieved by that decision of the Commissioner of Police, the plaintiff brings an application to this Court for this Court to determine whether or not the suffering by the plaintiff of the certified infirmity of "major depression and secondary anxiety disorder" was caused by the plaintiff's having been hurt on duty.

1. The plaintiff was born on 2 April 1956. He grew up in Marrickville. He attended Marrickville Public School and then Enmore Boys' High School. He obtained the Higher School Certificate in 1973. He then joined the New South Wales public service. He worked in both the Department of Lands and the Department of Public Works. The plaintiff had always had a desire to join the New South Wales Police. Only on his third application was he successful. He failed his first attempt because his chest expansion was insufficient. On his second application his chest expansion was satisfactory but his blood pressure level was too high. The plaintiff gave this explanation:

"The first time because I wasn't big enough in the chest so for four months I went every day to the YMCA and worked out in weights to pump myself up, I was that keen to get in, to build my chest up. The day before I went for the medical with the police doctor I thought to make sure my chest is big - because that was what I was knocked back on - I went to the YMCA and had a real workout in the gym to pump myself right up. So when I went to the medical with Dr Vane he measured my chest and said, 'Yes, you've done wonderfully. You've put two inches on your chest,' and then, when he checked my blood pressure it nearly went through the roof because I had been at the gym, and he said, 'We can't accept you on this because you've got high blood pressure'. So he said, 'Go away and come back at a later time', which I did."

On his third medical examination the plaintiff was successful.

1. He became a police trainee on 24 September 1979 and, as I have earlier mentioned, was sworn as a probationary constable of police on 10 December 1979. At that time he became a contributor to the Police Superannuation Fund established under the Act. It is convenient if, at this time, I give a brief chronological outline of the plaintiff's service which puts in perspective certain other events.

1. The plaintiff's first posting was to Newtown. He commenced there on 11 December 1979, the day after he was attested as a probationary constable. The plaintiff remained there until 5 December 1981. Within ten months of commencing duty at Newtown, the plaintiff was requested to go into "plain clothes" that is alternatively known as being entered on the A list. It meant that the plaintiff was going into training as a detective. After such a short stint in uniform, the plaintiff was "elated" to be entered onto the A list and start his training to become a detective. After telling me that he was "elated" by this development, the plaintiff said this:

"I thought my talents in uniform had been recognised and to be asked by the detective sergeant to commence training in plain clothes was a big boost to my career path."

1. The plaintiff never returned to uniformed duties. On 6 December 1981 the plaintiff was transferred to Parramatta where he again performed plain clothes work. On 28 March 1982 the plaintiff was transferred to the Mascot Airport Detectives, working with a more senior detective, there being only two New South Wales detectives at the Mascot Airport Police, which was a substation of Redfern.

1. According to exhibit V, the New South Wales Police Force "Individual Profile" of the plaintiff, on 10 April 1983 he was transferred to Maroubra Police Station to perform licensing duties. The same exhibit shows the plaintiff having served at Maroubra until 20 October 1984, a period of some 18 months, although the plaintiff believed that it was only six months. Indeed, the plaintiff told me that his work at Maroubra was with the detectives and not in licensing. He told me that he requested a transfer from Maroubra as he was spending too much money on travelling between his home at Gymea and Maroubra Police Station because he had to travel by motor vehicle to do so and the cost of fuel was eating into his income. The plaintiff told me that he was then transferred to Kogarah Police Station. Exhibit V shows the date of transfer to Kogarah Police Station as being 21 October 1984. The plaintiff was not, however, cross-examined to suggest that the time that he spent at Maroubra was in licensing and that the time that he spent at Maroubra was 18 months rather than six months. My experience with documents such as exhibit V is that they are generally accurate, but sometimes an informal transfer occurs before it is ever formally noted in police records. I am, therefore, prepared to accept that the plaintiff only worked at Maroubra for approximately six months and that some time around October 1983 he, in fact, was transferred to Kogarah and commenced work at the Kogarah Detectives Office.

1. The next transfer was to the Regional Crime Squad South. For one reason or another, the old Criminal Investigation Branch (CIB) was formally disbanded but, in fact, merely divided into four separate crime squads, one for each geographic region of the State. It was still referred to by the plaintiff and those with whom he worked in the Regional Crime Squad as the CIB. The plaintiff continued to work in the Regional Crime Squad until he was transferred back to Kogarah on 10 May 1990. He last worked at Kogarah and, indeed, as I have earlier mentioned, last worked at all as a police officer on 10 July 1991, some fourteen months later.

1. In his evidence, the plaintiff told me of four events that occurred in the course of his duties which I might refer to as "operational stressors", that is, stressful incidents occurring during actual policing. One of those occurred when the plaintiff was formally attached to the Mascot Detectives but was on secondment to a taskforce. Three others occurred when the plaintiff was working at Kogarah and, although no date is given, it appears to me that it is likely that they were in the period between October 1983 and 7 March 1987. I wholly accept that the plaintiff was stressed by those four events. However, that is not the thrust or substance or nub of the plaintiff's claim.

1. The plaintiff was examined by Associate Professor Nicholas Glozier, a consultant psychiatrist, on or about 2 August 2011. Part of the history recorded by Associate Professor Glozier is this:

"He stated that he was able to cope with dead bodies and other unpleasant aspects of the day-to-day work of the Police, but not of the behaviour of many of his colleagues."

That was confirmed in cross-examination. At the foot of p 56 of the transcript, the following question and answer were given:

"Q. It's the case, isn't it, that so far as the doctors that have examined you for the purpose of this case, leaving aside Dr Selwyn Smith, you don't complain to them of being unable to cope with the traumatic side of police duties, correct?

A. That's correct."

The plaintiff's answer to the next question appears to go back a little on that frank admission, but the plaintiff then agreed that following no operational stressor did he take any time off work. In answer to the following question, the plaintiff said that, as a result of traumatic experiences during the time that he was in the Police Force, the practice was "just to go to the pub and drink and forget about it". The cross-examiner then suggested to that plaintiff that was exactly what the plaintiff did and he agreed that that was the case. The next question and answer are these:

"Q. So it would be wrong to say that the...four specific instances that you complained to his Honour during your police career - and I'll go through them in turn - that you weren't terribly concerned about those, they didn't cause you any ongoing depression or anxiety, did they?

A. No, because that was part of what your duties were at the time."

The cross-examiner then summarised the four operational stressors and these questions and answers then were given:

"Q. Although at the time those events occurred and you were involved with them they caused you some disquiet, discomfort and I think in terms of the second one you said traumatised to the max, they were your words; correct?

A. Mm.

Q. Be that as it may, you didn't have any ongoing problems in relation to any of those things so far as your certified infirmity of major depression is concerned; correct?

A. That's correct. They were isolated incidents, four incidents over ten years.

Q. So I'm right in thinking that the case that you're putting to his Honour is that there was a drinking culture and I disagreed with it, I was disillusioned by it and it caused me depression; correct?

A. Yes."

1. The plaintiff's complaint is not only of a "drinking culture" but also of having to work with others who neglected their duty and told lies to cover up their participation in the drinking culture and who were otherwise guilty of improper conduct and that he was forced to be complicit in such behaviour, leading to feelings of guilt which eventually caused him the psychiatric illness identified merely as "stress" which led to the s 8 discharge in 1992 and which caused the psychiatric condition more recently certified by PSAC which is the subject of the current proceedings.

1. The plaintiff told me that he was subjected to this "drinking culture" from the very beginning of his service. He told me that, after a few days at Newtown, he was assigned to a buddy whom he identified as being Mr Phil Steele. The evidence does not reveal Mr Steele's rank but I assume that he was a constable. The plaintiff told that, in the "first couple of days at Newtown my workmate, who was training me, introduced me to drinking on duty, insofar as going to clubs during the shift". He also told me that, only a relatively short period after he commenced at Newtown on 11 December 1979 and just prior to Christmas, he was assigned as a driver of a paddy wagon with Constable Steele and perhaps another officer to go around all the licensed clubs, hotels and restaurants in the Newtown patrol and collect cases of beer and spirits and other alcoholic beverages that could be used for the police station Christmas party that year.

1. When, ten months after commencing work at Newtown, the plaintiff joined the A list, he was assigned to work with Detective Sergeant Kathleen Morgan. He worked with her for three months. The plaintiff then gave this evidence:

"Q. Can you describe to the Court what those duties were?

A. The duties were to basically drive the Sergeant around in the Newtown patrol investigating minor matters of house break-ins, car thefts, things along those lines.

Q. Do you make any other observations to the Court as to your duties performed with Sergeant Morgan in that period?

A. I did, I was quite shocked. Predominantly the majority of the time, especially on afternoon shift, were spent in clubs and restaurants where Sergeant Morgan would go and would take me along with her where we would commence to drink, eat meals and be wined and dined upon.

Q. How did that make you feel?

A. Terrible."

The plaintiff was asked as to whether he made his concerns known to the Detective Sergeant. The plaintiff avoided answering that question directly but the inference from what he said is that he was well aware by that time of the drinking culture and it would have been pointless to complain. The plaintiff told me that in 1981 his first marriage broke down because, in his view, he was "drinking too much".

1. As I have mentioned earlier, the next relevant event was the transfer to Parramatta which occured on 6 December 1981. The plaintiff was partnered with Detective Senior Constable Bill Allen. At Parramatta he was working ten days on with four days off. The plaintiff believed that he was at Parramatta for only three months and that is almost correct; he was there for four months. When asked to tell me about his work at Parramatta, the plaintiff said this:

"During the weekends if I wasn't working with Detective Senior Constable Owen [probably a mistyping of Allen], whoever I was working with we'd always go down to the Parramatta Masonic Club, you'd spend a shift in the club there. Of an afternoon shift particularly I'd drive the senior officer around to the hotels in the Parramatta area. We'd have dinner at restaurants, at Parramatta Leagues Club or a number of venues that we used to frequent regularly."

1. On 28 March 1982 the plaintiff was transferred to the Mascot Airport Detectives. There he was working with a more senior detective, Detective Senior Constable Greg Wolfe. The plaintiff told me that he worked there for "about three years" but, according to exhibit V, to which I have already referred, the period was more like 13 months, if exhibit V be correct. It would appear that there was little active detective police work to be done at Mascot Airport. It appears that much of the work was done there by the Commonwealth Police. As far as the plaintiff was concerned, the Mascot Airport Detectives was a "liaising post" with the Commonwealth Police and the uniformed New South Wales Police at the airport. The plaintiff said this: "Greg Wolfe and I basically just liaised and socialised with airline managers and other airport staff in the vicinity of the complex". Such "liaison" occurred at the TAA bar in the domestic terminal or at the Airport Club. He and Detective Senior Constable Wolfe would commence lunch at noon and finish lunch at 4.30. During a lunch break he would normally drink ten stubbies or schooners of beer, a practice which, when I was at the Bar, was called "eating glass sandwiches". At the time both the plaintiff and Detective Senior Constable Wolfe were living in the eastern Sutherland Shire. The Detective Senior Constable would pick the plaintiff up in the morning and presumably drive him home. Prior to lunch the plaintiff described his work as being to go into the office, see the uniformed staff, complete duty books and make a couple of phone calls and then off to a venue such as the TAA bar.

1. As far as the plaintiff could remember, there was a bombing of the Hakoah Club and the Westfield Tower building in William Street in December 1983. However, the parties subsequently agreed that the event occurred in December 1982. Shortly thereafter, the plaintiff was seconded to a taskforce to investigate those bombings. He was involved in the taskforce for a couple of months. Based on believing that the bombing was in December 1983, the plaintiff thought that his secondment to this taskforce was in early 1984 but, clearly, it ought to have been a year earlier, in 1983 and, therefore, based on exhibit V, towards the end of the plaintiff's time at the Mascot Airport Detectives Office. Towards the end of that taskforce, a number of search warrants were executed at the premises of persons who were suspected of being involved in the bombing. That required the plaintiff to be involved in the execution of a search warrant at premises at Arncliffe. That is the first operational stressor. The plaintiff said this:

"Once we gained entry to the premises it was dark, I along with the other police commenced to search the premises for bombs, detonators, tripwires, anything that would assist the investigation. Along with that as part of the process while we were in the house I probably should say as we went into the place in the morning, as I went in through the front door there was a big life-sized colour photo of Colonel Gaddafi back in those days with a machine gun and all the bullets around his shoulder so that's what we were confronted with as soon as we come in the door."

I then interrupted to ask the plaintiff whether he was referring to bandoliers of bullets around the late Colonel Gaddafi's shoulders and the plaintiff agreed and then continued to tell me that, when he saw that photograph, it put,

"[a] little bit of a shudder up my spine and because I was only, only - I was only small, I was only a small detective because in those days you had to be 6 foot and, you know, the majority of fellows that I worked with - I was only small so one of the detectives discovered a manhole in the ceiling and, of course, they all looked at one another and none of them could get up into the manhole so because I was junior and slight I was sort of pushed up into the manhole with a little torch and I was sort of searching in the roof of this house for tripwires and bombs and I was up there for a short time and got claustrophobic, I had to [go] down. I was just - I was terrified."

However, the plaintiff found nothing in the roof cavity and made no further complaint about this operational stressor. He then returned to work with the Mascot Airport Detectives. When asked how he felt about returning to that workplace, the plaintiff said this:

"Look I felt terrible, I felt guilty. There's no other way to put it, I just - I didn't agree with it but I was in a position where it was my job and I was sort of at that stage I don't think I'd remarried or I may have remarried and I had a wife and family and that was the way it was. Like I could see that I'd been there for a few years and everywhere I went this seemed to be the - the go especially in plain clothes."

I believe there may be some ex post facto rationalisation in that answer, as the plaintiff was not to remarry until 25 February 1984. In early 1983 he was unmarried and, perhaps, courting his soon to be wife Carolyn. Furthermore, what he told me of how he felt at that time, I believe has been influenced by what he subsequently experienced at Kogarah, and the plaintiff's service thus far had been relatively short in the Police Force.

1. I have already referred to the problem as to when the plaintiff commenced at Kogarah. As I said, I am prepared to accept that he moved to Kogarah in about October 1983 prior to his marrying Carolyn on 25 February 1984. At Kogarah the plaintiff had a regular partner, Detective Sergeant Peter Leydon. The plaintiff was asked to describe an average day shift when he was working with Detective Sergeant Leydon. The plaintiff said this:

"When I was working at Kogarah, Detective Sergeant Leydon had a very good personal friend a gentleman by the name of Bede Gough who owned the Royal Hotel at Carlton. Detective Sergeant Leydon had known him for many years and Detective Sergeant Leydon used to go up and see Mr Gough at 8.30 in the morning when we started work at the hotel before Mr Gough opened up."

The plaintiff went on to tell me that Mr Gough would automatically pour a couple of beers. He and Detective Sergeant Leydon and Mr Gough stayed at the Royal Hotel at Carlton till about 11am when Mr Gough needed to go elsewhere and the detective sergeant and the plaintiff then went to the Kogarah Detectives office. Sometimes the plaintiff paid for his drinks; at other times Mr Gough would "just shout".

1. When the plaintiff and the Detective Sergeant returned to the detectives' office they would come across Mr Bruce Shields, who is sometimes referred to as a Detective Senior Sergeant and other times as a Detective Inspector. According to the plaintiff, Mr Shields left much of the running of the Detectives Office to Detective Sergeant Leydon. The plaintiff then said this:

"Bruce used to get bored about lunch time, every time Peter Leydon and I would come back Bruce would say, 'Have you been up to Bede's?' and Peter would say, 'Yes'. And then the boss would say, 'Well, where are we going for lunch?'"

Lunch was usually taken at either the Rockdale Businessmen's Club or the St George Leagues Club. Lunch might commence at noon and they would stay, if they were at the Businessmen's Club, until at least 5.30pm and, if Mr Shields wished to "stay on" they might stay at the club until 8 or 9pm.

1. When the plaintiff performed afternoon shifts, work was due to commence at 3.30. Work would commence with making entries in the detectives' duty books for the night before and then:

"We'd...go around to the Kogarah Inn, and if the day shift was having a couple of beers after work we'd have a couple of beers with them. And then we'd - Peter Leydon and I would go out and he'd say, 'Let's go here or go there', and we'd go for dinner."

The plaintiff pointed out that Detective Sergeant Leydon was well known in the community as, essentially, being the detective in charge and he knew all the hoteliers and licensees and all the restaurateurs and they used to go around and have a meal at a hotel, club or restaurant. Besides eating dinner, the plaintiff and Detective Sergeant Leydon would consume "copious amounts of alcohol". The plaintiff would be driving the pair around in an unmarked detectives' vehicle. A pager was carried if they were required urgently for duty but, in essence, Mr Leydon would merely telephone the police station, give oral advice to the uniformed members of the Force and, essentially, get them to perform the work which the Detectives ought to have done.

1. The other evidence which the plaintiff gave about his work at Kogarah was evidence of three operational stressors which I shall briefly describe. The first of those stressors at Rockdale was a council employee who had murdered his wife in the lounge room of their home, cutting her throat. That lady had been eight and a half months pregnant at the time and the offender "disembowelled his wife". They had a two year old son who had seen his father kill his mother, and the little boy ran out of the back of the house to an outside toilet and hid under the S-bend of the toilet. The offender followed the little boy out and cut his throat as he was hiding in the toilet. The offender killed his son by cutting his throat. The plaintiff told me that he was traumatised by that event and felt "absolutely sick in the stomach". I doubt that there is any member of our community who would feel otherwise.

1. The second operational stressor at Kogarah was at premises at Kingsgrove where a woman had murdered her two school-aged daughters, aged ten and eight. Whilst those offences were being committed, or very shortly thereafter, there was a knock at the door. The visitor was the offender's sister-in-law who had come to pay a visit. The offender dragged her sister-in-law inside the house and murdered her as well, seeking to conceal her body behind the garage of the house. More detail was given by the plaintiff of the circumstances in which the offender murdered her daughters and this was undoubtedly another gruesome scene that the plaintiff witnessed.

1. The third operational stressor at Kogarah concerned an offender named as Cameron Haydon. That offender was stalking and harassing or "persecuting" a specialist dentist with whom the offender had some form of grievance. Threats and intimidating behaviour had been going on for about eight months. On one occasion, Detective Sergeant Leydon and the plaintiff answered a call to attend the dentist's surgery. The offender was standing out the front. He was questioned. He told the police that he had caught the train to Hurstville. The plaintiff searched the offender and found a bunch of keys which contained a Ford motor car key. Nearby were parked Ford motor cars and the offender's key unlocked one of those vehicle. When the boot of the vehicle was searched, the police found a loaded. The assistance of other police was called for and it appears that, at that stage, the offender was arrested.

1. In company with other police, the plaintiff and Detective Sergeant Leydon took the offender back to his home unit at Rockdale and searched the premises. In those premises they found a .303 bullet on which had been written the dentist's name. When that bullet was found, the offender threatened to kill the police as well. When asked how that made him feel, the plaintiff said this:

"That frightened the hell out of me because I knew this man was mentally unbalanced and to find a loaded - when he'd been threatening to kill the doctor for such a long period of time and then to find the loaded firearm in the boot of his car and to threatened Peter Leydon and I that he was going to kill us well, I thought this man was capable of anything. It traumatised me to the max."

That is the final operational stressor of which the plaintiff told me in his evidence, but he frankly concedes was not the cause, as he perceives it, of his psychiatric illness.

1. The transfer to the Regional Crime Squad South occurred on 8 March 1987. The plaintiff told me that he was "thrilled" by that transfer as working in those days in what was still referred to as the CIB was like being transferred to Scotland Yard, an elite place of work. The plaintiff's duties were mainly in the Licensed Dealers Squad. In essence, that is dealing with pawnbrokers and second-hand shops looking for stolen property and checking the books of the licensed dealers to ensure that they were not participating in any criminal activity such as receiving stolen goods. Regular shifts were worked because the pawn shops were only open during normal business hours. The majority of the work was carried out in Kings Cross, which the plaintiff described as either "the hub" or "the focus" of pawn dealers in those days. The plaintiff was asked to describe his work in the Licensed Dealers Squad. He said that, in the morning, the members completed their duty books, they made telephone calls, there were general office discussions, and then the members of the squad might enter a car and go up to Kings Cross to visit pawnbrokers.

1. He told me that there were good relationships between members of the squad and the pawnbrokers at that time. The pawnbrokers would have a fridge in their pawn shops, presumably "out the back," and the police might have a couple of beers at each of the pawn shops, offered to them by the pawnbrokers. During the consuming of the beer, there would be general chat about things such as whether the pawnbrokers had seen a known criminal in recent times or as to whether they knew of certain stolen goods that the police were seeking.

1. These visits to the pawn shops would take until about 4 o'clock and the members of the squad would return to their office at 4.30, but they did not need to go back to the office to sign off at the end of the shift. The plaintiff, in his evidence-in-chief, said that they would just go up to the Cross and "go from there" meaning, I assume, to go home. However, the plaintiff told me that, when he was in the Licensed Dealers Squad:

"The boys would want to kick on and drink and I'd have to find an excuse to ring up [my wife] and lie to her and then I'd have to find the money to drink with and then I'd have to drive all of them home and it was just a nightmare being, as I said, a junior man."

The inference, of course, is that, having consumed beers between probably the middle of the day and 4 o'clock, members of the Licensed Dealers Squad might then decide to stay in the Cross and continue drinking, socialising, and perhaps taking meals. The plaintiff told me that those with whom he was working, Detective Pat Hamill and Detective Greg Murphy, and he lived on a route. Mr Murphy lived at Dolls Point or Brighton-Le-Sands. The plaintiff was then living at Gymea, and Mr Hamill was living at Yarrawarrah, which is between Loftus and Engadine. Mr Hamill became the driver on the way home, and Mr Murphy would be dropped off at Bells Point or Brighton, the plaintiff would be dropped off at Gymea, and then Mr Hamill would drive himself home to Yarrawarrah. In the morning the reverse would occur.

1. Whilst working with the Regional Crime Squad, the plaintiff was seconded to two taskforces. The first was known as Taskforce Banksia. Allegations had been made by a number of criminals imprisoned at Long Bay Gaol that had been conveyed to Parliament alleging that the "Mr Bigs" of organised crime in this State included certain politicians, certain Federal Police, certain New South Wales Police and certain Customs officers. Taskforce Banksia was formed to investigate these allegations. The taskforce comprised Detective Inspector Kevin McDonald and the plaintiff. The plaintiff told me that, basically, his job was to work as the Inspector's driver and typist. They were located in the Remington building in Liverpool Street. When it was necessary to visit Long Bay Gaol to interview prisoners, the plaintiff would merely go along as an observer. When asked to describe the normal routine at this taskforce, the plaintiff said this:

"Every day the Inspector, Kevin, would have a tin of salmon and a couple of biscuits for his lunch about 11.30, and then he'd say, 'Let's go around to the Cyprus-Hellene club,' which was around the corner in Elizabeth Street. Kevin had known the - the bosses of that club for a number of years, they're Greek fellows. So every day I'd accompany the Inspector around there."

When asked what the Inspector and the plaintiff did at the Cyprus-Hellene Club, the plaintiff said that they drank alcohol. They drank alcohol till 4.30pm. Sometimes they would pay for the drinks; at other times, clearly, it was provided gratis. They did not consume any food at the club as the Detective Inspector had already consumed his salmon and biscuits. At 4.30 the pair would return to the Remington Centre. The plaintiff would pick up the car and drive the Inspector to his home at Malabar and then drive himself home in the Detectives' vehicle. In the morning the plaintiff would pick the Detective Inspector up at his home at Malabar and then drive him in to the Remington Centre.

1. The plaintiff told me that he "couldn't keep up" with the rate of consumption of alcohol of the Detective Inspector and sometimes he would merely drink a shandy of half wine and soda. When asked how that made him feel, the plaintiff said this:

"Again, terrible. It wasn't...what I wanted to be a policeman for. I joined to help people in the community, I didn't...join to sort of - it was against everything that I'd been raised, you know, I was...drinking and breaking the law, driving cars. It wasn't right."

In his evidence-in-chief the plaintiff then made an averment that everywhere he served it was always "the same pattern". He also said that everybody in the CIB was a drinker. The plaintiff then gave this evidence:

"...it was if you didn't drink you wasn't trusted, you were isolated, you wouldn't be in there. Your career would have - be affected.

Q. Why did you think that?

A. It was - where I had worked previously if, if everybody went to lunch and you didn't go the person who didn't go was left in the office for four hours on his own to answer the phones, answer everybody's phone. This was sort of punishment, you are isolated, you are segregated, you weren't included.

Q. Did you observe something like that happen to yourself?

A. To me?

Q. To you or to somebody else?

A. Yes, to a few people. Not many. Because as I said, the CIB was scrutinised as to who went in there."

It must be noted here that the plaintiff did not himself experience being "isolated" or "segregated" or being "not included". In other words, he went along. He went along with the practices of which he disapproved. He did not stay in the office to answer the phones or to do the work of everybody else. There is no actual evidence to suggest that, if he did not go along with his colleagues, they felt he was not to be trusted and that his career would be affected, but, clearly, that was his perception of what might occur. This may be rationalisation on the plaintiff's part but no evidence was adduced by the defendant to suggest that was a misperception. The second taskforce in which the plaintiff participated was known as Taskforce Tentacle. That was formed to investigate the murder of a gentleman whose name has been transcribed as George Octopedelous. At that time, which the plaintiff told me was around 1987, the murder victim had been a large drug supplier in the Kings Cross area. This taskforce lasted four months, as had Taskforce Banksia.

1. The taskforce was comprised of Detective Senior Constable John Swan and the plaintiff. The taskforce was formed because there were allegations that a detective superintendent from South Australia had been sentenced to imprisonment for twenty years for conspiring with others in "drug matters" and that that gaoled former detective superintendent had organised for the victim to be, in essence, assassinated.

1. This taskforce worked not out of the Remington Centre in Liverpool Street but from the Kings Cross Police Station. This taskforce worked day shifts. When asked to describe the average day on this taskforce the plaintiff said this:

"With Detective Swan we'd meet. Again we'd sign our duty books. Make some phone calls. And I can't recall any inquiries that we made. He may have made inquiries on his own without me, bearing in mind that I was only a junior officer. He knew everybody in the Cross. He might have done his own work and didn't confide in me, but in any case predominantly and I would say the majority of the time we spent liaising and drinking and socialising with the Kings Cross detectives.

Q. Who were the Kings Cross detectives that you liaised with?

A. I met...for the first time and socialised with was Chook Fowler, Trevor Haken, Jim Bignall. We'd meet them at the Civic Club up at the Cross every day."

The plaintiff then told me that that liaison usually commenced about 12 noon and that the liaison would continue until 5 o'clock, and during those five hours there was the consumption of alcohol. If the liaison did not occur at the Civic Club, which was near the El Alamein Fountain, it would occur at the Bourbon and Beefsteak Bar which is also in the same area. The plaintiff told me that, during the five hours of this "liaison," he would drink about ten beers. The plaintiff told me that he would then go home.

1. Here there was one internal inconsistency in the plaintiff's evidence. He told me that he had to be with Detective Swan because he, the plaintiff, had the car. That occurs on p 34 in the answer commencing at line 34. However, when asked how he got home after 5 o'clock when working at Taskforce Tentacle, the plaintiff said on p 35 at line 45 that he caught the train home as Detective Senior Constable Swan "had the car". It becomes clear when one considers that evidence that, as they would meet in the office, that Mr Swan drove the car to the Detectives Office each morning and drove the car home in the evening and, if the liaison was at the Civic Club or the Bourbon and Beefsteak Bar and they were working out of the Kings Cross Police Station, it was hardly necessary for the plaintiff to attend upon Detective Swan as some matter of compulsion. The inference to be drawn is that, in essence, the plaintiff attended at the liaison at the Civic Club or the Bourbon and Beefsteak Bar because it was just what he thought he was supposed to do or perhaps, to put it more accurately, he did what he thought those with whom he worked expected him to do. When asked what effect Operation Tentacle had on him, the plaintiff said this:

"Terrible. Look, I was devastated. I was on a downhill run at that stage. I just was on the way to a meltdown. I just - I was that depressed and I grew to despise the job that I loved. I just hated going in to work every day. I hated it and that depressed me and I never had depression in my life. And I drank that much alcohol that things were becoming a blur."

The circumstances which led to the plaintiff's being transferred from the Regional Crime Squad South back to Kogarah are not crystal clear. There is reference in the evidence to the plaintiff having been transferred to the "Motor Squad" for some short period of time, but the inference is that that squad was a squad like the Licensed Dealers Squad, a squad within the Regional Crime Squad. The plaintiff believed that the reason for the transfer was probably because he was found by two senior police officers in the Macquarie Hotel, which is close to the Remington Centre where the Regional Crime Squad appears to have been stationed, at 10.15 one morning drinking by himself. In that hotel the plaintiff saw Detective Superintendent Stevenson and Detective Inspector Parsons. According to the plaintiff, Superintendent Stevenson asked the plaintiff what he was doing in the hotel at that hour. The plaintiff told him that he was "just depressed" and that he was not happy about the way things were going either in his work life or in his life generally. I can accept that a relatively young man found drinking alone at a hotel at 10.15 in the morning complaining of depression and of either his work or personal life being difficult would be concerning for any person in authority, whether that person was participating in some "drinking culture" or not. There was no suggestion the plaintiff misconducted himself in any way other than the ways to which he now freely admits whilst in the Regional Crime Squad and, eventually, the plaintiff was awarded a Police Medal for good service for period of ten years. I have no hesitation in accepting the plaintiff's evidence which suggests that that interaction between Detective Superintendent Stevenson and the plaintiff at the Macquarie Hotel was what caused the transfer from the Regional Crime Squad back to Kogarah.

1. Back at Kogarah the plaintiff renewed his acquaintanceship with Mr Leydon who had now become a detective senior sergeant, no doubt replacing Mr Shields. The time of the transfer would appear to be 10 May 1990. On 10 December 1988 the plaintiff had been promoted to senior constable. Mr Leydon now had the job of Mr Shields and the plaintiff himself was now a detective senior constable. The plaintiff had assigned to him a young constable, Mr Peter Seary, to work essentially as the plaintiff's assistant.

1. During the relatively short final period at Kogarah, the plaintiff admitted that his work was "not up to scratch by any means". He told me that he was a "psychological wreck," that he was going to work intoxicated and was doing the wrong thing in trying to train Constable Seary by doing to Constable Seary what Detective Senior Sergeant Leydon had done to him, by taking him up to the Royal Hotel in the mornings and introducing him to Bede Gough and the early morning drinking sessions. The plaintiff explained that he would not be intoxicated at 8.30 in the morning, but if he commenced an afternoon shift at 3.30pm, he was by that time "half tanked".

1. As I have earlier mentioned, the plaintiff last worked on 10 July 1991. He described himself at that time as being a "psychological and mental wreck". He went on to say this:

"I couldn't think straight. I wasn't focused. I was depressed. I was anxious. I was disgusted in the person that I'd become. Not the way I joined. I was the fittest young fellow in the Academy, to see me 12 years later I was just - it had changed my personality forever. The grog it got me as well. With the depression the more depressed I got the more I drank and I just couldn't get out of it. And when I had this anxiety attack I thought this is starting to affect me physically and I had a wife and a young child to support I said I just can't do this any more. I am just being tortured."

Again, when one looks at contemporaneous complaints recorded at the St George Hospital on 10 July 1992, there may be some ex post facto rationalisation in describing the plaintiff's condition so vividly at that time. However, I accept the thrust. I accept that the plaintiff was depressed. I accept that he was concerned about how his police career had developed, and I accept that, to use the vernacular as the plaintiff did, "the grog had got him".

1. The problem about excess alcohol consumption is that alcohol is usually thought to "stimulate" a person because it removes inhibitions. By removing inhibitions, a person feels more stimulated. However, the alcohol itself is not a stimulant but the opposite. Taking too much alcohol will itself cause depression. It is difficult to know what is the chicken and what is the egg. Did the depression cause the recourse to alcohol or did alcohol cause the depression?

1. Evidence was given by two other persons in the plaintiff's case. Evidence was given by a long-term friend and former colleague, Mr Wayne McInnes, and evidence was also given by the plaintiff's second former wife, Ms Carolyn Catherine Mason. To an extent, they corroborate what the plaintiff says but, again, there are inconsistencies.

1. The plaintiff and Mr McInnes had known each other since childhood days. Mr McInnes joined the New South Wales Police in 1979, as did the plaintiff. Mr McInnes left the Police Force in 1996, four years after the plaintiff left it. The plaintiff and Mr McInnes were in the same class at the Police Academy which was then, if my memory be correct, at Redfern. Mr McInnes was originally posted to Campsie and Punchbowl, performing general duties. At the suggestion and recommendation of the plaintiff, he went into plain clothes work in 1983. In 1981 he had moved to the Central Coast, and he commenced at the Gosford Detectives in 1983. However, in 1985 he returned to Sydney to work in the Major Crime Squad North. He then transferred to the Regional Crime Squad South where he worked with the plaintiff for "a short stint". Prior to that short stint working together at the Regional Crime Squad South, the plaintiff and Mr McInnes had a common interest in police rugby league football and they were often in contact weekly. They remained good friends.

1. According to Mr McInnes, the plaintiff was initially happy in his work in the Police Force. He confirmed that the plaintiff encouraged him to head towards performing plain clothes work. Mr McInnes also told me that the plaintiff enjoyed his work at Parramatta. Mr McInnes said this:

"[w]hen Reg moved out to Parramatta I think it was quite a - one of them stations that was quite busy and work-related it was a very heavy place to be, work-related, the workloads and that out there. But in that regard I think he enjoyed that and he seemed to be enjoying that, and that's what I was looking forward to, to getting into an area like that myself."

That picture of the plaintiff's service at Parramatta is very different to the picture painted by the plaintiff himself. However, they are not wholly inconsistent. It is perhaps consistent with the plaintiff's having a large workload and doing a lot of work which he enjoyed, but also being on the edge of the drinking culture but not much involved in it at the time. In other words, what the plaintiff told me about Parramatta may be an exaggeration rather than a fabrication.

1. According to Mr McInnes, he noticed a change in the plaintiff when he was at the Mascot Airport Detectives. Mr McInnes told me that, "I could see that there was a complete change in the workload and the style of work that he was doing at that stage". He went on to point out that there was more "socialising" than actual police work. When asked to explain what he meant by socialising, Mr McInnes said this:

"I mean going to - to lunches with the airline staff and - and companies and the drinking at the airport generally, and I've known him to have travelled trips away during shifts to travel to Melbourne and Brisbane to - just for the purpose of a social visit with some of the senior staff of the airlines."

I can readily accept a person such as the plaintiff perhaps bragging to, boasting about, or goading a mate, such as Mr McInnes, with these free trips interstate merely to entertain senior airline staff at meals, taking alcohol. Mr McInnes said this also which, to me, has the ring of truth about it:

"[i]t's one of these things that you get into, sir, that it's all fun and games to start with when you get into a job like that and - and it's great initially, but when you're actually start to - to take on that as a day to day it starts to take a toll on your...being in regard to that, and particular when you're - you join the police for a particular reason and that - that was to be a policeman and this was contrary to that, so."

I can accept that when first introduced to what the plaintiff told me about his work at the Mascot Airport Detectives, he probably thought it was "fun and games," perhaps a form of what I might describe as "jolly, light duty work," but, in the end, the plaintiff was not happy about it because, in essence, he was not doing much work. Mr McInnes conceded that the plaintiff did not say anything specific about his concerns to Mr McInnes, but Mr McInnes pointed out that the plaintiff was "very happy to get out of there". However, as I have already pointed out, the plaintiff's posting at the Mascot Airport Detectives Office was for a much shorter period of time than the plaintiff said in his evidence-in-chief.

1. The plaintiff's second former wife, Carolyn Mason, met the plaintiff in 1982. They married on 25 February 1984. They did not live together before they married. Ms Mason protested that she would not have married a "drunk". I wholly accept that averment. However, a question arises as to how well she knew the plaintiff prior to their marriage, considering that they did not live together, and how well the plaintiff, if he were a drunk by that stage, was able to hide any addiction that he had or whether he was as addicted as he said he was by that time. I can accept that a man, courting a woman, who may have a drinking problem or an incipient drinking problem, would seek to hide it from the lady he was courting. I also accept that some young persons, both men and women, who form a romantic attachment to another often blindly ignore what may be their beloved's personal failings, a form of wilful blindness.

1. Ms Mason went on to tell me that not long after they married the plaintiff was coming home from work intoxicated. That upset her. She asked the plaintiff for an explanation and the plaintiff would say things to her such as he had to go out with the bosses at work and that he had to attend a "debriefing". Ms Mason grew to know that, when he was working at Kogarah, the plaintiff was drinking with Inspector Bruce Shields and Sergeant Peter Leydon. She told me that the plaintiff did not drink at home, that alcohol was not kept in their home, but she knew the plaintiff was frequently coming home intoxicated. Since it was such a short period between their marriage and Ms Mason realising that her husband was coming home intoxicated, it is unlikely that that was just a new habit acquired by the plaintiff shortly after his marriage.

1. Accepting, as I do, that the plaintiff probably started working at Kogarah in October 1983 and his marrying on 25 February 1984, it seems to me that the plaintiff did not really have a great problem with his alcohol consumption until he had spent some time at the Kogarah Detectives office; that is, it appears to me, and is consistent with what the plaintiff said of the early morning drinking, that the real problem that he developed with alcohol probably started when he was stationed at Kogarah, albeit it that he had been exposed to the drinking culture earlier in his police career but that had not, in essence, affected him to the extent that he became a regular drunkard.

1. The defendant has attacked the plaintiff's credit. To a large extent the plaintiff accepts those criticisms. Essentially, the plaintiff sought to hide his problems in the Police Force from the time he stopped working on 10 July 1991 until he saw Dr Selwyn Smith on 8 July 2010 at the request of his own solicitors, no doubt because he had then decided to seek a retrospective "hurt on duty" pension. The plaintiff concedes, in essence, that he did seek to hide what was happening. The defendant says the plaintiff had good cause to hide the truth because it bespeaks his misconduct.

1. There is also a dispute as to whether there were other operative stressors in the plaintiff's life which could have caused the certified infirmity. The plaintiff went to the St George Hospital from the Kogarah Police Station on 10 July 1991. He complained of left-sided dull chest pain for ten minutes, the onset of which occurred when he was typing at work. It was noted at the hospital that the pain was worse when the plaintiff hunched over but resolved spontaneously. The plaintiff gave the hospital doctor a history that he had previous similar episodes over the last few months. The medical history recorded is this: "He denies any alcohol/drug use before presentation, no regular medication, and has been well previously". At the hospital persistent sinus tachycardia was noted for over three hours.

1. The plaintiff was certified unfit for work on the following day by Dr Tierney of Gymea who referred the plaintiff to Dr Robert Gates, a consultant physician at Miranda. The plaintiff gave Dr Gates a history of left-sided chest pain beneath his left breast for "over several years". The plaintiff admitted to Dr Gates feeling "under stress at work" and the plaintiff told Dr Gates that that had led to a high alcohol intake. Dr Gates's opinion was that anxiety due to work stress was the most likely explanation for both the sinus tachycardia and the left sub-mammary pain. Dr Gates suggested an alteration to the plaintiff's lifestyle and an alteration of his approach to his work.

1. Although on the day after he stopped working the plaintiff saw a local medical practitioner, Dr Tierney, the plaintiff then returned to see Dr Kefaloukos, a general practitioner in Marrickville, whom the plaintiff had been consulting since November 1980. One will recall that the plaintiff grew up at Marrickville. Dr Kefaloukos referred the plaintiff to Dr Onsy Mattar, a psychologist, and Dr George Takas, a consultant psychiatrist. In a report addressed to the administrator of the Police Superannuation Fund, Dr Kefaloukos suggested that the plaintiff was "severely stressed by the nature of his work," but did not provide any detail of how the work was causing that stress. Dr Kefaloukos also referred the plaintiff to Dr Savvides, a consultant cardiologist, who, like Dr Gates, thought that the sinus tachycardia could be a consequence of "chronic work-related stress". Dr Savvides advised the plaintiff to cut down his alcohol intake, which is a fairly common recommendation of many general practitioners to most adult Australian men.

1. On a number of occasions in the second half of 1991 the plaintiff saw a Police Medical Officer. There are records for 6 August, 20 August, 19 September, 24 September and 2 October 1991. The only stressor recorded by a Police Medical Officer is of "many personal problems in family".

1. The plaintiff saw Dr Takas for the first time on 13 August 1991. In a report of 20 September 1991 addressed the Police Medical Officer, Dr Takas said this:

"It appears that his condition had been the result of an accumulation of a number of stresses in his personal and professional life. In particular, he told me that he had lost a number of friends and relatives through death. He has also been under constant pressure in his job."

Dr Takas diagnosed that very scientific condition, "burnout". Nevertheless, in a second report of 12 February 1992, Dr Takas formed the view that the majority of the plaintiff's "emotional relapses" were due to recurrent thoughts regarding his previous work, that is, the Police Force; however, he does not say whether that was operational stressors or being exposed to the culture of alcohol consumption, the avoidance of duty, and the covering up of such behaviour.

1. The plaintiff was sent by PSAC to Dr Graeme Robbie, a consultant psychiatrist. Dr Robbie's first paragraph is this:

"Thank you for referring me the above-named 35 year old man, whom I interviewed on 28/1/92, over an hour and fifteen minutes. It was an unusual interview in my experience, in that he declined to advance his cause. This left me in something of a quandary. I went over it with him on several occasions, not only could he proffer me no explanations, he could not bring himself to discuss his reasons for reticence either. It was all most odd, and contrasted strongly with the humour that was kept throughout, if not his submissive and over-polite manner, which almost has hysteroid overtones. I did not have much background information on him. He was inclined to speak in platitudes and in worn phrases. He did not seem confident in his history, and I could not be confident in it either. Various speculations occurred to me."

The rest of the Doctor's report points out the unwillingness of the plaintiff to tell him what was wrong at work. Amongst other things, the plaintiff told Dr Robbie that his second marriage "had broken down last week". There may have been a temporary estrangement at the time. The marriage did not break down until 1999, according to Ms Mason, and the couple were divorced in 2004. The plaintiff told Dr Robbie that he also had had six relatives die. Concerning his relationship with his wife, the plaintiff told Dr Robbie this:

"Two years ago her bank was held up by three men in balaclavas, and she was three months pregnant at the time. She changed as a result. She saw a psychiatrist for two years, and became depressed and fearful. She couldn't go back into a bank. She miscarried three days after the robbery. She had a daughter born in March 1990 but she developed post-natal depression he told me, and she is still seeing a psychiatrist. She hasn't been in hospital. Her condition threw a strain on the marriage, and they separated last week. There is still a chance for the marriage he knows, but he does feel it is over. There is a house, with a mortgage. In the circumstances, a certain blandness in his presentation might be put down to a fairly marked suppression and denial, but I don't think this was the case."

The plaintiff, in essence, confirmed that history as being accurate. However, as far as Ms Mason is concerned it was inaccurate. Essentially, she said that she only saw the psychologist after the bank robbery because it was part of her "rehabilitation". She denied any depressive illness and, in particular, denied any post-natal depression. It was clear when Ms Mason gave her evidence that she had a firm view as to the causation of the plaintiff's psychiatric illness which, in essence, accords with the case mounted before me and her evidence was less than impartial. It was, in fact, quite partial. I believe that she downplayed her own psychiatric reaction to the bank robbery and the loss of her first child in order to heighten the effect upon the plaintiff of his work experiences. I do accept that there were pressures in the marriage resulting from the bank robbery and the plaintiff's wife's post-natal depression but, clearly, they were not a major source of psychiatric stress. For example, the couple were blessed with a son, Riley, who was born on 3 September 1993, indicating that, by the end of 1992, after the plaintiff had been medically discharged from the Police Force, their relationship had repaired itself to the extent that they were cohabiting and planning on having further children.

1. On p 7 of his report, Dr Robbie speaks further of the death of the plaintiff's relatives. He says this:

"The other external threat he quoted was the deaths of six or seven relatives over the last 18 months. He quoted a grandmother, two aunts, and three friends, the latter aged 55, 56 and 60. He had known them for many years, and they died from heart attacks. He agreed that their deaths were reminders of his father's death."

The plaintiff's wife cannot remember any such deaths or attending any funerals, and the plaintiff himself cannot give me any details of these deaths of close relatives and friends. Again, this may be a concoction to throw Dr Robbie off the scent of suspecting that something major was wrong at work, or it may be a gross exaggeration.

1. Dr Robbie quizzed the plaintiff about his alcohol intake. This is recorded by Dr Robbie:

"He quoted having ten drinks two or three times a week for the last five years, but there were no obvious liver stigmata, though his eyes did look at bit red. He is drinking a bit much, but on the quoted figure I couldn't claim more than that. Very heavy drinking could be what it is all about of course, alcohol can be a cause for atrial tachycardia, but the evidence would have to come from elsewhere. I neglected to get an earlier drinking history, he was vague about his drinking as many other things."

In my view, the plaintiff has downplayed there the extent of his drinking whilst rostered for duty, if I am to accept what the plaintiff said about himself of having approximately ten stubbies or schooners on virtually every working day. Dr Robbie's observation that "very heavy drinking could be what it is all about" is very prescient. That, to a large extent, is what the current case is about. However, the complaint is not about the ingestion of alcohol as such but what caused the plaintiff to ingest it.

1. At the foot of p 7 the following in stated in Dr Robbie's report:

"At the end of the interview he said, 'I can't discharge my duties, I know I can't'. He wished for somebody to classify him as burnt out, but denied any interest in getting ongoing compensation, superannuation or the like. He doesn't want to pursue any sort of litigation he assured me, he just wants to get out of the Police as expeditiously as possible. It all seemed very reasonable, except he just wouldn't or couldn't give a reason for why he should feel the police was contributing to his problems. Nor could he satisfactorily describe or quantify those problems. He just wants it accepted as a matter of faith, that he has had enough and that is that. There must be information on him elsewhere. Obviously I wondered if he might not just be afraid of his heart, particularly in view of his father's death, but he denied this. I also went over possibilities in terms of his police career, but he denied any of those as well. It would only be idle to speculate on these, in the absence of any information. I was left helpless, but he appreciated this, and even apologised for leaving me in that position. He just doesn't want to disclose what it is all about, and he doesn't even want to disclose hints about what it might be about."

I should just add that the plaintiff's father died of a cardiac condition when the plaintiff was fourteen. In essence, the plaintiff is an only child and he was clearly closely bonded to his father. His father's loss was a very potent stressor in the plaintiff's teenage years. Hence one could perceive a person, such as Dr Robbie, believing the plaintiff's believing himself to have a heart condition evidenced by atrial tachycardia might be a cause of anxiety.

1. When Dr Robbie referred in the quotation I have just made to the plaintiff's "police career" I suspect that the Doctor was quizzing the plaintiff as to whether he had fallen into any trouble with his superiors, whether, for example, there are any outstanding charges against him. Dr Robbie accepted that the plaintiff could not return to work as a police officer. His diagnoses were either panic disorder without agoraphobia or a generalised anxiety disorder. I should add that I have also been favoured with a report from Dr Onsy Mattar dated 18 February 1992 in which the Doctor mentions the stresses placed upon the plaintiff's marriage by his wife's condition and also the sudden loss of beloved family members and friends in a short period of time.

1. The Police Superannuation Advisory Committee had before it a report made by Dr J M Orr, a medical consultant and one of the police medical officers. After reviewing the material available to him, Dr Orr commented that, "The full story has not been disclosed". He went on to say this:

"His investigations show no evidence of organic heart disease and his symptoms are most likely the result of stress, anxiety and alcohol abuse. He was adamant he will not resume and at present it appears that he is unfit to resume. As his application is under s 8 [of the Act] I agree that it would be best to medically discharge him. However, if he had been applying under s 10 it is my opinion that his discharge would not be appropriate until all information was made available, alternative duties had been investigated and Rehabilitation attempted.

If it is appropriate in terms of the Act I would recommend review in 18 months."

There does not appear to have been any such review and, as I have earlier mentioned, the plaintiff was certified incapable of discharging the duties of his office by PSAC on 29 April 1992, leading to his medical discharge on 6 May 1992.

1. After his discharge, the plaintiff initially found it difficult to find work. There is reference to his doing voluntary, charity work and to his seeking work in providing security. However, in late 1993 he obtained a job with the State Rail Authority working as an investigator with Freight Rail for three or four months. In 1994 he obtained work with the Independent Commission Against Corruption ("ICAC") where he worked as an investigator. He told me that he was the last either former or serving member of the police force to work for the ICAC. In 1998 he obtained work with the RTA as, I understand it, a manager of investigations and then, from 2002 to 2006, he worked for RailCorp or the SRA as a senior investigator and, since then until the present time, has worked with the RTA/RMS as an investigator.

1. In his period with RailCorp, it appears the plaintiff was absent from work from 29 September 2004 till some time in the middle of 2005. On 16 December 2004 the plaintiff saw Dr Doron Samuell, a specialist psychiatrist for RailCorp. The plaintiff told Dr Samuell that he was a senior investigator investigating allegations of corruption and fraud within the ranks of State Rail employees. The plaintiff told Dr Samuell that he had last worked on 29 September 2004 but had planned to return to work. It appears what put the plaintiff off work was what the plaintiff believed at the time was a "heart attack" but was another episode of tachycardia. That occurred in a week when the plaintiff was relieving his then boss's job. He was taken by ambulance to the Royal Prince Alfred Hospital where he was observed for some 18 hours. He was given a beta-blocker on discharge and was then sent back to his usual GP, Dr Kefaloukos, who prescribed Zoloft, a drug usually prescribed for the treatment of psychiatric illnesses, and was referred to a psychologist. The plaintiff told Dr Samuell of concerns about the security of his position in the railways as well as issues concerning the extent of his workload. The plaintiff told Dr Samuell of an increase in his alcohol consumption, but he told the Doctor that he is only drinking on Friday nights and his alcohol consumption had increased from seven stubbies to ten stubbies per week. The plaintiff was asked about his psychiatric history and said that he was discharged from the police force in 1992 due to psychological difficulty. The plaintiff told Dr Samuell that that psychological difficulty followed his wife's nervous breakdown. That history is not at all consistent with what the plaintiff asks me to believe. Nevertheless, Dr Samuell thought the plaintiff was sincere and genuine. Dr Samuell diagnosed a panic attack at work of which tachycardia was a common feature. He thought that the plaintiff's concern for job security, his alcohol consumption, domestic difficulties and social isolation all contributed to the plaintiff's having that panic attack.

1. In essence, what happened on or about 29 September 2004 was much the same as what occurred on 10 July 1991. At that time Dr Kefaloukos also referred the plaintiff to Dr Selwyn Smith. Dr Selwyn Smith saw the plaintiff on 17 January 2005. The plaintiff gave Dr Selwyn Smith a history of having experienced a significant work-related difficulty pertaining to the merger between State Rail and RailCorp. According to that history, this caused the plaintiff "marked anxiety". The Doctor's report continues that there were a number of other stressful circumstances, including the plaintiff's learning about his wife having had an affair. By this time, the plaintiff and his wife had been divorced. The plaintiff denied that his wife was having an affair but admitted that he may have been having an affair. There was then reference to the plaintiff's children and the divorce, and the Doctor then records a history that that led to significant depression to the point of suicidal ideation. Dr Selwyn Smith's diagnosis was of adjustment disorder with depressed and anxious mood in response to a number of significant work-related difficulties compounded by interpersonal stressors with his wife and difficulties coping with their two children. Despite this adjustment disorder having a number of causes, Dr Selwyn Smith expressed the view that the plaintiff had "a legitimate WorkCover claim".

1. On 24 January 2005 the plaintiff saw Dr Stuart Mitchell, a consultant cardiologist, again for RailCorp. The reason that the plaintiff gave for leaving the police force was that his wife, following the bank robbery, had had a miscarriage and that the plaintiff needed to look after her and his daughter, Amy, who was born on 8 March 1990 and is developmentally retarded. The history given to Dr Mitchell was false, if I believe what the plaintiff now asks me to believe.

1. The plaintiff was off work again in early 2006. There were certainly problems at RailCorp at that time. The plaintiff was seen by Dr Kipling Walker, a consultant psychiatrist for RailCorp, on 9 January 2006. The Doctor's report commences thus:

"Mr Mason was a senior investigator. In December 2005, he told co-workers that he was dying of lymphoma and was due to start chemotherapy. It became apparent that this was not true. His general practitioner said he was treated for an abscess in his armpit and never implied that Mr Mason had lymphoma. His general practitioner noted that he had an anxiety disorder, and at times his mood became elevated. Mr Mason has indicated previously that he had a heart attack, and more recently said he made this up to help him perform undercover police work. There was concern about his drinking. RailCorp was concerned that he had a condition that affected his perception of reality and/or affected his behaviour."

The plaintiff clearly did not have lymphoma and did not need to undergo chemotherapy. It would appear that that was an untruth told in order to gain sympathy. The plaintiff was also assaulted at some stage and invented a story that he had had a surfing accident to explain physical injuries resulting from his being assaulted, the assault happening on a licensed premises. The plaintiff made no mention to Dr Walker about the problems the plaintiff now tells me of. Under the heading "Presenting Complaints" Dr Walker records this:

"He had been treated for depression for a lot of years. He spent years in the Police Service. There had been deaths in the family. His daughter was intellectually disabled."

Late in the report the Doctor obtains a history of intermittent depression for twenty-five years, then of the plaintiff's brother dying of cancer in 2004, of the divorce in 2004, of the plaintiff's best friend dying of cancer in 2001, and of his mother dying from cancer in 1993. There is no mention of stress when he was working in the Police Force. In fact, further in the report, the plaintiff is recorded as telling the Doctor that he left the Police because his daughter was developmentally delayed and his wife was depressed.

1. It is true that the plaintiff's mother died in 1993 of cancer. His brother was only a half-brother from an earlier relationship of one of his parents and he had died in 2004, but there was little contact between the plaintiff and his half-brother. Dr Walker records that the plaintiff and his wife separated in 2003, but the separation was, in fact, in 1999; the divorce was in 2004. Another untruth that the plaintiff told Dr Walker that he had worked in the Homicide Squad when he was in the Police. The only reference to "homicides" was when the plaintiff was working at the Kogarah Detectives Office and when he was working in Operation Tentacle. He was not formally in any Homicide Squad. It is possible that the Doctor misinterpreted what the plaintiff had told him.

1. The only doctors to have any semblance of the histories that I have are Dr Selwyn Smith who saw the plaintiff, as I have already mentioned, on 8 July 2010 at the request of his solicitors, and Associate Professor Glozier who saw the plaintiff on or about 2 August 2011 at the request of the agent of the administrator of the Police Superannuation Fund. There is much in the histories recorded by Dr Selwyn Smith in 2010 and Associate Professor Glozier consistent with what the plaintiff told me. I do not have time to set out those histories in any great detail.

1. Based on the history obtained from Mr Mason on 8 July 2010, Dr Selwyn Smith, after reading the other medical reports available to him, expressed the view that, at the time that the plaintiff left the Police Force in 1992, he was, on the balance of probabilities, suffering from a major depression with an anxiety disorder. Dr Selwyn Smith expressed the view that this was because the plaintiff was hurt on duty, but that is a mere ipse dixit. The Doctor merely refers to the plaintiff's work and does not indicate what aspects of it caused the problem.

1. In fact, the best medical support for a causal nexus between the plaintiff's current history and the certified infirmity is the opinion of Associate Professor Glozier. The history recorded by Associate Professor Glozier is:

"Mr Mason joined the Police Force in 1979 at the age of 22. He had been denied admission twice previously. He described how he joined the Regional Crime Squad (the CIB) in 1984 as a very young Detective Constable. He stated that he was very pleased with this promotion at the time, but believed he was so junior he was effectively treated as a 'driver/typist'. He then alluded to a range of behaviours which he described as 'unacceptable practices, corruption' and an entrenched culture of behaviour that he found 'disgusting' that reached to the highest levels of the Regional Crime Squad. He stated that he was able to cope with dead bodies and other unpleasant aspects of the day-to-day work of the Police, but not of the behaviour of many of his colleagues. He refused to give specific incidents, but basically stated that it was 'like Underbelly every day.' He reported how he knew several of the officers who have now achieved notoriety through various media channels and the Royal Commission and how he worked with these people locally every day. He stated that over the late 1980s he began to see his colleagues and bosses charged and some of them go to gaol. Over this time, although he believed that he was not corrupt, he began to become 'paranoid' about whether he would be the next person charged. He described increasing levels of anxiety 'waiting for the knock ... and forced to be a traitor.' He describes increasing anxiety symptoms, including difficulty focusing, poor concentration and poor sleep and irritability.

Mr Mason also described in detail the extensive drinking culture existing in the Police Force at that time. He said that from even before joining the CIB, he and his colleagues would drink throughout the day virtually every day. They would often start the day with a couple of drinks in the pub and continue this over the rest of the day. He described no cravings, withdrawal with drinking or other forms of dependency, but certainly had a habit. Neither could I elicit any blackout or other negative sequelae. He stated his drinking levels began to escalate towards the end of his time in the force.

In 1990 he was returned to 'local' at Kogarah. He said by this time the "damage was done and I was 'shot'." He remained under the wing of a previous boss who had also been transferred to Kogarah from the CIB. He said by that stage he was coming to work drunk most days, drinking even prior to work and then drinking early in the shift. He couldn't focus, had difficultly sleeping, had problems with his mood, anxiety, stress and believed he was 'sad, low and desperate.' He dreaded going into work and described anticipatory anxiety and heightened symptoms of tension. He said he was 'a wreck psychologically.' He also described the onset of heart palpitations, particularly when anxious, over-arousal, nausea and at times even full panic attacks. I note he presented to St George Hospital in July 1991 with a non-cardiac chest pain indicative of an anxiety attack and also experienced increased atrial tachycardia. It is highly likely this was associated both with his anxiety and his excessive alcohol intake. He never returned to work after this episode.

He believed he held the job for a year or so primarily because he was protected by his boss but others thought that he was not carrying his weight, and alluded to this. He stated he saw his GP around the time of his presentation to the hospital and was referred to Dr Takas in mid-1991."

1. One will note in that history that the plaintiff told the Associate Professor that there was an extensive drinking culture existing in the Police Force when he was a member of it and that, even before joining the CIB, the plaintiff was drinking virtually every day. As I have earlier said, I believe that that was from, essentially, the time the plaintiff started working at Kogarah. The last part of the history, which I have set out, indicates to me that the plaintiff's last 14 months at Kogarah were a period in which he could barely cope because of the extent of his alcoholism and depression. Associate Professor Glozier then goes on to refer to other stressors, being marital difficulties with his second wife and his wife's prolonged depression and post-natal depression, which I accept occurred, although they were denied by Ms Mason herself.

1. However, the plaintiff told Associate Professor Glozier, and I accept it as being accurate, that the plaintiff's second wife found tolerating his heavy drinking very difficult because she herself was a non-drinker and that the plaintiff's second wife described herself as a "police widow". In other words, some of the plaintiff's wife's depression resulted from her reaction to the plaintiff's constant intoxication.

1. Part of the history recorded by Associate Professor Glozier was criticised by the defendant as showing reconstruction and perhaps ex post facto rationalisation. The relevant part of the history is this:

"He said he also felt guilty as he was unable to tell the doctors why he had become like he had become, because of what was going on with the Royal Commission at that time. He was of the opinion that, if he did tell the police or other doctors they would be duty-bound to report him and that there would be implications for him in the Royal Commission."

The Letters Patent issued to Justice Wood constituting what became known as the Wood Royal Commission did not issue until 13 May 1994 so that, by the time the plaintiff stopped working on 10 July 1991 and until the time that he was medically discharged on 6 May 1992, there was no Royal Commission. However, there could have been a compression by Dr Walker in his history-taking or a compression of facts in the plaintiff's mind. If the plaintiff told the truth, as he would have me believe it, to Dr Robbie and mentioned everything that he mentioned in his evidence-in-chief to Dr Robbie, in order to obtain a hurt on duty pension, there would, no doubt, have been a major investigation into what the plaintiff said because what he said, in essence, would have been a scandal at the time. Since the Wood Royal Commission we know the truth may have been otherwise than what it was then thought to be.

1. If the plaintiff told Dr Robbie what he told me, others may have got into serious trouble and the plaintiff himself may have got into serious trouble. Many people did get into serious trouble at the Wood Royal Commission because of the sort of things of which the plaintiff has told me happened to him, back when he was serving. In other words, the plaintiff may have given Dr Walker a history of matters similar to matters which got others into trouble with the Royal Commission or the plaintiff may have used the Wood Royal Commission as a shorthand method of describing what had happened and why he could not disclose what had happened.

1. At other times the plaintiff has said one of the reasons that he did not tell the truth to, for example, Dr Robbie was because he was remaining "loyal" to the New South Wales Police Force, but that really misconceives to what the plaintiff was being loyal. The plaintiff was not being loyal to the institution, as such, but to his mates with whom he served.

1. When asked to identify the cause of the plaintiff's illness, Associate Professor Glozier said this:

"The injuries identified by the Applicant resulting from multiple stressors including those of overt demands, working within the culture of heavy alcohol use and apparent corrupt practices that he was exposed to on a nearly daily basis were all contributing and causal to the development of the conditions outlined in Question 4 [the diagnoses offered by the Associate Professor including the certified infirmity]. There was a contributory component from the stresses of his home life, notably the relationship with his wife, but the primary contributor would have been that of the work-related stressors and injuries."

Again, Associate Professor Glozier does not identify what exactly the stressors and injuries are, but he does refer to working within the culture of a heavy alcohol use and apparent corrupt practices. I do not know what the Associate Professor meant by "overt demands". The report was generated essentially on the defendant's side of the record, but Mr Ower for the defendant could not tell me to what the Associate Professor was referring. Equally, the report was tendered by Mr Hammond in the plaintiff's case and he cannot identify to my satisfaction what the Associate Professor meant by "overt demands". Unfortunately, neither counsel had the wit to call the Associate Professor to explain what he meant. However, in my view, the opinion expressed by Associate Professor Glozier would be available to me to link with the stressors upon which the plaintiff now relies to the certified infirmities.

1. It being contrary to the plaintiff's sworn duty and contrary to the express terms upon which he was engaged as a member of the New South Wales Police Force, doing something contrary to his duty cannot constitute any injury which arises out of or in the course of his employment. That finding may seem harsh. However, the finding is equally applicable to every either member of the New South Wales Police who engaged in similar behaviour at that time. When the plaintiff was drinking with Detective Inspector Kevin McDonald in the Cyprus-Hellene Club, neither the plaintiff nor the Detective Inspector was in the course of his employment and the taking of alcohol by either of them, absenting themselves from duty by doing what they were doing, could not constitute any injury arising out of their employment.

1. It is a tribute to Mr Reginald Mason that his moral sense was well enough formed that he realised the conflict involved between doing what he did and his sworn duty, and that he decompensated because of that and decided to throw in his job. He shows much greater moral integrity than any of those with whom he worked who induced him into this drinking culture. I accept that it would have taken a person of considerable moral and spiritual fortitude to withstand the pressure to conform to those who were involved in the drinking culture. However, the plaintiff was a sworn member of the Police Force. His duty was clear and he did not do his duty but acted contrary to his duty.

1. Were the Court to accede to the submissions put to it on the part of the plaintiff, then the Court would not be enforcing the law, which is the Court's duty. I do not mean that the Court is here to enforce morality, but the Court is here to apply workers compensation principles to a person who has to be regarded as a worker for the purposes of the present inquiry. If the express terms of a worker's contract of employment require him not to do something, then doing it takes him out of the course of his employment and could not be said to give rise to any injury that arose out of the employment.

1. There was much debate concerning the applicability of s 14 of the Workers Compensation Act 1987. The history of the provision has been most recently traced by Basten JA in Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365; (2010) 8 DDCR 243. Commencing at [131], his Honour pointed out that the proper construction of s 14 and its interrelationship with ss 4 and 9 of the Workers Compensation Act 1987 cannot properly be understood without reference to statutory history. His Honour then considered the case law as it evolved over the years. Commencing at [167], his Honour said this:

"167. History suggests that the s 4 definition of 'injury' should not be imported into s 14(1), which has its own criteria of connection with the employer's trade or business. That construction, however, was considered and rejected, after expressly addressing the history of the provision, in Love v Lysaghts Works Pty Ltd (1957) 57 SR(NSW) 70 (Herron, Sugerman and McClemens JJ). Even McClemens J, who dissented as to the result, felt unable to support such a construction as it would have involved the term 'injury' being used in its defined sense in one part of then s 7, but not in another. His Honour concluded that a finding that the injury arose from an act done 'for the purposes of and in connection with his employer's trade' (being the final words of the present s 14(1)) satisfied the alternative (causal connection) in the definition of 'injury' as arising out of the employment: at 90. (The other members of the Court were unable to determine whether such a factual finding had been made.)

168. The need to satisfy at least one limb of the definition of 'injury', when applying s 14(1), has been followed by Neilson J in the Compensation Court in Clyde v The State of New South Wales (TAFE Commission) [1995] NSWCC 38; 12 NSWCCR 541 at 561 and Stojkovic v Telford Management Pty Ltd [1998] NSWCC 8; 16 NSWCCR 165 at [48]. It was also followed by this court in Wheeler v The Commissioner for Railways [1969] 2 NSWR 474. It was not suggested in the present case that this line of authority should not be followed, nor that it was clearly wrong."

I have taken the liberty of correcting his Honour's misspelling of my surname. It is unfortunate that the learned editor of the Dust Diseases and Compensation Reports did not do the same in that series of reports. I do not change my spots and, indeed, I cannot. I am still bound by Love v Lysaghts Works Pty Ltd and Wheeler v The Commissioner for Railways. In the following paragraph of his judgment, Basten JA went on to point out that he would assume in favour of the appellant in that case that an independent basis of claim was available under s 14(1). Even based on that assumption the claim had to fail and the claim really had to fail because the facts and the relevant law were completely the same as in Cunningham v Tobin & Ors trading as The Stingray Café (2001) 21 NSWCCR 524.

1. Section 14(1) does not form, on the authorities, an independent basis for a workers compensation claim. It is necessary that a worker must still prove an injury arising out of his employment or an injury in the course of his employment and, in the current case, neither can be satisfied. Mr Hammond was good enough yesterday afternoon to send to me a copy of Comcare v PVWY [2013] HCA 41, which was decided yesterday.

1. That concerned a woman who was injured when having sexual intercourse in a motel when she was staying in that motel overnight on a trip away from home, but the injury occurred not when she was merely lying on the bed but because, in the sexual activity, the lamp which fell from the wall was actually pulled out of the wall, causing her injury, and there was nothing that connected that event with the appellant's employment. Although the Henderson/Speechley test is considered by their Honours in that case, the case is not germane to the present inquiry.

1. Plea numbered 4 in the defendant's second amended defence is this:

"The defendant says that the plaintiff requested, and was granted, a medical discharge on the basis of his infirmity being not hurt on duty in 1992. The plaintiff expressly and knowingly rejected the option of claiming medical discharge pursuant to s 10B(1) of the Act. The defendant submits that the plaintiff is now, 20 years after his discharge, estopped by his conduct from claiming his infirmity as hurt on duty. Alternatively, he has waived his rights to claim his infirmity as hurt on duty. Either way, he cannot now be 'aggrieved' within the meaning of s 21 of the Act."

The way these defences are raised is not pleaded correctly. However, I leave that to one side. The substance is clear. The first two sentences before the defendant "submitted" have been established. The defendant submits that the plaintiff in the circumstances is estopped by his conduct or, alternatively, he has waived his rights now to claim a pension under s 10B. Mr Ower provided me with written submissions. He states the requisite elements of estoppel by conduct, relying on Commonwealth v Verwayen (1990) 170 CLR 394, and the principles of waiver, relying on Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 at 327 and Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at [56] et seq and [143] to [147]. In my view, Mr Ower has correctly stated the principles. I do not have the time to set out in extensive form his written submissions. I will append them to these reasons for judgment when they have been transcribed.

1. In support of the proposition that "inaction" can constitute a relevant change of position, Mr Ower cited to me the decision of the Court of Queen's Bench in Police Regulation Act 1899 and Newbon v City Mutual Life, an unreported judgment of the High Court of 23 May 1935. I have read both those decisions and agree that inaction can amount to a relevant change of position. In Knights v Wiffen, Blackburn J said at 665:

"In the present case the money had been paid before the presentation of the delivery order; but I think, nevertheless, that the position of the plaintiff was altered through the defendant's conduct. The defendant knew that, when he assented to the delivery order, the plaintiff, as a reasonable man, would rest satisfied. If the plaintiff had been met by a refusal on the part of the defendant, he could have gone to Maris and have demanded back his money, very likely he might not have derived much benefit if he had done so; but he had a right to do it. The plaintiff did rest satisfied in the belief, as a reasonable man, that the property had been passed to him. If once the fact is established, that the plaintiff's position is altered by relying on the statement and taking no steps further, the case becomes identical with Woodley v Coventry and Hawes v Watson."

Their Lordships, Mellor and Lush JJ, concurred.

1. In his written submissions on this issue, Mr Ower refers to certain prejudice. That prejudice has been dismissed by the plaintiff's counsel, who pointed out that the evidence adduced by the defendant to prove the prejudice was scanty and completely insufficient. However, the fact remains that, in these reasons for judgment, I have recited the names of many persons with whom the plaintiff worked over the years, going back for a period between thirty-four and twenty-two years. Some of the people mentioned might not even be alive. Many of the persons who were much older than the plaintiff, his superiors at the time, would now be quite old. No doubt most of them would have left the Police Force years and years ago. Many might no longer recall the plaintiff. Many may be reluctant to admit what they did at that time, bearing in mind what flowed from the Wood Royal Commission. Many might decide that, rather than giving evidence, it would be better to invoke a right against self-incrimination. The considerations which motivate courts when applying limitation provisions raise their heads very forcefully in the current case and one can easily see prejudice without there being need for formal proof of it. Were it open to me, I would be prepared to accede to Mr Ower's submissions.

1. However, I have come to the view that it is not open to the current defendant to raise the issue raised in the fourth plea which I have cited. Section 21 of the Act is in the following terms:

"(1) A person who considers himself or herself aggrieved by:

(a) a decision made by STC on any matter that arises under this Act by reason of a member of the police force being hurt on duty, or

(b) a decision made by the Commissioner of Police under section 10A(1), 10B(3)(a), 12C(1), 12C(2), or 12D(4)(a),

may, within the period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision.

(2) Notification of a decision under subsection (1) is to be given in writing.

(3) STC or the Commissioner of Police, as the case may be, is entitled to be represented at the hearing of an application under this section.

(4) The District Court, after considering an application under this section, may make a determination that the decision of STC or the Commissioner of Police, as the case may be, in respect of which the application was made:

(a) be confirmed, or

(b) be set aside and replaced by a different decision made by the District Court.

(5) The District Court shall not make a decision referred to in subsection (4)(b) unless STC or the Commissioner of Police, as the case may be, could pursuant to this Act make that decision."

The rest of the section I need not quote. An appeal will only arise from a decision of the Commissioner of Police from one of five specified provisions. Here the specified provision is s 10B(3)(a). That provision is in the following terms:

"Where a member or former member of the police force is duly certified under subsection (1) or subsection (2), the Commissioner of Police shall:

(a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and

(b) give the member or former member written notification of the decision."

It is clear that the STC, being the statutory abbreviation for the SAS Trustee Corporation, is to make all the decisions under subss (1), (2), (2A) and (2B), the role of the Commissioner of Police in the scheme established under the Act is circumscribed. The STC is the administrator of the Police Superannuation Fund and, in essence, administers the provisions of the Act. The Superannuation Administration Act 1996 contains in s 4 a definition which commences thus:

"'STC fund' or 'STC scheme' means a superannuation fund or superannuation scheme established or constituted under any of the following Acts:

(a) Police Regulation (Superannuation) Act 1906,"

Section 49 of the Superannuation Administration Act commences thus:

"(1) STC is the trustee for the STC schemes and is to hold in trust for the persons who are or will be entitled to benefits under the STC schemes all assets held by, and all contributions and other money paid or payable to, STC under this Act and any Act under which an STC scheme is constituted or established."

Certain provisions of s 50 also ought be noted. Section 50 bears the heading "Principal functions of STC" and contains this matter:

"(1) The principal functions of STC are:

(a) to administer the STC schemes, and...

(e) to determine disputes under those Acts..."

Section 50 of the Superannuation Administration Act refers to the STC's duties relating to its functions. As a general proposition, STC administers the Act. Most disputes between, for example, a beneficiary under the Police Regulation (Superannuation) Act 1906 are determined in the normal course of appeal under the Superannuation Administration Act 1906; that is, ultimately they are destined to be determined in the Industrial Relations Commission of New South Wales. An appeal against STC does lie to this Court but only in respect of a dispute between the STC and a beneficiary who has been determined to have been "hurt on duty".

1. There have been some "demarcation disputes" between the courts as to who has authority to do what under the Police Regulation (Superannuation) Act 1906. My most recent foray into that field was in Page v The Commission of Police (No 1) [2012] NSWDC 130; (2012) 10 DDCR 428 in which I held that it was not open to the Commissioner of Police to raise a defence under s 10B(2)(a) of the Act, and that the only person who could raise such an issue was the STC.

1. Suffice to say that I am persuaded that, in the current case, the only person who could take a defence of waiver or estoppel by conduct is the STC and that the appropriate jurisdiction in which to litigate such a defence is the Industrial Relations Commission of New South Wales. However, in light of my primary finding, I suppose that is obiter dictum, but, of course, it would need to be considered should there be any appeal in the current proceedings.

1. For these reasons I confirm the decision of the defendant, the Commissioner of Police, made on 23 December 2011.

ANNEXURE

OUTLINE OF SUBMISSIONS ON ESTOPPEL & WAIVER

Estoppel

Requisite elements¹

• A statement or conduct that constitutes a representation of fact;
• Its communication to the representee;
• Representee's belief in the truth of the representation and alteration of position;
• Attempt by representor to contradict his representation;
• Prejudice to the representee as a result of his alteration of position if contradiction permitted.

(1)   Representation

• "Stress and paroxysmal tachycardia" nominated as medical conditions causing incapacity specifically "Not Claimed as hurt on duty" when medically discharged in 1992 (Ex A)
• Clear inference that the "stress" was, in context, a reference to psychological conditions later certified in s.10B (2) certificate (Exhibits T, L, P, Q)
• Conscious decision of plaintiff, (despite advice from Police Association), to claim psychological conditions as not HOD and obtain benefit of s.14 gratuity. (T/S 81-82, Ex 3)

(2)   Communication to representee

• Medical Discharge application addressed to defendant (Ex A)

(3)   Representee's belief in the truth of representation and alteration of position

• Application for s.8 medical discharge (but not s.10) supported by PMO (Ex Q). No rehabilitation efforts, further investigation or offer of alternative duties were made. Such "inaction" can constitute a relevant change of position.² Clearly, an HOD application for medical discharge would have been opposed in 1991/2 and some of these steps would have been taken.

(4)   Attempt by representor to contradict his representation

• The current appeal

(5)   Prejudice

• The defendant now has to meet an application for HOD when over 20 years have elapsed since the plaintiff's medical discharge. Prima facie, there is prejudice due to the likely inability to call witnesses (affidavit of Ms. Maha Buddahipala) and meet the allegations made.
• The defendant lost the opportunity to offer the plaintiff selected duties in 1992. In practical terms, this may have undermined the basis of the plaintiff's s.10B (20) application.³
• The plaintiff has made a number of damaging allegations against the integrity of members of the Police Force, which now cannot be properly investigated. The defendant has lost the opportunity to take disciplinary action, if appropriate, against those officers named.
• The defendant has lost the opportunity to investigate the plaintiff's HOD claim at an earlier stage. An earlier investigation would have been probably more effective.

Waiver

(6)   Waiver is an intentional act with knowledge to elect between two inconsistent positions. It is a doctrine of some "arbitrariness introduced by the law to prevent a man ...taking up two inconsistent positions."⁴

(7)   Waiver is distinguishable from estoppel by conduct as it is unilateral and does not require proof of detriment to a person relying upon the inconsistent conduct or representation.⁵

(8) The plaintiff deliberately chose to claim non-HOD medical discharge pursuant to s. 8 and eschewed claiming a HOD medical discharge pursuant to s. 10B(1). He opted to receive the benefit of a lump sum gratuity pursuant to s. 14 amounting to 2 years pay. This was a choice between two inconsistent positions.

(9)   The plaintiff's choice in 1992 should be construed as a waiver of his rights to pursue his s. 10B (2) infirmity as HOD.

(10)   As a matter of fact, there is little doubt that the conditions certified under s. 10B (2) and now claimed to be HOD are consistent with those relied upon as not HOD in 1992.

(11)   The statutory scheme envisages two separate paths⁶ to annual superannuation allowance under s. 10 depending upon whether the application is a member (s. 10B (1)) or former member (s. 10B (2)) of the NSW Police Force. For a current member, the test for incapability to be applied by the Trustee is the same under s. 8 and s. 10B (1). Whether certification is ultimately characterised as one made under the former or latter section usually depends upon the subsequent decision of the Commissioner of Police as to whether the infirmity was HOD or not. Accordingly, the Trustee has a practice of certifying incapability in the alternative (see exhibit T).

(12) In the present case, the plaintiff, when he was a member, chose to solely proceed by way of s. 8. Had he claimed HOD the Trustee would have certified his infirmity in the alternative under s. 10B (1) and the subsequent decision of the Commissioner of Police would have determined whether he received an annual superannuation allowance under s. 10 or a non-HOD gratuity under s. 14. By proceeding solely by way of s. 8, the plaintiff was not burdened with the (possibly adverse) decision of the Commissioner of Police and the attendant strict time limit for appeal.

(13)   The plaintiff's choice was unequivocal. In 1992 he did not seek to reserve his future rights to claim his infirmity as HOD. In bringing his present claim, he is not adopting a position inconsistent with his choice in 1992. Moreover, he has applied for his HOD pension to commence from 1992. It would be unjust in the circumstances of this case to allow him to approbate and reprobate.

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Decision last updated: 07 February 2014