Paterson v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Paterson v State of New South Wales (NSW Police Force) [2024] NSWPIC 83
APPLICANT:	Lee Paterson
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Brett Batchelor
DATE OF DECISION:	26 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by the applicant for lump sum compensation pursuant to section 66 for psychological injury as a result of multiple traumatic exposures, bullying and harassment he experienced while employed as a police officer by the respondent; the applicant was charged with and convicted of serious criminal offences as a result of interaction with a police colleague with whom he worked; the applicant claimed that the PTSD from which he suffered as a result of the traumatic exposures to which he had been subject during his long police career was the reason he committed the offences with which he was charged; this was supported by the independent medical examiner on whose evidence he relied; the respondent defended the applicant’s claim, relying on sections 4, 9A, 11A and 14(2); extensive review of the lay and medical evidence, including details of the charges proffered against that applicant and the conviction on such charges; no issue that that action taken by the respondent against the applicant was not reasonable; the only section 11A issue was whether the psychological injury from which the applicant was wholly or predominantly caused by such reasonable action; finding that the applicant’s psychological injury was predominantly caused by the reasonable action taken with respect to discipline; in view of that finding, no necessity to consider the defence raised under section 14(2); Held – award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered psychological injury on 28 February 2020 predominantly caused by reasonable action taken by the respondent with respect to discipline. 2. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Lee Paterson (the applicant/Mr Paterson) seeks compensation for permanent impairment and pain and suffering pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act), and also for medical expenses pursuant to s 60 of that Act, as a result of psychological injury arising out of or in the course of his employment as a police officer with the NSW Police Force (the respondent/the police force) from the time of his commencement of service in approximately November 1997 until the cessation of his attendance at work on 1 March 2020.
Mr Paterson resigned from the police force in July 2021 after having been convicted of nine criminal offences at the Wollongong Local Court following a hearing on 21-23 April 2021, and judgement given on 21 May 2021. Two fraud charges of which the applicant was found guilty were dismissed with a caution. Mr Paterson was sentenced to a two year Community Corrections Order in respect of the remaining charges.
The applicant claims that he suffered from post-traumatic stress syndrome as a result of traumatic and confronting incidents to which he was exposed during the course of his police career. He asserts that such condition, which was not diagnosed until after he had been charged with the offences of which he was found guilty, caused him to become desensitized and to resort to the use of alcohol to deal with his condition, to the extent that he was not thinking clearly about what he was doing nor did he appreciate the consequences of his actions.
The respondent’s case is that the cause of the psychological injury suffered by the applicant was not the traumatic and confronting events to which he had been exposed during his police career, but:
(a) the disciplinary process pursued by the respondent which commenced in late 2017 with investigation into the events that led to Mr Paterson being charged with the offences of which he was convicted, and
(b) the court process leading to conviction, which commenced with the service on Mr Paterson of a Court Attendance Notice on 28 February 2020.
The applicant lodged with the respondent a P 902 Incident Notification Form dated 19 March 2020 in which he said:
“Due to an incident on 28 February 2020 I have been having flashbacks of jobs I have been do in the past 22 years. Namely a male hit by a train at Kembla Grange, were I had to guard his dismembered body and do a death notification to his family. Other incident is a male partially eaten by a dog in 2019 in Nowra, death of a baby in riverwood late 1990s”[1] [sic]
[1] Application to Resolve a Dispute (ARD) p 17, noting that the page references in this Statement of Reasons are to those in the electronic records of the Personal Injury Commission (the Commission).
On 9 July 2020 the applicant was independently medically assessed by Dr Young, consultant psychiatrist, who produced a report dated 10 July 2020.[2] Dr Young assessed and diagnosed Mr Paterson as follows:
“Mr Paterson presents reporting symptoms of depressed mood and anxiety in relation to several types of stressors in the long and short terms. Primarily he is experiencing stress in relation to the complaint and complaint handling process that has been in place since 2018 and recent advice regarding criminal charges that have been made against him.”
……
“Mr Paterson describes mixed symptoms. Taken at face value he describes sufficient symptoms to meet the criteria for Post-Traumatic Stress Disorder. Given the delayed onset of these and the association between later stressors, in my opinion the led specific diagnosis of Adjustment Disorder in more appropriate.”
[2] Reply p 258.
On 22 October 2020 the respondent’s insurer, EML, issued to the applicant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the applicant’s claim, relying on ss 4, 9A, 11A, and 14(2) of the 1987 Act in support of this denial of liability.[3]
[3] Reply p 15.
On 6 April 2022 the applicant was independently medically examined by Dr Chow, psychiatrist, who produced a report dated 25 April 2022.[4] Dr Chow diagnosed Mr Paterson as suffering from post-traumatic stress disorder and major depressive disorder, and said:
“In my opinion Mr Paterson was already suffering from post traumatic stress disorder symptoms prior to the dynamic difficulties with his colleagues and the subsequent allegation and criminal investigation. There was evidence that he was struggling psychologically and there was increased alcohol intake to cope.”
Dr Chow assessed the applicant as having sustained 24% whole person impairment (WPI) as a result of the psychological injury he sustained.
[4] ARD p 34.
On 13 May 2022 the applicant signed a “Permanent impairment claim – exempt claimants” form (the claim form).[5]
[5] ARD p 20.
On 16 May 2022 the applicant’s solicitor forwarded to EML a letter containing a claim by the applicant for compensation for permanent impairment in respect of 24% WPI and compensation for pain and suffering representing 66% of a most extreme case. Served with the letter were the claim form and the report of Dr Chow dated 25 April 2022.[6]
[6] ARD p 18.
On 7 July 2022 the applicant was again independently medically examined by Dr Young, who produced a report dated 25 July 2022.[7] He found that the most prominent feature of the applicant’s presentation was Alcohol Use Disorder, and that if the applicant’s history was taken at face value, he also reported symptoms meeting the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria for post-traumatic stress disorder. However, the doctor went on to say:
“There are however many important inconsistencies in his history and presentation which indicate that the reported history cannot be taken at face value.”
Dr Young made a certain current diagnosis of Alcohol Use Disorder and found sufficient evidence to sustain a diagnosis of Persistent Depressive Disorder.
[7] Reply p 270.
On 18 August 2022 EML issued to the applicant a further notice under s 78 of the 1998 Act containing a denial of liability for the applicant’s claim, relying on the same matters referred to in the s 78 notice dated 22 October 2020, and also making reference to the reports of Dr Chow dated 6 April 2022 and Dr Young dated 25 July 2022.[8]
[8] ARD p 25.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    did the applicant’s injury arise out of his employment with the respondent (s 4 1987 Act)?
(b)    Was the applicant’s employment with the respondent a substantial contributing factor to injury (s 9A 1987 Act)?
(c)    Was the applicant’s injury wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline, transfer and/or provision of employment benefits (s 11A(1) 1987 Act)?
(d)    Was the applicant’s injury solely attributable to serious and wilful misconduct (s 14(2) 1987 Act)?
The respondent notes that the s 11A defence relies predominantly on discipline and to a lesser extent transfer and the provision of employment benefits.
In respect of the s 11A defence, the applicant concedes that the respondent acted reasonably in investigating the serious offences of which he was charged and convicted, but puts in issue of whether the injury he suffered was wholly or predominantly caused by such action.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration hearing on 14 February 2024 conducted via video conference. Mr Hammond of counsel appeared for the applicant instructed by Mr Nikolovski. The applicant attended with his solicitor and counsel. Mr Gaitanis of counsel appeared for the respondent instructed by Mr Smith. A representative of EML attended separately.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents (AALD) dated 8 February 2024, lodged by the respondent, with the following attached documents:
(i)report Dr Peter Young dated 17 January 2024, and
(ii)letter from the respondent’s solicitor to the applicant’s solicitor serving such report.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of the parties are recorded, a transcript of which can be obtained on request. In summary, they are as follows.

Applicant.

The applicant notes that whilst an objection is not maintained to the material the respondent obtained under subpoena in the District Court proceedings between the same parties, there was an implied “Harman” undertaking on the part of the respondent to seek the leave of the District Court to be able to rely on those documents to assess the current claim, and defend the claim. That was not done in these proceedings.
The applicant accepts that the investigation by the respondent into his actions was reasonable having regard the seriousness of his conduct, which was inappropriate, and at times criminal.
The applicant submits that the heart of his case is the post-traumatic stress disorder with which he has been diagnosed, arising out of or in the course of his employment with the respondent.
The applicant notes that he was employed as a police officer from approximately November 1997, and progressed to constable and senior constable. On 4 September 2007 was promoted to sergeant after only nine years of service. Until late in his career, his service was exemplary and unblemished.
The applicant notes that over the period of his police career he was exposed to a number of traumatic and confronting situations including for example, the death of a child in 1990, the train suicide of a person in 2016 whose dismembered body parts were scattered over the railway tracks, the delivery of a death message in 2016, and his attendance at a scene in 2019 where a person had been mauled to death by a dog. This evidence from his statements is confirmed by the histories recorded by the medical experts who have treated him and who have assessed him in the current proceedings.
Details of these occurrences are recorded by the various doctors who have treated or assessed the applicant and are not in issue.
The applicant submits that if the Commission is satisfied that he did suffer from post-traumatic stress disorder as a result of exposure to traumatic and confronting situations, it cannot be satisfied that the disciplinary action taken against him by the respondent, late in the applicant’s police career, was the whole or predominant cause of the psychological injury from which he suffers.
The applicant notes that there is only one doctor, Dr Young who independently examined him at the request of the respondent, who does not accept that he suffers from post-traumatic stress disorder.
The applicant submits that Dr Young changes his opinion from that expressed in his first report dated 10 July 2020. The applicant submits that Dr Young’s opinion expressed in that report is supportive of his case, but his opinion changes in the later reports. Dr Young focuses on Mr Paterson not undergoing psychometric testing that would confirm the diagnosis of post-traumatic stress disorder.
The applicant notes that Dr Young expresses doubts about the history given by him, questions his reliability as a historian, and his credibility as a witness. The applicant however points out that he has undergone psychometric testing as is evident from the report of the treating psychologist, Marie Britt, in her report dated 6 August 2020 following a consultation on 16 July 2020.[9] Ms Britt concludes that based on workplace history, initial assessment consultation and psychometric results, Mr Paterson’s presentation is consistent with post-traumatic stress disorder.
[9] ARD p 65.
The applicant submits that Dr Young, in recommending psychometric testing, does not say which testing is required, and that Dr Young has not seen Ms Britt’s reports which may have caused him to change his opinion.
The applicant notes that he has seen his general practitioner for treatment, the psychologist Rodney Ward and also the late Dr Selwyn Smith, psychiatrist. All of these practitioners, and Dr Chow as is evident from his last report dated 2 October 2023,[10] have been given at least part of the history of disciplinary action taken against him by the police force.
[10] ARD p 45.
Dr Chow in particular maintains his opinion that the applicant suffers from post-traumatic stress disorder as a result of exposure to traumatic and confronting incidents during his police career. Cogent reasons are given by Dr Chow for maintaining his diagnosis.
The applicant submits that, after a 20 year career in the police force with an unblemished record until the time he behaved in a bizarre and offensive manner leading to the charges he faced and of which he was convicted, it was totally illogical for him to behave in that manner. The diagnosis of post-traumatic stress disorder as a result of his service with the police force, with its exposure to traumatic and confronting events, provides a reason for that behaviour. If that is accepted, that behaviour is a full answer to the respondent’s defence of the claim under s 11A of the 1987 Act which then falls away.
The applicant addresses the evidence of District Commander Dean Smith (Commander Smith) in his statement dated 1 May 2020. The applicant submits that police officers often lack insight into issues of psychological injury, and the failure to lodge a P 902 Injury Notification Form on the occasions when he claims he was traumatised by attending various events is explained by the “police culture” of not reporting the effects of such events, not at the time of each individual incident having psychological symptomatology warranting reporting, and having potentially little insight into what was occurring in his psyche. The trauma experienced had a cumulative effect on him which built up over time and did not manifest itself until triggered by his own actions, and the disciplinary response to them. However, the underlying cause of his condition is his exposure to trauma as a police officer.
The applicant submits that if the diagnosis of post-traumatic stress disorder on which he relies, and the cause thereof, is accepted by the Commission there cannot be a finding that the psychological injury from which he suffers was wholly or predominantly caused by the disciplinary action taken against him by the respondent.
Similarly, for the same reason, the respondent’s defence to the applicant’s claim under s 14 of the 1987 Act cannot succeed. For either defence to succeed, the applicant submits that the Commission would have to find that the actions taken by the respondent with respect to discipline were the whole or predominant cause of injury and the evidence, taken as a whole, does not support such a finding.

Respondent

The respondent refers to the comments made by the applicant in respect of documents attached to the Reply, obtained from material subpoenaed if the District Court proceedings between the parties, the admission to which to which no objection was taken by the applicant. These documents include bank records of an account which the applicant conducted with his partner.
The respondent submits that the admission of those records constitutes an admission by the applicant of a trip to Thailand in 2023. However, the respondent submits that it will be a matter for a Medical Assessor to determine if such records and admission are relevant to the assessment of whole person impairment.
Apart from making this submission, the respondent does not further refer to these bank records.
In respect of the defence under s 11A, the respondent submits that it is important to have regard to the following chronology of events from when investigation into the applicant’s conduct commenced and was referred to the Professional Standards Command Investigations Unit on 28 February 2018 to determine if criminal charges against the applicant were warranted. On 16 March 2018 a search warrant was executed on the applicant’s home and mobile phones.
An examination of the applicant’s leave records attached to the Reply,[11] reveal that he took leave in 2018. On 23 March 2018 the applicant was placed on an Interim Risk Management Plan,[12] in response to a complaint that was issued by another officer; then there was a transfer from Lake Illawarra Police Station to Nowra Police Station, where the applicant remained until he ceased work.
[11] Reply pp139-141.
[12] Reply p 50.
On 28 February 2020 the applicant was served with a Court Attendance Notice.
On 1 March 2020 the applicant’s partner advised Commander Smith due to the incidents that occurred on 28 February 2020 that the applicant had suffered another breakdown requiring medical intervention. Until that time the applicant had been able to fulfil his duties, despite a history that the applicant had given to Dr Avenido[13] on 8 August 2018 of him apparently having had problems at work since March 2018.
[13] ARD pp 89 – 90.
On 19 March 2020 the applicant lodged a P 902 form,[14] in which he said that due to an incident on 28 February 2020 he had been having flashbacks of jobs he had been doing over the past 22 years. The respondent submits that is an entirely implausible explanation. The Commission must make its findings based on evidence, not speculation, and there is no evidence of the applicant complaining of traumatic events to which he has been exposed in the past, or attending on doctors in respect of such events.
[14] ARD p 16.

The respondent submits that there is a strong temporal connection between the service of the Court Attendance Notice on 28 February 2020 and the lodgement of the P 902 form on 19 March 2020. The respondent emphasises the force of the event on 28 February 2020, both qualitative and quantitative, in terms of the onset of the applicant’s mental illness. It is that event that was causative of such illness, not the events over the previous 22 years referred to by the applicant in the P 902 notice.
The respondent refers to the statement of Commander Smith dated 1 May 2020[15] in respect of the requirement of staff who sustain psychological trauma from attending a job to complete P 902 Injury Notification Form, and the fact that records show that no such form had been previously lodged by the applicant in regard to mental health, only physical injuries he sustained between 2008 and 2014.
[15] Reply p 3.
The respondent recites Commander Smith’s the history of the applicant’s situation from 22 February 2018 when Mr Paterson had been managed in an alternative workplace under an Interim Risk Management Plan, working out of Nowra Police Station, during which time the applicant had not reported anything adverse.
The respondent notes Commander Smith’s evidence that when Mr Paterson was on 28 February 2020 served with legal documentation, he asked if he could remain at the Nowra Police Station, but was told that due to the severity of the charges and that his duty status was being reviewed, he would have to be placed in an office to do project work, be privately managed, and have no public interactions. This would involve a move to the Southern Region Office. The applicant indicated to Commander Smith that he was happy to keep working and wanted to do so. The respondent notes that this was despite the traumatic events that Mr Paterson alleges he had been subject to over the previous 22 years. The applicant remained at the Nowra Police Station until he resigned from the Police Service.
The respondent replies to the applicant’s submission that both Dr Young and Dr Chow were made aware of his criminal conduct and charges emanating therefrom by pointing out that neither Dr Avenido or Dr Selwyn Smith, both of whom treated Mr Paterson, were made aware of the Court Attendance Notice that was served on him, and that impacts adversely on his credit.
The respondent poses the rhetorical question as to why the Commission would accept that the applicant’s psychological injury was caused by anything other than disciplinary action taken against him. This disciplinary action commenced in 2018 with the investigation into the applicant’s conduct.
The applicant refers to the evidence of Detective Sergeant Lincoln Walker in his statement dated 21 July 2023.[16] Details of the serious issues he was asked to address, and the serious charges recommended by him, are set out therein. The respondent notes the Detective Sergeant’s evidence that conduct of the nature alleged against the applicant would be investigated by the police force, whether or not the suspect was a police officer or civilian, and charges laid if sufficient evidence existed. He found that Mr Paterson’s conduct was serious and wilful, and had significant negative impacts on the victims. Detective Sergeant Walker notes the Magistrate’s statement on conviction of the applicant that he had acted deceptively and that the SMS messages he sent were designed to be emotionally destabilising.
[16] Reply p 10.
The respondent notes Detective Sergeant Walker’s evidence that the applicant was convicted of all nine charges which he faced. Two fraud offences were dismissed with caution. Mr Paterson was sentenced on the “…remaining six offences to a 2 year Community Corrections Order.”
The respondent notes that the reasonableness of its conduct in investigating the applicant is not in issue, only whether or not the respondent’s conduct was the whole or predominant cause of the applicant’s mental illness.
The respondent notes the applicant’s s evidence in his statement dated 22 June 2020 in respect of the gradual deterioration in his mental health, the commencement of which he had difficulty in putting a time on. He says that it probably started to occur gradually within a couple of years of starting that he did not recognise at the time. The respondent notes the applicant’s acknowledgement at [5] in his supplementary statement dated 3 November 2022 that “Of course the court case played on my mind but the job itself was incredibly anxiety-inducing.”[17] The respondent contrasts this admission with what Mr Paterson told Dr Young on 7 July 2022 that “…he was entirely unconcerned by the consequences by the consequences of the allegations, specifically the disciplinary matters and criminal conviction…and maintains that these have had no significant negative psychological impact.”[18]
[17] ARD p 8.
[18] Reply p 272 – report of Dr Young dated 25 July 2022 Reply p 270.
The respondent submits that the applicant underplays the disciplinary matters with which he was faced, and that it is entirely implausible that the criminal prosecution, perhaps with the possibility of deprivation of liberty, had no part to play in his concerns.
The respondent draws attention to the report of Dr Young dated 25 July 2022 in which the doctor highlights:
“The most marked inconsistency is that there is no history of symptoms of acute stress disorder preceding the onset of PTSD and no other evidence that symptoms were present prior to the commencement of disciplinary procedures. Mr Paterson’s denial of any adverse psychological impact from these proceedings and from the later criminal conviction is frankly implausible.”[19]
[19] Reply p 276.
The respondent submits that Dr Young has formed the view that it is entirely implausible that the criminal procedures or disciplinary procedures had no impact on the applicant. Dr Young doubts the veracity of the applicant.
The respondent submits that the applicant’s submission that because of the traumatic events he experienced, which have never been the subject of a P 902 notice or any complaint to doctors, supported by the opinion of Dr Chow, should be rejected.
The respondent submits that the conduct in which the applicant engaged, involving the hacking of phones, the sending of false text messages, and committing fraud, displayed a deliberate course of conduct. The respondent also notes that applicant’s evidence that:
(a) at the time he committed the offences, he was using alcohol to cope and help numb the psychological pain he was experiencing, and
(b) prior to the incident with Mr Tecles, he had never had any behavioural or conduct issues at work.
The respondent submits that the applicant “…engineers a set of circumstances where he commits fraud and the like and that’s all due to some underlying condition.”[20] The respondent submits that the courts are littered with first time offenders, who can use subjective considerations, or subjective matter, to in some way explain conduct. However, in this case the applicant embarked on a deliberately culpable course of conduct because there was an act of resentment by him against Mr Tecles and his family. That is the explanation for the applicant’s conduct.
[20] Transcript (T) p 27.30.
The respondent then deals with the treatment the applicant received initially from, Dr Avenido with reference to the doctor’s report dated 8 April 2020. The respondent notes that Mr Paterson attended the surgery on 8 August 2018 stating that he had had problems at work since March 2018. The respondent notes that the investigation into the applicant’s conduct commenced in March 2018. On 16 March 2018 a search warrant was executed on the applicant’s house, against a background of the commencement of the investigation in late 2017 when the respondent became aware of Mr Tecles’ complaint.
The respondent notes that the last attendance on Dr Avenido recorded in the report was on 27 March 2020, one month after Mr Paterson was served with the court attendance notice. The respondent notes Dr Avenido’s comment about mildly increased blood pressure in 2018 “when it first happened”, and that it was higher in February 2020 when the applicant learnt that he would have eventually appear in court.
The respondent refers to the report of Dr Avenido dated 13 July 2021, noting that the applicant is recorded as being keen to go back to some form of work, but fails to tell the doctor that he has by then been convicted of criminal offences, so he can never go back to working in the police force.
The respondent notes that when the applicant saw Dr Selwyn Smith on 5 June 2020, he does not tell the doctor that in 2018 there had been a search warrant executed on his house, that he had been told that he had to move to Nowra, that he was under investigation, and that he had been served with a court attendance notice. Dr Smith was aware that Mr Paterson had been referred to the Professional Standards Command.[21]
[21] Report of Dr Selwyn Smith dated 9 June 2020, ARD p 63.
The respondent refers to the applicant’s attendance on Marie Britt, psychologist, on 6 August 2020 and her report of that date.[22] Ms Britt records the three months that the applicant had off work in 2018 as a result of difficulties associated with jobs he had to attend to in the course of his work, and a “mental breakdown” at the end of February 2020, when he was served (with) a subpoena relating to the culmination of a three-year internal investigation, and that he had been off work since that time.
[22] ARD p 65.
The respondent lists three problems in respect of the history provided to Ms Britt by the applicant, namely:
(a)    that the mental breakdown at the end of February 2020 is supportive of the proposition that there is a temporal connection between the court attendance notice and the condition;
(b)    that the applicant does not tell Ms Britt that he has been served with a court attendance notice. He tells her that he was served with a subpoena (emphasis added). According to the respondent, the applicant is not implicating himself in any criminal proceedings, but is undermining the importance of the court attendance notice. He does this because he is trying to amplify the traumatic events which the respondent submits are not real in terms of the Commission’s assessment of the applicant’s claim. The respondent submits that the issue is about the disciplinary process and nothing to do with past traumatic events, and
(c)    the applicant tells Ms Britt that he has been off work since he was served with “a subpoena”, and that is not the case, as he continued to work at Nowra in 2020.
The respondent submits that when one looks at the preponderance of the medical evidence, it will be seen that there is an undermining of the importance of the criminal proceedings, because if that is done and the traumatic events are amplified, the s 11A defence falls away. The respondent submits that such is the narrative that the applicant advocates, but that is simply not the case.
In respect of the opinion of Dr Chow, the respondent submits that the doctor has accepted the applicant’s version of events in relation to the exposure to traumatic events or incidents as a police officer, but Dr Chow, although he has had the benefit of access to the reports of treating practitioners, probably has not interrogated those reports sufficiently to know that the applicant has undermined the importance of the criminal proceedings. He has just accepted that the traumatic events had a part to play, but goes even further without any medical or scientific support, saying that the applicant’s criminal behaviours are all as a result of some kind of ameliorated state of mind which have caused him to engage in criminal behaviour.
This opinion of Dr Chow is evident from p 5 of his report dated 25 April 2022.[23] In his subsequent report dated 16 January 2023 Dr Chow poses two possible scenarios, and accepts the second scenario is more likely, that is that Mr Paterson has been suffering psychologically due to his work trauma and it started to affect his decision making, judgement and emotional containment.
[23] ARD p 38.
The respondent submits that such explanation by Dr Chow is not in the real world, nor plausible or cogent. It is speculative and not supported by anyone else, particularly in circumstances where he has not seen, or really commented on the fact that Mr Paterson really has not told some of the treating doctors about the criminal conduct and the charges laid against him.
The respondent submits that there is no other possible explanation for the psychological injury suffered by the applicant than the disciplinary action taken against him by the respondent for the criminal behaviour in which he engaged. The attempt by the applicant to create a narrative that the psychological injury was caused by traumatic events, and that such events were the cause of the criminal behaviour, should be rejected.
In respect of the defence to the applicant’s claim under ss 4 and 9A of the 1987 Act, the respondent submits that the applicant’s criminal conduct in 2017 cannot possibly be related to activities that were in the course of, or arising out of employment, or that the applicant’s employment was a substantial contributing factor to injury as discussed in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited.[24] The offending behaviour was the applicant’s alone, carried out in his personal capacity, and had nothing to do with work. Any injury flowing therefrom is as a result of his own personal behaviours, and nothing to do with his work.
[24] [2009] NSWCA 324 (Badawi).
In terms of defence under s 14 of the 1987 Act, the respondent acknowledges that there are a number of limbs that have to be satisfied, particularly under s 14(2). The respondent submits that the applicant’s injury was solely attributable to his own serious and wilful misconduct, confirmed by the evidence of Detective Sergeant Walker, who described the conduct as serious and wilful.
The judgment of the Local Court would give support to a finding that the applicant’s criminal conduct amounted to serious and wilful misconduct. The injury did not arise in connection with trade or business. The respondent acknowledges that it must show that the applicant was not seriously and permanently disabled in order to succeed in its defence under s 14, and that is a finding that will have to be made by the Commission when considering this section. It appears that there is an argument that if one suffers from permanent impairment, that will deal with the issue of permanent disablement. The respondent raises the question of to what extent does a person have to be permanently impaired to be seriously impaired.
The respondent acknowledges that this issue is one of the limbs of the section that need to be satisfied, and that it is not without difficulty for the respondent. The respondent does point out that the assessment of seven percent whole person impairment assessed by Dr Young in his latest report dated 17 January 2024 is below the threshold of 15 per cent which would enable the applicant to recover compensation for permanent impairment as a result of psychological injury.

Applicant in response

The applicant cautions the use of clinical records and reports of treating doctors, referring to what the Court of Appeal said in Mason v Demasi.[25] The applicant also submits that when a treating general practitioner or psychologist writes a report answering questions posed to him or her, for example Dr Avenido in giving his report dated 13 July 2021 to the UHG Case Manager,[26] the fact that other matters are not raised or mentioned in the report does not create a credit issue against the applicant.
[25] [2009] NSWCA 227.
[26] ARD p 54.
In respect of the respondent’s submissions that the applicant was “undermining the criminal matters”, to the extent that this implies that Mr Paterson deliberately lied to experts or treating practitioners is a fairly serious matter, and should have been put to the applicant in cross-examination. The applicant accepts that he was less than fulsome with his disclosure of some aspects of the disciplinary matters, but to suggest that he has “made up” attendances or histories is really something that needed to be put to him as a matter of procedural fairness.
The applicant refers to a comment by Dr Young at the top of the third page of his report dated 25 July 2022[27] where the doctor makes comment that Mr Paterson confirmed experiencing stress in relation to what he continued to maintain were “false allegations” made against him by co-workers. The applicant submits that it is difficult to understand that paragraph, and it does not sit well with the doctor giving consideration to the question of whether post-traumatic stress disorder was an underlying condition. It would not provide a basis for a finding or conclusion that the applicant was giving a false history. There is a logical inconsistency in what the doctor is saying; it is hard to understand what he was trying to say.
[27] Reply p 272.
The applicant submits that, in the context of the onus of proof on the respondent to prove that the applicant’s condition was wholly or predominantly caused by disciplinary action, the applicant does not need to prove that post-traumatic stress disorder caused his behaviour. All he needs to prove is that the diagnosis is post-traumatic stress disorder or something else with a post traumatic element, and that events that he went to in his police career are the cause of the condition. He does not have to prove that the condition was wholly or predominantly caused by his employment.
The applicant finally points out that in respect of the evidence of Commander Smith, it is noted from [5] of his statement that he first met Mr Paterson when he started at Lake Macquarie [sic, Illawarra] Police Station since January 2018. He then says that:
“I am unaware of Lee experiencing any mental health issues during his employment with the New South Wales Police.”
and
“I do not believe Lee ever took leave during his employment for mental health purposes.”
The applicant submits that it is not clear if Commander Smith is talking about the period from 2018 onwards, or if he is talking from a perspective of having reviewed the applicant’s personnel file and leave records. Those leave records are attached to the Reply, which are consistent with Mr Paterson’s evidence that he consulted with the Employees Assistance Programme (EAP) following the assault in August 2008.
The applicant submits that Commander Smith’s evidence in respect of the applicant is in respect of the period from 2018 onwards, not from some earlier period.
The applicant notes that Commander Smith says in the second sentence of [19] of his statement that the respondent does not have records pertaining to him sustaining psychological injury from the incidents to which he refers in his evidence, and is unable to confirm Mr Paterson’s level of involvement and/or attendance at the described incidents. The applicant submit that police officers do not put in a report of injury after every traumatic thing to which they have been exposed, or in which they are involved, with the police force. Commander Smith does depose to the support services which are available to members. The applicant notes from [8] of his statement dated 22 September 2023 that he did seek help from the EAP following a serious assault in or around 2008 or 2009.

FINDINGS AND REASONS

Injury claimed by the applicant

The applicant claims that he suffers from post-traumatic stress disorder arising out of his long employment as a police officer from 1997 when he first joined the police force. There is no issue that he was exposed to a number of significant and traumatic events during the course of that employment which, in accordance with the finding of the independent medical examiner Dr Chow who first assessed him on 6 April 2022, caused him to suffer post-traumatic stress disorder .

Mr Paterson says in his initial statement dated 22 June 2020 that although it is difficult for him to put a time on the commencement of his mental health concerns while employed with the police force, he believes that it was a gradual process of deterioration. He says that “At times you will go and perform a bad job and keep thinking about it and I believe these types of events and responses have just accumulated over time.”
The applicant states that he had never experienced psychological issues due to physical events experienced while working for the police force. He says that he developed some coping mechanisms and saw “an EAP” (Employee Assistance Programme) for three sessions in 2018. He said that he began to recognise his triggers.
This is to some extent corroborated by what Commander Smith says in his statement dared 1 May 2020. He first met the applicant when he started working at the Lake Illawarra Police Station in January 2018 where Mr Paterson was working as a Community Support Supervisor within the Crime Prevention Unit. Commander Smith says that he is unaware of the applicant experiencing any mental health issues during his employment with the respondent, nor does he believe he ever took leave during his employment for mental health purposes. As pointed out by the applicant, Commander Smith can only give first hand evidence on this matter in respect of the period from January 2018 onwards, not some earlier period.
Commander Smith does say that it is a requirement that if staff sustain psychological trauma from attending a job, they complete a P 902 Injury [sic, Incident] Notification Form, and records show that the applicant did not complete any P 902s in respect of mental health, only physical injuries he sustained.
As noted at [5] above, the only P 902 Incident Notification Form in evidence in the proceedings is dated 19 March 2020, lodged by the applicant following service upon him of a Court Attendance Notice on 28 February 2020.
The applicant explains this in submissions both by the “police culture” of not reporting the effects of such events of themselves, and that fact that he was suffering no symptoms at the time.
The applicant was involved in a number of events in 2017-2018 that gave rise to subsequent investigation, and criminal charges being laid against him resulting in conviction in 2021, and the obligation to resign from the police force in July 2021.
These events included what was found to be the fraudulent use of a former colleague’s Woolworths discount card to purchase on two occasions petrol to the total value of $4, and more seriously, Mr Paterson accessing information and using telecommunications services inappropriately.
The details of the last mentioned more serious events appear in the statement of Detective Sergeant Walker dated 21 July 2023. After investigation of the applicant’s conduct and consultation with the Office of the Director of Public Prosecutions, the nine charges finally laid against the applicant were:
(a) two counts of unauthorised modification of data with intent to cause impairment, s 308D of the Crimes Act 1900;
(b) two counts of dealing with identification information, s 192J of the Crimes Act 1900;
(c) three counts of stalking or intimidation with intent to cause fear of physical or mental harm, s 13 of the Crimes (Domestic and Personal Violence) Act2007 and
(d) two counts of fraud, s 192E of the Crimes Act 1900.
Details of the outcome of the criminal proceedings against the applicant are set out at [2] above. Detective Sergeant Walker says that the applicant’s conduct was serious and wilful, and had significant negative impacts on the victim. He says that the Magistrate stated that the applicant acted deceptively and that the SMS messages he sent to the victims were designed to be emotionally destabilising.
The applicant does not deny what is said by Detective Sergeant Walker, nor does he seek to minimise the seriousness of his actions. He does seek to give a background to events leading up to his conduct at [25]-[29] of his statement dated 22 September 2023. Due to his acknowledgement as to the seriousness of his actions, it is not necessary to set out details of the background to events. Mr Paterson does say at [30] of his statement:
“Looking back with further insight on my psychological condition, I think I continued to do the above because my judgement was affected by my PTSD and I was not thinking clearly about Mr Tecles’ feelings or the consequences of what I was doing. I realise now after receiving psychological treatment that what happened was not worthy of that reaction and my trauma exposure in the NSW Police Force had manifested into my personal relationships and behaviour against others. Even now, I am anxious, suspicious, and hypervigilant around people because I know what people are capable of after 20 years in the Police Force of attending suicides, domestic assaults and murders.”
Mr Paterson goes on to say that at the time he committed the offences he was using alcohol to cope and to help numb the psychological pain he was experiencing.
I accept what Detective Sergeant Walker says as to the seriousness of the applicant’s conduct.
The applicant does not take issue with the length of time that it took between the investigation into his conduct commenced in late 2017 until he was served with a Court Attendance Notice on 28 February 2020. When addressing the s 11A defence raised by the respondent Mr Paterson submits that his psychological injury was not wholly or predominantly caused by what he acknowledges was reasonable action taken by the respondent to investigate his conduct.
The applicant notes that if the finding of the Commission is that he did suffer psychological injury as a result of the confronting and traumatic events to which he was exposed during the course of his police career, the respondent cannot succeed with its s 11A defence. Similarly, the defence under s 14(2) of the 1987 Act cannot succeed.
The respondent relies on defences to the applicant’s claim under both sections, perhaps more so under s 11A, acknowledging that it may difficulty for the respondent to show that the applicant has not suffered serious or permanent disablement, which would prevent it from relying on a defence under s 14(2).

The applicant’s treatment

Dr Avenido

Mr Paterson says in his statement dated 22 September 2023 that in or around 2008 or 2009 he was off work for nine weeks following a serious assault and sought help from the EAP.[28] As I understand the applicant’s submissions, there was no suggestion that this event of itself was causally related to the subsequent diagnosis of post-traumatic stress disorder. There are no further details of this assault, although it could form part of the traumatic events on which the applicant relies leading to the diagnosis.
[28] ARD p 10.
The applicant attended at an EAP for three sessions in 2018. It appears that this was after the attendance on his treating general practitioner, Dr Avenido, on 8 August 2018 when he stated to the doctor that he had been experiencing problems at work since March 2018, claiming that he had been accused by another police officer (and now ex-friend) of using the friend’s Bunnings discount card fraudulently. He told the doctor he “…was not coping well with the anxiety, stress and insomnia at the time hence requested to have some stress leave.”[29] There are clinical notes from Dr Avenido in evidence that pre-date the attendance on 8 August 2018, back to a surgery consultation with Dr Avenido on 21 June 2018.[30]
[29] See report of Dr Avenido dated 8 April 2020, ARD p 52, and clinical note 8 August 2018, ARD p 89.
[30] ARD p 90.
On 21 June 2018 Mr Paterson attended on Dr Avenido for a knee injury sustained in a mountain bike accident in January 2018.
In the clinical note of Dr Avenido of 8 August 2018, in addition to the problems at work since March 2018, there is reference to the applicant’s move from Oak Flats where he had been for more than 20 years, his subsequent move to Wollongong, then to Nowra. He said that he had the two previous weeks off work as he could not handle the stress and anxiety, and did not feel ready to go back as he did not know anyone at Nowra. He said that he had seen sought legal help but was told not to say anything until the investigation was finished. He sought more time off and needed something to help with sleep.
The reason for the contact with Dr Avenido on 8 August 2018 was:
“Insomnia – anxiety related
Depressive anxiety disorder
Working condition problems
Listening and advice
Medical certificate”
Dr Avenido suggested to the applicant that the applicant “see psych for CBT to help with coping strategies but declined for now”.
On 22 August 2018 De Avenido relevantly recorded a history from the applicant that he was still having issues with work, and that there had been no response to the email he had sent before the last time he had seen the doctor. The reason for contact was the same as on 8 August 2018 including “Insomnia – anxiety related”.
On 7 September 2018 Dr Avenido recorded that the applicant had received an email saying that:
“it will go through inquiries and not sure how long the resolution will take, feels in limbo and no hope, still don’t want to go to Nowa…never had a sick day in 3yrs, so got 10mos of sickies…hasn’t been exercising and started drinking again, has put back all the weight he lost last time”.
Depressive anxiety disorder was recorded, along with anxiety related insomnia, working condition problems and alcohol excess as the reason for contact.
On 21 September 2018 Dr Avenido noted that Mr Paterson had seen the “psych through work…had gone back to exercising…had received an email from work saying that they are still investigating and sent paperwork for income protection; got about 21yrs of leave, seeks certificate”.
The applicant saw Dr Avenido again on 5 and 19 October 2018. On the latter day Mr Paterson told the doctor that he thought he was ready to go back to work though he had never worked at Nowra but knew a few people there. A subsequent consultation on 19 January 2019 was for something unrelated to the applicant’s psychological condition or return to work.
In a report dated 13 July 2021 Dr Avenido reported to Roselyn Graham, UHG Case Manager, in answer to questions posed to her that the applicant’s diagnosis was “Adjustment Disorder with Anxiety and Depression exacerbating a vulnerability to trauma symptoms, post-traumatic stress disorder as result of police work.” She said that Mr Paterson was keen to go back to some form of work and willing to upskill in needed, but perhaps not in the same occupation as this proved to be very traumatic for him.
It was after that time that Mr Paterson gives evidence of attendance on another horrific incident “…in or around September or October 2019”, at the scene of death of a male person who was killed by a dog and whose body was partly eaten away by the dog.[31] That event is after the events of 2017 which gave rise to the criminal charges against the applicant, caused he says by the undiagnosed post-traumatic stress disorder from which he was suffering at the time.
[31] See [30] 0f the applicant’s statement dated 22 June 2020, ARD p 6.
It is apparent from the clinical notes and reports of Dr Avenido that the applicant was concerned about the events at work from early 2018 including the allegedly fraudulent use of the Bunnings card, that he was concerned about the investigation into his conduct and the length of time it was taking, and also his move from Oak Flats to Wollongong and Nowra. This is in contrast to what he told Dr Young, recorded in his report dated 25 July 2022, referred to hereunder, that:
“On further questioning, Mr Paterson said he maintained that his psychological injury was caused by the fact that the ‘false allegations’ were made and that he was entirely unconcerned by the consequences of the allegations, specifically the disciplinary matters and criminal convictions, stating ‘I was desensitised’ and ‘by that stage I did not care. I didn’t even give evidence’ and maintains that these have had no significant psychological impact.”[32]
[32] Reply p 272.
Mr Paterson says at [5] in his statement dated 3 November 2022, having read that report of Dr Young and commenting thereon:
“Of course, the court case played on my mind but the job itself was incredibly anxiety-inducing.”

Rodney Ward

Dr Avenido referred the applicant to see Rodney Ward, psychologist, on 28 February 2020.[33]
[33] Reply p 256.
The “Presenting Problem:” in the referral is as follows:
“apparently had been accused at work going to 3yrs now, has been relocated to Nowra but recently been given a letter to go to court for it, had seen counsellor in the past, not coping well but not suicidal, for further assessment please”
(emphasis and bold type in original)
There are reports of Rodney Ward, psychologist, dated 11 May 2020 and 25 September 2020 addressed to Michelle at EML in evidence.[34] There are also handwritten clinical notes of Mr Ward and other documentation in respect of his treatment of Mr Paterson from 6 April 2020.[35] As at 11 May 2020 the applicant had undergone approximately seven sessions of treatment with Mr Ward, and he was seeing him twice weekly.
[34] ARD pp 63 and 60.
[35] ARD p 94.
As a result of his initial assessment and subsequent sessions, Mr Ward believed that the applicant was showing signs and symptoms of post-traumatic stress disorder. A differential diagnosis was stated to be Adjustment Disorder with mixed disturbance conduct and emotions. Mr Ward said that Mr Paterson reported intrusive symptoms such as intrusive thoughts, memories and images to [sic, of?] jobs and incidents in which he had been involved, primarily four significant jobs. When asked what he believed to be the whole or predominant cause that led to the diagnosis, Mr Ward said:
“I believe the cumulative effect of police work and exposure to traumatic events as the leading cause of his symptoms. I believe some internal matters have exacerbated his trauma symptoms.”
When asked if he considered Mr Paterson’s work with the police force to be the main contributing factor that led to the development of his condition, Mr Ward said:
“I believe Mr Paterson’s work within the NSWPF as the only contributing factor as he reports no pre-morbid trauma and a good early childhood and family life.”
When asked to detail any other factors (e.g. personal, family or other non-work related) that may be affecting Mr Paterson’s return to work or recovery, Mr Ward said:
“I believe some internal matters in which Mr Paterson has been served a court attendance notice has caused a lot of stress and exacerbated his trauma symptoms.”
On 25 September 2020 Mr Ward reported to EML that Mr Paterson still reported intrusive symptoms such as intrusive thoughts, memories and images to jobs and incidents in which he had been involved. He said that psychometric questionnaires would also support the diagnosis. He said that he was still seeing Mr Paterson fortnightly for psychotherapy from a cognitive behavioural framework. Mr Ward remained guarded regarding the work future of Mr Paterson as he was still participating in intensive therapy, and there had not been sufficient time to address the question of return to work on both suitable duties and pre-injury duties. Mr Ward wanted to continue at reduced frequency the treatment at least until after Mr Paterson completed the St John of God programme, and was in a position where he was managing his symptoms well.

Dr Selwyn Smith

Dr Smith examined the applicant on 5 June 2020 and reported to Dr Avenido on 9 June 2020.[36] Dr Smith recorded a history of the applicant’s schooling, employment and joinder of the police force in November 1966 [sic, 1997?]. He recited the applicant’s postings within the police force, culminating in a move to Lake Illawarra undertaking general duties, and a history of exposure to traumatic events, including details thereof. Dr Smith recorded that Mr Paterson took three months off work for anxiety and depression in 2018, precipitated by an altercation with a fellow police officer who had separated from his wife. Details of an alleged “fraudulent use” of a Woolworths petrol card to the extent of four dollars are recorded. Dr Smith also recorded:
“This has resulted in a spiral of activities that have also taken their emotional toll on him to the extent that he has been referred to the Professional Standards Command and is currently awaiting in all probability a Section 181D or 173 Notice.”
[36] ARD p 63.
Dr Smith’s psychiatric opinion was that the applicant presented with diagnostic criteria for a post-traumatic stress disorder, chronic in duration, in association with an Adjustment Disorder with Mixed Depressed and Anxious Mood. He clearly required further assistance from a psychiatric and psychological point of view, and a further appointment was arranged. Dr Smith said that in addition to consulting with Dr Avenido and Mr Ward, Mr Paterson may benefit from attending a specialised post-traumatic stress disorder programme, and he was referred to St John of God Hospital, Burwood.

Marie Britt – St John of God Counselling and Therapy Centre

The applicant consulted Marie Britt on 16 July 2020 on referral from Dr Smith for assessment for suitability to join the Adult Trauma Programme (ATP), a 12 week (two days a week) outpatient group programme at St John of God Hospital in Burwood. Ms Britt prepared an Initial Assessment Report dated 6 August 2020, in which she detailed Mr Paterson’s presentation and background information.[37] Ms Britt referred to the three months off work in 2018 as a result of difficulties associated with jobs he had attended in the course of his work. She also recorded that an additional work stressor during this time was an internal investigation related to a complaint made by a colleague following a friendship falling out, when Mr Paterson claimed sick leave (not workers compensation) because he did not want to seem weak. He utilised three to four sessions with s psychologist through the EAP programme during this time.
[37] ARD p 65.
Ms Britt referred the return to work thereafter, and relevantly that:
“Lee reported he had a mental breakdown at the end of February 2020, when he was served a subpoena relating to the culmination of a three-year internal investigation. He has been off work since this time.”
Ms Britt said that Mr Paterson reported difficulties consistent with his diagnosis of post-traumatic stress disorder. She then recorded details of the traumatic and gruesome scenes that the applicant reported to that he had been involved in. She also recorded the effect that the applicant’s condition had on his social engagements, family relationships, and his reactions with members of the public. Ms Britt gave results of psychometric testing to which the applicant was subjected. Her conclusions and recommendations were that, based on workplace history, initial assessment, and psychometric results, Mr Paterson’s presentation was consistent with post-traumatic stress disorder. She then recommended treatment options.

Qualified medical opinions

Dr Chow

The first report of Dr Chow dated 25 April 2022 is referred to above at [8]. Dr Chow saw the applicant via Telehealth on 6 April 2022. The documentation he had before him was:
(a)    P 902 Incident Notification Form dated 28 February 2020;
(b)    Statement of Mr Paterson dated 22 June 2020;
(c)    Certificates of Capacity;
(d)    report of Dr Aileen Avenido dated 8 April 2020;
(e)    report of Rodney Ward dated 11 May 2020;
(f)    report of the late Dr Selwyn Smith dated 9 June 2020, and
(g)    report of Dr Peter Young dated 10 July 2020.
Under “BACKGROUND” Dr Chow recorded the history of the applicant’s employment with the respondent, from when he started with the police force in 1997. This history includes:
(a)    that Mr Paterson was off work for nine weeks in 2008/2009 after a serious assault and saw a psychologist;
(b)    the traumatic and confronting encounters that he faced during the course of his employment;
(c)    increased alcohol intake to cope and struggle with worsening psychological state over time;
(d)    the dynamic difficulties Mr Paterson faced when two of his colleagues broke up, and the accusation that he used one of his colleague’s Woolworths card to get a four cent discount on petrol;
(e)    the fact that he was under criminal investigation for two years, given a notice to attend court, and that he knew that it would affect his career, and
(f)    that Mr Paterson then finally decided to seek psychiatric and psychological treatment for his underlying psychiatric difficulties over the years.

Dr Chow summarised the treatment the applicant received after February 2020, including referral to see a psychologist in May 2020 who he was seeing every two to three weeks, was prescribed medication and had attended as an inpatient at St John of God Hospital. Dr Chow recorded that in May 2021 Mr Paterson was found guilty and given a good behaviour bond, and told in July 2021 that he either resign or be fired.
Dr Chow expressed the opinion that Mr Paterson was already suffering from post-traumatic stress disorder symptoms prior to the dynamic difficulties with his colleagues and the subsequent allegation and criminal investigation. There was evidence that he was struggling psychologically and there was increased alcohol intake to cope. He said:
“With his ability to cope further reduced due to his post traumatic stress disorder, he was certainly more prone to engage in behaviours and conducts that demonstrated poor judgement. The use of his colleague’s Woolworth card was certainly an act of poor judgement.
Even without the Woolworth discount card related issue, looking at Mr Paterson’s history and trajectory of his reported psychiatric difficulties, his psychological state was likely to further deteriorated and his police career was very likely to end prematurely due to escalated behavioural disturbance at work or another conduct issue as a result of his poor judgement from his work related psychiatric conditions.”
Dr Chow therefore considered that Mr Paterson had developed his psychiatric injuries as a result of his police career and the traumatic events he had witnessed over the years.
In a supplementary report dated 16 January 2023,[38] Dr Chow was asked to review the following documentation:
[38] ARD p 42.
(a) s 78 Notice dated 22 October 2020;
(b) s 78 Notice dated 18 August 2022;
(c)    Lake Illawarra Police District Interim Risk Management Plans;
(d)    South Coast Police District Monitoring Reports;
(e)    statement of Superintendent Dean Smith dated 28 April 2020;
(f)    reports of Dr Young dated 10 July 2020 and 25 July 2022;
(g)    Quantum Corp Online Investigation Report dated 8 September 2022;
(h)    supplementary statement of Mr Paterson dated 3 November 2022, and
(i)    clinical notes of Barrack Heights Medical Centre.
Dr Chow said:
“After reviewing all the documentation provided, especially the comments from Dr Young within his two reports, I confirm it is still my view that Mr Paterson’s employment with NSW Police was a substantial contributing factor to his psychological injury.”
“Mr Paterson has been in the Police Force since 1997. He had a career for over 20 years with the Police Force. There was no suggestion that he had behavioural problem at work before
However, in later years, especially with a number of traumatic exposures, there were escalated consumption of alcohol, psychological symptoms, poor judgement and the erratic behaviours leading to criminal charges.”
Dr Chow then posed two possible scenarios:
(a) “…that Mr Paterson had a friendship fall out with his previous work colleague which led to a series of behavioural and criminal charges and his psychological symptoms. In this scenario, we are assuming Mr Paterson has no prior significant psychological difficulties and for whatever reason a long term career police officer who had no prior erratic behaviour difficulties started to behave in an erratic manner because of a friendship fall out with a work colleague to an extent he was prepared to jeopardise his long term police career”, and
(b) “…that he has been suffering psychologically due to his work trauma and it started to affect his decision making, judgement and emotional containment. The erratic behaviours were the result of his underlying psychiatric injury which is post-traumatic stress disorder. It then led to his criminal charges and impact on his long term police career.”
Dr Chow said that:
“Reviewing his work history, his reported traumatic scenes at work, years of psychological symptoms prior in a concealed manner and his delayed presentation until his erratic behaviours became more prominent, on the balance of probability, it is my view that the second scenario is more likely.”
He said that he meant it was Mr Paterson’s underlying work related injury of post-traumatic stress disorder which led to his erratic behaviours in the workplace and subsequent criminal charges. Dr Chow said that this is not an uncommon presentation of responsible police officers who suffer from post-traumatic stress disorder eventually went off work due to escalated psychological symptoms, poor judgement and interpersonal and behavioural difficulties as a result of the work related psychiatric injury.
Dr Chow examined the applicant again on 25 September 2023 via Telehealth and produced a report dated 2 October 2023. The documentation reviewed for that report was:
(a)    supplementary Statement of Mr Lee Paterson (date not noted);
(b)    chronology of Mr Paterson’s career and criminal proceedings (which does not appear to be in evidence);
(c) s 78 Notice issued by the insurer together with enclosures (date not noted), and
(d)    reports of Dr Young.
Dr Chow quoted excerpts from Dr Young’s report dated 25 July 2022, updated the applicant’s history since the previous report, repeating some of the history referred to in the earlier report, and went through the previous history again. This included further history of events that occurred leading up to the applicant’s behaviour after he was accused of cheating by his male colleague and which led on to Mr Paterson’s criminal conduct. These behaviours lasted a couple of days and Mr Paterson reported to Dr Chow that “…he was clouded by his emotions”, and that “…all these difficulties were happening in work hours within the workplace. He said that he worked with the male colleague in the same station and they were in the same team.” Mr Paterson told Dr Chow that he was off work from mid-2018 until close to the end of 2019.
Dr Chow recorded that the applicant was convicted of stalking and intimidation in addition to charges relating to charges relating to (obtaining) the financial benefits of a $2 discount on a Woolworths card.
Under “Summary and Opinion”, Dr Chow said he remained of the opinion that the applicant was suffering some post-traumatic stress disorder symptoms prior to the dynamic difficulties with his colleagues, but with the updated history. It would appear that he was harassed by his male colleague for a period of time after his colleague’s marriage with the female colleague deteriorated due to an affair. Dr Chow said:
“With the recurrent harassment and together with his pre-existing psychological difficulties, Mr Paterson overacted in an erratic manner for a couple of days after he was accused of cheating; after harassing texts from his male colleague to his partner.”
…
“In my opinion, his psychiatric injury is work related both due to the trauma at work as a police officer but also the harassment from his colleague leading to the subsequent unfortunate premature ending of his police career.”
…
“In my opinion, the trauma within his police career and also the harassment from colleague were the substantial contributing factors to his psychiatric injury.”
Dr Chow noted his difference with the opinion of Dr Young in that he considered that Mr Paterson suffered from a work-related psychiatric injury due to trauma exposure within his police career but also the harassment from his colleague. He did not consider this to be exaggerated, nor did he think that the diagnosis of post-traumatic stress disorder to have been provided just purely due to face value.

Dr Young

Dr Young’s report dated 10 July 2020 was prepared following an examination of the applicant on 9 July 2020 is referred to above at [6]. It contains a history largely consistent with that provided to Dr Chow and with the applicant’s statement evidence. The history of the events in 2017 and 2018 which led to the criminal charges being laid against Mr Paterson is recorded on p 4 of the report,[39] noting that there appears to be a typo in the second line of the second paragraph in respect of an ongoing complaint and issues that had been occurring “since 2008” [sic, 2018]. Dr Young records that the applicant was confident that he would be cleared of allegations, but became increasingly distressed over time because there was a long delay before he was informed of the nature of the allegations, and he was not informed of the progress of the investigations despite repeated attempts to gain information. That resulted in increasing anxiety due to the uncertainty of the situation. Mr Paterson related to Dr Young that overall the complaint took three years to be dealt with and escalating levels of stress over the time resulted in the development of anxiety symptoms.
[39] Reply p 261.
This history is consistent with the applicant’s consultations with Dr Avenido from 8 August 2018, referred to above at [102] - [110]] above.
Dr Young records that the applicant told him that in January 2020 he was informed that the criminal component of the allegations would not proceed, and that the investigation would proceed internally. However, on 28 February 2020 Mr Paterson was served with a court notice informing him that criminal charges had been placed. “He described himself feeling acutely shocked and distressed by this news, and was taken aback as he had been informed otherwise. He reported that following this he felt increasingly distressed.”
Under “ASSESSMENT AND DIAGNOSIS” Dr Young reports that the applicant presented reporting symptoms of depressed mood and anxiety in relation to several types of stressors in the long and short terms. Primarily he was experiencing in relation to the complaint and complaint handling process that had been in place since 2018 and recent advice regarding criminal charges that had been made against him.
Later in the report, when asked to comment on the transfer of the applicant to Wollongong after service on him of the Court Attendance Notice on 28 February 2020, Dr Young says that Mr Paterson did not describe being transferred as a significant factor in the causation of his current stress. He reported that other aspects of the investigation of complaints had been serious stresses over time.
Dr Young notes that the applicant described mixed symptoms, and that taken at face value, sufficient symptoms had been described to meet the criteria for post-traumatic stress disorder. However, given the delayed onset of these and the association between later stressors, Dr Young opined that the less specific diagnosis of Adjustment Disorder was more appropriate.
It is relevant to note at this stage that the applicant, in presentation of his case to the Commission, does not take issue with the length of time it took to investigate his actions in 2017 and 2018 that led to charges being laid against him. He submits that his psychological injury was not wholly or predominantly caused by the disciplinary action taken against him. He does not dispute the reasonableness of such action.
Dr Young in his second report dated 25 July 2022 prepared following a further examination via Telehealth on 7 July 2022 reports a presentation of the applicant as described in his previous report. He found that the most prominent feature of his presentation was the diagnosis of Alcohol Use Disorder, recording:
“He continues to describe symptoms of depression as well as some post-trauma symptoms. The severity of the depressive symptoms reported meets the criteria for a Major Depressive Disorder. If his history is taken at face value, he also reports symptoms meeting DSM5 criteria for Post-Traumatic Stress Disorder. There are however many important inconsistencies in his history and presentation which indicate that the reported history cannot be taken at face value.”
Dr Young reports that there is sufficient evidence to sustain a diagnosis of Adjustment Disorder or Persistent Depressive Disorder. However, without further factual and objective evidence such as psychometric testing, he does not believe that a diagnosis of post-traumatic stress disorder can be confidently sustained. Similarly, Dr Young notes that the applicant reported significant ongoing impairment; however this is based on subjective report which he believed to be of doubtful veracity without objective verification.
In his diagnosis, Dr Young notes that Mr Paterson alleges that his post-traumatic stress disorder symptoms commenced several years ago, but despite experiencing increasingly severe symptoms he concealed the symptoms and their effects and did not report them until after disciplinary issues were raised. The applicant described experiencing increasingly severe symptoms of depression and concurrent escalating alcohol abuse.
Dr Young notes the marked inconsistency being that there was no history of symptoms of Acute Stress Disorder preceding the onset of post-traumatic stress disorder and no other evidence that symptoms were present prior to the commencement of disciplinary procedures. Dr Young says that “Mr Paterson’s denial of any adverse psychological impact from these proceedings and from the later criminal conviction is frankly implausible.”
Dr Young finds that “…the worker’s description and explanation of his symptoms to be implausible and I believe that his work injury was caused by the disciplinary and criminal matters that have been raised.”
Later, commenting on the report of Dr Chow, Dr Young says:
“I find the applicant’s history of ‘already suffering from post-traumatic stress disorder symptoms prior to the issues with his colleagues’ to be implausible. I note especially that Mr Paterson maintains that the allegations made against him are false and that he has given minimal details of these issued to Dr Chow.”
Dr Young gives an assessment of 24% WPI in accordance with the permanent impairment rating scale (PIRS), noting that the scores attributed are based in face-value acceptance of the history as reported.
The applicant was again independently medically examined by Dr Young via Telehealth on 16 January 2024, who produced a report dated 17 January 2024.[40] That report addressed issues in respect of the capacity of the applicant for work and an assessment of WPI which Dr Young found to be 7%. Dr Young notes that Mr Paterson:
“…continues to report feeling depressed and anxious, relating this to post-traumatic issues and alleged ‘bullying and harassment’ by work colleagues, that is ‘false complaints’ that he said were made about him and the subsequent investigation.”
…
“He maintained that he was not psychologically affected by the disciplinary actions by his employer nor the criminal charges and subsequent conviction.”
[40] AALD dated 8 February 2024, p 4.
Dr Young said under “ASSESSMENT AND DIAGNOSIS”:
“As indicated in my previous report, Mr Paterson in my opinion is not a reliable historian. The history that he presents in my view is not credible and cannot be accepted at face value. In my opinion, malingering is present and is the predominant cause of the reported symptoms and associated impairments.”

Consideration

The respondent’s case is summarised briefly at [4] above. The respondent says that the disciplinary process against the applicant commenced in late 2017 and continued until the Court Attendance Notice was served on him on 28 February 2020. That is the date of injury nominated by the applicant who alleges that the post-traumatic stress disorder diagnosed by the doctors and psychologists by whom he has been treated was caused by the long history of exposure to traumatic and confronting incidents to which he was exposed during the 20 year history of his police career up until late 2017. At that time, Mr Paterson engaged in conduct involving a former colleague in the police force, with whom he was still working in the same police station, which was deliberate, wilful, and confronting to the persons to whom it was addressed, fraudulent (admittedly to a modest degree in respect of the misuse of the petrol discount card by Mr Paterson), and quite clearly criminal.
The effect on the persons to whom the applicant sent SMS messages is mentioned briefly in the statement of Detective Sergeant Walker when summarising a statement made by the Magistrate who convicted that applicant on the nine charges which he faced. The applicant does not, in presenting his case to the Commission, take issue with the serious and criminal nature of his conduct. Details of this conduct are in the criminal investigation report (names in which have been redacted) and Online Investigation Report dated 8 September 2022.[41]
[41] Reply pp 43 and 214.
The applicant says that the course of conduct he entered upon in late 2017 was as a result of the undiagnosed psychological injury he was suffering at the time as a result of his exposure to traumatic and confronting incidents. He says at [30] in his statement dated 22 September 2023 that looking back with further insight in his psychological condition, he thinks that he continued to engage in the criminal conduct referred to in [29] of the statement because his judgement was affected by his post-traumatic stress disorder and he was not thinking clearly about Mr Tecles’ feelings and the consequences of what he was doing. He says that now after receiving psychological treatment he realises that what happened was not worthy of that reaction, and his trauma exposure in the NSW Police Force had manifested into his personal relationships and behaviour against others. Even now, he says, he is anxious, suspicious, and hypervigilant around people because he knows what people are capable of after 20 years in the police force of attending suicides, domestic assaults and murders.
That statement is not in my view consistent with what Dr Young reports Mr Paterson as saying on 16 January 2024 when the doctor examined him, which is set out in [152] above. There, Mr Paterson blamed bullying and harassment by work colleagues, that is false complaints that he said were made about him, and the subsequent investigation.
Mr Paterson maintained to Dr Young that he was not psychologically affected by the disciplinary actions by his employer nor the criminal charges and subsequent conviction. That is not consistent with the consultations the applicant had with Dr Avenido from 8 August 2018 until 19 October 2018. It is clear from those consultation notes that he was concerned about the investigation, and the time it was taking. Mr Paterson does concede in his statement dated 3 November 2022 that the court case played on his mind but says that the job itself was incredibly anxiety-inducing.
The applicant in presenting his case to the Commission does not put in issue the reasonableness of the investigation into his conduct, or the time it took. What must be determined is whether injury sustained was wholly or predominantly caused by the respondent’s action taken with respect to discipline.
The applicant’s explanation of “the incident” in the P 902 form dated 19 March 2020 is set out above at [5]. That is the first occasion on which the applicant refers the traumatic incidents in which he was engaged during his police career. That was the day on which he was served with a Court Attendance Notice to attend court and face charges arising out of his conduct in late 2017. The applicant did not mention to Dr Avenido traumatic or confronting incidents he faced during the course of his employment in the 2018 consultations between 8 August and 19 October 2018. Dr Avenido did report to Roselyn Graham, the UHG Case Manager, on 13 July 2021 a diagnosis of Adjustment Disorder with Anxiety and Depression exacerbating a vulnerability to trauma symptoms, and post-traumatic stress disorder as a result of police work.
The applicant’s partner Mr Bill McKay text messaged Commander Smith on 1 March 2020 stating that due to the incidents that occurred on 28 February 2020, “Lee suffered another breakdown requiring medical intervention, and that it was unclear when Lee would be in a position to return to work.” A medical certificate was attached.

The applicant thereafter saw Dr Avenido and was referred to Rodney Ward for treatment from 6 April 2020.
There are in evidence Certificates of Capacity issued by Dr Avenido dated 13 March 2020 until 6 November 2020 certifying no current capacity for any employment from 13 March 2020 until 7 December 2020.[42]
[42] Reply pp 229-253.
The applicant emphasises the clear temporal connection between the date of injury relied upon by the applicant and the break down reported by Mr McKay on 1 March 2020. Until that time the applicant had been at work apparently from the time he returned to work following the consultation with Dr Avenido on 19 October 2018 when he said that he thought that he was ready to go back to work, apparently at Nowra, and that his boss had called him asking if he would like to start on Wednesday.[43] The next surgery consultation recorded is with Dr Saroha on 19 January 2019 for a matter unrelated to any psychological condition.
[43] ARD p 86.
I accept that, on the evidence, Dr Avenido, Rodney Ward, and Marie Britt were not fully informed of the serious nature of the criminal proceedings that the applicant was facing when they treated him after March 2020. They diagnosed the applicant as having symptoms consistent with post-traumatic stress disorder. Whatever the diagnosis, it is clear that from at least the time that these practitioners commenced their treatment of the applicant he was suffering from a psychological or psychiatric illness. Prior to that date, Dr Avenido had recorded a depressive anxiety disorder from which he was suffering on 8 August 2018.
The respondent submits that the disciplinary action against the applicant commenced with the investigation into his conduct in late 2017. This began at Lake Illawarra Police Command before being transferred to the Professional Standards Command in March 2018. A search warrant was executed on the applicant’s home on 16 March 2018 where mobile phones and computerware were seized.
The applicant does not take issue with the disciplinary process engaged in by the respondent.

Actions with respect to discipline

In Department of Education and Training v Sinclair,[44] Spigelman CJ stated at [58]:
“To avoid the absurdity that arises from a literal approach, and having regard to the context of the legislative scheme and its purpose, it is necessary to understand s 11A to mean that the employer is not liable where, to the extent that the employment contributed to the injury, that contribution was wholly or predominantly caused by reasonable action taken with respect to…discipline.”
(emphasis in original)
[44] [2005] NSWCA 465.
At [96] his Honour said of actions with respect to discipline:
“Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.”
I accept that the respondent’s actions with respect to discipline commenced in late 2017.

Whole or predominant cause

In McCarthy v Department of Corrective Services[45] Deputy President Roche said at [157]:
“Acting Deputy President Handley considered the phrase ‘predominantly caused’ in Ponnan v George Weston Foods Ltd[2007] NSWWCCPD 92 and applied the dictionary meaning (at [24]) of ‘mainly or principally caused’. I agree with that definition and intend to apply it in the present matter.”
[45] [2010] NSWWCCPD 27.
The respondent must discharge the onus of proof on it this matter to show that the psychological injury suffered by the applicant on 28 February 2020 was mainly or principally caused by the actions it took with respect to discipline, over the period from late 2017 until 28 February 2020.
Dr Avenido, Rodney Ward and Marie Britt, although they did not get a full history of the applicant’s activities which led to his criminal conviction in 2021, all found the applicant’s presentation was consistent with post-traumatic stress disorder. Their treatment, along with the one consultation the applicant had with Dr Selwyn Smith, all postdated 28 February 2020.
Dr Smith examined Mr Paterson on 5 June 2020. He received a more comprehensive, but not complete, outline of the applicant’s activities precipitated by an altercation with a fellow police officer. He said that the “fraudulent use” of a Woolworths petrol card to the extent of four dollars resulted in a spiral of activities that had taken an emotional toll on Mr Paterson to the extent that he was referred to the Professional Standards Command and was currently awaiting in all probability a s 181D or 173 Notice, which I understand could lead to dismissal from the police force.
Dr Smith’s psychiatric opinion was that the applicant presented with diagnostic criteria for post-traumatic stress disorder, chronic in duration, in association with an Adjustment Disorder with Mixed Anxiety and Anxious Mood. He said that Mr Paterson clearly needed further assistance from a psychiatric and psychological point of view. He arranged to see Mr Paterson again, but that did not occur.
Dr Smith does not give an opinion on the causation of the applicant’s illness. Like the other treatment providers, he was concerned about his treatment.
Dr Chow had seen all of the relevant evidence, eventually, by the time he produced his report dated 16 January 2023. He adopts the “second explanation” for the applicant’s conduct in that report, referred to in [131(b)] above.
In his last report dated 2 October 2023 Dr Chow adheres to his earlier opinion that the applicant was already suffering from post-traumatic stress disorder symptoms prior to the dynamic difficulties with his colleague and the subsequent allegations and criminal investigation. He is also of the view that both the trauma within Mr Paterson’s police career and also the harassment from his colleague were the substantial contributing factors to his psychiatric injury.
It is not part of the applicant’s case that the harassment Mr Paterson alleges against his colleague was a contributing factor to his psychiatric injury. He relies on the trauma he says he suffered during the course of his police career up until late 2017.
It is conceded that the applicant did not report any problems in respect of traumatic or confronting events he witnessed or in which he was involved to the respondent until 28 February 2020, nor did he complain to his doctor about such issues. The clinical note of the consultation with Dr Avenido on 8 August 2018 does not contain reference to the traumatic and confronting attendances referred to by the applicant in the course of his employment. The investigation into his conduct was well underway by the date of this consultation, and Mr Paterson was concerned as to its progress and likely outcome. There is reference in that clinical note to the problems with the applicant’s colleague and the fraudulent use of the Bunnings discount card, but not to matters that predate late 2017.
I do not accept the opinion of Dr Chow that the post-traumatic stress disorder from which he diagnosed that applicant as suffering was responsible for his actions in late 2017 which led to his conviction of criminal offences and his resignation from the police force. When regard is had to:
(a)     the evidence of the consultations with Dr Avenido from 8 August 2018 onwards;
(b)    the fact that the applicant returned to work in about late 2019 at Nowra and continued working until he was served with the Court Attendance Notice on 28 February 2020;
(c)    his immediate decompensation thereafter;
(d)    the Incident Notification Form dated 19 March 2020, which includes a reference therein to an incident in 2019 which could not have been responsible for the post-traumatic stress disorder which the applicant claims to have caused him to act in the way that he did in late 2017;
(e)    the serious nature of the charges which the applicant faced as a result of his actions towards his colleague, and the consequences of a conviction thereon, both in respect of his future employment and liberty. I find it difficult to accept that Mr Paterson, as an experienced policeman, cannot have been unmindful of the illegality and consequences of his actions. That is probably why he expressed such concern to Dr Avenido in 2018 about the progress of the investigation into those actions. That is also an explanation for the dramatic reaction of Mr Paterson to service on him of the Court Attendance Notice on 28 February 2020;
(f)    the apparent maintenance by the applicant in his history to Dr Young that his psychological injury was directly caused by the fact that the “false allegations” were made, and that he was entirely unconcerned by the consequences of the allegations, and
(g)    the acknowledgement by the applicant that the case (against him) played on his mind, confirmed by the attendances on Dr Avenido from 8 August 2018.
Dr Young found in July 2022 that the most prominent feature of the applicant’s presentation was the diagnosis of Alcohol Use Disorder, and he continued to describe symptoms of depression and some post-trauma symptoms. He said that the severity of the depressive symptoms met the criteria for a Major Depressive Disorder, and that if his history was taken at face value, he also reported symptoms meeting DSM-5 criteria for post-traumatic stress disorder. He found many important inconsistencies in Mr Paterson’s history and presentation which indicated that the reported history cannot be taken at face value.
In his report dated 17 January 2024 Dr Young gives the opinion that Mr Paterson is not a reliable historian, doubts his credibility, and cannot accept his presentation at face value. He says that malingering is present and is the predominant cause of the reported symptoms and associated impairments.
It is not necessary for me to make a finding that that applicant is malingering. However, for the reasons summarised above at [181], I find that the respondent has discharged the onus on it to show that the psychological injury from which he suffers was predominantly caused by the reasonable action taken by the respondent with respect to discipline.
In respect of the defences raised to the applicant’s claim pursuant to ss 4 and 9A of the 1987 Act, the respondent submits that the applicant’s own criminal conduct in 2017 cannot possibly be related to any activities that were in the course of or arising out of employment, or that such employment was a substantial factor to injury as discussed in Badawi. That is correct. The offending behaviour was the applicant’s alone, done in his personal capacity, and had nothing to do with work.
The predominant cause of the applicant’s psychological injury was the reasonable action taken by the respondent with respect to discipline. That action commenced in late 2017.
In view of the finding on the respondent’s defence under s 11A of the 1987 Act, it is unnecessary to consider the defence raised by the respondent under s 14(2) of the 1987 Act.

SUMMARY

The applicant suffered psychological injury on 28 February 2020 predominantly caused by reasonable action taken by the respondent with respect to discipline.
Award for the respondent.

[2024] NSWPIC 83

26 February 2024