Melanie Sills v State of New South Wales

Case •

[2018] NSWDC 119

•

10 May 2018

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: Melanie Sills v State of New South Wales [2018] NSWDC 119
Hearing dates: 4 December to 14 December 2017, 28 February to 6 March 2018
Decision date: 10 May 2018
Jurisdiction:Civil
Before: Mahony SC DCJ
Decision:

Verdict for the defendant. For orders see [410].

Catchwords: Negligence; psychological injury; police officer exposed to traumatic events
Legislation Cited: Occupational Health & Safety Act 2000
Police Act 1990
Uniform Civil Procedure Rules
Workers Compensation Act 1987
Work Health & Safety Act 2011
Cases Cited: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Hegarty v Queensland Ambulance Service [2007] QCA 366
Koehler v Cerebos (2005) 222 CLR 44; [2005] HCA 15
March v Stramare [1991] HCA 12; (1991) 171 CLR 506
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Reeves v State of New South Wales [2010] NSWSC 611
State of New South Wales v Briggs [2016] NSWCA 344
State of New South Wales v Doherty [2011] NSWCA 225
Tame v New South Wales (2002) 211 CLR 317
Watts v Rake [1960] HCA 58; (1960) 108 CLR 148
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Category:Principal judgment
Parties: Melanie Sills (Plaintiff)
State of New South Wales (Defendant)
Representation:

Counsel:
I D Roberts/P Barber/T Ower (Plaintiff)
D E Baran (Defendant)

  Solicitors:
Harris Wheeler Lawyers
Hunt & Hunt
File Number(s): 2016/151328
Publication restriction: Nil

INDEX

PARAGRAPH

INTRODUCTION

1

THE DEFENCE

9

THE PLAINTIFF’S EVIDENCE

13

CROSS-EXAMINATION OF THE PLAINTIFF

85

Evidence of Ms Joan Raper

132

Evidence of Ms Patricia De Riviere

147

THE EVIDENCE IN THE DEFENDANT’S CASE

Evidence of Chief Inspector Kim Sorenson

162

Evidence of Chief Inspector Rodney Mark Peet

179

Evidence of Chief Inspector Timothy Harold Winmill

195

Evidence of Ms Debra Anne Boswell

209

Evidence of Inspector Chevonne Greene

218

THE PLAINTIFF’S MEDICAL EVIDENCE

The Plaintiff’s Initial Treatment and Referral to the Police Medical Officer and Police Psychologist

222

The Plaintiff’s Closed Period Workers Compensation Claim

229

The Plaintiff’s Treatment from 2011

235

THE DEFENDANT’S EVIDENCE

276

THE DEFENDANT’S MEDICAL EVIDENCE

280

FACTUAL FINDINGS

298

FINDINGS ON THE MEDICAL EVIDENCE

299

DEFENDANT’S SUBMISSIONS

301

THE PLAINTIFF’S SUBMISSIONS

339

SUBMISSIONS IN REPLY

363

ISSUES TO BE DETERMINED

366

LEGAL PRINCIPLES

368

DETERMINATION

Did the Defendant breach its Duty of Care?

Causation

378

403

DAMAGES

404

ORDERS

410

Judgment

Introduction

  1. The plaintiff’s claim is for damages for an injury she suffered at work between May 2003 and 7 June 2012, when she was medically discharged from the New South Wales Police Service. The plaintiff served as a police officer during that period. She alleges that in that service she was exposed to numerous traumatic incidents, as a consequence of which, she suffered a psychological and/or psychiatric injury.

  2. By a Further Amended Statement of Claim (“FASOC”) filed with leave on the first day of the hearing, the plaintiff has sued the defendant as the entity responsible in law for the tortious acts of the Commissioner for Police and his officers. The plaintiff has pleaded that the defendant owed her a duty of care to avoid exposing her to a foreseeable risk of injury, including the risk of psychiatric or psychological harm, and that such duty was a non-delegable duty. In respect of that duty, the plaintiff further pleaded:

“8. The duty referred to in paragraph 7 above required the Defendant to institute and maintain systems of work which would:

(a) Identify officers who, as a result of their duties, were at risk of suffering, and were suffering, psychiatric or psychological harm;

(b) take steps to ensure that any officer identified as suffering psychiatric or psychological harm as a result of their duties, received appropriate treatment and support to alleviate or lessen the effect of such injury;

(c) take steps to ensure that any such officer was not required to perform duties likely to aggravate, exacerbate or perpetuate such injury without appropriate safeguards against such aggravation, exacerbation or perpetuation being in place;

(d) to discharge any such officer from their duties pursuant to s 72A of the Police Act 1990 in the event that appropriate safeguards were unable to be implemented and maintained with respect to the performance of such an officer’s duties.

9. The duty referred to paragraph 7 above also required the Defendant to:

(a) ensure that its officers were adequately educated and trained so as to permit them to identify and take steps to protect officers under the control, command or under their authority (within the meaning of the Police Act) against psychiatric or psychological ham or further psychiatric or psychological harm;

(b) draft publish, implement and enforce policies, guidelines, procedures and directives so as to ensure that the duty referred to at 7 above was adhered to by its officers and civilian employees;

(c) obtain and maintain accurate records for the purposes of enabling it to take reasonable steps to permit it to perform the duties set out in paragraphs 7 and 8 above;

(d) implementing systems to obtain relevant information and records to assist it in performing the duties outlined at paragraph 7 above and that outlined at 9(c);

(e) upon the return to work of an injured officer and thereafter, to consult with appropriate persons in the workplace to identify hazards associated with the work environment and the associated systems of work and assess the risks of injury and further injury associated with the aforementioned hazards;

(f) to eliminate or control the risks mentioned in paragraph 9(e).

10. The duty referred to in paragraph 7 above also required the Defendant to comply with the provisions on the Occupational Health & Safety Act 2000 and the Work Health & Safety Act 2011 in that as the manager and controller of the Plaintiff’s workplace it was to ensure the workplace was safe and without risk of injury to the health and safety of the Plaintiff.”

  1. The plaintiff then particularised a number of traumatic incidents which she alleges gave rise to the injuries she sustained. They are referred to in the summary of evidence below.

  2. The plaintiff has pleaded that she was absent for work as a result of the injuries she sustained between 18 August 2006 and 8 September 2006. She returned to work on restricted duties on 24 September 2006, and thereafter returned to general duties when she was again required to attend traumatic and stressful incidents in the course of her employment. They included a number of incidents in 2009, which the plaintiff particularised.

  3. The plaintiff claims that her injury was caused by the negligence of the defendant, particulars of which are as follows:

“Particulars of negligence

A. Failure to provide, institute and maintain a safe system of work in thecircumstances where the defendant knew or ought to have known of the riskof injury to the plaintiff.

B. Failure to devise, institute and/or maintain a safe place of work in thecircumstances with the defendant knew or ought to have known of the risk ofinjury to the plaintiff.

C. Failure to devise and have in place a system to adequately and properly warn the plaintiff of the risks of psychological and/or psychiatric injury fromexposure to traumatic incidents, and from the conditions of her workplace.

D. Failure to devise and have in place a system to adequately and/or properlyeducate, train and advise the plaintiff in relation to the safe performance of her duties as a police officer so as to avoid the psychological and/or psychiatric effects of exposure to work related traumatic incidents and working conditions, where the defendant knew or ought to have known of the risk of injury to the plaintiff; such education, training and/or advised to include but not be limited to:-

(i) Recognition of signs and symptoms of any psychiatric and/or psychological condition;

(ii) Upon recognition of signs and symptoms of any psychiatric and/or psychological condition, the necessity to seek appropriate treatment in the nature of debriefing, counselling and other intervention in order to reduce and/or eliminate the condition.

E. Failure to devise and have in place a system to screen or assess the plaintiffs suitability in terms of the likely effect upon her psychiatric/psychological condition of her attending traumatic work incidents, being engaged in stressful work conditions, and dealing with threats, deceased persons and those involving the abuse and violence towards children, and dealing with assaults and other traumatic events.

F. Failure to devise and have in place a system to adequately and properly monitor the effects of traumatic work incidents and conditions of working and the psychological effect of same upon the health of the plaintiff.

G. Failure to disclose and have in place a system to adequately and properly train and supervise the plaintiffs superior officers so as to allow them to monitor the effect of traumatic work incidents upon the plaintiff.

H. Failure to heed the complaints made by the plaintiff as to the lack of support as would have facilitated proper detection of the risk of psychiatric and or psychological injury and allowed effective remedial action; resulting in psychiatric and psychological injury to the plaintiff.

I. Failure to devise and have in place a system of counselling, debriefing and or other intervention to adequately and properly ensure that the plaintiff had available to her appropriate means of detecting and alleviating the psychological and/or psychiatric effects of traumatic work incidents.

J. Failure to provide the plaintiff with any or any adequate respite from her duties.

K. Failing to institute a system for educating police officers to counter the existing police culture that to complain of injury, particularly psychological or psychiatric injury; as a sign of weakness and likely to affect an officer's career.

L. Failing to act upon recognisable signs of distress and anxiety displayed by the plaintiff.

M. Failing to undertake any or any adequate welfare checks of the plaintiff following the plaintiff’s reporting of her psychiatric injury.

N. Failure to heed the plaintiffs complaints concerning exposure to traumatic events and traumatic material in circumstances where the plaintiff had expressed apprehension concerning same.

O. Failing to have the plaintiff properly examined in circumstances where the defendant knew or ought to have known that to expose the plaintiff to further trauma would cause an exacerbation or aggravation of the plaintiffs condition and such an examination would preclude the plaintiff from performing full duties.

P. Failing to protect the plaintiff from further exposure to stress in circumstances where the defendant knew or ought to have known the plaintiff was suffering from a psychiatric condition and that the exposure to further stressors would likely result in the plaintiff's incapacity for employment.

Q. Returning the Plaintiff to general duties without ensuring that the recommendations of the police psychologist and the police medical officer were complied with.

R. Failing to comply with the recommendation of the police psychiatrist and the police medical officer whilst the Plaintiff was continuing to perform general duties.

S. Providing the Plaintiff with a redacted copy of the report referred to in

paragraph 20 above when it knew or ought to have known that such was likely to:

a. aggravate or exacerbate her pre-existing psychological condition, and

b. lead the plaintiff to avoid communicating her symptoms andcondition to her superior officers, and

c. lead the plaintiff to distrust her superior officers.

T. Failing on multiple occasions to grant the plaintiff's request that she be

transferred from general duties to other duties including Target Action Group District Anti-Theft Squad or Plain Clothes Duties, such requests have been made to Sergeant Trench, Inspectors Shiels, Sorenson, Eggleton, Peet and Hill.

U. In circumstances where Dr Gertler had advised that the Plaintiff would remain at risk of suffering further injury if she were again exposed to the full range of duties of a general duties officer, failing to have the plaintiff's suitability to return to work in December 2008 assessed competently or at all.”

  1. The plaintiff further pleads that on 22 February 2010 she was transferred from general duties to the duties of an Exhibits Officer. The plaintiff claims that the defendant knew or ought to have known that she was vulnerable to a risk of psychiatric injury from exposure to further stressors in her duties as an Exhibits officer, and that she suffered aggravation, exacerbation and entrenchment of her pre-existing psychiatric/psychological condition and became incapacitated for employment.

  2. The plaintiff alleges she has suffered a Post Traumatic Stress Disorder (“PTSD”), a Major Depressive Disorder (“MDD”), and an Anxiety Disorder as a result of the defendant’s negligence. As the plaintiff’s claim is brought as a work injuries damages claim, the damages are restricted to damages for economic loss. She therefore claims damages for loss of her earning capacity from 1 June 2011, together with the loss of other emoluments arising from her employment by way of overtime and shift allowances, together with loss of superannuation benefits.

  3. The plaintiff was born on 17 September 1977 and was 25 years of age when she was attested as a Probationary Constable on 2 May 2003. She was 34 years of age when she was medically discharged on 7 June 2012, and 40 years of age at the time of the hearing.

The defence

  1. The defendant admits that it owed a common law duty of care which was non‑delegable, “to guard against its employees sustaining foreseeable injury or by exposure to the risk of injury and to have provided adequate safeguards”. The defendant admitted it was required to institute and maintain the systems of work referred to in paragraphs 8(a) and 8(b) of the FASOC, but has not admitted the systems pleaded by the plaintiff in paragraphs 8(c) and 8(d) thereof. Further, it did not admit [9] thereof, except for [9(e)]. The defendant pleaded that the duty pleaded against it in [7] of the FASOC does not apply in this case, and the legislation referred to in [10] thereof does not give rise to an independent cause of action at common law for damages in negligence.

  2. The defendant denied that it was negligent, and further pleads that the proceedings are not maintainable pursuant to s 151D of the Workers Compensation Act 1987. The parties agreed that a determination pursuant to s 151D should be made following the hearing, however, the defendant abandoned its reliance on s 151D during the hearing.

  3. Otherwise, the defendant relied on workers compensation payments it had made as a defence, pleaded that the plaintiff had failed to mitigate her loss, and in addition, or in the alternative, pleaded that the plaintiff’s psychological condition was caused or contributed to by her own negligence. The particulars of that claim are as follows:

“37 In addition or in the alternative the plaintiff’s psychological condition was caused or contributed by her own negligence particulars of which are:

(a) Failing to report her symptoms at the earliest opportunity prior to 2006.

(b) Failing to properly avail herself of counselling, EAP and chaplaincy Services.

(c) Failing to report distress to superiors until August 2006.

(d) Failing to report any issues of concern or distress whilst at exhibits and seek medical or counselling help.

(e) Failing to disclose symptoms at debriefing sessions.

(f) Failing to report symptoms as at the date of each incident to team leaders and superiors as pleaded in the Further Amended Statement of Claim.

(g) Failing to immediately request a change of duties from exhibits upon symptoms of distress occurring.

(h) Failing to seek medical attention prior to August of 2006.”

  1. Much of the history of events was not in dispute. The following summary of the evidence therefore contains my findings of facts, unless otherwise indicated. Specific factual findings, on which my determination of issues in the case are based, are referred to below at [298].

The plaintiff’s evidence

  1. The plaintiff gave evidence that she was born on 17 September 1977. After leaving school in year 12, she commenced work in a bank as a customer service officer in 1995. She married her first husband in 2000, and there were two children of that marriage.

  2. In October 2002, the plaintiff applied to join the New South Wales Police Service. She commenced training at the Police Academy, at first in Richmond for three months, and then in Goulburn for a further six months. On 2 May 2003 she completed her training and was attested as a Probationary Constable. When asked what had made her join the Police Force, she answered:

“A: I’d always wanted to. I always wanted to try and help people. I just had a passion for just the fast pace type of job, being outdoors.”

  1. The plaintiff was posted to Tuggerah Lakes Local Area Command (“TLLAC”). She remained there throughout her police service and worked at police stations at Wyong, Toukley and The Entrance.

  2. The plaintiff commenced police work on 6 May 2003. On the first day she was required to attend the scene of a suicide. As the most junior officer present, she was directed to speak to some of the family of the deceased. She also assisted government contractors in putting the body of the deceased into a body bag. When picking the body bag up, one of the contractors lost her grip and dropped the deceased onto the ground, causing some distress to the family who were present. The plaintiff was asked:

“Q: What affect did it have on you on that day?

A: I was upset cause I had never seen a dead body before. I think it was more traumatising that the contractors had dropped him in front of the family.”

  1. In June 2003, the plaintiff gave evidence she attended another suicide, in this case, that of an elderly female who had taken an overdose of opiates. The deceased’s husband was distraught and the plaintiff described it as a difficult job in which she had to remove the clothing of the body to assist a crime scene officer to identify whether anything suspicious had occurred.

  2. In September 2003, the plaintiff attended the scene of an attempted suicide of a mother of three, and attended a number of motor vehicle accidents.

  3. In October 2003, the plaintiff attended a domestic dispute in which a male offender had left the house they attended, but was located under a vehicle parked in the driveway, and was armed with a firearm, which he was pointing at police. She described this event as “stressful”.

  4. In December 2003, she attended a job in a caravan park where a person had overdosed in a caravan and the body had been there for a couple of weeks. That event she described as “traumatising”.

  5. The plaintiff gave evidence that in the first part of 2004 she continued to attend motor vehicle accidents, stabbings and the like. On 26 July 2004, she was on duty in a police vehicle when she and her partner got a call to attend a house fire at Doyalson. When they arrived at the premises, she was approached by a female who was frantic, and screamed at her that her child was in the house. The house was well alight and the plaintiff and her partner ran to the rear of the premises but were unable to break in. After the fire was extinguished, the body of a young child was found. During the fire, one of the fire officers was taken away, having collapsed inside the house when trying to get upstairs to rescue the child. He later passed away.

  6. The plaintiff was tasked with interviewing neighbours and recording details of the their accounts as to what occurred. She was told by some of the neighbours that they had heard the woman screaming out, that they had come to the house and could hear the child calling out to his mother from the top story. She described that following that she was feeling “traumatised”. She later learnt that the fire had been lit by the woman downstairs and the child had called out to her. She went upstairs to help him, and while she was upstairs the fire had spread. She went down to see where smoke was coming from, and the bottom storey of the premises was alight and she was unable to get back up the stairs to the child. The plaintiff gave evidence that by using the word “traumatised”, she felt “physically sick”, she was crying and stressed.

  1. When she arrived home that evening, she threw away every candle, oil burner and matches in her house.

  2. Within a day or so of that incident, the plaintiff was given a direction by Acting Superintendent Max Mitchell, that she should go and see the EAP, an acronym for the Police Employees Assistance Program. She had been given a brochure about that program at the Goulburn Academy and also attended a short talk on the EAP there.

  3. The plaintiff gave evidence that she attended an EAP appointment with a female person in Newcastle where she was asked questions about the event, but not about how she was feeling. She left after half an hour and thought it was a complete waste of time. She did not feel any better for it and in fact, felt worse.

  4. The plaintiff gave evidence that she refused to go back to EAP thereafter. She continued her normal duties which involved attending scenes which caused her some distress. In November 2004, she attended a cot death. This was the first occasion she had attended a cot death. She knew the mother of the child to be a drug addict who she had previously arrested. When police arrived, the mother was holding the baby, which was wrapped in a blanket, and she resisted giving the baby up to police. When the mother eventually handed the baby over, the plaintiff was asked by the crime scene officer to undress the baby while he took photographs of her, following which, she redressed the baby. When asked what affect that had on her, she answered, “It was upsetting, stressful, and I had numerous flashbacks from it”.

  5. When asked what the subject of her flashbacks were, she answered:

“A: Just images of the body – of the trauma that I had seen, the deceased, the first job I went to, the male, would have nightmares and just see his face. Flashbacks in that I’d seen him lying there, but with one of my children – being one of my children, that’s the best I can describe it.”

  1. After the fire at Doyalson on 26 July 2004, the plaintiff gave evidence that she would go to sleep and wake up believing that her house was on fire. She would run to her children’s rooms and check on their welfare.

  2. This started to affect her sleep and the plaintiff gave evidence that she was too scared to go to sleep, so she would drink alcohol in order to get to sleep. Her level of drinking increased over time. She also gave evidence of having nightmares during her sleep, which were different from flashbacks, which could occur at any time.

  3. The plaintiff had started seeing Dr Abery, a general practitioner, in 2004 and in May 2005 she was then prescribed with an anti-depressant, Talohexal, and Zoloft. Those medications helped her. She became less teary, felt calmer and was not as anxious and agitated. She did not take Zoloft for long.

  4. In December 2005, the plaintiff attended a scene at Blue Bay where a young man had drowned in a resort swimming pool. She and her partner provided CPR until an ambulance arrived. There was a group of young males present who became aggressive when they learnt that the young man had died, and she feared that she was going to be assaulted.

  5. On 11 March 2006, the plaintiff was directed to a car park at Norah Head where a vehicle was alight with a male person inside. There was a large group of teenagers present in the car park area who witnessed the man setting himself on fire inside the vehicle. She had to assist in removing the deceased from the vehicle, during which, his clothes mostly melted away from him, or were stuck to the seat of the vehicle. She could smell burning flesh which stayed with her for a while.

  6. Prior to that, in February 2006, the plaintiff had been spat on in the course of arresting a known drug addict. She became concerned about the possibility of contracting HIV and had regular blood tests for some time.

  7. After the incident at the Norah Head car park, the plaintiff gave evidence that she suffered heart palpitations and had difficulty breathing at times. She became selective in the jobs that she undertook, turning off the police radio in the vehicle at times. Further, her drinking escalated. Before August 2006, she spoke to Sergeant Fred Trench and asked for a transfer to another area. Her purpose was to get “off the truck”, which meant off general duties. He said:

“A: You just put in your application as per protocol and see how you go.”

  1. The plaintiff did that by way of what was known as a “Godfrey Report”.

  2. In 2006 the plaintiff had formed a relationship and she planned to marry on 9 September 2006. In late July or early August 2006 she applied for leave for two weeks following the marriage, from 11 September 2006.

  3. On 17 August 2006, the plaintiff suffered a panic attack whilst driving to work. She started having difficulty breathing and became very emotional. She had slept badly the night before and stopped her journey for about 15 minutes. During her shift she felt the same feelings of heart palpitations and panic, and began crying. She was approached by Sergeant Trench who asked her if she was okay. She told him that she was not, that she had been feeling nauseous and uptight about coming to work, and had suffered a panic attack on the way to work.

  4. Sergeant Trench told her that she needed to go home and that she needed to see her doctor. She saw Dr Abery on 18 August 2006, and was given a certificate to be off work. A few days later she completed an Incident Notification Form, which became Ex A2.

  5. The plaintiff was off work for a three week period prior to her wedding, however, there was no improvement in her condition. Her nightmares and flashbacks remained the same during the time she was off work and she continued to suffer them following her wedding.

  6. On 26 September 2006, she returned to work following her leave, and found that her appointments had been double padlocked. The plaintiff was told by a senior officer that she was to have a “psych shoot” before she obtained her appointments back.

  7. The plaintiff made a claim for workers compensation for the time that she had been off work dated 26 September 2006. From 27 September 2006, she performed duties inside the station.

  8. On 9 October 2006 the plaintiff attended appointments with a police psychologist and a Police Medical Officer (“PMO”). Whilst on restricted duties she had seen a counsellor named Cheryl Roberts of the Hills Street Group, which was an injury management company. She had been given a book by Cheryl Roberts on relaxing, and attended two or three sessions with her. She felt better following that treatment, and on 20 October 2006 returned to full duties. At that time she was spoken to by a Chief Inspector, who may have been Chief Inspector Long, who told her that she could reduce her hours, however, she would not be guaranteed to stay with her existing team. That affected her however, because she had built up a rapport and friendship with the people who she had worked with. The reason for asking for a reduction in hours was because she did not want to do nightshift, which was when most of the traumatic incidents occurred.

  9. Following her return to work, she was spoken to by Sergeant Chevonne Greene who told her she was a peer support officer. She had been put in charge to mentor the plaintiff in relation to the time she had off work.

  10. The plaintiff then described an incident when she walked into the meal room at The Entrance Police Station, and Sergeant Greene was discussing with another senior constable personal details relating to another officer. The plaintiff believed that was not appropriate, given that she was a peer support officer. On the next occasion the plaintiff spoke to her, she had no discussion with Sergeant Greene about how she was feeling.

  11. The plaintiff continued working in general duties from 20 October 2006 until she fell pregnant in May 2007.

  12. In February 2007, the plaintiff attended a scene where an elderly man had been run over by a steamroller. She was not involved in the management of that scene, but took details from two men who were there, one of whom she believed to be his son.

  13. In late March 2007, the plaintiff was directed to deliver a death message to some parents, and remembered them becoming upset.

  14. The plaintiff was assigned light station duties when she was pregnant from May or June 2007, doing station duties. She was not exposed to any traumatic events during that period of time. Her baby was born in January 2008.

  15. After the plaintiff made a claim for workers compensation for the time she had off in 2007, she was contacted by a Mr Briggs, who told her he represented the insurer. He interviewed her at The Entrance Police Station in about November 2006. She answered his questions about the time she had off. She subsequently received a letter from Treasury Managed Fund (Ex A15).

  16. The plaintiff had received a document in her pigeon-hole at work, which was referred to as a ‘Pre-liability Assessment Report”. The document had the names of two police officers blacked out. The author of the document had stated that those officers were highly suspicious of her workers compensation claim. The plaintiff was upset by that, and held the document up to the light to discover that the names of those officers were Sorenson and Shields. The first was a Chief Inspector, who she had trusted and respected. The other officer was Sergeant Shields, who was one of her team leaders. He was also a person she trusted, looked up to and had sought advice from on occasions.

  17. The plaintiff then sought legal advice about her workers compensation claim. She was examined by Dr Gertler in August 2007. At that time she was still having nightmares and flashbacks. She commenced 12 months maternity leave in December 2007.

  18. The plaintiff gave evidence that she felt betrayed by Inspector Sorenson and Sergeant Shields. She had burst into tears when she read the document. At that time she was in the presence of a colleague, Senior Constable Trish De Riviere.

  19. Whilst she was on maternity leave, the plaintiff had decided to return to full time duties and then put in an application for part-time work. She was hoping to be assigned to the Target Action Team, or the District Anti-Theft Team. They were groups that did proactive work, but were not required to respond to attend jobs over the police radio.

  20. Her application was signed off by her team leader. She had a number of applications which were signed by different officers. None of her applications were successful. She then spoke to Inspector Evalton and Sergeant Trench to make representations to Inspector Hill, who queried why she wanted to leave the team.

  21. Following the plaintiff’s return to work in 2009, she attended a motor vehicle accident in the early hours of the morning where a vehicle was on its side with two persons inside it. She believed both persons to be deceased, but in the course of moving the vehicle, she saw one of the persons move. Emergency personnel and ambulance arrived and ambulance personnel pronounced the driver to be deceased. The plaintiff was assisting ambulance personnel in treating the passenger by holding a drip. At that time, she saw the driver, who was under a blanket, move, and he was not deceased, but died later in hospital. Following that incident, the plaintiff gave evidence that her nightmares and flashbacks began to increase and became as severe as they had been in 2006. At the same time, namely, in mid-2009, her marriage was under some stress, she had become irritable and agitated again. In addition, her husband, who had been in the police force and had a significant problem in relation to leaving the police force, told her he had a gambling problem. He had not paid taxes in respect of a fencing business which had become insolvent. She consented to become a director of the company. She and her husband received some counselling in respect of his gambling, but she did not raise with the counsellor her mental health problems.

  22. The plaintiff gave evidence that she made numerous appointments to a counselling service called AusPsych, but did not attend. Rather, she spoke to a friend in the police force, Trish De Riviere. She recalled receiving an email from a superior officer, Mr Long, in May 2009, and gave evidence that if he had directed her to go to an EAP counsellor, she would have gone if directed. That email referred to her being involved in five critical incidents whilst working at TLLAC. She understood “critical incidents” to mean traumatic incidents.

  23. The plaintiff gave evidence that in June 2009 she attended premises at San Remo in response to a request for police to check on the welfare of a resident. She and her partner discovered a man hanging in the premises. It was apparent he had been deceased for some time and they called in detectives.

  24. The plaintiff also gave evidence, out of chronological order, that in April 2009 she had attended a fatal motor accident at Wyong Road in which a 17 year old girl was killed. The highway patrol were already at the scene when she arrived, however, the body was still in the vehicle. She was asked by the highway patrol vehicle to keep people away from the scene, but was then asked by Inspector Winmill to drive to the parents’ premises to deliver the death message. That task was particularly difficult for her because she had been at the actual scene of the accident. She gave evidence that she asked Inspector Winmill if there was another car crew that could go and deliver the message “because it’s traumatic enough going to the actual scene, let alone then driving to the relatives’ house and then telling them that one of their loved ones has passed away”. She was asked:

“Q: You said that to Mr Winmill and what did he say?

A: Too bad.”

Inspector Winmill denied this conversation, see [208] below. The plaintiff was then asked:

“Q: You went and did it?

A: Yeah.

Q: What was it that was particularly difficult about it?

A: The, the deceased’s brother come to the front door initially and wouldn’t allow us to come in until we told him why we were there and it’s protocol you don’t tell anyone that someone’s passed away unless they let you into the premises in the, in – that’s what we were taught at the academy. So it took a little bit of persuasion to get him to open the door which was distressing because he knew that something was wrong.”

  1. The deceased’s mother was at home and the plaintiff informed her that her daughter had passed away and she broke down. The plaintiff then had to wait at the premises until the deceased’s father returned from work. When he eventually arrived home, he collapsed when he heard the news and the plaintiff’s partner requested an ambulance. The ambulance was then cancelled as they sat the father on the lounge and he was screaming and yelling, which was very upsetting for the plaintiff and her partner.

  2. While at the scene, she received a phone call from Inspector Winmill who told her to return to the station because it was the end of her shift. She told him they were staying until the father returned, as requested by the mother, and he complained about overtime. When she returned to the station, she spoke to him, but gave evidence that he said “he wasn’t overly impressed”.

  3. The plaintiff gave evidence that on 3 July 2009 she attended a house fire on Hargreaves Street, in which an elderly man died. When she and her partner arrived at the scene, they attempted to kick the front door in to save the man. The fire brigade arrived and began extinguishing the fire, and when they entered, they found a body inside. She was outside the premises near the front door and could see the body which was lying near the door. She was asked:

“Q: What did you notice in particular about him?

A: Well he was naked and he had – there was a walking frame or similar close by and he had $50 notes stuck to his body.”

  1. The plaintiff gave evidence that in the second half of 2009 she was still having nightmares and flashbacks. There were certain things that triggered some of her distressing recollections. When asked to give examples, she gave the following evidence:

“A: Cooking barbeques, eating chicken or having chicken, I avoided that, driving around and if there was a dead animal on the side of the road, the smell would normally cause me to go into some sort of a very anxious state. Anything sort of to do with, I guess it was all sort of orientated around, you know, the fires, and things that I’d been into. I avoided cooking, I avoided anything to do with anything like that.”

  1. The plaintiff gave evidence that at that time her concentration levels also were not “that great”, and she would avoid doing work on her computer. She believed that she was not as efficient as she used to be, or diligent. She was taking sick leave in excess of her entitlements, and was spoken to in relation to that.

  2. In early 2010 she became aware that there was a position available in the Exhibits Office at Wyong, away from general duties. She successfully applied for that position, and in February 2010 commenced work there. She was hoping that it would improve her symptoms and she had also applied for part-time work which involved three 12 hour day shifts per week. That application was granted, and she worked Monday, Tuesday and Wednesday.

  3. Whilst working in the Exhibits Section, a position she job-shared, a number of things occurred that caused the plaintiff stress. On Monday mornings, exhibits were left for her to process. Not all were properly bagged, and some had to be sent off for analysis. On one occasion she came to work and there was a soiled nappy placed in a plastic bag that had come from a child suffocation case. There was also a pillow. Because there was no ventilation in the room, she described it as “horrendous”. She complained to her superior officer and detectives attended and took it away.

  4. On another occasion, following a cot death, there was a baby’s bottle in a plastic bag which had tipped over, leaving baby’s formula on her desk. Whilst picking it up, it went “all over her”, and smelt.

  5. On another occasion a vegetable, either a zucchini or cucumber, had been left in a paper bag in the exhibit fridge, following a sexual assault charge. Again, it had gone bad and spoilt the fridge. She complained to Inspector Winmill. After that complaint, a memorandum was forwarded to members of the LAC, and the plaintiff gave evidence that she “felt like I’d basically dobbed in colleagues”. Other items which were delivered to her at the Exhibits Office for cataloguing, which had a deleterious effect on her, were a nail gun, where a man had shot himself in the head numerous times in an attempt to commit suicide; tubing from a car gassing, another attempted suicide; and blood‑stained clothing, together with weapons with blood on them. The plaintiff gave evidence that these items had some effect on her, but not the same sort of effect as the nappy or cucumber incidents referred to above.

  6. In March 2010 the plaintiff gave evidence that she moved to a 100 acre property at Ellalong because she wanted to get away from people. She was not coping with living in a suburb as she felt it was too close to people.

  7. On 16 November 2010 the plaintiff was involved in a motor vehicle accident. As she was going around a bend, a vehicle came towards her on the incorrect side of the road, and she had to take evasive action. She veered off the road and went down an embankment and hit a telegraph pole. She was taken to hospital but not admitted, and suffered symptoms in her neck, shoulders, back and shoulder, as well as suffering migraines. She gave evidence that she was off work for three to four months and continued to suffer from those injuries.

  8. A couple of weeks following that motor vehicle accident, the plaintiff gave evidence that she tried to take her own life. She had been drinking, and drove the quad bike to a tree at the rear of the neighbour’s property where she was staying, and placed a rope around a branch. She put the rope around her neck and stood up on the back of the quad bike. She stepped off the quad bike, however, the knot gave way. Initially she did not tell anyone about this incident, but eventually told Dr Abery, some months later.

  1. In 2011 the plaintiff applied to transfer to the Central Hunter LAC at Cessnock, which was declined. She then returned to work at Wyong Exhibits Office two days per week. There was no improvement in her psychological condition, and by late May she described it as “fairly bad”. The nightmares and flashbacks she suffered had continued and were more regular than they had been six months before. On either 30 May or 1 June 2011, the plaintiff again attempted to hang herself. Again she was unsuccessful and she saw Dr Abery who provided her a certificate, certifying that she was unfit for work. Dr Abery also arranged for an urgent referral to a psychologist, Kevin Wallace in Newcastle, who she saw on a few occasions.

  2. Dr Abery also prescribed anti-depressants and on 3 August 2011 referred the plaintiff to a consultant psychologist, Roger Peters, who is experienced in police matters. He gave her a book on how to deal with symptoms, which she read, and it assisted her. She saw Mr Peters on a few occasions and he then referred her to a psychiatrist, Dr Alexander Murray, who she consulted on 2 September 2011.

  3. The plaintiff gave evidence that she was embarrassed about being classified as “hurt on duty” because she was not coping as a police officer. She had continued under the care of Dr Murray since December 2011. He prescribed for her Prozac and Edronax which assisted her. Over the first three or four months of his treatment, she noticed some improvement. She noticed that she was not agitated or angry, and did not have panic attacks. Further, the flashbacks and nightmares that she suffered were not as severe and they became less regular.

  4. Dr Murray changed her medication at that time, and in late 2012 he prescribed Dexamphetamine. She noticed that her concentration improved and it gave her the energy and motivation that she had lacked. She was also prescribed an anti-depressant, Voldovan. By early 2013, in the morning, she would feel good as a result of her medication. By the afternoon she would start feeling down and her mood would drop. She would then commence to drink heavily. Throughout 2011 and 2012 she had widened her circle of friends.

  5. The plaintiff was examined by Dr Akkerman on behalf of the police service on 28 November 2011. In February 2012 she became aware that her commander at TLLAC wanted her to be considered for medical discharge. When asked how that made her feel, she said:

“A: It made me feel relieved but very upset in the same time.”

When asked to explain that answer, she said:

“A: It made me feel relieved because I knew I couldn’t go back to being a police officer, but sad because of the effort I’d gone to get into the police force and how much I enjoyed it.”

  1. The plaintiff gave evidence that in March 2012 she separated from her second husband. She was medically discharged from the police service on 7 June 2012. She then consulted her then solicitor, who referred her to Dr Mason, consultant psychiatrist, whom she saw on 22 February 2013. Her solicitor discussed with her making a claim for a lump sum benefit for whole person impairment, which she referred to as “a section 66 claim”. She instructed them to make that claim and was then sent to be examined by Dr Christopher Bench in September 2013, on behalf of the insurance company.

  2. In September 2013, she consulted her present solicitor, Mr Grey. The initial consultation was in regard to a claim on a superannuation policy she had with Metlife. She then asked Mr Grey to take over her s 66 claim from her previous solicitor, and that occurred in March 2014. In the same year, she got back together with her second husband, but separated after seven months. He moved into a caravan on the property, and the plaintiff had to report to liquidators of his company. In March 2014, he had threatened to kill her, and was arrested.

  3. The plaintiff gave evidence that she would see Dr Murray for treatment whenever her symptoms started to become more severe. When asked what she meant by the word “severe”, she said:

“A: I thought about suicide again.”

Otherwise her mood was good. Her dreams had become less intrusive, although she still had what she described as “burning nightmares” and other nightmares involving her children.

  1. The plaintiff’s s 66 claim was resolved in May 2014, following which, she received advice from her solicitor about a claim in negligence in June 2014. She gave evidence that her former solicitor had never discussed with her a claim in negligence against the police service, and Mr Grey’s advice in relation to that was the first that she had heard of the idea of suing for negligence.

  2. In October 2014 she was referred by Dr Murray to a psychologist named Melinda Richards-Horder, however, she did not attend because she did not want to go through every job she had attended and relive it all again. In June 2015 she was examined by Dr Diamond, psychiatrist, at her solicitor’s request. She was also examined by Dr Vickery at the request of the insurance company.

  3. The plaintiff gave evidence that having taken her meds, she would normally work outside on the property during the morning. In the afternoon, if she did not go out, she would normally sit and have a few drinks. She felt she had no motivation and no drive.

  4. Dr Murray had tried to alter her medication so that she could take some at lunch time, however, it had affected her blood pressure and sleep. She had been referred to a cardiologist as a result of high blood pressure from two of the medications. She gave evidence that she still got anxious and uptight, but could not increase her present medication

  5. The plaintiff gave evidence that she had sworn an affidavit concerning her application to extend time for bringing the proceedings. There was no objection to that affidavit.

  6. The plaintiff gave further evidence that, since 2012, her mother had been living with her. She had rendered some assistance in terms of daily activities, including collecting her mail and paying bills for her. She had also been sent to two rehabilitation providers, neither of whom had arranged any sort of work trial for her.

Cross-examination of the plaintiff

  1. The plaintiff was cross-examined at length. She had no recollection of undergoing a course on stress management and employee support in the workplace on 8 October 2003, when she was at the TLLAC. In relation to the incidents outlined in [11] of the plaintiff’s Further Amended Statement of Claim, about which she had given evidence, the plaintiff agreed that each caused her terrible distress and the majority were deeply disturbing, however, between 2002 and 2004, she did not seek any medical attention at all. She was, however, having flashbacks and nightmares during that period relating to the suicides she attended, and in particular, a suicide at Toukley.

  2. The plaintiff said her sleep was disturbed, which meant that she would wake up having a dream or nightmare about one of the jobs she had attended. She first attended the EAP after the incident at Doyalson on 26 July 2004.

  3. The plaintiff gave evidence that she commenced seeing Dr Abery in May 2005. Dr Abery was the first doctor to prescribe her an anti-depressant. She did not tell anyone at the police as at May 2005 that for the very first time in her life she had been prescribed medication for her mental health. The plaintiff gave evidence that she did not see a need to inform the police of that fact.

  4. The plaintiff agreed that in Dr Abery’s clinical notes at that time there was no note of her suffering from flashbacks or nightmares, however, in relation to a notation “not sleeping at all’, the plaintiff said that she was sleeping, but she was having difficulty sleeping. She did not tell Dr Abery that she was having nightmares and flashbacks as she thought it was all part of being a police officer.

  5. The plaintiff had told Dr Abery that she was having mini anxiety attacks, felt as if she had knots in her stomach and was crying all the time. She put that down to the breakup she had experienced with a police officer she was seeing at the time. She had never had those symptoms before in her life and was concerned, but not extremely worried about them. She described the mini anxiety attacks as her experiencing heart palpitations and feeling anxious.

  6. The plaintiff understood that the anti-depressant medication prescribed for her in May 2005, namely, Zoloft and Talohexal, was to help her with her mood. She did not speak to anyone at the police about her mental state between 2002 an 2005, except for one occasion when she went to EAP and saw a counsellor. When asked why not, she answered:

“A: Because it’s not in the culture to discuss your mental health with other police officers. You get laughed at and spoken about.”

She was asked as follows:

“Q: Was that the position all the way through until you put in your incident notification form in August of 2006?

A: It was always frowned upon within the police to speak up about if you were struggling so, yes.

Q: You're saying it was frowned upon in the police, what do you mean by that?

A: I would often hear other officers making fun of people that have gone off on stress leave, or - they were basically just made fun of by saying they were what's called booey or mad or a head case.”

  1. The plaintiff agreed that she could have seen an EAP counsellor in 2005, but did not. She agreed that in August 2005 she had expressed interest in street level undercover work as a police woman. She underwent psychometric testing to undertake that type of work, but did not disclose taking anti-depressant medication on her assessment form. When asked why, she said:

“A: I may not have been on it at that time.”

  1. The plaintiff gave evidence that she met her second husband, Mr Sills, in November 2005. She agreed that she was feeling much better in early 2006. Whilst doing undercover work, the first thing that happened when she returned to the station was she was given a questionnaire to fill out.

  2. The plaintiff gave evidence that she was aware of the EAP program between 2003 to 2006 because she had been handed a brochure. She was not aware of peer support officers during that period, nor did she ever feel like she could access the police chaplains to talk about anything. She was not exactly aware of their role. The plaintiff regarded a critical incident to mean, a “highly stressful, traumatic incident” like a fire or a motor vehicle accident involving a fatality.

  3. The plaintiff disagreed with the proposition that from 2003 until the time she left the police force in 2011, that she was well aware there was an ongoing list of peer support officers who she could talk to at any time, if she had an issue.

  4. The plaintiff gave evidence that she applied for annual leave before her wedding to Mr Sills on 9 September 2006. That leave was to begin on 8 September and she returned on 24 or 25 September.

  5. The plaintiff was asked about the incident when she had a panic attack on the way to work, which she reported to Sergeant Trench. She said she was suffering physical symptoms involving panicking, anxiety and having trouble breathing. She agreed that in August 2006 she had a hen’s night and she agreed that it was a great night. She did not agree that there was a great deal of preparation that she had to undertake before her wedding.

  6. The plaintiff did agree that when she spoke to Sergeant Trench, he was very caring and understanding of her situation. She agreed that he did not say anything to make her feel in any way bad or weak because she had come forward.

  7. The plaintiff agreed that on 18 August 2006 Dr Abery referred her to a private psychologist, Cheryl Roberts. Following her incident notification form dated 17 August 2006, her employer referred her to a case officer. As at August 2006, the plaintiff had not told any superior officer about her problems because she felt it would be shameful to do so or weak. Except for one occasion, she had never had a discussion with her duty officer about the effect of attending critical incidents had on her.

  8. The plaintiff could only remember having a discussion with the team leader following a critical incident on 26 July 2004. On that occasion she was spoken to by Inspector Tim Winmill, who asked each of the police attending “Are we okay?”. Everyone present said “Yes” and they left. The plaintiff disagreed that a debriefing took place on numerous occasions, and she also disagreed with the proposition that the debriefing was not as short as she had put it. She described the debriefing process as follows:

“A: There would be small talk about the actual event and, as sick as it sounds, some police officer would make a joke and lighten it, and then we would leave.”

Q: After each and every one of these critical incidents you’ve identified, from 2002 through to 7 July 2006, it was the case, wasn’t it, that whether it was a duty officer, a team leader, or someone more superior to you, somebody would come and have a discussion with you to see if you are feeling alright? Do you agree or not?

A: No.

Q: On each and every one of those occasions from 2002 through to 2006, it was the case, wasn’t it, that someone superior to you, be it a duty officer or a team leader, would come and have a discussion with you about the Employees Assistance Program, and that it was there for your assistance?

A: No.

Q: Lists of peer support officers would be supplied to you?

A: No.

Q: If there was any issue regarding you having any trauma, you were required to fill out an incident notification form?

A: No.

  1. The plaintiff agreed that she was placed on restricted duties when she returned from her honeymoon in September 2006. Those restricted duties were counter enquiries. She also did administration work at The Entrance which involved paperwork and filing. She agreed that she was not happy being on restricted duties and wanted to get back to general duties.

  2. The plaintiff was referred to the PMO, Dr Kirychenko, on 9 October 2006. The plaintiff had no recollection of seeing Dr Kirychenko. It was put to her that she had told Dr Kirychenko that she was now well and had no more dreams. She gave evidence that she wanted to get back to work at that stage so that she “may have just played it down”. She was asked:

“Q: Why would play such a serious issue as your psychological health down?

A: Because I wanted to get my appointments back.

Q: I want to suggest to you that when you saw Dr Kirychenko you knew you had to tell him the truth, and when it came to whether or not you were still having bad dreams, you told him the truth?

A: No.

Q: So was this the case, you went to Dr Kirychenko and you were still having nightmares and flashbacks?

A: Possibly.

Q: Graphic ones?

A: Possibly.

Q: Do you accept that if the police receive this report when it says that you were not having any more dreams, there was no other way except for your superiors to know that you hadn’t told the truth to Dr Kirychenko, correct?

A: No.”

  1. The plaintiff gave evidence that she did not really remember seeing a police psychologist, Ms Cimino. She did recall that she was referred to a mental health practitioner before being put back on general duties and that her functioning had improved since going on leave. She agreed that Ms Cimino had recorded that she had told her that her dreams had ceased and her mood had improved. Further, she had recorded “no disturbance in sleep”. The plaintiff’s explanation for those entries was that she wanted to get her appointments back and get away from filing, however, she did not want to return to general duties.

  2. The plaintiff agreed that if she had told Ms Cimino that her sleep was no longer disturbed, that would have been false. She said that her concentration and sleep were still disturbed when she saw Ms Cimino on 9 October 2006, however, she wanted her appointments back, including her service revolver. At that time her drinking was under control and she had no thoughts of self‑harm or suicidal tendencies. She did not, however, believe that she could cope with general duties work at that time. The plaintiff gave evidence that there was no discussion with Dr Kirychenko, nor Ms Cimino, about a way forward, in terms of how she would approach her work and what signs to watch out for if her condition would deteriorate. She did not receive a copy of Ms Cimino’s report, nor did anyone explain to her that report or that of Dr Kirychenko.

  3. The plaintiff gave evidence that after the Doyalson fire incident, Superintendent Mitchell had rung her advising her to go to the EAP, which she did. She did not recall any conversation with him after she had been, and did not recall him instructing her to go back. Notwithstanding that, Dr Wayne Mason, who she saw in February 2013, had recorded, “She said her superintendent telephoned her and told her she had to go back, but again she refused” (meaning back to EAP). She denied that that conversation took place, and denied that any superior officer had told her she must go back to the EAP. She agreed that she would not have gone back to the EAP because she was dissatisfied with that service.

  4. In respect to her appointment with Dr Kirychenko, the plaintiff agreed that she had told him certain things because she wanted her appointments back. She was asked:

“Q: Is it the case that as at the time you saw Dr Kirychenko, if it had been offered to you to be medically retired out of the police force, you would have said no?

A: Yes.”

It was further put to her:

“Q: If Dr Kirychenko had said to you it’s in your best interest for you to regularly see a psychiatrist at the expense of the police and for reports to be sent back to the police to monitor your psychiatric well-being, I take it you also would have said no to that?

A: Not necessarily.

Q: Just so its abundantly clear, that would have been the case too, I take it, as at the time you saw Dr Kirychenko in terms of having to see a police psychologist or a psychologist on a regular basis, with the reports going back to the command?

A: If the command had have organised it or directed me to do it, I probably would have done it, but not on my own.

Q: If they said to you it was a matter entirely up to you, you would have said it was unnecessary?

A: I wouldn’t have probably gone.”

  1. The plaintiff denied that Mr Briggs had introduced himself to her as a psychologist. He said he was from the insurance company. She had disagreed with what he ultimately concluded and made a claim for workers compensation for a closed period.

  2. In respect of the meal room incident where she overheard Sergeant Greene the plaintiff could not remember the exact words used, however, she had overheard Sergeant Greene talking to Senior Constable McGurren. She believed that Sergeant Greene was discussing personal particulars about an officer that was inappropriate, and her belief was that it was a breach of confidentiality. She did not report this incident to any superior officer. When asked whether overhearing that conversation made her very upset, she said:

“A: I just lost all trust in speaking to anyone.”

She was asked:

“Q: Why didn’t you complain to someone on a private and confidential basis?

A: Because you would outcast in the police if you complained about another police officer in such a manner.”

  1. She disagreed that she could have made a complaint on a private and confidential basis with her name not to be disclosed. Nor did she confront Sergeant Greene with what she had heard as she was a superior officer and it would have been disrespectful. Nor did she attempt to find another peer support officer to assist her with her emotional problems.

  2. The plaintiff gave evidence that she never held a meeting with a duty officer at the end of a shift, nor was she ever encouraged to come forward at the end of a shift if there was a critical incident which she attended and was distressed about it.

  3. It was put to the plaintiff that following an incident in February 2007 when a man had been caught under a piece of industrial machinery, such as a steamroller, she was approached by a superior officer, Mr Winmill, and directed to go to a debriefing and to the EAP. She disagreed with both propositions. She was shown a critical incident form dated 2 February 2007, however, she did not remember attending a debriefing on that day. She denied that whenever there was a critical incident involving serious matters such as death, fires involving death, and the kinds of matters that she referred to in her FASOC, that she would be sent to a debriefing session. The TLLAC Critical Welfare Incident Debrief became Ex 2.

  1. The plaintiff was aware at all times of the support services available, including the EAP, the peer support and Police Chaplain, but at no time sought out those services. Finally, when identified as an officer at risk in 2009, and having received Mr Long’s email, the plaintiff responded that she was seeking counselling outside work. Once she transferred to the Exhibits Office in 2010, notwithstanding that she suffered an exacerbation of her symptoms on occasions, she was no longer required to attend traumatic incidents.

  2. Having regard to that history, I find that it was a reasonable response throughout that period for the defendant to do nothing in relation to the alleged breach identified by the plaintiff, i.e. the failure to implement the recommendations made by the PMO and the police psychologist in 2006. I therefore find that the plaintiff has failed to establish a breach of the duty of care owed to her. The defendant had no way of knowing in 2009 and 2010 that the plaintiff continued to suffer a psychological reaction to her exposure to traumatic incidents. The report of Dr Gertler in 2007 advised that her symptoms were diminishing, and when identified as being at risk in May 2009, the plaintiff responded by advising that she was receiving counselling outside of work. The defendant’s system for identifying police officers at risk at that time was a reasonable response, and in the circumstances here, it could have done nothing more by way of response to that risk. Any “meeting” with the plaintiff would have provoked no further disclosure of her problems at work.

  3. Further, the evidence established that the plaintiff was suffering personal problems outside of her workplace. Her marriage had failed and her husband's business failure led to financial pressures being placed on her. For the supervising officers employed by the TLLAC to intervene in respect of those matters would give rise to the difficulties highlighted by Keane JA in Hegarty as set out above. The plaintiff has therefore failed to establish that the defendant has breached its duty of care to her, and there will be a verdict for the defendant. Having regard to that conclusion, the need to deal with the defendant’s pleading of contributory negligence does not arise.

Causation

  1. If I am wrong in respect of my analysis of the question of breach, applying the undemanding test as to causation in March v Stramare [1991] HCA 12; (1991) 171 CLR 506, it is clear that the exposure to traumatic incidents in the plaintiff's work as a general duties officer was causative of her PTSD and that was a contributing factor to the ultimate diagnosis of chronic PTSD and major depression suffered by her. I accept Dr Diamond’s opinion to that effect, for the reasons set out above. Further, the defendant did not shift the evidentiary burden upon it to prove that intervening factors only caused that condition in accordance with Watts v Rake, supra.

Damages

  1. If I am wrong in finding that the defendant was not negligent, I proceed to assess damages that I would have otherwise awarded to the plaintiff. The defendant conceded there was no question the plaintiff could not go back to the Police Force, and conceded she was entitled to a past claim of economic loss up until the time of trial, but thereafter, only conceded an award of damages for her loss of earning capacity as a “very modest buffer”.

  2. On the basis of the medical evidence tendered on behalf of the plaintiff, which I have preferred, the plaintiff has suffered a very serious psychological injury as a result of her exposure to traumatic events during her employment by the defendant. I accept the weight of medical opinion that she is incapable of returning to any type of paid employment and therefore I accept the plaintiff's claim for past wage loss which I have rounded out to $450,000. I also award her loss of superannuation on that wage loss which I have rounded out to $50,000. The plaintiff is also entitled to the payments deducted from her workers compensation payments pursuant to the principal in Fox v Wood [1981] HCA41; (1981) 148 CLR 438 which has been claimed in the sum of $30,000. I therefore would have awarded the plaintiff a total of $530,000 for past economic loss.

  3. I find the assumptions upon which the plaintiff claims future loss of earning capacity, as set out in the table in [350] above, to be reasonable. I find that it would be reasonable to allow three years total loss of earnings to permit some degree of recovery and retraining, and thereafter, I find that she has a residual earning capacity of approximately $300 net per week. I also accept that the plaintiff would likely have retired from the Police Service at age 60. Her future loss of earning capacity therefore would have been calculated as follows:

Total loss of $1457 net per week for three years (less 15% for vicissitudes), rounded to $180,000.

Loss of $1157 net per week for 17 years, deferred for three years, less 15%, rounded to $600,000

Loss of future superannuation, rounded to $100,000.

  1. I also find that it would have been reasonable to award the plaintiff a buffer for the loss of prospects of promotion during her 20 year career in the Police Force. A fair assessment of that loss, including superannuation, I find is $50,000.

  2. Therefore the plaintiff’s damages for future loss of earning capacity would have amounted to $930,000.

  3. The plaintiff's total damages for economic loss would have therefore amount to $1,405,000.

Orders

  1. I make the following orders:

  1. There will be a verdict for the defendant.

  2. The plaintiff to pay the defendant's costs.

  3. The exhibits are to be returned.

  4. If either party seeks a special costs order, application should be made by Notice of Motion, together with any affidavit evidence in support, returnable before me.

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Decision last updated: 11 May 2018

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Cases Citing This Decision

2

Sills v State of New South Wales [2019] NSWCA 4
Paul v State of New South Wales [2023] NSWDC 277
Cases Cited

14

Statutory Material Cited

5

March v E & MH Stramare Pty Ltd [1991] HCA 12
Mount Isa Mines Ltd v Pusey [1970] HCA 60
Graham v Baker [1961] HCA 48