Michael Burke v MetLife Insurance Limited

[2019] NSWSC 177

Supreme Court

New South Wales

Medium Neutral Citation:

Michael Burke v MetLife Insurance Limited [2019] NSWSC 177

Hearing dates:

4–12 October 2018

Date of orders:

01 March 2019

Decision date:

01 March 2019

Jurisdiction:

Equity

Before:

Rees J

Decision:

The Plaintiff’s claim is dismissed.
Plaintiff to pay the Second Defendant’s costs.

Catchwords:

INSURANCE — Group life insurance — Claim for “total and permanent disablement” — “Two-stage” inquiry — Privity of contract — Whether beneficiary entitled to claim damages for breach of duty of good faith and fair dealing — “Stage 1” — Satisfaction of insurer — Whether insurer’s determination “reasonable and fair”— Inconsistency between plaintiff’s history and contemporaneous material — “Stage 2” — Whether plaintiff TPD within policy definition — Determination made.

 

CIVIL PROCEDURE — Separate determination of questions — Where appropriate — Insurance — Claim for “total and permanent disablement” — “Two-stage” inquiry.

EVIDENCE — Hearsay — Business records — COPS reports, Evidence Act 1995, s 69(3)(b), applied.

Legislation Cited:

Crimes Act 1900 (NSW), s 195(1)(a)
Evidence Act 1995 (NSW), ss 60, 69(3)(b)
Insurance Contracts Act 1984 (Cth), s 11(1)
Police Act 1990 (NSW), ss 173(5), 181D
Police Regulation 2000 (NSW), cl 9(1)
Workers Compensation Act 1987 (NSW), ss 11A, 66, 67

Cases Cited:

Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122
Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2015) 89 NSWLR 412; [2015] NSWCA 104
Bradley v Voltex Group Holdings Pty Limited [2016] FCA 1230
CGU Insurance Limited v AMP Financial Planning Pty Limited (2007) 235 CLR 1; [2007] HCA 36
Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113
Folmer v VicSuper Pty Ltd & Anor [2018] NSWSC 1503
Hannover Life Re of Australasia Ltd v Dargan (2013) 83 NSWLR 246; [2013] NSWCA 57
Hannover Life Re of Australasia v Jones [2017] NSWCA 233
Hannover Life Re of Australasia v Sayseng (2005) 13 ANZ Ins Cas 90-123; [2005] NSWCA 214
Heitman v Guardian Assurance Co Ltd & Anor (1992) 7 ANZ Ins Cs 77,483
Hellessey v MetLife Insurance Ltd [2017] NSWSC 1284
Johnson v Perez (1988) 166 CLR 351
Mason v Demasi [2009] NSWCA 227
McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197; [2001] QCA 317
MetLife Insurance Ltd v Hellessey [2018] NSWCA 307
MX v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme & Anor [2018] NSWSC 923
Newling v FSS Trustee Corporation (No 2) [2018] NSWSC 1405
Paric v John Holland (Constructions) Pty Limited (1985) 62 ALR 85; [1985] HCA 58
Sargeant v FSS Trustee Corporation [2018] NSWSC 1997
Sayseng v Kellogg Superannuation Pty Ltd & Anor [2003] NSWSC 945
TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Willis v Commonwealth (1946) 73 CLR 105
Ziogos v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme [2015] NSWSC 1385

Texts Cited:

Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 5th ed., 2013) (DSM-5)
Expert Guidelines: Diagnosis and Treatment of Post-Traumatic Stress Disorder in Emergency Service Workers (Harvey et al., Black Dog Institute, 2015)
MMPI 2 RF Minnesota Multiphasic Personality Inventory-2 Restructured Form - Manual for Administration, Scoring and Interpretation, (Ben-Porath et al., University of Minnesota Press, 2011)

Category:

Principal judgment

Parties:

Michael Burke (Plaintiff)

  FSS Trustee Corporation (ABN 11 118 202 672) (First Defendant)
MetLife Insurance Limited (Second Defendant)
State of New South Wales (Third Defendant)

Representation:

Counsel:

 

R. Cavanagh SC with T. Ower (Plaintiff)
G.M. Watson SC with S.C. Gray (Second Defendant)

 

Solicitors:

 

Cardillo Gray Partners (Plaintiff)
Turks Legal (Second Defendant)

  First Defendant entered an appearance but did not participate at the final hearing.
Third Defendant entered a submitting appearance.

File Number(s):

2014/339368

Publication restriction:

Nil

Judgment

1. HER HONOUR:   Michael Burke is a former police officer. He was medically discharged in 2010 and received a workers’ compensation payment on the basis of partial permanent disability. Mr Burke made a claim on two insurance policies for benefits on the basis that he is totally and permanently disabled (TPD) by reason of suffering chronic Post-Traumatic Stress Disorder (PTSD). The insurer, MetLife, did not accept the claims.

2. In 2013, Mr Burke commenced proceedings against MetLife, initially in the Industrial Court of New South Wales but transferred to this Court in 2015. The matter was listed for hearing in September 2017 before Pembroke J, who suggested that MetLife should formalise its position by formally rejecting Mr Burke’s claim. MetLife did so on 23 August 2017. As matters unfolded, Pembroke J vacated the hearing, re-listing it in September 2018 on which occasion his Honour recused himself and the matter was listed for hearing before me in October 2018.

3. Over seven days, I heard evidence from Mr Burke and two experts, Dr Ilana Hepner and Professor Richard Mattick. In addition, I received a substantial amount of documentary evidence spanning 30 years. The parties relied upon some 55 medical reports and certificates. The amount of material means that this judgment is longer that I would like, for which I apologise to the reader in advance. Mr Burke contended that the evidence was all one way and MetLife’s conduct amounted to bad faith warranting an award of damages for distress and anxiety and an order for indemnity costs. MetLife argued that Mr Burke was a liar and a malingerer. The case was hard fought. Thankfully, the parties were largely agreed on the legal principles, but disagreed strongly on the applications of those principles to the facts.

The Insurance Policies

4. As a police officer, Mr Burke’s employment was governed by the Crown Employees (Police Officers Death & Disability 2005) Award. Under the award, NSW Police was obliged to establish an insurance scheme with First State Superannuation to pay lump sum benefits in the event of death or disability of an officer, and Mr Burke made contributions to the scheme by deductions from his wages. In accordance with the award, MetLife issued two insurance policies to FSS Trustee Corporation, the trustee of the First State Superannuation Scheme. One of the MetLife policies was referred to as the “Basic Policy” and the other as the “Blue Ribbon Policy”. Mr Burke was a “Covered Person” under the Basic Policy and an “Insured Member” under the Blue Ribbon Policy.

5. The policies were Group Life Policies: unlike an insurance policy issued by an insurer directly to a police officer, the insurer issued the policy to the superannuation fund under which a large number of police officers who made superannuation contributions were life insureds: section 11(1) of the Insurance Contracts Act 1984 (Cth). As such:

1. the contracts of insurance were between MetLife and First State Superannuation Scheme; and

2. any benefits payable under the contracts of insurance were paid by MetLife to First State Superannuation Scheme and ultimately to police officers.

This becomes important in Mr Burke’s claims for relief, some of which would ordinarily have required the contract of insurance to be directly between him and the insurer.

6. The parties agreed that the terms of the policies were relevantly the same. Both policies paid a “Total and Permanent Disablement Benefit” in the event that a person was “Totally and Permanently Disabled” within the meaning of the policies. Using the definition in the Basic Policy, a person is TPD if one of the following applies (emphasis added),

(i)   the Covered Person suffering the permanent loss of use of 2 limbs or the sight of both eyes or the loss of use of one limb and the sight of one eye (where limb is defined as the whole hand or the whole foot).

(ii)   the Covered Person having been absent from their Occupation through Injury or Illness for 6 consecutive months and having provided proof to the satisfaction of us that the Covered Person has become incapacitated to such an extent as to render the Covered Person unlikely ever to engage in or work for reward in any occupation or work for which he or she is reasonably qualified by reason of education, training or experience.

(iii)   the Covered Person through Illness or Injury and having provided proof to the satisfaction of us is permanently unable to perform 2 of the following 6 basic activities of everyday living.

Bathing – to shower or bathe;

Dressing – to dress or undress;

Toileting – to use the toilet including getting on and off;

Feeding – to eat and drink;

Mobility – to get out of bed or chair or wheelchair; or

Continence – to control bladder and bowel function.

If the Covered Person can perform the activity by using special equipment, they will be considered able to undertake that activity.

(iv)   the Covered Person through Illness or Injury is suffering from the permanent deterioration or loss of intellectual capacity and has provided proof to our satisfaction that the Covered Person is required to be under continuous care and supervision by another adult person for 6 consecutive months and this care is likely to be on a permanent daily basis and on-going.

7. The seriousness of the injury sustained by the police officer is made plain by each of the sub-sections (i) to (iv), for example, the loss of the use of two limbs; or the permanently inability to bathe and feed; or that the office requires continuous care and supervision by another adult due to a permanent loss of intellectual capacity.

8. The meaning of the definition has been comprehensively canvassed by the courts, and the parties did not contend for different interpretations. In assessing whether a person is “Totally and Permanently Disabled”, the insurer need not be being satisfied that the person will never be able to resume employment, but the lesser threshold that he or she is “unlikely ever” to do so: TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim (2016) 91 NSWLR 439; [2016] NSWCA 68 at [64]. As Leeming JA explained the meaning of “unlikely ever” at [88]-[89]:

88   …where there is a real chance that a person may return to relevant work, even though it could not be said that a return to relevant work was more probable than not, the insurer would not be satisfied that the definition applies. “Unlikely ever” is, in this context, much stronger than “less than 50%”.

89   What follows is this. To make an assessment of TPD, it is not sufficient for the insurer to be satisfied that it is more likely than not that the person will never return to relevant work. On the other hand, if there is merely a remote or speculative possibility that the person will at some time in the future return to relevant work, an insurer will not, acting reasonably and in compliance with its duties, be able to be satisfied that the person is not TPD. The critical distinction is between possibilities which are readily contemplatable even though they may not be more probable than not, and possibilities which are remote or speculative. A real chance that a person will return to relevant work, even if it is less than 50%, will preclude an Insured Person being unlikely ever to return to relevant work.

9. The closing words of the definition, “in the occupation or work for which he or she is reasonably qualified by reason of education, training or experience”, materially narrows the scope of the coverage given by the TPD definition from the perspective of the Covered Person as the police officer must satisfy the insurer that they are unlikely ever to return to work, not just as a police officer, but other work for which they are reasonably fitted by education, training or experience: Shuetrim at [66], [208].

10. Under both policies, it is a condition of payment of any benefit that the police officer provide MetLife with such evidence to substantiate the claim as MetLife may reasonably require. Mr Burke says he has done this, and long ago. MetLife says he has not.

The insurer’s obligations

11. The parties agreed that the insurer had an obligation of good faith and, when reaching a state of satisfaction referred to in the definition, to act in accordance with the principle expressed by McLelland J in Edwards v The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Ins Cas 61-113 at 77,536-7:

… where under a contract of insurance an element of the insurer’s liability is expressed in terms of the satisfaction or opinion of the insurer, the insurer is obliged to act reasonably in considering and determining that matter.

To say that an insurer must act reasonably in forming or declining to form an opinion is not to say that a Court can substitute its own view for that of the insurer. As North J pointed out in Doyle [v City of Glasgow Life Insurance Co (1884) 53 LJ Ch 527] at 529, ‘reasonable persons may reasonably take different views’. Unless the view taken by the insurer can be shown to have been unreasonable on the material then before the insurer, the decision of the insurer cannot be successfully attacked on this ground.

12. Mr Burke submitted that MetLife had wholly failed to comply with its obligations as an insurer when dealing with his claim. MetLife disagreed.

Relief sought

13. Mr Burke seeks declarations that he is totally and permanently disabled within the meaning of both policies and entitled to payment of benefits. Whilst MetLife accepts that Mr Burke has been diagnosed with and received treatment for symptoms of psychological illness, including PTSD, anxiety and depression, MetLife does not accept that Mr Burke continues to suffer from the condition, nor that is he thereby prevented from engaging in employment outside NSW Police.

14. Further, Mr Burke says that it was an implied condition of the policies that MetLife would form an opinion as to his entitlement to benefits under the policies within a reasonable time. Mr Burke seeks a declaration that he had provided proof to MetLife to satisfy it that he was totally and permanently disabled before 4 November 2015, and alleges that MetLife breached the policies and a duty of good faith and fair dealing by failing to accept his claim by then, or at all. MetLife accepts that it owed Mr Burke a duty of good faith and fair dealing when considering his claims, and that there was an implied term in the policies that it would act reasonably and fairly in forming an opinion. But MetLife says that Mr Burke has not at any time provided proof to its satisfaction that he meets the definitions of TPD under the policies.

15. In addition, Mr Burke seeks a declaration that MetLife’s decision of 23 August 2017 to decline his claims is vitiated by error of law, unreasonableness, absence of good faith and an absence of real and genuine consideration of his claims. By its decision, MetLife is said to be in breach of its obligations under the policies and in breach of its duty of good faith and fair dealing. Mr Burke says that MetLife was obliged to give due and proper consideration to Mr Burke’s claim, having regard to Mr Burke’s interests and to “not use the Court’s processes to obtain evidence only for the purpose of declining the claim”. MetLife denies that it breached its duties.

16. Mr Burke seeks damages for breach of contract or breach of duty under the common law. This is somewhat problematic as there was no contract between Mr Burke and MetLife, and the claim for damages for breach of duty “under the common law” is somewhat imprecise. Nor was it clear what those damages were beyond the payment of benefits under the policies. Mr Burke referred in his pleading to $365 rent a week paid on his housing from 1 July 2011 to date in circumstances where he would have used the benefits paid in a timely manner to buy a home. Mr Burke also seeks damages for distress and anxiety, by reason of being subjected to surveillance and being required to litigate. There was no evidence to quantify these damages. Nor did I understand these claims to be pressed at trial.

The Process in such cases

17. The parties agreed that the law as it stands is settled and clear: cases such as this follow a two-stage enquiry. The development of this two-stage enquiry began in Edwards v The Hunter Valley Co-op Dairy Co Ltd, where McLelland J was asked to determine whether Mr Edwards was entitled to any relief after the refusal by his insurer of a TPD claim under his employer’s superannuation plan where the insurer was required to form an opinion. At 77,537:

The formation by Zurich of the relevant opinion [under the policy] is of the nature of a condition of Zurich's liability under the policy. Zurich cannot rely on non fulfilment of such a condition if fulfilment was prevented by its own default, and in such an event the issue upon which Zurich's opinion was required to be formed would become one for determination by the Court (see Butcher v Port (1985) 1 NZLR 491 at 497, 500, 505). For the reasons already advanced, Zurich was in default in that its Committee did not consider the correct question, which prevented the condition from being fulfilled. Therefore the question whether Mr Edwards' incapacity will continue to render him incapable of resuming his previous occupation or engaging in any other occupation for which he is qualified by his knowledge or training must be determined by the Court.

Edwards was approved in Hannover Life Re of Australasia v Sayseng (2005) 13 ANZ Ins Cas 90-123; [2005] NSWCA 214, by Santow JA, with whom Spigelman CJ and Tobias JA agreed.

18. Mr Burke submitted that the Court should consider, before proceeding with the two-stage approach, whether there has been a breach by the insurer in failing to make a decision within a reasonable time and to assess the police officer’s claim by reference to the material available at that time only. I will address this submission later in this judgment, save only to say now that I do not consider it to be consistent with authority, either in respect of TPD cases or generally.

19. The parties agreed that TAL Life Ltd v Shuetrim represents the current law of New South Wales. The case also concerned an injured police officer. The principle issue was the construction of the phrase “unlikely ever” in the policies, but Leeming JA, with whom Beazley P and Emmett AJA agreed, also considered whether the approach in Edwards should be overturned, in light of doubts expressed in Birdsall v Motor Trades Association of Australia Superannuation Fund Pty Ltd (2015) 89 NSWLR 412; [2015] NSWCA 104 and McArthur v Mercantile Mutual Life Insurance Co Ltd [2002] 2 Qd R 197; [2001] QCA 317. His Honour declined to do so given the weight of intermediate appellate authority in support of Edwards. At [175]:

The practical reality is that this question is presently settled throughout and beyond Australia. The question sought to be raised by TAL on appeal is the subject of considered appellate decisions in New South Wales, Queensland and arguably Western Australia, which have consistently been applied throughout the country by a large number of decisions at first instance. At least in part, that reflects the high regard accorded to a decision of McLelland J. And for the dozens of trials culminating in decisions at first instance, there are probably hundreds of disputes between insured and insurer which are resolved prior to a determination after a final hearing.

His Honour considered that the decision was also correct in principle.

20. Since Shuetrim, in Hannover Life Re of Australasia v Jones [2017] NSWCA 233, the Court of Appeal considered the standard of unreasonableness required before an insurer’s decision can be successfully challenged. The court rejected the Wednesbury standard of unreasonableness advocated by the insurer, although Macfarlan and Meagher JJA, in separate judgments, doubted whether “the different formulations … would produce different results” (per Macfarlan JA at [3]).

20. Three further decisions have been handed down since the beginning of the trial: Folmer v VicSuper Pty Ltd & Anor [2018] NSWSC 1503, MetLife Insurance Ltd v Hellessey [2018] NSWCA 307 and Sargeant v FSS Trustee Corporation [2018] NSWSC 1997. I do not consider that any change the law, but rather are further examples of the application of these principles. In Hellessey, Meagher JA, with whom McColl and White JJA agreed, restated the applicable principles succinctly at [7]-[8]:

[7]    … MetLife’s liability under the policy turned on its being satisfied as to the extent of the Insured Member’s incapacity. Both in considering that question and in determining whether it was so satisfied, MetLife was required to act reasonably and fairly. And breach of one or more of these overlapping implied obligations would deprive the decision of contractual effect.

[8]    Thus, an insurer’s decision may be set aside if it is shown to be unreasonable on the material before the insurer. It will not answer that description merely because the Court would or could have reached a different opinion on that material, because “reasonable persons may reasonably take different views”: Edwards at 77,536. In addition, however, a decision may be set aside if the process of consideration underlying it was not undertaken reasonably and fairly, even if the outcome itself is not also shown to have been unreasonable on the material before the insurer. Again, more than one reasonable process of consideration may be open in the circumstances, but the process adopted by an insurer would not cease to be unreasonable simply because another, and reasonable, process to the same conclusion happened to exist.

22. Consequently, the task for this Court is to consider whether MetLife’s decision on 23 August 2017 was made following a reasonable and fair process of consideration, and was reasonable and fair on the material before it (Stage 1); and, if not, whether Mr Burke is totally and permanently disabled within the meaning of the policies (Stage 2).

23. The case law is sparse as to how the Court should approach each stage from an evidentiary perspective. In assessing the facts relevant to the first stage of the inquiry, it is necessary to review the process by which MetLife considered the claim and the material available when it made its decision from the perspective of an insurer. As Slattery J explained in MX v FSS Trustee Corporation as Trustee of the First State Superannuation Scheme & Anor [2018] NSWSC 923 at [75]:

… [A]n insurer is not required to undertake the detailed consideration of a claim required at a court hearing: Chammas v Harwood Nominees (1993) 7 ANZ Ins Cas 61-175 and Weber v Tiss Pty Ltd [2005] NSWSC 67 at [8].

An insurance claims officer gathers and considers information on a claim from a variety of sources. A claims officer does not consider the information thus obtained with the Evidence Act 1995 (NSW) in hand, but applies experience, common sense, a keen sensibility of the insurer’s duties and with the interests of the insured firmly in mind.

24. In assessing the facts relevant to the second stage of the inquiry, the Court should do this by its own methods having regard to the material before it, subject to the usual rules of evidence, including any oral evidence led: Sayseng v Kellogg Superannuation Pty Ltd & Anor [2003] NSWSC 945 at [95] per Bryson J.

25. Commonly, Stage 1 is heard first. It is only if the plaintiff is successful on Stage 1 that Stage 2 is heard. That is what was proposed to happen in this case, but the orders for separate determination of Stage 1 were vacated and both Stage 1 and Stage 2 were listed together before me. This was not satisfactory for the following reasons:

1. The hearing took seven days. If Stage 1 had been listed for hearing alone, then it would not have been necessary to call any witnesses, but simply to tender the documentary material available to MetLife when it made its decision together with any evidence as to the process of consideration, and make submissions as to whether MetLife fulfilled its obligations as an insurer when reaching its decision. Such a hearing would have taken one or two days.

2. The task for the judge on Stage 1 alone would have been more confined, requiring the judge to read the documents and, effectively, decide the matter ‘on the papers’. A judgment on Stage 1 alone would have been handed down more quickly than a judgment on both stages. It is in the interests of both parties to receive a prompt judgment.

3. If the judgment on Stage 1 was in MetLife’s favour then, subject to any appeal, the cost of a Stage 2 hearing would be avoided for both parties, as well as the risk of being ordered to pay the other party’s costs if unsuccessful on Stage 2.

4. It is difficult for a judge to segment the evidence relevant to Stage 1 from the evidence relevant to Stage 2 alone. Keeping track of which documents can be considered for each stage is a detailed and time-consuming task. Quarantining the evidence in one’s mind when deciding each stage is difficult, particularly where the total amount of material is significant. Further, it is difficult to assess the evidence relevant to Stage 1 from the insurer’s perspective, and then re-assess that evidence in Stage 2 from a judge’s perspective.

26. Overall, I think that hearing Stage 1 first and then, if necessary, proceeding to Stage 2 is more cost effective. The judge hearing Stage 1 alone is less likely to be infused with evidence from Stage 2 and vice versa.

Post-Traumatic stress disorder

27. Some description of PTSD is warranted. What follows is drawn from Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 5th ed., 2013) (DSM-5) and Expert Guidelines: Diagnosis and Treatment of Post-Traumatic Stress Disorder in Emergency Service Workers (Harvey et al., Black Dog Institute, 2015) (Expert Guidelines). The experts agree that I could rely on these materials as authoritative texts.

28. Emergency workers, including police officers, are exposed to potentially traumatic events as part of their daily work and a degree of psychological distress is common after such experiences. In most cases, an individual’s personal coping strategies and established support networks will allow their responses to gradually settle down and quickly return to their usual level of function. However, for some individuals, such symptoms increase in intensity with the passage of time or may be persistent and thus lead to a psychiatric diagnosis. It is estimated that one in ten emergency workers suffers from PTSD.

What is PTSD?

29. PTSD was formally recognised in the 1980s as a result of the need to understand the reactions of veterans returning from Vietnam. PTSD describes severe and persistent stress reactions after exposure to a traumatic event. According to DSM-5, at 271, a prerequisite to the symptoms of PTSD is that an individual must be “exposed to actual or threatened death [or] serious injury” by either:

1.    Directly experiencing the traumatic event(s).

2.    Witnessing, in person, the event(s) as it occurred to others.

3.    Learning that the traumatic event(s) occurred to a close family member or close friend…

4.    Experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g. first responders collecting human remains; police officers repeatedly exposed to details of childhood abuse).

30. Here, Mr Burke says that he suffered psychological injury as a result of two classes of traumatic events:

1. exposure to numerous distressing and traumatic scenes and events throughout his police career including attending domestic violence situations, suicides, murders, violent struggles with offenders, recovery of dead bodies and delivery of death messages; and

2. being the subject of false allegations and unlawful arrest by NSW Police in 2005 and 2006.

It is easy to see how the first class of traumatic events may satisfy the pre-requisite, but more difficult to see how the latter class could. In this case, Mr Burke says that the latter events were, essentially, the ‘straw that broke the camel’s back’, exacerbating underlying PTSD symptoms caused by the former class of events into chronic PTSD.

31. An individual with PTSD typically has four clusters of symptoms:

1. re-experiencing symptoms, including intrusive memories, flashbacks, nightmares and distress to reminders of the trauma;

2. avoidance symptoms, including active avoidance of thoughts and situational reminders of the trauma;

3. negative cognitions and mood associated with the traumatic event, such as an inability to remember important details about the event or persistent unusual ideas about the cause or consequence of the traumatic experience; and

4. arousal symptoms including exaggerated startle response, insomnia, irritability and sleeping and concentration difficulties.

32. DSM-5 requires that at least one symptom in each of these clusters be present for more than one month and be associated with significant distress or impairment in social, occupational or other important areas of functioning. PTSD regularly presents with co-morbid conditions such as Major Depressive Disorder and Alcohol Use Disorder.

What is the usual pattern for the onset and recovery from post-traumatic stress?

33. According to the Expert Guidelines, there is strong evidence that many people who are exposed to a traumatic event or events commonly report post-traumatic stress reactions in the initial weeks after trauma, but that for most, these symptoms are transient and gradually abate, for both the general population and emergency workers. Although this is the general trend, there are also other trajectories for the emergence of mental health symptoms. In delayed-onset PTSD, the initial symptoms present more than six months after a traumatic incident. This is thought to account for as many as 38% of PTSD cases in military samples or 9% of police officers attending the World Trade Centre attacks in 2001. DSM-5 confirms that there is abundant evidence for “delayed expression”, that is, where some symptoms appear immediately but there is a delay in meeting the full criteria for PTSD. DSM-5 states, at 267:

Symptoms usually begin within the first 3 months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met.

34. Given that emergency workers will expect to experience multiple episodes of potentially traumatic events whilst undertaking their usual work, emergency workers with PTSD may present in different ways to the general population. Emergency workers may experience a gradual build-up of distress and symptoms over a prolonged period of time, whilst others may present with acute onset of symptoms after a single event. Many emergency workers exposed to repeated traumas demonstrate sensitisation, with increasingly severe responses to each successive trauma exposure, when lesser traumatic events than previously would not have caused them distress begin to generate mental health problems.

Can PTSD be treated?

35. According to the Expert Guidelines, emergency workers usually require 8 to 12 sessions, each of one to two hours, of either cognitive behavioural therapy (CBT) or eye movement desensitisation and reprocessing (EMDR). Many emergency workers will require additional treatment sessions, especially if they have severe symptoms, have experienced multiple traumatic events or have co-morbid mental health problems. Medication is also a treatment option, including anti-depressants.

36. Emergency workers with PTSD can often return to work once their symptoms begin to improve, even if they are still undergoing active treatment. Whilst returning to work is important for individual wellbeing and recovery from mental illness, this presents difficulties with PTSD where emergency workers experienced the trauma exposure at work. As avoidance of environmental reminders of the traumatic experience is a core feature of PTSD, many emergency workers with PTSD find returning to work difficult. Support in the workplace is important to enable emergency officers suffering PTSD to recover from the condition: a study of over 250 traumatised police officers found that workplace factors such as lack of perceived organisational support, job insecurity and job dissatisfaction were associated with increased rates of PTSD.

Can PTSD be feigned?

37. According to the Expert Guidelines, diagnosing PTSD amongst emergency workers is a complex task and takes time and multiple assessments using clinical interviews, structured assessments, self-reporting and collateral history. The Expert Guidelines expressed concern about the quality of diagnostic assessments, noting a recent Australian study which found that only one in 31 PTSD diagnoses of emergency workers seeking compensation met the minimum standard for diagnosis. The Expert Guidelines warned:

There is increasing awareness of PTSD symptoms amongst emergency workers and evidence that individuals can fake post-traumatic stress symptoms with considerable proficiency in clinical interviews and particularly when using self-report symptom inventories. … The possibility of symptom exaggeration or malingering should be examined more closely when an emergency worker reports all PTSD symptoms inquired about, emphasises re-experiencing (rather than avoidance and numbing) symptoms, or when symptom reports are inconsistent with functioning. … [T]he evidence suggests that clinical observation alone is not always a reliable means of detecting symptom exaggeration. A number of psychological tests have been proposed to assist in detecting feigning of psychological symptoms, including the Minnesota Multiphasic Personality Inventory (MMPI/MMPI-2) … Collateral history can also be useful, as can determining the cause of the symptoms relative to the timing of the legal and compensation–seeking actions.

38. In this case, MetLife relied heavily on the use of such psychological tests, in particular, MMPI-2 and MMPI-2-RF as pointing to exaggeration and feigning by Mr Burke. It is necessary, therefore, to explain these tests as well.

Minnesota Multiphasic Personality Inventory-2 test (MMPI-2)

39. The MMPI test was developed in the 1940s to facilitate more accurate diagnosis of patients being treated at hospital. Subsequent versions of the test have been published, including MMPI-2 in 1989 and MMPI-2-RF in 2008. According to the manual used by psychiatrists to administer and interpret the test, MMPI 2 RF Minnesota Multiphasic Personality Inventory-2 Restructured Form - Manual for Administration, Scoring and Interpretation, (Ben-Porath et al., University of Minnesota Press, 2011) (the Manual), by the 1980s, MMPI-2 had become the most widely-used measure of personality and psychopathology in the world.

40. The test contains “Clinical Scales” which assess levels of types of behaviour, for example, Anti-social Behaviour. Elevations on the Clinical Scales indicate certain psychological conditions. MMPI-2 also contains “Validity Scales” which assess three threats to the validity of the test results: non-responsiveness, over-reporting and under-reporting. Non-responsiveness means that the test-taker does not read, understand or response relevantly to the test. Over-reporting occurs when the test-taker’s self-presentation portrays a degree of dysfunction that is not credible. Under-reporting occurs when the test-taker’s self-presentation suggests a level of functioning that is better than would be indicated by a hypothetical objective assessment. There are five Validity Scales directed to over-reporting and two to under-reporting.

41. Mr Burke did the MMPI-2 test in 1998, 2003, 2005 and 2006. On each occasion, there was no evidence of non-responsiveness, over-reporting or under-reporting, nor any evidence of PTSD on the Clinical Scales. In 2016 and 2018, Professor Mattick and Dr Hepner respectively administered the MMPI-2-RF test. There was no evidence of non-responsiveness or under-reporting but Mr Burke’s scores were noticeably high on the over-reporting Validity Scales. The following table summarises the over-reporting Validity Scales, the scores obtained and how the Manual says the scores may be interpreted.

Over-reporting Validity Scale	Mattick score	Hepner score	Interpretation
F-r (Infrequent Responses)	111	106	Over-reporting of psychological dysfunction is indicated by a considerably larger than average number of infrequent responses.
Fp-r (Infrequent Psychopathology Responses)	59	59	There is no evidence of over-reporting.
Fs (Infrequent Somatic Responses)	91	91	Possible over-reporting of somatic symptoms is reflected in the assertion of a much larger than average number of somatic symptoms rarely described by individuals with genuine medical problems.
FBS-r (Symptom Validity)	86	89	Possible over-reporting is indicated by an unusual combination of responses that is associated with non-credible reporting of somatic and / or cognitive symptoms.
RBS (Response Bias Scale)	109	109	Over-reporting is indicated by a very unusual combination of responses that is strongly associated with non-credible memory complaints.

42. How these scores should be interpreted in Mr Burke’s case was the subject of strong disagreement between Dr Hepner and Professor Mattick. I think perhaps Dr Hepner put it best, and I do not think that Professor Mattick would necessary disagree with her comment that:

I think it’s a matter of considering all of the evidence. It’s a matter of stepping through the proper interpretive process, examining the content of the items, and also looking at the broader context and the whole chain of events.

Credibility of witnesses

Mr Burke

43. Mr Burke is a pleasant, intelligent and articulate man. As a former police officer, Mr Burke was experienced in giving evidence, although doing so in a personal matter is not, I suspect, the same as giving evidence as part of one’s job. Mr Burke found giving evidence stressful and was upset from time to time. MetLife made no bones about the fact that it considered Mr Burke’s insurance claim to be ill-founded, and that Mr Burke exaggerated his circumstances to doctors in order to support his insurance claim. The cross-examination was, as a consequence, sometimes offensive in nature and Mr Burke’s response was, on occasion, combative and aggressive. Mr Burke did, from time to time, give unsolicited answers which were in the form of advocacy, advancing reasons why his evidence should be accepted. He did pick up clues from his counsel’s objections as to what those reasons were. On other matters, Mr Burke made reasonable concessions and some of his explanations were inherently plausible.

44. On his second day of cross-examination, Mr Burke appeared unshaven and was argumentative and uncooperative. He endeavoured to explain medical history contained in various medical reports by reference to how he was feeling on the day he met the doctor rather than generally. His evidence on this subject was evasive and inconsistent, and seemed unlikely as the doctor was ordinarily taking a history from Mr Burke’s childhood to the date of examination. Against this, Mr Burke was frequently challenged in cross-examination on events which had happened many years before, and it was not surprising that on occasion Mr Burke could not recall exact details and that his 2016 affidavit did not refer to some of the events which had occurred so long ago.

45. I was not sure that Mr Burke was always telling the truth. Mr Burke was evasive when cross-examined about making a workers’ compensation claim whilst engaged in other employment. Mr Burke’s explanation of a financial planner’s notes of a meeting with him was unlikely. Mr Burke’s evidence about the correction of his tax returns was unlikely. Mr Burke did tend to say what he thought would serve his purpose, and in some cases the answer was clearly wrong and self-interested, such as his description of the work involved with serving on the Tactical Response Group. Mr Burke also gave inconsistent and evasive answers, for example, as to how he recorded his alcohol consumption on contemporaneous forms as compared with how he described it in these proceedings. Mr Burke explained the discrepancy unsatisfactorily: the contemporaneous forms recorded his alcohol consumption, “… for a specific time. The affidavit is an overall.” None of these matters, itself, means that Mr Burke is a liar at large.

43. Mr Burke’s case is that he suffers from PTSD. If that is right, then some of Mr Burke’s reactions and behaviour as a witness may be referrable to that condition rather than being an unsatisfactory witness whose evidence I would not ordinarily accept without corroboration. I am not a psychiatrist and not qualified to divine to what extent Mr Burke’s presentation as a witness was referrable to PTSD or untruthfulness. By reason of the differing presentation of Mr Burke during the course of his evidence, and because I cannot discount the prospect that any unsatisfactory presentation was due to the condition which he claims to suffer, I have placed significant weight on contemporaneous records in respect of events which happened many years ago, and are likely to be more reliable in any event than a recollection given today.

The expert witnesses

47. I found both experts to be impressive, considered and knowledgeable. Professor Mattick had worked with substantially more PTSD patients than Dr Hepner and over a greater period of time: Professor Mattick has seen over 1,000 patients suffering from PTSD over some 30 years whilst Dr Hepner had seen about 350 patients over 13 years. Although it was suggested that Professor Mattick thought ill of all PTSD patients, he appeared to me to be compassionate and empathetic to their plight, as was Dr Hepner.

The facts

48. Two matters should be clarified at the outset. First, because of the two-stage process, it is necessary to identify those facts which were in possession of MetLife at the time it made its decision, and those which were not. I have endeavoured to do so in the following narrative, albeit not for every piece of paper.

49. Second, both parties pointed to portions of medical reports which recorded histories taken from Mr Burke, as either supporting or undermining the veracity of Mr Burke’s claim. Indeed, in the further and better particulars of his claim, Mr Burke relied upon the histories provided to examining psychiatrists, including as to his symptoms. Mr Burke reminded me of the caution with which I should approach inaccuracies in histories in medical reports as described by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2] to [4], which I agree captures the challenges before me:

2 … the trial judge was invited to discount the appellant’s oral testimony on the basis of accounts given to various health professionals, which appeared inconsistent either with each other, or with her oral testimony, or both. The difficulties attending this kind of exercise should be well-understood; as explained in the Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8], such apparent inconsistencies may, and often should, be approached with caution for the following reasons, amongst others:

(a) the health professional who took the history has not been cross-examined about:

(i) the circumstances of the consultation;

(ii) the manner in which the history was obtained;

(iii) the period of time devoted to that exercise, and

(iv) the accuracy of the recording;

(b) the fact that the history was probably taken in furtherance of a purpose which differed from the forensic exercise in the course of which it was being deployed in the proceedings;

(c) the record did not identify any questions which may have elucidated replies;

(d) the record is likely to be a summary prepared by the health professional, rather than a verbatim recording, and

(e) a range of factors, including fluency in English, the professional’s knowledge of the background circumstances of the incident and the patient’s understanding of the purpose of the questioning, which will each affect the content of the history.

3 The fact that, in the present case, none of the health professionals was called to give oral evidence as to the matters in issue may not itself be a point of significance. It is unlikely that cross-examination would have advanced any issue in dispute; the witness being likely to have no relevant recollection of taking the history, the oral testimony would be largely limited to an assertion of usual practice.

4 Thirdly, and more significantly, it was quite possible that the elements of florid expression and exaggeration in the applicant’s oral testimony (and in some of the recorded histories) may have been a function of her psychological state. This was not something that the trial judge could readily assess without expert assistance …

50. Further, as explained per curiam in Paric v John Holland (Constructions) Pty Limited (1985) 62 ALR 85; [1985] HCA 58 at 87-88, there does not need to be “complete precision” between the history in a medical report and the facts as found: “[I]t is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value in accordance with both principle and common sense.”

51. Mr Burke submitted that, even if I make adverse credit findings about him, it is not open to me to disregard the medical reports if the medical evidence records objective signs of his condition, citing Kirby J’s dissenting judgment in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 at [105]. I do not think his Honour’s views there expressed were necessarily inconsistent with the view of the majority, comprising Gleeson CJ, McHugh and Gummow JJ, that in cases concerning psychiatric conditions where no objective test exists to determine whether a patient has the symptoms of which they complain, if the credibility of the person who gave the history recorded in the reports is destroyed, then the opinion expressed may have little or no value as the basis of the opinion has gone: at [47]. I agree that some portion of the doctor’s opinion may remain unaffected by an incorrect history. It will depend on each report.

52. Mr Burke was born in Papua New Guinea of an Australian father and Manus Island mother, and grew up on the central coast of New South Wales. In 1988, he completed the Higher School Certificate at Gosford High School and the following year, began work for the Commonwealth Bank as a trainee at its Martin Place branch. Mr Burke did not find the job suitable and left after three months. He worked as a factory hand at a company which manufactured thermal storage systems but, after six months, left this position as he found it boring and repetitive. He began working on a fruit tree farm in Gosford, presumably in some labouring capacity, and applied to join NSW Police. Mr Burke’s application was accepted and he trained at the Goulburn Police Academy in July 1990, began as a probationary constable in January 1991 and was attested as a constable of police in July 1992. Mr Burke began in the City of Sydney Patrol. In May 1995, Mr Burke was transferred to Hornsby Police Station as a general duties officer and field training officer. Mr Burke began the Constable Development Program and completed all subjects apart from the final assignment.

The Hornsby siege

53. On 15 December 1996, at the end of Mr Burke’s sixth year as a police officer, Mr Burke was one of several police called to a domestic incident at a home in Hornsby. The event is important as it is one of the matters which Mr Burke attended as a police officer which he identifies as causing him great distress and ultimately giving rise to PTSD.

54. The only contemporaneous record of what occurred is the entry made in the COPS system early the following morning by an officer who was not called to give evidence. Mr Burke objected to it being admitted on the grounds of relevance and hearsay. I admitted the COPS report as a business record, although since reserving judgment I have looked at this issue more closely. Section 69(3)(b) of the Evidence Act 1995 (NSW) provides that the business records exception does not apply where the representation contained in the record “was made in connection with an investigation relating or leading to a criminal proceeding”. The operation of the section was explained by Leeming JA, with whom McColl JA agreed, in Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122. In that case, an insured made a claim on an insurance policy when his car was stolen and destroyed in a fire. The insurer declined cover on the basis of insurance fraud. At trial, the insurer tendered an extract from a police officer’s notebook and a COPS report to prove where the car was found. On appeal, the insured contended that the trial judge erred in admitting this evidence. Leeming JA considered that the application of section 69(3)(b) depended upon the circumstances in which the representation was made. At [115] and [118], [119]:

…[T]he criminal proceedings in [s 69(3)(b)] need not be in existence at the time the representation is made, and indeed need never in fact commence. … [However,] the investigation in connection with which the representation was made must be extant at the time it is made in order to fall within s 69(3)(b). … It is not sufficient if a representation is made in connection with a possible investigation in the future, which in turn might lead to criminal proceedings.

“Investigation” is not defined, and will turn on the facts of a particular case. Some investigations may be formal, some less so.

55. His Honour considered that an investigation had not commenced when the police received a report of a burning car, but when the police formed the view that an accelerant had been used and that the case was likely one of arson. His Honour was unable to say whether the police notebook or the initial portion of the COPS entry, which recorded where the car was found, were made when the police received a call about the fire, or later. At [120]:

… One possibility is that the entry was made at around the time the passerby called the police reporting the vehicle. Another is that that entry, and others, were made later, after the constable had driven to the location, and formed the view that the case was one of arson. The materials as I read them do not enable a view to be formed one way or the other between those possibilities. In those circumstances, I would not conclude that [the insured] has shown that an investigation had commenced at the time the first entry was made so as to preclude the insurer from relying upon the representation that the vehicle was found burning on Canada Road.

However, Leeming JA agreed that the trial judge should not have admitted the whole of the COPS entry, although any resulting error was immaterial.

56. In this case, the COPS entry was made at 3.10 am on 16 December 1996 in respect of an event which was initially reported at 7.45pm on 15 December 1996. In the intervening period, there can be no doubt that a significant event occurred which required the attendance of many police of different specialisations. By the time the COPS report was made, it seems to me that an investigation was underway. The COPS report in its entirety is therefore not admissible as a business record.

57. I note that the purpose of the exclusion in section 69(3)(b) is to exclude business records prepared where there is a link with litigation and thus the records may contain self-serving statements: Averkin at [114]. Whilst the application of that exclusion is readily understandable if the COPS report was sought to be relied on in any proceedings involving the Person of Interest, such a concern must be less where the COPS report is relied upon by the police officers who attended an incident in respect of a claim for injuries sustained while doing so. Indeed, in this case, the COPS report is likely to be the most reliable record of what happened as the record was made within hours of the event at a time when no claim for personal injury was contemplated. In the absence of the COPS report, the next most contemporaneous report is eight months later in a workers’ compensation form completed by Mr Burke which could itself contain a self-serving statement. But that is the effect of section 69(3)(b) and so, on reflection, I accept that the COPS report was not admissible as a business record.

58. However, MetLife had access to the COPS report when it made its decision, having obtained the document on subpoena from NSW Police in December 2015. It is thus admissible, as to Stage 1 at least, for a non-hearsay purpose, being evidence of the information before MetLife when it made its decision: section 60 of the Evidence Act 1995 (NSW). I will disregard it in Stage 2, although this illustrates the difficulties posed for a judge hearing both stages.

59. The COPS report records (emphasis added):

About 7.45pm 15.12.96 the POI became involved in a verbal argument with his wife and son. The POI’s wife and siblings left the premises to attend Hornsby Hospital in order to schedule the POI. During this time the POI’s son contacted police and informed them that the POI, was armed and wished to commit self harm.

Police responded, and upon arrival at the location were met out the front of the premises by the POI brandishing a rifle at them. The POI stated "It's loaded, and I'm not afraid to use it". Police then retreated from the premises and took cover. The POI returned inside the house…

Around 10.20pm the POI surrendered to Police, as a result of the incident no person was injured and no shots fired. …

The POI believes in the Port Arthur incident was a good thing and has stated to family members, that he will do likewise at the Hornsby Shopping Centre, where he would shoot anyone he didn't like or spoke ill of him.

60. The siege was over within two and a half hours of the argument erupting at the home, which led to a call to police. Importantly, the Narrative Details in the COPS report referred to the Person Of Interest “brandishing a rifle” at the police saying, “It’s loaded, and I’m not afraid to use it”. “Brandishing” suggests that the person waved the rifle about by way of threat or display, or in preparation for action: Oxford English Dictionary (Oxford University Press, online, 2019). It does not suggest that the person pointed the gun directly at any particular officer or cocked the rifle.

61. However, the COPS entry also records that, at 9.30 am on 16 December 1996, the POI was released from hospital and taken to Hornsby Police Station where he was charged with various firearm offences and six counts of assault on police officers. In the Incident Details of the COPS reports, the Modus Operandi Keywords for the offence are recorded as “POIs pointed rifle at police”. This may put a different complexion on what happened, or may have been key words selected from a “drop down” menu. The author of the COPS entry did not give evidence. Whether the POI “brandished” or “pointed” a rifle, the incident was undoubtedly alarming and stressful for the police officers who attended.

62. According to NSW Police’s records of leave, Mr Burke continued to work after the Hornsby siege without interruption until 2 February 1997, when he took two weeks’ annual leave. In June 1997, Mr Burke took leave of absence from 5 to 8 June 1997 to look after his sick father. From 15 to 28 June 1997, Mr Burke took a further two weeks’ annual leave.

63. Whilst on annual leave, on 24 June 1997, Mr Burke tendered his resignation from NSW Police, with his last day of service to be 21 July 1997. On the conclusion of Mr Burke’s annual leave, he took sick leave until 21 July 1997. According to Medicare records, Mr Burke did not see any medical practitioner during this period of sick leave. However, Mr Burke told Dr Maclean in September 1997 that he took the sick leave as stress leave on the recommendation of his patrol commander.

First claim for PTSD

64. On 24 July 1997, after completing his service with NSW Police, Mr Burke saw a general practitioner in Gosford, Dr Schulze, who diagnosed Mr Burke as suffering from PTSD as a result of the Hornsby siege. Dr Schulze declared Mr Burke to be unfit for work for two months, and indicated that he would arrange for Mr Burke to be seen by “N. Rosen”. Mr Burke did not act on the referral.

65. On 8 August 1997, Mr Burke completed a workers’ compensation claim form, declaring that he had been affected mentally by the Hornsby siege and suffered from PTSD as a result. Mr Burke recorded that he was “involved in a siege (rifle pointed at me at close range)”. This is broadly consistent with the COPS report. Mr Burke confirmed that he did not have any other employment at the time, although he may in fact have been working at a funeral home. Mr Burke claimed wages for 55 days lost, being from 15 June to 31 August 1997. Mr Burke began to receive weekly workers’ compensation payments.

Mr Burke applies to re-join NSW Police

66. On 18 August 1997, two months after resigning from NSW Police, Mr Burke completed a Rejoinee Application Form. Mr Burke said he had been working as a funeral director since leaving NSW Police and had acquired skills in customer service, public relations and carpentry. Mr Burke later told Dr Maclean that he found this work completely unsatisfactory. Mr Burke also completed a medical history declaration form, stating that he drank three beers a week. He said he had suffered an anxiety or stress-related condition, explaining:

I resigned from the service due to a stress-related condition. I do not receive any medication or treatment of any kind… [I have] missed time in work due to stress leave. Please see attached doctor’s reports.

The doctor’s report appears to have been that of Dr Maclean. I say this because, although the dates on the documents do not align, the staple and tear marks on the form and Dr Maclean’s report suggest it was attached to the form, which was presumably progressively completed by Mr Burke and submitted to NSW Police after he received Dr Maclean’s report.

67. Attached to Mr Burke’s application to re-join NSW Police was a statement prepared by Mr Burke as to why he had left the police, saying (emphasis added):

Throughout my service I have been in a relationship where my partner had continually asked me to resign form [sic] the job. She began this harassment from almost the beginning of my training. When I first joined the Police Service my aim was to move into the Tactical Response Group, however, my partner was quite upset by the idea and so continued to ask me to leave the service. To keep my wife and home life in harmony I remained as a gneral [sic] duties officer throughout my service. … As a result of my wife's continued assistance [sic] that I leave the Police Service and unable to transfer to any other field, my disappointment and frustration at times may have showed at work. My wife finally informed me that she could not remain married to a police officer and that she would intend to divorce if I remained in the service. On the 21st of July 1997, I resigned from the Police Service with much disappointment. However, conditions at home did not improve and now I find myself seeking a divorce. I had left the Police Service on stress leave on her family doctors insistence stating that I had Post Traumatic Stress Syndrome. He came to this conclusion after I had attended a siege situation in late 1996. The doctor is a close friend of my wifes family and so felt that I must be sufferinf [sic] from stress for my wife and I to separate. I have since seen a psychologist who has stated I am both fit physically and mentally. Due to the circumstances after leaving the Police Service I am now very keen to return and really begin my career.

68. The psychologist to whom Mr Burke referred in his statement was likely Dr Maclean. It appears from Mr Burke’s statement that Mr Burke’s wife and Dr Schulze were both concerned about Mr Burke’s condition at a result of the Hornsby siege, but that Mr Burke did not accept Dr Schulze’s diagnosis of PTSD. At the hearing, Mr Burke said that he did not refer to psychological symptoms in his letter to NSW Police because he was not suffering symptoms when he wrote it, “It’s not something that’s every day, every minute of every day… And at that time of writing that letter, I can only make the assumption I wasn’t having the effects of the siege.”

340. There was information before MetLife at the time it made its decision that Mr Burke was trained to be a personal trainer and had worked as such already, as evidenced by his tax returns. There was evidence that Mr Burke had also worked part-time in his brother’s business as a waterproofer and had given consideration to re-training in that field.

341. I consider that it was reasonable for MetLife to conclude that Mr Burke was not incapacitated to such an extent as to render him unlikely ever to engage in or work for reward in any occupation or work for which he was reasonably qualified by reason of education, training or experience. It is harder for relatively younger people, whose medical or psychological condition is uncertain, to satisfy the definition of TPD: Shuetrim at [208]. This is a factor here, as Mr Burke was only 40 at the date of assessment under the policies. I note that a person who can undertake part-time work is not totally and permanently disabled: Hannover Life Re of Australasia Ltd v Dargan (2013) 83 NSWLR 246; [2013] NSWCA 57; Shuetrim at [67]. I conclude that MetLife was not in breach of its obligations under the policies. Its decision was fair and reasonable, and stands.

Stage 2 Decision

342. Were it necessary to do so, I would also conclude that Mr Burke is not TPD within the meaning of the policies having regard to the facts as I have found them to be. These facts depart in significant respects from Mr Burke’s evidence of the traumatic events said to give rise to PTSD and how those events affected him over time.

343. I do accept that Mr Burke has suffered many stressful and traumatic events during his career with NSW Police. Amongst those was the Hornsby siege in December 1996 which caused post-traumatic stress such that his wife made him seek medical attention and he was diagnosed, albeit probably without the necessary qualifications or adequate assessment, as having PTSD. But the contemporaneous medical reports of Dr Maclean and Ms Fisher, and Mr Burke’s self-reporting at the time, indicate that Mr Burke recovered from post-traumatic stress by, at least, 1998, which is consistent with the usual pattern of recovery and confirmed by psychological assessment and tests conducted in 1998, 2003, 2005 and 2006. Mr Burke omitted reference to PTSD in several forms from 2003 to 2009 where he might have been expected to disclose that he had previously been diagnosed with PTSD, which indicates to me that he had recovered such that he had forgotten about that diagnosis or that he had claimed and received workers’ compensation for it.

344. By 2005, whatever PTSD Mr Burke had suffered by reason of Hornsby siege, had resolved some years earlier. Mr Burke was then involved in a fracas at a bar in 2005. NSW Police investigated the matter, including arresting and interviewing Mr Burke on two occasions. These events, while no doubt extremely stressful, are not “exposure to actual or threatened death or serious injury”. Mr Burke received CBT counselling from Mr Peters from 2007 on in respect of the distress and anxiety suffered as a consequence of NSW Police’s investigation. Mr Burke appears to have improved as a result of the counselling, according to Mr Peters’ file notes, and was “in remission” by October 2009. It may be that the arrests exacerbated an underlying psychological condition, but the exacerbation abated by late 2009.

345. Mr Burke continued to serve as a police officer from February 2008 to September 2008. When it became apparent that Mr Burke’s career with NSW Police was over, Mr Burke sensibly took steps to embark on a new career. He worked in his brother’s waterproofing business and set up a personal training business. Mr Burke’s treating psychologist, Mr Peters, considered that Mr Burke was able to work in these fields. The reason why Mr Burke stopped being a fitness trainer was because NSW Police said he couldn’t engage in secondary employment anymore, not because Mr Burke felt he couldn’t do it.

346. Having reviewed all of the medical reports, I consider that Mr Briggs’ assessments in 2007 and 2009 were correct when made. I prefer the expert evidence of Professor Mattick to that of Dr Hepner and Dr Rees. Professor Mattick grappled with the apparently difficult task of departing from a trend of diagnoses and forming one’s own. Whilst Professor Mattick and Dr Hepner both accepted that Mr Burke may have an underlying psychological condition, I do not think Mr Burke has chronic PTSD such that he fulfils the definition of TPD in MetLife’s policies.

ORDERS

347. I was informed that the only relevant and participating defendant in these proceedings is MetLife. For these reasons, I make the following orders:

1. The plaintiff’s claim is dismissed.

2. Plaintiff to pay the Second Defendant’s costs.

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Decision last updated: 05 March 2019