Paul v State of New South Wales

[2023] NSWDC 277

District Court

New South Wales

Medium Neutral Citation:

Paul v State of New South Wales [2023] NSWDC 277

Hearing dates:

29 May - 2 June, 7 June - 9 June 2023

Date of orders:

31 July 2023

Decision date:

31 July 2023

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) Judgment for the Plaintiff for $1,828,862, with liberty to apply in relation to any application for interest.

(2) Defendant to pay Plaintiff’s costs, with liberty to apply.

(3) Exhibits retained until further order.

Catchwords:

NEGLIGENCE — Duty of care — Police service —non-delegable duty to members of NSW Police Force in the nature of an employer’s duty in common law – Duty to provide safe system of work for members of the NSW Police Force – Plaintiff appointed as Team Leader (of five other officers) for an inquiry forming part of The Royal Commission into Institutional Responses to Child Sex Abuse – Inquiry initially to consist of a handful of victims but rapidly escalated to over 70 victims of 11 alleged perpetrators - Plaintiff’s wife, a sex crimes police officer participating in the Defendant’s “WellCheck” program, and who had observed her husband’s rapidly changing behaviour, suggests the Plaintiff seek to join WellCheck – Plaintiff puts a proposal to his superior that he and his team of five officers join the WellCheck program – proposal endorsed by his supervisors – WellCheck program not put in place but Plaintiff is not informed of this – ad hoc counselling on three or four occasions is provided for first two years of Commission work but then ceases – Plaintiff’s other attempts to deal with work load and stress – whether the Plaintiff informed his superior officers at any stage that he was fine or otherwise would not or did not comply with counselling – superior officers did not refer the plaintiff for continuing or additional psychiatric or psychological assessment – whether Plaintiff should have consulted the chaplain and/or peer support officers and/or the police counselling service for further assistance for himself and/or his team – Royal Commission report and trials completed in 2019 and Plaintiff ceases work as a police officer for health reasons – when and in what circumstances the Plaintiff developed post-traumatic stress disorder (PTSD).

BREACH OF DUTY – s 5B of the Civil Liability Act 2002 (NSW) – Whether the superior officers knew or ought to have known of the risk of the Plaintiff suffering psychiatric injury in circumstances where he had sought counselling through WellCheck for the duration of the Royal Commission and this had not been provided – Whether in the circumstances the superior officers acted in a manner less than was reasonable in failing to refer the Plaintiff for appropriate psychiatric or psychological assessment and/or counselling.

NEGLIGENCE – Causation – s 5D of the Civil Liability Act 2002 (NSW) – Whether the Plaintiff would have developed PTSD but for the failure of his superior officers to refer him for psychiatric or psychological assessment – Whether the evidence establishes that earlier intervention in the treatment for PTSD in the Plaintiff would, on the balance of probabilities, have prevented his present injury.

DAMAGES – Assessment of damages for personal injury – Plaintiff’s residual capacity for employment – likely date for retirement - whether, considering the magnitude of the Royal Commission investigation and the subsequent prosecutions, the Plaintiff would have been likely to be promoted had he remained working.

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5D, 5R, 13, 26B, 26BA, 31

Civil Procedure Act 2005 (NSW), s 56

Crown Proceedings Act 1988 (NSW), s 5

Federal Circuit and Family Court of Australia Act 2021 (Cth), s 190

Occupational Health and Safety Regulations 2001 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), Pt 14 r 14

Work Health and Safety Regulations 2011 (NSW)

Workers Compensation Act 1987 (NSW), ss 37, 151D, 151E, 151F, 151G, 151H, 151IA, 151J, 151M

Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 318

Cases Cited:

Ali v Caton & Anor [2013] EWHC 1730 (QB)

Australian Winch and Haulage Company Pty Ltd v Collins [2013] NSWCA 327

Benic v New South Wales [2010] NSWSC 1039

Bersee v State of Victoria [2022] VSCA 231

Bridge Printery Pty Ltd v Mestre [1999] NSWCA 342

Browne v Dunn (1894) 6 R 67

Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726

Digi-Tech (Australia) v Brand [2004] NSWCA 58

Doherty v State of New South Wales [2010] NSWSC 450

DP (a pseudonym) v Bird [2021] VSC 850

Galea v Bagtrans Pty Ltd [2010] NSWCA 350

George Mkari by his Next Friend Youssef Mkari v Daniel Meza [2005] NSWCA 136

Hooper v Catholic Family Services trading as Centacare Catholic Family Services [2023] FedCFamC2G 323

Horne v J K Williams Contracting Pty Ltd [2023] NSWCA 58

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15

Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12

Kubovic v HMS Management Pty Ltd [2015] NSWCA 315

McKay v Palmers Removalist Storage Pty Ltd [2010] NSWCA 83

Michael v State of New South Wales [2011] NSWSC 231

New South Wales v Fahy (2007) 232 CLR 486

Paper Coaters Pty Ltd v Jessop [2009] NSWCA 1

Rader v Haines [2021] NSWDC 610

S v State of New South Wales [2009] NSWCA 164

Siegel v Pummell [2014] EWHC 4309 (QB)

Sills v State of New South Wales [2018] NSWDC 119

Sills v State of New South Wales [2019] NSWCA 4

State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344

State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

State of New South Wales v Seedsman [2000] 217 ALR 583

State of NSW v Coffey [2002] NSWCA 361

Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19

Thorn v Monteleone; Thorn v Kelly [2021] NSWCA 319

Unver v Liftronic Pty Limited [1999] NSWCA 275

Valentine v R [2023] NSWCCA 43

Various Claimants v Barclays Bank plc [2020] AC 973; [2020] UKSC 13

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Timothy Paul (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Mr J Morris SC with Mr E O’Neill (Plaintiff)
Mr D Baran (Defendant)

Solicitors:
Cardillo Gray Partners (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2022/00060706

Publication restriction:

Nil

Judgment

Judgment

The pleadings

Background

The Royal Commission

The procedural history of the claim

The claim for negligence

The nature and scope of the duty of care

The Plaintiff’s police career up to Strike Force Bilvo

Strike Force Bilvo is set up

Mrs Paul’s evidence about WellCheck

WellCheck

The counselling provided was not WellCheck

Inspector Yapp’s role in asking for “WellCheck” support

The Plaintiff’s experience with Ms Clark

The evidence of Detective Senior Constable Henkel

The evidence of Ms Clark

The Plaintiff seeks assistance from his general practitioner

The Plaintiff seeks to change his work duties

The Plaintiff’s role Strike Force Bilvo changes

The Plaintiff asks for an officer to assist him

The evidence of Pamela Freeland

The statement evidence

The Plaintiff ceases work

Evidentiary Issues

Jones v Dunkel and the failure to call witnesses

Mr Feszczuk

Ms Richards

Ms Boon

Mr Conroy

Mr Fenwick and the Chief Psychologist

Section 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the WIM Act”)

The medical evidence

The Plaintiff’s medical evidence

The Defendant’s medical evidence

Conclusions concerning the evidence

Negligence

Negligence – findings concerning breach of duty of care

Causation

Contributory negligence

Conclusions concerning liability

Damages

Past economic loss

Future economic loss

Cap for damages for loss of promotion opportunities

The parties’ schedules

Concluding remarks and costs

Orders

1. The Plaintiff, a former police officer, brings proceedings against the Defendant conformably with s 5 of the Crown Proceedings Act 1988 (NSW) in respect of acts, omissions and conduct of the Defendant which, by reason of the Defendant’s asserted negligence, led to his premature retirement as a result of Chronic Post Traumatic Stress Disorder, a Major Depressive Disorder and Substance Abuse Order. He asserts that the cause of these illnesses has been medically attributed in part due to the cumulative effects of exposure to numerous traumatic incidents encountered over the course of his career but, essentially, by the work he carried out as the officer in charge of one of the 57 case studies undertaken by the Royal Commission into Institutional Responses to Child Sex Abuse which was set up on 15 November 2012.

2. By reason of the legislative scheme for claims against employers, the Plaintiff’s claim is restricted to general damages and past and future economic loss by the Workers Compensation Act 1987 (NSW), Part 5, Division 3; ss 151E(1) and 151F. The parties agree that, although the relationship between the Plaintiff and Defendant is not one of employment in the strict sense, the relationship between them is analogous to employer/employee, as qualified by the operation of the legislation under which police officers carry out their duties (State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 at [56]–[61]), although the scope and content of that duty remains in issue.

3. Police officers are in a different position to other plaintiffs in that the very nature of their duties is capable of exposing them to the risk of psychological injury (Sills v State of New South Wales [2019] NSWCA 4 at [114] – [117]), in part because they are duty bound to obey and carry out lawful orders in accordance with their statutory obligations (State of New South Wales v Briggs at [126] and [142]).

4. The Plaintiff has been diagnosed as suffering from Chronic Post Traumatic Stress Disorder, a Major Depressive Disorder and Substance Abuse Disorder involving alcohol, the cause of which has been medically attributed to the cumulative effects of exposure to numerous traumatic incidents encountered over the course of his career.

5. There is no dispute as to the following:

1. The Plaintiff attained the requisite 15% whole person impairment (WPI) threshold as required pursuant to s 151H of the Workers Compensation Act 1987 (NSW) (“WCA”), with his claim for lump sum compensation benefits having resolved on the basis he suffers from a 19 per cent WPI. The Defendant’s workers compensation claims manager, EML, has accepted liability in respect of the Plaintiff’s statutory entitlements, and he continues to receive ongoing weekly benefits on the basis he is totally incapacitated for employment, together with the payment of s 60 medical expenses.

2. Leave to commence proceedings out of time was granted pursuant to s 151D(2) of the WCA on 22 November 2022.

The pleadings

6. The statement of claim filed on 2 March 2022 sets out that the Defendant owed the Plaintiff a non-delegable duty to take reasonable care to avoid exposing him to the foreseeable risk of injury, including the risk of psychiatric or psychological injury. Particulars of that duty are set out at paragraphs 7 – 11. Specific instances of the Plaintiff’s police duties are set out at paragraphs 13 – 119 (the particulars in relation to The Royal Commission into Institutional Responses to Child Sex Abuse being at paragraphs 90 – 94). The particulars of breach of duty are set out at paragraph 120 as follows:

1. Failing to provide, institute and maintain a safe system of work in circumstances where the Defendant knew or ought to have known of the risk of injury to the Plaintiff;

2. Failing to devise, institute and or maintain a safe system of work in the circumstances where the Defendant knew or ought to have known of the risk of injury to the Plaintiff;

3. Failing to devise and have in place a system to adequately and properly warn the Plaintiff of the risks of psychological and or psychiatric injury from exposure to traumatic incidents, and from the conditions of his workplace;

4. Failing to devise and have in place a system to adequately and or properly educate, train and advise the Plaintiff in relation to the safe performance of his duties as a police officer so as to avoid the psychological and or psychiatric effects of exposure to work-related traumatic incidents and working conditions, where the Defendant knew or ought to have known of the risk of injury to the Plaintiff;

5. Failing to devise and have in place a system to screen or assess the Plaintiff’s suitability in terms of the likely effect upon his psychiatric or psychological condition of his attending traumatic work incidents, being engaged in stressful work conditions, dealing with threats, deceased persons, and those involving the abuse of, and violence towards, children, as well as assaults and other traumatic events;

6. Failing to devise and have in place a system to adequately and properly monitor the effect of traumatic work incidents and conditions of working and the psychological effect of same upon the health of the Plaintiff such as that instituted by the Tuggerah Lakes Area Command in 2007 which required duty officers to input traumatic events and follow up with officers for which they were responsible;

7. Failing to devise and have in place a system to adequately and properly train and supervise the Plaintiff’s superior officers so as to allow them to monitor the effect of traumatic work incidents upon the Plaintiff;

8. Failing to devise and have in place a system of counselling, debriefing or other intervention to adequately and properly ensure that the Plaintiff had available to him appropriate means of detecting and alleviating the psychological and or psychiatric effects of traumatic work incidents;

9. Failing to educate the Plaintiff to recognise signs of psychological injury and, upon recognition, train him to take appropriate action so as to ameliorate or mitigate the symptoms and development of psychological injury;

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

11. Failing to act upon recognisable signs of stress and distress displayed by the Plaintiff, particularly after signs of psychological decompensation while on duty in 2004, upon his return to work in December 2004, in 2010 after he was criminally charged, whilst working in Strike Force Bilvo and following his argument with Superintendent Patton;

12. Failing to undertake any effective welfare checks of the Plaintiff after the Plaintiff's psychological decompensation 2004, following his return to work in December 2004, 2010 following his being charged and following his argument with Inspector Patton where the Plaintiff’s superiors were aware or ought to have been aware of the gravity of the Plaintiff’s decompensation;

13. Failing to follow up the lack of communication with the Police Psychologist in 2003;

14. Failing to have the Plaintiff properly examined in circumstances where the Defendant knew or ought to have known that to expose the Plaintiff to further trauma would cause an exacerbation or aggravation of the Claimant’s condition and such an examination would preclude the Plaintiff from performing full duties;

15. Failing to protect the Plaintiff from further stressors in circumstances where the Defendant knew or ought to have known the Plaintiff was suffering from a psychiatric condition and that the exposure to further stressors would likely result in the Plaintiff’s incapacity for employment;

16. Failing to undertake well checks [sic] of the Plaintiff whilst he was performing duties in Strike Force Bilvo;

17. Failing to properly adhere to, comply and implement the Defendant’s policies, procedures and publications in relation to return-to-work, restricted duties and rehabilitation;

18. Failing to identify the Plaintiff as being “at risk” in circumstances where the Defendant ought to have done so;

19. Failing to limit the Plaintiff’s exposure to traumatic incidents, in circumstances where it was unnecessary and unreasonable to exposure the Plaintiff to said incidents;

20. Failing to properly counsel and or debrief the Plaintiff after critical incidents including that at Dingo Tops in 2010;

21. Failing to establish and enforce an effective system for early detection and treatment for psychological injury caused by the Plaintiff’s cumulative exposure to traumatic events and stressful work conditions;

22. Failing to provide a system of work whereby the Plaintiff was adequately monitored and reviewed and, if necessary, referred for treatment, provided with leave and or transfer to alternative duties so that his psychological illness did not become chronic;

23. Failing to take any, or any appropriate, steps to rehabilitate the Plaintiff back to suitable duties;

24. Failing to provide the Plaintiff with any, or any effective, post event counselling after distressing and stressful incidents;

25. Failing to comply with NSW Police Force Standard operating procedures relating to critical and traumatic incidents;

26. Failing to comply with guidelines for critical incident management of Acting NSW Chief Psychologist J. Lette dated 3 March 2003;

27. Failing to comply with the recommendations of the NSW Ombudsman dated July 1999 relating to the management of critical incident stress management;

28. Failing to ensure that the Plaintiff’s supervisors complied with their job stream responsibilities;

29. Failing to put in place a system that psychologically examines the Plaintiff, by a psychiatrist, every three years such as the system undertaken by the Royal Canadian Mounted Police;

30. Failing to publish and provide to the Plaintiff a guide such as those published by the Australian Defence Force directed to educating a person such as the Plaintiff so that they might identify the symptoms of psychological injury, their cause and the avenues available for treatment and help;

31. Failing to provide at all or insufficiently a resilience training program;

32. Failing to require the Plaintiff to undergo a resilience training program;

33. Failing to implement a Mental Health First Aid course such as that implemented by the West Australian Police Force for the identification, triaging and frontline treatment of psychological injury;

34. Failing to provide a system for monitoring the Plaintiff’s exposure to traumatic incidents and material traumatic in nature similar to that provided to those involved in the Royal Commission.

7. Both parties acknowledged that the evidence related largely to Strike Force Bilvo as opposed to the other incidents set out in the particulars, but I was not addressed by the parties as to which of the particulars the Plaintiff still relied upon. The evidence was principally directed to the failure to provide a proper “WellCheck” system of counselling for the Plaintiff and his team after Strike Force Bilvo was set up, which would suggest particulars 1 – 8, 16 and 34 are the most relevant. While the circumstances causing the Plaintiff to be in a heightened state of stress at the time he was put in charge of Strike Force Bilvo are relevant, neither party made reference to the matters in particulars 11 – 13, 20 and 26 – 33 and I have disregarded these.

8. There are also pleas of breach of statutory duty in relation to the Occupational Health and Safety Regulations 2001 (NSW) (now repealed) and of the Work Health and Safety Regulations 2011 (NSW) and these were referred to only very briefly. By reason of my other findings, I have not made orders on this basis although I have taken into account, in terms of negligence, the relevant regulations.

9. The Statement of Particulars filed on 28 April 2022 provides particulars of ongoing disabilities resulting from the three psychiatric illnesses diagnosed and particularises the loss of income, both past and future. The parties have supplemented and updated this information in their Schedules of Damages as set out in the schedules at the end of the section of this judgment concerning quantum.

10. The defence, filed on 14 April 2022, denies paragraphs 13, 19, 20, 35, 41, 53(c), 57-66, 100, 101, 117, 118, 121-124 of the statement of claim. It pleads that any loss or damage was the result of the Plaintiff’s contributory negligence. The Defendant also pleads (paragraph 128(c) of the defence) that the Plaintiff’s damages should be reduced to take into account non-tortious events upon the Plaintiff’s psychological condition (principally the circumstances of his marital breakdown and disciplinary procedures in 2004) although this was but faintly pressed in the hearing. A plea of mitigation was abandoned in closing submissions.

7. Although there was no pleading to this effect, Mr Baran submitted (Tcpt, 8 June 2023, pp 352 – 358) that, if the psychological treatment afforded to the Plaintiff was inadequate, the Defendant was not vicariously liable (citing Various Claimants v Barclays Bank plc [2020] AC 973; [2020] UKSC 13).

8. Matters set out in the Reply filed on 12 July 2022 were not pursued at the hearing.

Background

13. Stress has been recognised as potentially debilitating to police officers since the late 1970s (Exhibit 1 pp. 1452-1460; Exhibit G, pp.40 - 69). As policing has changed over the decades, the adequacy of the assistance put in place to support them in the performance of their duties has been repeatedly tested. Those changes have involved not only the subject matter of their work but also the sheer size of the criminality involved (not only in terms of number of offenders and offences, but geographically) but also the technology required to cope with what were often vast amounts of documentation and new means of communication such as mobile phones which meant that police were contactable on an almost constant basis.

14. The duty of care owed to police officers is helpfully summarised by Macfarlan JA in S v State of New South Wales [2009] NSWCA 164 at [58] – [60] and by Sackville AJA in Sills v State of New South Wales at [114] – [117]. The parties’ submissions as to how the court should determine this duty are set out in detail below. It is agreed that, when addressing whether the Defendant has breached the duty of care it owed to the Plaintiff, regard should be had to the system of work, the provision of warnings and notices and the circumstances of particular kinds of employment such as police work (Kozarov v Victoria (2022) 273 CLR 115; [2022] HCA 12 at [6] and [19] per Kiefel CJ and Keane J and at [27] – [28] per Gageler and Gleeson JJ; many of their Honours’ observations on workload and work system-related stress are also apposite).

15. There have been changes to methods of policing which may be of relevance to stress factors. This is partly technology-based, as new methods of committing, and proving, certain crimes (notably sex crimes) have emerged. There are also changing societal expectations about criminal investigation. Most relevantly for these proceedings, these societal expectations have resulted in what are sometimes termed “historical” enquiries in Australia and other countries such as the United Kingdom where, rather than dealing with one victim of one crime, police are required to investigate hundreds of offences, often many years beforehand, as a result of concern about institutional response to victims of abuse or other crimes. The Royal Commission into Institutional Responses to Child Sex Abuse was an investigation of this kind.

The Royal Commission

16. Institutional physical and sexual abuse of young and/or vulnerable persons became more widely known about and discussed in the mid to late twentieth century. As evidence of widespread abuse became better known, thanks to new methods of communication and changes to policing, calls for inquiries were made, not only in Australia at State and Commonwealth level, but in other countries, such as New Zealand and Canada. This resulted, in Australia, in the setting up of The Royal Commission into Institutional Responses to Child Sex Abuse on 15 November 2012. A final report on 15 December 2017 included a total of 57 separate case studies: hereafter “the Royal Commission”) and there were 2,575 referrals to authorities (including police) which resulted in a series of criminal prosecutions. The evidence was reported in the media on a very regular basis and the importance of this landmark investigation and its final report is widely accepted.

17. Case Study number 7 was a public hearing which examined the experience of persons who had been sexually abused as children for the period 1950-1974 at The Parramatta Girls’ Training School and The Institution for Girls in Hay. This investigation was referred to the Plaintiff, as the officer in charge (Defendant’s submissions, paragraph 23), in February 2014. Strike Force Bilvo (hereafter “Bilvo”) was set up for the purpose of investigating historical sexual abuse claims, mostly at the Parramatta Girls’ Training School, and this took the Plaintiff away from his other policing work for some years (Tcpt, 29 May 2023, pp 34 – 35).

18. When the Plaintiff was put in charge of Bilvo, it was thought that there would be only a few victims, but by its end Bilvo had uncovered 70 victims (Tcpt, 29 May 2023, p 34) at the hands of a total of eleven perpetrators, all but two of whom were by now deceased. Criminal proceedings against those two perpetrators resulted in lengthy criminal trials followed by convictions (see R v Valentine [2019] NSWDC 201). Shortly after the second of these criminal trials the Plaintiff went on leave and, on medical advice, has not returned to work since.

19. The Strike Force Bilvo leadership was the final major police work carried out by the Plaintiff, although he played an important role in investigating a series of stress-triggering incidents while at the Tuggerah Police Station. Some of the events described by the Plaintiff in his career prior to working on the Royal Commission (i.e. in 2014) are conceded to be traumatic (see incidents [22] and [73] as set out in the statement of claim (Exhibit A, pp.108-109)). The vast majority of the evidence, however, relates to the Bilvo investigation.

The procedural history of the claim

20. These proceedings were listed for five days and were completed in seven days, with a two-day hiatus as a result of witness availability problems.

21. From the first day, there were, in relation to the Defendant, difficulties in terms of the witnesses to be called, subpoenae issued late and documents asserted to be belatedly produced. Since these are Work Injury Damages proceedings, where all the relevant material should be contained in the Pre-Filing documentation, this was unexpected. The late gathering of documentary material was a particular problem. The Defendant completely replaced all the witnesses who had been under subpoena with witnesses called at short notice of, at best, a few days. Some of these witnesses had had little time to reflect on the events in question, some or even all of which these witnesses confessed they had since forgotten. This had an impact on the reliability of their evidence.

22. It was unclear why these witnesses only came to light at short notice, given the many thousands of pages of material put before the Court. This seems to be a feature of cases of this kind. In Benic v New South Wales [2010] NSWSC 1039 (“Benic”) at [145]ff, Garling J commented on the tender of “quite voluminous material to which little if any detailed reference was made in the course of submissions” (at [146]) and to the absence of cross-examination of a number of the witnesses. By contrast, in State of New South Wales v Briggs at [110], the Court noted that, unlike Benic, there was a paucity of material. In the present case, both these problems are evident; there is voluminous material but the vast bulk of it was not referred to at all, and most of the material relating to the WellCheck system, including the evidence of Ms Freeland and Ms Clark, was not in statement form or in the courtbook at all, and only obtained at the last minute.

23. Given these problems, I have been guided by Garling J’s approach in Benic and have endeavoured to take a practical approach to the complete recasting of the Defendant’s case (and, to a lesser extent, that of the Plaintiff) during the hearing. I am, however, at a much greater disadvantage than his Honour was, for three reasons.

24. The first is that in Benic, Garling J had the benefit of cross-examination of the medical witnesses (including a conclave), whereas all medical material was simply tendered by both parties. In addition, the Defendant’s medical evidence was of a limited nature, in that its expert witness, Professor Tennant, never saw the Plaintiff; his report consists of a summary of the Plaintiff’s medical reports and the occasional pungent critique. That is the way that Professor Tennant has given evidence before, but he is generally cross-examined (Sills v State of New South Wales at [289]), in circumstances where there is cross-examination of other experts (Doherty v State of New South Wales [2010] NSWSC 450 at [235]).

25. The second reason is that, although the psychologist who treated the Bilvo officers was called and cross-examined, no report from her was served and the reliance upon her evidence is that of a lay, not an expert, witness. However, as a lay witness, she was of little assistance on non-expert issues as she had no recollection of the Plaintiff or of his team, as well as no relevant documentation.

26. The third reason is that very late production (during the hearing) of relevant documentation by the Defendant and the circumstances in which Ms Clark and Ms Freeland were only located at the time of or shortly after Inspector Yapp, the Plaintiff and his wife had given evidence meant that material contained in their evidence could not be put to the Plaintiff or Inspector Yapp, such as whether they understood that the assistance provided was not actually a WellCheck referral, whether it was an EAP referral, or whether it was something else. Mr Morris SC has not taken any Browne v Dunn (Browne v Dunn (1894) 6 R 67) points, but the result of these late changes in the evidence is that there is much inconsistent evidence to be considered, in circumstances where the case the parties ran deviated from the pleadings and, in the case of the Defendant, included an unpleaded defence of vicarious liability reliant upon recent English authority which is not part of the law in Australia.

27. The cumulative effect of these factors has been that, as was feared in Benic, a long judgment has been necessary in order to set out all the evidence in detail and how this evidence came to change during the hearing. Regrettably, this judgment is also highly repetitious. I am conscious of the Court of Appeal’s warnings in Digi-Tech (Australia) v Brand [2004] NSWCA 58 at [282]-[291] and George Mkari by his Next Friend Youssef Mkari v Daniel Meza [2005] NSWCA 136 about the undesirability of lengthy judgments, particularly at inferior court level, but the manner in which the case was presented by the Defendant requires a degree of repetition of explanation because of the factors set out above.

The claim for negligence

28. As noted above, the parties are agreed as to the relevant principles of law.

The nature and scope of the duty of care

29. The duty of care must be identified as precisely as is possible, but too much precision can lead to “unrealistically precise findings” (Horne v J K Williams Contracting Pty Ltd [2023] NSWCA 58 at [8] and [35] per Basten AJA).

30. The Plaintiff has carefully delineated that nature and scope of the duty of care in his written submissions (paragraphs 7-23) and sets out the duty owed as follows:

1. The Defendant has a duty to identify traumatic incidents that may be capable of causing psychological harm, recording that incident and providing advice to a police officer about the signs and symptoms of psychological stress or psychiatric injury, so they are better educated to seek help if they need it.

2. The Defendant ought specifically to respond to complaints or disclosures of ill health that may be consistent with psychological or psychiatric injury brought about by the nature and conditions of the officer’s work given the obvious exposure to trauma.

3. The Defendant owed an ongoing duty to identify and record critical or traumatic events so as to provide a baseline for psychological assessment.

4. In the present case, the Defendant ought to have recognised the particular risk of psychological injury posed by an enquiry into historical sexual abuse at a government institution of the massive proportions clearly likely from the announcement of the inquiry. The Defendant should have considered not only whether existing resources were available but also should have ensured that the following systems, already in use for other officers at high risk, were instituted:

1. Psychological screening;

2. Psychometric testing;

3. Quarterly WellChecks (being one on one assessments with a psychologist); and

4. Three-yearly rotation.

5. The particular risk referred to in (d) above was known to the Defendant as a consequence of its own internal reviews as to the risks of psychological injury to officers posed by duties such as those that the Plaintiff was performing (Exhibit M, p.26, “10.2 Staff based risks”) and in particular noted:

• Psychological injury to staff as a result of over exposure to material of a confronting or distressing nature.

• Psychological injury to staff as a result of excessive workload or burnout.

• Inability to provide an adequate level of response to child abuse due to reduced availability of staff as a result of workplace injuries such as those outlined above.

• The “tipping point” scenario - staff going off sick because staff are going off sick.

• Where there is insufficient capacity to replace absent staff the work burden on remaining staff increases, resulting in burn out and further abstention from work.

• Inexperience of staff, inadequate supervision and limited mentoring to improve standards.

6. The Defendant owed a duty to provide adequate training and instruction, or take appropriate steps to avoid the psychological stress brought about by over work which could be an additional psychological stressors, and to ensure the police office had sufficient time for psychological recovery.

7. The Defendant owed a duty not to introduce further traumatic events when the police officer was already under psychological distress from a prolonged and public investigation into institutional abuse and increasing workload.

8. The Defendant had an obligation to respond to reports of psychological distress by the officer, or excessive sick leave without a medical certification.

31. If the duty is put at this level of precision, the dangers warned of in Horne v J K Williams Contracting Pty Ltd of unrealistically precise findings requiring to be made is apparent. As was the case in Horne v J K Williams Contracting Pty Ltd, the Defendant submitted the criteria provided by the Plaintiff at paragraphs 7 -12 of the statement of claim (and, by inference, as set out in the submissions above), were “far too extensive and inconsistent with authority” (written submissions, paragraph 1).

32. However, definition of duty proposed by the Defendant erred on the other side, in that they were of undue breadth. Fortunately this can be accommodated, as Mr Baran submitted that the duty in question should be determined, in factual terms, on the basis that “this case really is only about whether or not the duty of care that was owed to the Plaintiff was discharged during Strike Force Bilvo, and nothing else” (paragraph 3). This makes the determination of the issue of duty much easier as it relates to a clear and narrow band of evidence of the system set up following the Plaintiff’s suggestion of WellCheck; in this regard, the duty is similar to the special and narrow facts in S v State of New South Wales. This is important because, in relation to the numerically large body of police officers, breach of duty of care must be assessed in light of a postulated system that should have been devised, or a general instruction which should have been given, and which would probably have prevented the psychological injury (State of New South Wales v Briggs at [8], [31], [64]-[68], [96], [138]-[139] and [151]-[153]).

33. This means that I can determine the duty of care model proposed by the Defendant as well as the question of its discharge during Strike Force Bilvo, while factoring in the Plaintiff’s state of mental health some time prior to as well as at the commencement of Strike Force Bilvo, as well as at and after its conclusion. This enables me to approach the question of breach in similar terms, as the Defendant submits that, both before and after the Strike Force Bilvo work and subsequent trials, the Defendant, although acknowledging that policing gives rise to a foreseeable risk of psychological injury (New South Wales v Fahy (2007) 232 CLR 486 at [60]; Benic v State of New South Wales at [17] – [20], [23] and [55] – [56]), discharged that duty to the Plaintiff and exercised reasonable care to guard against the risk of injury or of exacerbating pre-existing injury, but with particular regard to the Plaintiff’s duties during Strike Force Bilvo.

34. As to the nature and extent of that duty, I make these findings in the context of the observations of Basten AJA in Horne v J K Williams Contracting Pty Ltd, but also noting the special category of foreseeability in relation to duty of care for police officers as set out in Kozarov v Victoria, in the passages identified above.

The Plaintiff’s police career up to Strike Force Bilvo

35. The Plaintiff was an outstanding member of the Police from the time of his commencement of duties. He was highly thought of by his commanders (Exhibit G, pp 72, 77, 79, 82, 84, 103, and 104). He does not, however, have a spotless record. He was convicted of domestic violence offences arising from the circumstances in which, in 2003, his former wife came to the matrimonial home and had a confrontation with the Plaintiff and his girlfriend (who would later become his wife). This is a serious matter and I have given it the weight it deserves.

36. From the earliest days of his career, the Plaintiff was regularly exposed to distressing crime scenes. An early example of the confronting crime scenes he saw related to an incident in 2001:

“Q. If I can just hand you a copy.

A. Yep, just reading it. That pretty much sums up the event. I did have a physical altercation with the male after he took the knife out of his stomach when he was putting his hand into his wound and throwing blood and stuff at me. Aside from that, I guess, it sort of outlines what happened.

Q. You say that you found the events to be very disturbing in paragraph 31.

A. Yes.

Q. Do you have any recollection today what happened to you that you found disturbing?

A. I found the whole incident disturbing. I also found when I came back to the station - I was covered in blood, obviously, and I was told to write a statement about what had just occurred.

Q. And did you have - both people survived the event, didn’t they?

A. Yes, they did.

Q. And were you given a commendation for your performance?

A. Yeah. Yes, I was.

Q. Do you recall what that was?

A. I think it was just a Local Area Commander’s award for saving their lives, essentially.” (Tcpt, 29 May 2023, p 28(20)-(43))

37. After this incident he had trouble sleeping and flashbacks. He began drinking increasing amounts of alcohol, but claimed he had received no advice about dealing with this incident or indeed others of a similar kind:

“Q. Just before you go on, you said you got a commendation from the commissioner?

A. I think it was just a local area commander.

Q. So what discussion, if any, did you have with other police about this, and what advice, if any, was given to you?

A. I wasn’t given any advice, and I didn’t have any discussion other than the incident itself.

HER HONOUR: All right. Please continue, Mr Morris.

MORRIS: Thank you, your Honour.

WITNESS: Yeah, I remember that incident in paragraph 32. A farmer had shot himself in the head, and I had his two sons attend the morgue to do an identification, and one of the sons ran towards his father lying on the gurney and raised his fist to punch him, punch his father, and I had to restrain him before he hit his deceased father.

MORRIS Q. And how did that make you feel?

A. None of these things make you feel good. Imagine the worst trauma you’ve ever had in your life, and then do it for 20 years. I can’t really explain how horrible it is.

Q. And did anybody speak to you, any police officer speak to you or give you any advice after that incident?

A. No.” (Tcpt, 29 May 2023, p 29(19)-(47))

38. The Plaintiff was clearly deeply distressed by retailing these events and there was a short adjournment. When he was well enough to continue, Mr Baran said (Tcpt, 29 May 2023, p 30(43)):

“BARAN: Your Honour, thank you for the time, just for the purpose of the transcript, can I just say this, that so far as the Defendant is concerned, up until 2016, subject to anything your Honour has to say about it, we don't require the Plaintiff to prove each and every traumatic incident and give evidence about it, so to speak.”

39. I inquired if this would relate to issues in the Royal Commission, and Mr Baran stated that the first eighteen months of that period would be included in this concession. This spared the Plaintiff having to give hours of evidence of the series of events which were distressing (Tcpt, 29 May 2023, p 28). Even so, the Plaintiff became distressed again (Tcpt, 29 May 2023, p 48). Significantly, in my view, what had distressed him had been having to recount evidence that he had not received any assistance or advice in relation to these events:

“Q. With these incidents that we talk about at these investigations you were going to, do you recall after any of them whether you spoke to anybody from the police force and were given any advice to do anything in relation to them?

BARAN: Your Honour, I observe the -

HER HONOUR: Beg your pardon?

BARAN: I observe the witness is quite distressed.” (Tcpt, 29 May 2023, p 48 (37))

40. The 2001 incident was the first real test of the Plaintiff, in that he contemplated resigning (Tcpt, 29 May 2023, p 29(10)). However, he continued to perform his duties at a high level, including time he spent as part of the Highway Patrol (Exhibit G, p.1 and 35 - Highway Patrol Officer of the Month Award 32) and later in the Drug Squad (Exhibit G, p.1).

41. Although he sought help during the period of time when he was under suspension and being charged in relation to the domestic violence issues in 2003, the Plaintiff did not thereafter seek counselling or other assistance over this time. He said that he thought he was coping. He continued to work while having problems sleeping and regularly consuming alcohol, but was also happily married and enjoying family life. He was able to complete his duties without difficulty, and to do so at a high level, which led to him being offered the very responsible task of heading one of the Strike Forces set up to investigate historic child sex abuse crimes for the Royal Commission.

Strike Force Bilvo is set up

42. After the Plaintiff set up Strike Force Bilvo in April 2014, the Plaintiff developed a rapid and observable change in his behaviour. By August 2014 he was exhibiting signs of aggression and social isolation that his wife, and later himself, observed. After a discussion with his wife in early August, he decided to approach his supervisor, Inspector Yapp, about counselling:

“Q. At some point you made an approach to your supervisor, the crime commander, by the name of Yapp-

A. Yes.

Q. - is that correct?

A. Yes.

Q. What caused you to make that approach to him?

A. I was having a bit of an argument with my wife one evening, and, you know, obviously, I wasn't reacting very well to certain things. I was angry and - a lot of the time. And she mentioned to me that the work I was doing was similar to what they did at sex crime squad, and she had these WellChecks and she thought we should have them too. She said to me, I think you should be doing the same thing, you're doing the same work. So, the next day I went and saw Mr Yapp and said, do you think we should be having these WellChecks. And he agreed and I guess he took it up from there.

Q. When you spoke to your wife about it, had you been having difficulties in your marriage?

A. More so than usual, we have - we have a good relationship, but yeah, it was a bit of a - a bumpy road, due to my behaviour, I guess.

Q. Can you tell her Honour about what you remember about your behaviour at that time?

A. I would - I would get angry very quickly. I'd prefer to sort of withdraw myself from - from the family in the house and I'd go sit in the garage or just spend time on my own. I sort of moved away from - from friends and any other sort of relationships. Yeah, I became quite withdrawn.

Q. What about sleep?

A. Yeah, sleep, I might get an - if I got two hours like in a row, that was a good night. I often woke up during the night. I'd walk around the house, checking all the doors were locked. I'd go back to bed. I would be up 40 minutes later doing the same thing. Yeah, I didn't sleep very well.

Q. Were there times when you wouldn't go back to bed?

A. Yeah, I wouldn't go back necessarily to - to my bedroom. I would lie on the couch or lie on the chair or something just on my own.

Q. Do you recall any issues with dreams and so forth?

A. One of the things I've never suffered from is nightmares, but I - cause I don't sleep, I think it's just constantly in my mind. I describe them as daymares in - my mind never stops in regards to things I've seen and things I've done. Maybe I don't sleep enough to get to the dream stage, I'm not sure, but I - I - one of the symptoms I don't have is nightmares.

Q. Is what you're saying to her Honour that you're awake, but things are going through your mind.

A. Yeah, my mind never stops, and to this day I - I still don't sleep. I - I still don't suffer nightmares, but when I'm awake, that's - that's when it's the hardest.

Q. This discussion you had with your wife about WellChecks, had you ever heard of them before?

A. No, no.” (Tcpt, 29 May 2023, p 37(46) – p 38(43))

43. The Plaintiff raised all these matters of his own initiative with Inspector Yapp, including the behaviour at home which led his wife to make the suggestion. These frank disclosures had a powerful effect on Inspector Yapp, who immediately sent the following memorandum (Exhibit B) on 5 August 2014 recommending referrals of the whole Bilvo team to WellCheck:

“ISSUE:

Request for officers attached to Strike Force Bilvo (investigation into historical sexual abuse) attached to Parramatta Local Area Command to participate in the WellCheck program.

BACKGROUND:

WellCheck is a monitoring program involving a one on one session with a police psychologist on a regular basis including an annual psychometric assessment. It does not preclude a participant from accessing EAP or Trauma services.

Investigators attached to SF Bilvo are involved in a protracted investigation involving historical sexual assault and abuse. The investigators have prolonged contact with the victims, and in the future it is anticipated also with offenders. In some cases the victims are divulging matters to Police that they have never spoken of previously.

The Command understands the frequency of these sessions is every three (3) months and indicate that it will be mandatory for our nominated investigators to attend.

COMMENT:

The Command agrees that by our SF Bilvo Investigators participating in the WellCheck program, we are responsible for monitoring their attendance and assisting in co-ordinating appointments.

The Strike Force staff are currently working from an office in the Ferguson Building adjoining the North West Metropolitan Region Office in Parramatta. The investigators are seconded from three different LACs, however the investigation and oversight is directly via Parramatta LAC.

RECOMMENDATION:

It is recommended that Parramatta Local Area Command Investigators listed below, participate in the WellCheck program. I nominate the Investigations Manager Detective Sergeant FENWICK to be the contact for appointments and to monitor attendance.”

44. The Plaintiff’s initiative in setting up this counselling scheme for Bilvo team members is confirmed by contemporaneous accounts he prepared of his workplan:

“Early on in the investigation I became aware of the nature and extent of the sexual abuse that investigators were being exposed to whilst completing statements of complaint with victims. I deemed it appropriate to have SF Bilvo investigators receive 'wellness' checks on a regular basis. I presented my thoughts on the issue to the Crime Manager in a logical discussion and sought a commitment from him to have a counsellor made available to assess the psychological welfare of staff involved in the investigation. The Crime Manager took up the cause and each SF Bilvo staff member now has a psychological 'wellness' check every three months. My leadership qualities, presentation of facts and focus on the 1391 situation inspired the Crime Manager to have confidence in, and agree with my opinion relating to staff welfare. With the Crime Manager's assistance the common goal of ensuring staff welfare is kept in focus and monitored was achieved.”

(Defendant’s Court Book Exhibit 1, pp 376-377)

45. No one had given any prior thought to counselling of the team or of the Plaintiff, and there was no assessment or other recommendation for assistance of the Plaintiff or his team members even after they commenced work on Bilvo.

46. WellCheck was approved by Dean R Smith, the Operations Manager in the North West Metro Region NSW. He sent an email to Inspector Yapp and Wayne Cox of 5 August 2014, the same date as Inspector Yapp’s report (Exhibit B), raising the same concerns:

“Det Insp Yapp,

Given the nature of the Investigation and possible length of time officers may be involved, it may be prudent to schedule or register our Officers involved in Strike Force Bilvo in the WellCheck program. Can you please consider this as part of the Management and oversight of this Strike Force. I am happy to assist with registering the Investigators.

Thanks

Dean Smith”

47. As was the case with Mrs Paul, Mr Smith had picked up on the two key features of Bilvo: the “nature” of the investigation and the size (“length of time”). A reply from Mr Cox confirmed that “Steve is setting this up” (Exhibit G, p. 54).

48. Inspector Yapp wrote to Pamela Freeland, the EAP manager, on 5 August 2014 as follows:

“Hi Pam,

I would like to discuss inclusion of some investigators in the WellCheck program. They are on a SF investigation historical sexual assault and abuse, stemming from the Royal Commission.

Could you please give me a call to discuss at your convenience?

Thank you

Steven”

49. Inspector Yapp wrote the same day to Mr Cox and Mr Smith, confirming he had spoken to “the Psych unit”, submitted a report and organised liaison with the director.

50. Ms Freeland replied the following day:

“Hi Stephen,

Further to our telephone conversation, I have spoken with Greg Prescott, DTC Trauma Manager and he will confirm with me but either himself or Tahnee Schulz, another psychologist experienced in the area of abuse, will be in attendance on August 20.

After people have been seen, we will then assess a frequency from there and that may vary depending on what is happening with their investigations at the time.

The group will be addressed as a group and then seen one on one. Can you please advise the address and who the contact will be on the day-is that yourself?

Does this meet your needs?”

51. What did this involve? According to the Child Abuse Squad Welfare Framework, WellCheck normally included tests even before officers were included in the team, so that their suitability for recruitment could be tested (Exhibit G, p. 58). This would include psychometric testing and face to face interview. It was clearly too late for that, and for the workplace induction process (p. 58), as Bilvo was already some months into full operation. However, it was not too late for the eight early intervention and prevention tests (set out at p. 58) to be deployed, namely:

1. Consent Form signed by the officer regarding limits of confidentiality prior to entering WellCheck process to ensure appropriate workplace support.

2. Quarterly WellChecks with all officers attached to the CAS; based on interview and assessments.

3. WellCheck psychologists may schedule an interim WellCheck as required.

4. Annual psychological assessment included in the WellCheck process.

5. Call by WellCheck psychologist to the Zone Manager to provide psychologist with relevant information prior to the WellCheck.

6. WellCheck attendance monitored through the Command Management Framework (CMF).

7. Development of self-care plans.

8. Feedback to Command by psychologists as required.

52. This program was supported by a number of “other support strategies” (Exhibit G, p. 59), such as rotation, flexible work practices such as part time work to ensure work/life balance and the like. It was an important program, as the evidence of Mrs Paul, a participant because of her sex crime policing duties, made clear.

Mrs Paul’s evidence about WellCheck

53. Mrs Paul was not only the Plaintiff’s wife, but a detective working in sex abuse crimes areas in a specialist unit (Tcpt, 30 May 2023, pp 145 and 147). Her evidence contains valuable insights which would have, and should have, been apparent to other police officers involved in the setting up of the selection of police for work in relation to the Royal Commission. The first of these related to her observations of immediate changes to the Plaintiff after starting work on Bilvo:

1. First, she observed that the work the Plaintiff was doing was comparable, in terms of subject-matter, to the work of sex crimes investigators such as herself.

2. Second, she saw that the Plaintiff had been given what she called “a job of that enormity”, telling words to use about the Royal Commission in general, and the Plaintiff’s work in particular.

3. Third, she saw changes to the Plaintiff almost straight away after his appointment, and it was those changes which led her to talk to him about WellCheck.

54. Mrs Paul knew about WellCheck because she was herself a participant in this scheme. Although she had not been screened prior to her permanent position, when she was assigned to the team she was sent for psychometric testing and a consultation with a psychologist (Tcpt, 30 May 2023, p 146).

55. Mrs Paul gave corroborative evidence about her husband’s positive reaction to her raising the need for a referral to WellCheck:

“Q. Did you say anything to him about work?

A. When you’re saying work, are you talking about Bilvo?

Q. Yeah. About the time of Bilvo.

A. Yeah, we spoke a lot about Bilvo.

Q. Did you say anything to him about doing something - raising something with his commanders at Bilvo?

A. Well, I’ve - I didn’t think it was fair that he had - he had been given a job to that enormity and not being offered what we were given on the floor.

Q. What was that?

A. WellChecks.

Q. WellChecks.

A. Yeah.” (Tcpt, 30 May 2023, p 150(25) – (40))

56. Mrs Paul thought it was unfair, given the enormity of the task, that her husband was not being offered what she was being given “on the floor”, namely the WellCheck system. She observed her husband receiving telephone calls from victims, some of them distressed to the point of being suicidal, and she observed the Plaintiff bringing his work home with him. Although her suggestions initially “fell on deaf ears a lot” (Tcpt, 30 May 2023, p 150), the Plaintiff did respond relatively quickly, in that he raised the WellCheck system with Inspector Yapp early in August 2014.

WellCheck

57. What was “WellCheck”, how did it come to be set up, why had it not been put in place before Task Force was set up, and was it put into place at all?

58. To answer the first two of these questions, the police system of work evolved over the decades, a progression covered by the material tendered in the Defendant’s Court Book (Exhibit 1, pp. 1452-1859) and in the Plaintiff’s Non-Medical Court Book (Exhibit G, pp. 156 - 159). It was as an extension of these services, according to the Police Weekly of 30 January 2006, (Exhibit G, p. 32), that WellCheck was introduced, as an outgrowth from the earlier Employee Assistance Program (EAP), an external program, to ensure that officers exposed to “a higher risk of psychological harm” could receive specific assistance from the selection process onwards. From 2006 onwards it was to be provided to those at “the highest risk of injury” and was compulsory for all officers working in participating commands. These are listed on p. 115 of the Police Weekly; for example, one of these groups is the Child Protection & Sex Crimes Squad and another is the education services staff who teach courses.

59. What were the systems in place at and before WellCheck was put into place? Mr Morris SC has set this out at paragraphs 24 – 32. There is also a helpful summary in the report of A/Prof Michael Robertson of the systems for stress management in the police at paragraphs 47– 54:

“47. Awareness of the effects of traumatic stress on the mental health of first responders has been well-recognised and subject of intervention since the late 1980s or early 1990s. In 1990, police psychologist Jan Westerink devised an operational manual for the provision of critical incident stress debriefing, although the literature in the field would later indicate that debriefing did not offer any actual protection against the development of post-traumatic stress disorder.

48. Following on from the NSWPF’s own Task Force Alpha in 1992, in March 1997a document entitled “Occupational Stress in the NSW Police Service” recommended, inter alia: “That the principles and practice of trauma management be incorporated in all courses concerned with the supervision and management of staff in operational areas”. This was clearly an imperative to improve mental health literacy within the Police Force.

49. In June 1999 the NSW Ombudsman tabled a report to the NSW State Parliament that identified the issue of traumatic stress exposure and recommended that the Police Force implement a system to ensure appropriate support be offered to all officers exposed to traumatic incidents and “as a matter of urgency” develop mechanisms and guides for managers to obtain reports about officers who exhibit signs that they are not coping and ensure that the information is used to assist and support officers.

50. This injunction seemed to make clear that there existed a framework to argue a reasonable standard of care towards the mental health of police officers on the part of the NSWPF existed. Specifically, to devise and implement a monitoring system of the psychological welfare of officers.

51. The NSW Ombudsman highlights the potential utility of a provision in the1990Police Act that enabled the NSWPF to direct police officers to compulsory medical assessments by the police medical officer (PMO) that might provide more expert advice as to the risk an officer faced from traumatic stress exposure encountered in the course of their duties.

52. In general terms, prevention of psychological injury, particularly post-traumatic stress disorder, falls into categories of primary prevention (reducing number of new cases), and secondary prevention (reducing severity and duration of established cases).

53. There is an assumed risk in all occupations that first responders acknowledge, and to any reasonable person there would seem little to be done to prevent exposure to traumatic events that are in the nature and conditions of operational policing.

54.On the issue of primary prevention, the scientific evidence is clear. The Cochrane Review into debriefing or psychological interventions following traumatic stress exposure demonstrates that there is no evidence that such interventions prevent the onset of PTSD1. This, in combination with the assumed risk most police officers take in entering this line of work, renders the concept of primary prevention as being almost impossible in the current circumstances.”

60. How did this lead to WellCheck? According to the pamphlet distributed to potential participants and supervisors (Exhibit G, p. 25), WellCheck forms an integral part of the overall Health Support Program and has been introduced to help reduce the risk of psychological harm faced by employees working “in areas with the highest risk of injury.” It involved participants in “a one-on-one session with an EAP Psychologist on a 3 or 4 monthly basis” to discuss their work, emotional reactions to their work and its interaction with family and personal life and the like. It was preventive strategy, not therapy; if more assistance than three-monthly counselling sessions was needed, this was provided via other programs, such as the general EAP counselling. This service was to be offered to all staff attached to specialist areas. Each command was to have an appointed officer to make sure that everyone attended the first session. The compulsory nature of attendance was laid out carefully and clearly.

60. As a result, WellCheck provided a “check” system of a directive nature, in that officers needing assistance were required not only to attend but to continue to attend:

1. Psychological screening including tests which determined suitability before duties were commenced;

2. Psychometric testing where necessary;

3. Quarterly WellChecks (being one on one assessments with a psychologist);

4. Three-yearly rotation of staff; and

5. Requirements for a supervising officer to monitor the system.

62. The WellCheck system was intended to be an advance, not a mere repackaging of earlier services, as its special features (set out below) make clear. The Plaintiff provided a list at paragraph 24 of the submissions, which I reproduce, with some additional references:

1. Stress for police officers had been identified as debilitating since the late 1970s (Exhibit 1, pp. 1452 – 1460; Exhibit G, pp 40 – 69). I would add that the increasing complexities in policing arising from changes to work methods and new approaches to criminal law issues has made a significant contribution, and that police failures to investigate sex crimes on juveniles in institutions was one of the reasons the Royal Commission was set up.

2. The inability for a police officer under stress to identify or admit problems must be taken into account (Exhibit 1, pp 1456, 1472, 1543, 1546, 1669, 1857; Exhibit G, p. 47, evidence of Ms Freeland at Tcpt, 7 June 2023, p 311 and of Inspector Yapp at 233). This is why WellCheck makes attendance obligatory and includes regular checkups at regular and frequent intervals, as well as requiring supervisors to keep an eye on how the service is being used.

3. The link between stress or psychological injury and exposure to trauma for police officers has been recognised not only by the Defendant but also by courts. This means that police supervisors such as Inspector Yapp have a special role to play and part of the system would need to be the inclusion of such information to supervisors such as Inspector Yapp. It was clear from his evidence that he had never received this information. In addition, there needed to be a coordinator for the counselling, a task Inspector Yapp assigned to Mr Fenwick, but which he acknowledged Mr Fenwick never carried out; the Plaintiff had to step into the breach and do this himself.

4. Systems such as WellCheck evolved from the longstanding need to have the signs of psychological stress identified by qualified persons (Exhibit 1, pp. 1455 – 1456, 1469 and 1718). Systems such as peer support or advice from a chaplain are different in nature in that they are supportive, and not diagnostic. I note that use of these services does not form part of WellCheck.

63. Mr Morris SC submits that the system sought in the memorandum of 4 August 2014 recognised the high risk of psychological harm to which the following other police system documents attest:

1. SCC Rotation Policy – Implementation at JIRT NSWPF 1 January 2005 (p 22, Exhibit G);

2. WellCheck – What you need to know NSWPF May 2005 (p 24, Exhibit G);

3. Police Weekly Article: WellCheck – for higher risk psychological harm Police Weekly 14 November 2005 (p 28, Exhibit G);

4. Police Weekly Article: Wellbeing Check-Up for high risk areas Police Weekly 30 January 2006 (p 32, Exhibit G);

5. The 2013 Human Resources Review of the Child Abuse Squad addressed not only the nature of the work undertaken but the workload. Page 21 of the review observed the average CAS officer carried 29 cases whilst the recommended amount was 15. This would immediately attract the attention of persons such as Inspector Yapp as it indicates the sheer volume of the workload.

64. To answer the third part of the question, while it would seem logical that the work of the Royal Commission investigations would fall within the parameters of WellCheck, that was not the case.

65. Although put into effect after the Strike Force had been set up, it would still have been possible for the officers in the team to have pre-assignment assessments. No such assessment was done. This in itself is asserted to be a breach of duty, in that an important feature of WellCheck is that the officer is assessed before commencing the duties in question. The Plaintiff argues that this failure means that his already high stress levels (which may have required special managing or even his removal as Team Leader) were not picked up at or shortly after the time when he began the Bilvo investigation.

66. An additional problem was the desultory and infrequent nature of the services provided by Ms Clark. She was the person who had to be chased up, and not the initiator of the regular checks required by WellCheck. Even in relation to those few sessions she provided, Ms Clark treated the Plaintiff like a colleague rather than a patient. She appears to have seen him alone once only. Over the following three to four years, there were several phone calls and emails, generally to arrange another appointment for the Bilvo officers.

67. The evidence shows that, while Inspector Yapp wrote the necessary request for the services, he knew little about it and did not fulfil the supervisory role required by the WellCheck system.

68. There was, however, a more fundamental problem, namely that the Plaintiff and the Bilvo team had never been included in WellCheck at all. Whatever Inspector Yapp knew or did not know about the program, he was certain in his evidence of one thing – that he had asked for the Bilvo officers to be included in WellCheck, and that he had received what appeared to be a positive reply.

The counselling provided was not WellCheck

69. The Defendant’s case is that some counselling was provided, that whether it was WellCheck or some other service is irrelevant and that it was the Plaintiff’s fault for not attending the Chaplain, seeking Peer Support help and/or further assistance from the EAP if Ms Clark’s services were unsatisfactory.

70. The mere provision of a counselling or other psychiatric intervention service to be availed of does not discharge an employer from its duty of care to take reasonable steps to ensure a safe system of work is in place. In State of NSW v Coffey [2002] NSWCA 361, the Plaintiff was afforded a one-hour counselling session only, although could have asked for more. At [13], Meagher JA (with whom Heydon and Ipp JJA concurred) stated:

“A psychologically injured worker often either does not know of his condition or else is too tired to ask for it. Moreover, there is High Court authority that merely to provide a service to be availed of at the will of the worker does not absolve one from performing one’s duty of care to take reasonable steps to ensure that a safe system of work is in place: Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301.”

71. In State of NSW v Coffey, the Plaintiff was not a police officer but an employee of the Department of Housing, whose job involved exposure to violence, including murders. Even where there is no exposure to horrific events of the kind that the police are exposed to, the employer's obligation is to establish, maintain and enforce accident prevention, as this is the employer’s responsibility: Unver v Liftronic Pty Limited [1999] NSWCA 275. This is all the more the case where the risk of psychiatric injury is acknowledged to be foreseeable, as is the case with police officers.

Inspector Yapp’s role in asking for “WellCheck” support

72. Mr Yapp was particularly well-placed to assist the Plaintiff with work stress issues. Not only was he the direct supervisor of the Plaintiff, whom he saw on a daily basis (Tcpt, 1 June 2023, pp 198-200) but he had a degree in psychology and an understanding of the issues that were relevant to the unique kind of strike force that had to be set up because of the enormity of the investigation. It became apparent to him that there was “too much investigation, too much to manage on the floor of the office” and that the investigation had to be “rolled into something separate that they could concentrate on with extra resources”; this was what led to the creation of the strike force known as Bilvo (Tcpt, 1 June 2023, p 200).

73. What he did not do (until the Plaintiff approached him with the idea) was to include some form of welfare counselling as part of this plan. He told the Court that, as the Plaintiff’s supervisor, if he had observed something that raised particular concern, what he would have done would be to speak to the Plaintiff and to follow a protocol of referral to the EAP service. Inspector Yapp said he knew about the police psychology and EAP services, as well as the peer support officers and the chaplain, and considered the Plaintiff would have known about these as well (Tcpt, 1 June 2023, p 201).

74. When asked the difference between WellCheck and EAP, Inspector Yapp said that EAP was not a service as such but just “a general reference that encompasses a range of resources” while WellCheck was “something that actually provided for the allocation of a psychologist that could actually meet individually with the staff” (Tcpt, 1 June 2023, p 204). It was because of his knowledge of these matters that, after the Plaintiff raised the idea, Inspector Yapp went “a step beyond” what he called “just the general availability of the welfare EAP program” (Tcpt, 1 June 2023, p 202) in the circumstances of Bilvo and specifically sought the assistance of WellCheck. This was because Bilvo was “delving into allegations of historical sexual abuse”, “a prolonged investigation”, dealing with victims with “trauma from the past” and other “problematic” matters (Tcpt, 1 June 2023, p 203).

75. Did the Plaintiff suggest WellCheck? In examination-in-chief, Mr Baran asked Inspector Yapp at Tcpt, 1 June 2023, p 204(33):

“Q. In the circumstances of this particular strike force, these well-checks [sic] as I think you’ve described them, came about from a request by the officer in charge of the investigation. Mr Paul.

A. I don’t recall how it first arose.”

76. However, the contemporaneous documentation from the Plaintiff makes it clear that the suggestion to employ WellCheck really did from the Plaintiff, and that it was only following this that Inspector Yapp wrote the request. Inspector Yapp, despite his knowledge of policy psychology services, had not thought of it (or of an EAP referral) before the Plaintiff spoke to him.

77. Inspector Yapp was asked why it was not possible for him simply to direct a police officer to go to EAP (Tcpt, 1 June 2023, p 204). He replied that assistance could be offered, and the officer could ring up a psychologist, but the only way for direction to attend to occur was for the WellCheck system to be put into place.

78. This line of questioning was part of Mr Baran’s argument that the Plaintiff could go off on his own to counselling, or to see the chaplain or a support officer. However, there is a compelling reason why the Plaintiff going off for counselling or peer support on his own (either at his own behest or that of Inspector Yapp), and that is because the Plaintiff was not just seeking counselling assistance for himself but for his whole team. Mr Baran’s failure to address the need for team counselling (which was a feature of WellCheck group sessions, where they were a precursor to the one on one sessions) is a major gap in terms of the Defendant’s understanding of the Plaintiff’s case. As the evidence of Mrs Paul and Ms Freeland confirmed, WellCheck was used to counsel groups of officers working together as well as for individual sessions. There is no evidence of any other counselling in the EAP offering a service of this kind.

79. Inspector Yapp was also asked about other resources, such as an email mass bulletin board called Nemesis which he described as having “thousands, tens upon thousands” of messages on it; he was unable to recall any particular message about EAP. He agreed that there was a work health and safety committee (or occupational health and safety committee) at Parramatta Command but knew little about it (Tcpt, 1 June 2023, p 206). There is no evidence that any of these resources could have assisted a team of police officers who needed group followed by individual counselling.

80. Out of all of the resources available – chaplains, peer support officers, ringing up a healthcare professional, occupations health and safety committee members – it was clear to Inspector Yapp, with his uniquely qualified background, that the WellCheck scheme was the way forward. That was the way that he took. On 5 August 2014 (after, I am satisfied, a conversation where the Plaintiff initiated this proposal), Mr Yapp wrote to Ms Freeland, who was the relevant contact for such a request:

“Hi Pam,

I would like to discuss inclusion of some investigators in the WellCheck program. They are on a SF investigation historical sexual assault and abuse, stemming from the Royal Commission.

Could you please give me a call to discuss at your convenience?”

81. On 6 August 2014, Ms Freeland replied:

“Hi Stephen,

Further to our telephone conversation, I have spoken with Greg Prescott, DTC Trauma Manager and he will confirm with me but either himself or Tahnee Schulz, another psychologist experienced in the area of abuse, will be in attendance on August 20.

After people have been seen, we will then assess a frequency from there and that may vary depending on what is happening with their investigations at the time.

The group will be addressed as a group and then seen one on one. Can you please advise the address and who the contact will be on the day - is that yourself? Does this meet your needs?”

(Emphasis added)

82. Inspector Yapp replied on the same date:

“Hi Pam,

Thank you for arranging that. I will be the contact on the day, my mobile is [redacted] (on the intranet)

The location is Level 10, Ferguson Building Parramatta. If the attending pyschologist [sic] contacts me, I can sort out access/parking etc either there or at Parramatta Station.

Just in case, an alternate contact is D/Sgt Tim PAUL (EN 79115), the team leader for the Strike Force, and is situated in the Ferguson building office.”

83. Addressing the words highlighted above, Inspector Yapp was the contact person, and the Plaintiff was an “alternate” and the counselling was to be for the team, not just the Plaintiff.

84. Was this usual? Inspector Yapp was asked whether Ms Freeland was designing a customised WellCheck system or implementing the formal policy, but was unable to comment (Tcpt, 1 June 2023, p 229(41)).

85. The decision of Inspector Yapp to recommend the WellCheck system, and for it to be run in a manner analogous with officers in CAS or sex crimes was shortly thereafter affirmed by the following documents:

1. Child Abuse Squad Welfare Framework NSWPF 28 August 2014 (p 58, Exhibit G);

2. Endorsement NSWPF Rotation and Secondment Policy for CAS Detective A/Superintendent Andrew Waterman 7 January 2015 (p 60, Exhibit G);

3. Rotation and Secondment Policy for the Child Abuse Squad NSWPF – State Crime Command 11 February 2015 (p 63, Exhibit G).

86. Police counselling assistance provided a wide range of services. Was there anyone apart from Inspector Yapp who could have assisted, and were there any other resources that the Plaintiff should have been aware of?

87. According to Inspector Loneragan, the Inspector of Parramatta Local Area Command, there were also booklets and information. It is unclear whether this is part of WellCheck or not. On 6 August 2014, he sent the following email to his colleagues:

“Colleagues,

I have a limited number of C.A.R.E. (Career & Resilience Education Program) packages which include the following booklets:

•Dr Kevin Gilmartin's book on "Emotional Survival for Law Enforcement"

•Family Support Booklet – PANSW

•Managing Psychological Fitness Handbook – PANSW

•Know Your Rights & Obligations – PANSW

•Social Media for Police – PANSW

•Pre 88 HOD Procedures & Entitlements – PANSW

•Pre 88 Medical Discharge Procedures & Entitlements – PANSW

•Post 88 Workers Compensation Procedures & Entitlements – PANSW

Feedback so far has been very positive.

If you wish to have one of these packages they are on a first in best dressed basis. Either see me or send me an email and I will forward through internal mail. When all these stocks are exhausted I will attempt to procure more.”

88. Mr Yapp replied on the same date:

“If there is one spare I would like to place it in the SF Bilvo office....”

89. The relevance of some of this material to stress counselling (for example, social media and family support) is unknown. There was no evidence led of publications on stress being specifically provided to officers likely to be in need, other than these booklets which came in a package, and they were not tendered. There was no cross-examination of the Plaintiff about the desirability of reading these. There was no evidence about them from Inspector Yapp. The publications the Plaintiff was cross-examined about were articles in the Police Weekly and on the police intranet, but these were not part of WellCheck either.

90. Essentially, as the evidence shows, what Inspector Yapp was seeking was the best solution by far: a group session followed by, for individual officers, a one-on-one counselling session, to which the officers could be directed to go. There is no suggestion that the WellCheck program was not all-inclusive, or only available to the Plaintiff. As Inspector Yapp said, the context was “appropriate” (Tcpt, 1 June 2023, p 211).

91. Inspector Yapp told Ms Freeland that he was the supervisor. He had to make the recommendation and get it approved and then supervise its implementation.

92. Inspector Yapp said that the WellCheck manager and psychologists then had to determine how that system would be structured (Tcpt, 1 June 2023, p 211). It was not up to Inspector Yapp (or, for that matter, the Plaintiff) to say how it should be set up. Inspector Yapp said:

“To my understanding the system was essentially the provision of a psychologist. Who would then go and meet with the investigators. And that was the essence of the well-check [sic] program. Yes. To my understanding. Yeah.” (Tcpt, 1 June 2023, p 212(01)-(04))

(Emphasis added)

93. Even in the witness box, Inspector Yapp still thought that WellCheck was being offered.

94. In fact, as the previous section of this judgment sets out, WellCheck was able to offer much more than Inspector Yapp knew about. This included preliminary assessment for suitability for the role, rotations and the like. Looking at the list of features, Inspector Yapp agreed that this was “the kind of support that I would have wanted” (Tcpt, 1 June 2023, p 213). This included screening for all police officers on the strike force (and not just the officers under the Plaintiff’s command), checking to ensure that ongoing assessment nipped problems in the bud, sessions every three to four months where a group session was followed by individual sessions and with particular emphasis on the Plaintiff, who was the first point of contact for the victims, and for a welfare officer to ensure that officers attended their first appointment. Inspector Yapp noted, in relation to this last step, that he had arranged for Sergeant Fenwick to fulfil this role, but that this did not occur (Tcpt, 1 June 2023, p 214).

95. This was the first of many gaps in the assistance which was proffered to the Bilvo taskforce. The next was the failure to provide a detailed overview about the officers so that the psychologist had some knowledge of what was involved. Mr Baran is critical of the organisation tasked with providing answers to documents under subpoena for failure to produce material, but this document would have been a police document, not a counselling document, and moreover one which I suspect that, although the proper officer would have been Inspector Yapp, could not have been prepared without the Plaintiff’s assistance. Inspector Yapp agreed in cross-examination that if he had been aware of the need for this step he would have complied with it (Tcpt, 1 June 2023, p 215). He also agreed that, if he had been aware that attendance was compulsory and regular meetings required, he would have seen to these as well (Tcpt, 1 June 2023, p 215). He was not aware of these features when he sent the memorandum.

301. The Defendant’s pleading of contributory negligence is not maintainable for the above reasons. The Defendant has failed to discharge its onus in relation to each of the particulars of negligence and as to any additional ground that was put forward without particularisation, such as the asserted failure to consult Nemesis.

Conclusions concerning liability

314. On the proceedings as pleaded and particularised, and on the evidence as led in these proceedings, the Defendant has failed in relation to liability, causation and contributory negligence.

315. The Defendant relies upon an additional, but unpleaded, defence. Mr Baran submitted (Tcpt, 8 June 2023, pp 352 – 358) that if the psychological treatment afforded to the Plaintiff by Ms Clark was accepted as being inadequate, the Defendant was not vicariously liable (submissions, paragraphs 304 – 306). Mr Baran submits that if the failure by Ms Clark to discharge her duties led to the deterioration of the Plaintiff’s condition without any psychoeducation or proper screening/risk assessments then it is DTC who is vicariously liable for that conduct, not the State of New South Wales, citing Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 at [33]. He adds, although without discussion, the observations of Lady Hale in Various Claimants v Barclays Bank Plc.

316. This argument is based on the assertion that “DTC had a contract with police [sic] which was carrying on business in its own right which is fatal to an argument that the conduct of Ms [Clark] could warrant a finding of vicarious liability on behalf of the State of New South Wales” (submissions, paragraph 306; see also Tcpt, 8 June 2023, pp 354 – 355). Mr Baran added that he was obligated to mention, in addition, the decision of Various Claimants v Barclays Bank Plc as the High Court was considering “how [this decision] operates in this country” (at Tcpt, 8 June 2023, p 357). Mr Morris SC, in reply, submitted that it was hard to see how such a decision could detract from non-delegable duty, which meant that there was no power to delegate the duty to anyone else in the first place (Tcpt, 8 June 2023, pp 385 – 386).

317. The decision of Various Claimants v Barclays Bank Plc is untested in Australia, in that it has been referred to in only four decisions, either briefly in passing (DP (a pseudonym) v Bird [2021] VSC 850 at [179]) or in circumstances where the parties could have, but did not, raise English law as the proper law for the cause of action (Rader v Haines [2021] NSWDC 610 at [5], [103] – [113]). This is an additional reason for treating this unpleaded defence with caution, whether it is being examined by the High Court or not.

318. The first issue is Ms Clark’s asserted negligence in performance of her counselling duties where Inspector Yapp, on behalf of the Plaintiff and his team, sought counselling from the WellCheck service and for such counselling to take place for the duration of the Royal Commission. As Mr Baran concedes at Tcpt, 8 June 2023, pp 354 – 355, the services provided by Ms Clark fell well short of the form and content of the counselling sought by Inspector Yapp and offered by Ms Freeland. However, the reasons for Ms Clark’s services falling short of what was requested should not be assumed to arise only from her incompetence. Ms Freeland’s evidence is that a psychologist at management and/or expert level of the Defendant’s EAP services indicated to her that the request to be included in WellCheck was not to be granted, despite the unambiguously clear approval of it by all of the Plaintiff’s superiors, although she appears not to have shared this decision with the Plaintiff and/or Inspector Yapp.

319. Thus, on the evidence before the Court, the nature and extent of Ms Clark’s counselling services is bound up in a series of decisions made by the Defendant on what kind of assistance would be offered. The Defendant, through its servants or agents, made those decisions in circumstances of the duty owed to the Plaintiff; Ms Clark did not make these decisions. The precise degree of interaction would only be clear if there were a pleading of the relevant defence from which particulars could be sought and subpoenae issued. However, on the evidence before me in its limited state, I am satisfied that the failure to include the Plaintiff and his team in WellCheck or to set up the analogous system proposed by Ms Freeland was an integral part of the Defendant’s negligence, in which case the issue of vicarious liability concerning Ms Clark would not arise.

320. There are additional reasons for the rejection of this asserted defence. First, it is not pleaded. Mr Morris SC stated at Tcpt, 8 June 2023, p 383(19)-(39):

“…Now, my friend made, I've got to say, some very interesting submissions about the no vicarious liability for an independent contractor. It is an interesting legal point, in my respectful submission, but it's not one that arises in this case because it did not form part of the pre-filing defence, and it did not form part of the defence.

HER HONOUR: I didn't see it in the defence; I wondered about that.

MORRIS: And I think we're into that territory, and just give me a moment, your Honour, I think it's part 14, rule 14 of the Uniform Civil Procedure Rules.”

321. Having regard to these provisions, I agree that Pt 14 r 14 of the Uniform Civil Procedure Rules 2005 (NSW) is a sound reason for not permitting such a defence even to be put. It is not clear to me whether the s 318 submission had somehow escaped from the parties’ agreement not to raise s 318 issues, so I will err on the side of caution and restrict my observations to Pt 14 r 14.

322. Second, as Mr Morris SC sets out in the Plaintiff’s Submissions at paragraph 215, the Defendant refused to provide particulars of the EAP providers in response to the Plaintiff’s request, asserting that this was not a proper matter for particulars. The Defendant then used the information about the EAP providers to issue its own subpoena days before the trial and to call Ms Clark at short notice. The Plaintiff was unlikely to have obtained this information under subpoena as the EAP provider had changed its name. The result was that not only was the Plaintiff expected to respond to an unpleaded defence, but he had to do so in circumstances where information had been deliberately withheld from his legal representatives. (I also note that this was not an issue raised in the Pre-Filing material, although Mr Morris SC did not formally challenge this or other failures to serve material later sought to be relied upon at the hearing).

323. The failure of the Defendant to plead its vicarious liability defence and to provide particulars of information which, if the defence had been pleaded, would have been vital, would both be additional reasons for rejection of the claims for vicarious liability.

324. However, the principal reason for its rejection is that vicarious liability issues simply fail to arise, both for the reasons enunciated by Mr Morris SC and on the facts of the case as found, including those set out above.

Damages

325. In Benic v New South Wales, Garling J set out the relevant provisions of s 31 of the Civil Liability Act concerning “recognised psychiatric illness”. This has been conceded in the present case.

326. As to past and future economic loss, the parties have agreed on the method of calculations for past and future earnings. The parties have provided Schedules which are set out at the end of this section of the judgment. I have included these as they contain adjustments such as Fox v Wood payments which, although not the subject of submissions, are relevant when determining quantum.

327. Mr Baran (submissions, paragraphs 307 – 309) points to only two areas of dispute, namely:

1. The Defendant submits that allowance should be made for residual earning capacity, relying upon the Plaintiff’s evidence of his condition of health as having improved.

2. The Defendant submits that no buffer should be awarded and that if one is awarded, it should be for $25,000 and not $150,000.

328. In Benic, Garling J stated at [663]:

“663 In assessing non-economic loss, it is necessary that I have regard to all of the matters to which I have earlier referred about the plaintiff’s depression and anxiety, his fear, the need for him to be medicated and to attend at a psychiatrist regularly for consultation and therapeutic assistance. I also need to bear in mind that his fears (whether they be presently regarded as rational or not) lead him to behave in ways which would be regarded as unusual.”

Past economic loss

329. The parties have agreed that past economic loss may be calculated as amounting to $388,259.00.

Future economic loss

330. Section 13 of the Civil Liability Act provides:

13   Future economic loss—claimant’s prospects and adjustments

(1)  A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)  When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury.

(3)  If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

331. The Plaintiff has been certified by his treating medical practitioners as being totally unfit for work for the period 21 August 2019 to date and has been paid statutory workers compensation benefits from 21 August 2019 to date as a consequence of being totally incapacitated for work pursuant to s 37 of the WCA (Tab 27, pp.177-237 of Exhibit 1; these payments were current up to the date of the hearing). The Plaintiff ceased work as a consequence of the psychological injury on 21 August 2019.

332. In awarding future economic loss, the Court disregards any earning capacity of the Plaintiff after the pension age (in this case, 67): s 151IA of the WCA. Future economic loss adopts a discount rate of 5% as there is no prescribed rate in the regulations: s 151J.

333. The Plaintiff has served reports from his treating doctors which include observations as to his future prospects of rehabilitation to be able to work. Dr Metelerkamp, in particular, viewed this as unlikely. Dr Metelerkamp summarises the prognosis of PTSD in police officers and the hurdles associated with recovery (pp. 66-67 of Exhibit A, Plaintiff’s Medical Book):

“The prognosis for PTSD is contingent on a number of factors including severity, duration and frequency of exposure to trauma. Police officers typically experience severe, frequent and extended periods of trauma exposure making recovery typically protracted. Although 50% of PTSD cases experience complete recovery within 3 months (APS, 2000) this is unlikely in Police given the severity, duration and frequency of exposure to trauma. Mr Paul has already passed the 3-month mark. More likely now is a waxing and waning of symptoms both during and after trauma-based treatment. Even with treatment, reminders of original traumatic events, life stressors or new traumatic events can trigger PTSD symptoms (APA, 2000). For Police Officers in particular, PTSD symptoms and well-being, are not solely related to exposure but also to available social support and coping methods (Menard & Michael, 2013). In particular, Police work is associated with maladaptive coping (Pasillas, Follette & Perumean-Chaney, 2006) and dissociation (Aaron, 2000). Mr Paul has experienced maladaptive coping, in the form of avoidance behaviours, dissociation, suppression and disengagement and his social support network is exceedingly limited. As a result of both maladaptive coping and poor social support, I’d suggest Mr Paul’s prognosis is guarded, at best.”

334. I note that the Plaintiff has had trouble in discussing matters with his psychologist but sees his psychiatrist, Dr Murray, on a weekly basis and intends to continue to do so (Tcpt, 30 May 2023, p 62). He is on a considerable amount of medication, taking 18 pills a day (Tcpt, 30 May 2023, p 62).

335. Unfortunately, despite all this medication and regular visits to the psychiatrist, the Plaintiff still loses control from time to time even when the stress is minor, such as an encounter with another parent at a school football match. These are very much the kinds of situation described by Dr Metelerkamp as likely to cause the Plaintiff to erupt. Similar views are expressed by Dr Bertucen (p.78 of Exhibit A, Plaintiff’s Medical Book), Dr Anand (pp.87, 89, 131, 132, 133 of Exhibit A, Plaintiff’s Medical Book) and Associate Professor Robertson (p.105, 106 of Exhibit A, Plaintiff’s Medical Book).

336. The Plaintiff’s medical evidence was trenchantly criticised by Professor Tennant, but little of his report deals with the topic of the Plaintiff’s likely future recovery, in part because Professor Tennant shifts between saying there is nothing wrong with the Plaintiff and that if there is it is his own fault, recent and trivial. Professor Tennant’s report is of no assistance for these reasons.

337. I have read the vocational assessor’s report concerning potential future work opportunities. I consider Mr Erber’s report to be of no assistance because it is predicated upon the Plaintiff being able to achieve a stable level of mental wellbeing which the Plaintiff’s medical evidence does not support.

338. The unsatisfactory state of the Defendant’s medical evidence means that there is no case to the contrary. Mr Baran submitted that, as the Plaintiff had not been hospitalised, committed or put in gaol for any extreme behaviour, his problems should not be regarded as being such that he can never work again. The Plaintiff has, however, been arrested for aggressive conduct and is leading the life of a hermit to avoid stress. All of the evidence suggests his ongoing disabilities would severely restrict any attempt at employment, even part-time.

339. As the schedule of damages set out below confirms, the sum for future economic loss for the Plaintiff is calculated upon the Plaintiff taking retirement at the age of 60, not 67. The Plaintiff, who indicated that he would have, but for his medical condition, remained in the police until retirement as well as actively seeking promotion, said he had no intention of seeking early retirement (Tcpt, 30 May 2023, p 104), and I accept this evidence, as I am entitled to do, as the age of retirement is not a certain factor such as a heart attack (Bridge Printery Pty Ltd v Mestre [1999] NSWCA 342).

340. The Plaintiff was cross-examined about having a Self-Managed Superannuation Fund (SMSF), as if this were a sign that he would be likely to take early retirement. Mr Morris SC submits that it is compulsory to hold superannuation, and that having such a fund is not indicative of when the Plaintiff was likely to retire.

341. I accept this submission. Any sum for future economic loss should be calculated up to the retirement age of 67. The same is the case for superannuation, the mathematical quantification of which was not challenged by either party.

342. As to residual earning capacity, for the reasons set out above, I am satisfied by the medical evidence, particularly from Dr Anand, that the Plaintiff is unemployable on the open labour market because of his ongoing difficulties and that this is likely to continue for an extended period of time, if not for the rest of his working career. The Plaintiff’s residual earning capacity, even if limited to some form of part-time work with flexible hours and an indulgent employer, is effectively zero; the likelihood of a person with the work skills of the Plaintiff being able to obtain employment of this benevolent kind is remote.

343. Accordingly, I accept the quantification set out by the Plaintiff in the schedule set out below.

Cap for damages for loss of promotion opportunities

344. The parties agree that a cap for damages for loss of promotion may be an appropriate manner of assessment, but disagree as to whether one should be awarded at all and, if one is awarded, as to its quantum.

345. While I have been careful not to read material about (or included in) the Royal Commission’s report, as the parties did not address me on this, the Plaintiff’s own report on his last day of service set out in some detail both the enormity of the investigation and its unqualified success in terms of both meeting the needs of the victims and in preparation of the material that would result in testimony from these witnesses to the Royal Commission itself and for the purposes of the two lengthy trials of the two accused who were prosecuted (the remaining nine offenders were all deceased).

346. In addition, Mr Baran tendered the judgment of the Court of Criminal Appeal in Valentine v R [2023] NSWCCA 43, handed down on 10 March 2023. In the course of his detailed and insightful judgment, Basten AJA’s analysis of the 35-day (at [13]) judge-alone trial highlights the complexities and difficulties of trials of this nature. It is clear, from his Honour’s judgment, that the preparation for both the trial and the appeal has been exemplary. Although his Honour rarely refers to the investigation process (such as referring, at [133], to one police statement having taken three days to prepare), it is clear, from the absence of misunderstandings or factual errors of the kind that might be expected to be found in historic claims such as these, that the investigation work standard must have been of a very high order.

347. Mr Baran does not appear to challenge the excellence of the work, and submits only that “the evidence simply does not allow a court to make a proper mathematical calculation”, adding that the evidence is “sparse” and “speculative” (submissions, paragraph 311), in that there is only “some evidence” from the Plaintiff and Mr Yapp as opposed to “quite clear evidence” of a higher salary being likely (submissions, paragraph 312).

348. Mr Morris SC submits that the Plaintiff’s long and successful career in the police included filling in an “acting up” position on a number of occasions, both before and after the Royal Commission. He was the Senior Sergeant at Tuggerah for periods of time during 2016, 2017 and 2019. He was the recipient of medals and the reports of his supervisors, set out in Exhibit 1, speak in uniformly high terms of his work and work attitude. Inspector Yapp said that the Plaintiff had a potentially bright future in the New South Wales Police Force (Tcpt, 1 June 2023, p 209(17)). To this I would add that the success of his work on Bilvo would have been the crowning achievement.

349. The Plaintiff was only 47 years old at the time that he went off sick in August 2017 and had another 20 years of working life in the New South Wales Police Force at that time. He said in his evidence that he was going to seek promotion (Tcpt, 30 May 2023, p 59(40)), and Inspector Yapp thought that there was “every opportunity” that this would occur (Tcpt, 1 June 2023, p 210).

350. The relevant principles may be drawn from State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 at [87]:

“In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages. Statements to the contrary such as those made in Allen v Loadsman [1975] 2 NSWLR 787 at 792 are not correct: Baird v Roberts [1977] 2 NSWLR 389 at 397-8 per Mahoney JA; J K Keally v Jones [1979] 1 NSWLR 723 at 732-735 per Moffitt P; Yammine v Kalwy [1979] 2 NSWLR 151 at 154-5 and 156-7 per Reynolds JA and Mahoney JA; Thiess Properties Pty Ltd v Page (1980) 31 ALR 430; see also Radakovic v R G Cram & Sons Pty Ltd [1975] 2 NSWLR 751 at 761 where Samuels JA criticised the “meagre facts” provided but did not say it was not open to the jury to find a substantial sum for diminished earning capacity by the “application of their own knowledge and experience”. The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility. The trial judge in substance explained these aspects of the jury’s task satisfactorily.”

351. As to quantum of buffers, a buffer of $150,000 was awarded in Thorn v Monteleone; Thorn v Kelly [2021] NSWCA 319 for loss of the chance to become a farm manager or own a farm. However, the size of the buffer would depend upon the facts of each case.

352. In the present case, it is not in dispute that the role in which the Plaintiff had been acting, without overtime, was $7,000 gross more than his actual final salary. Had he been appointed as an Inspector, this would have gone from $7,000 (the lowest level) to $47,000 gross (if there were progression through increments). In addition, comparable wages for other officers (set out in pp. 85 – 104 of the Plaintiff’s financial records) demonstrate significant earnings for “Overtime/Shifts/Penalties”, independently of career progression.

353. While none of the above is actually determinative, doing the best that I can, conformably with the principles set out in State of New South Wales v Moss, I consider that the Plaintiff’s likelihood of promotion is well-described by Inspector Yapp and that he would have gone on to a distinguished career, retiring at the end of that time on a significantly higher salary, and that the Plaintiff’s estimate of $150,000 should be accepted.

The parties’ schedules

354. In arriving at the figures set out above, I have been guided by the schedules provided by the parties, which are set out below. The Plaintiff provided the following schedule:

Past economic loss

45 weeks=$82,464

52 weeks=$99,171

52 weeks=$100,890

52 weeks=$105,734

$388,259.00

Past superannuation loss $388,259.00x 11%

$42,708.00

Future economic loss $2,033 x 613.9 x 85%

$1,060,849

Future superannuation loss - $1,060,849 x 14.45%

$153,292

Fox v Wood

$33,754.00

Loss of promotion, overtime, and shift allowance (buffer)

19 years from 2019

$150,000

TOTAL

$1,828,862

355. The Defendant provided the following schedule:

Past economic loss

$1,832.54 net per week 21/8/2019 to 30/6/2020

$1,907.15 net per week 1/7/2020 to 30/6/2021

$1,940.21 net per week 1/7/2021 to 30/6/2022

$1,982.02 net per week 1/7/2022 to 30/6/2023

$388,259.00

Past superannuation loss $388,259.00 x 11%

$42,708.00

Future economic loss $2,033.36.00 net per week probable earnings less capacity to earn of $350.00 net per week to age 60 - $1,683.36x 444.1x 85%

$635,443.00

Future superannuation loss - $635,443.00 x 14.33%

$91,000.00

Fox v Wood

$33,754.00

TOTAL

$1,191,164.00

356. The purpose of setting out these schedules is to explain the breakdown of past and future superannuation calculations as well as the Fox v Wood component. I was not otherwise addressed as to either of these aspects of damages, which are mathematically agreed to be correct.

Concluding remarks and costs

357. The Plaintiff reserves his rights to make further submissions as to interest (s 151M of the WCA) and to seek orders in relation to costs.

358. Costs should follow the event but I have granted liberty to apply.

Orders

359. I make the following orders:

1. Judgment for the Plaintiff for $1,828,862, with liberty to apply in relation to any application for interest.

2. Defendant to pay Plaintiff’s costs, with liberty to apply.

3. Exhibits retained until further order.

**********

Decision last updated: 31 July 2023