Pearce v The State of New South Wales

[2005] NSWDC 21

CITATION:	Pearce v The State of New South Wales [2005] NSWDC 21
HEARING DATE(S):	7, 8, 9, 10, 11, 14, 15, 16, 17 and 18 March, 21 April 2005 and written submissions to 3 May (defendant) and 3 June (plaintiff)
JUDGMENT DATE:	29 September 2005
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Judgment for the plaintiff in the sum of $580,703.00.; (2) Defendant to pay plaintiff’s costs.; (3) Liberty to restore in relation to costs or pursuant to slip rule.; (4) Exhibits retained for 28 days.
CATCHWORDS:	TORT - damages - plaintiff claims psychiatric injuries arising out of employment as a police officer - duty of care and foreseeability - consideration of facilities and assistance provided by employer to police officers - quantum of damages
PARTIES:	Plaintiff: Bruce Pearce Defendant: The State of New South Wales
FILE NUMBER(S):	9132 of 2002
COUNSEL:	Plaintiff: P. Blackett SC / K.O Earl (Baker & Edmunds) Defendant: C Lonergan (Crown Solicitor)
SOLICITORS:	Plaintiff: Baker & Edmunds Defendant: Crown Solicitor

JUDGMENT

Introduction

1. The plaintiff brings proceedings for damages against the defendant, his former employer, for injury (in the form of a psychiatric disorder) by way of a Statement of Claim filed on 20 December 2002. By reason of the date of filing, the cause of action is governed by the provisions of the Civil Liability Act 2002 (NSW), but as to quantum only. The claim consists of a plea for damages for non-economic loss pursuant to the capped damages under the Civil Liability Act, past and future economic loss as governed by the Act, but no out of pocket expenses as the plaintiff specifically reserved his right to claim future out of pocket expenses pursuant to the Police Regulation (Superannuation) Act 1906 (NSW) and past expenses are agreed to have been paid by his employer.

2. The circumstances giving rise to the plaintiff’s claim of injury are as follows. The plaintiff joined the New South Wales Police Service on 25 February 1974, when he was nineteen years of age, having been born on 8 February 1955. He generally carried out his duties at small police stations in the New South Wales countryside at locations including Katoomba, Bundanoon, Moss Vale, Dunedoo, Mudgee, Forbes and Gulgong. He attained the rank of Sergeant in 1995 and in 1996 was transferred to the position of officer in charge, Gulgong police station. This is a five man police station within the Mudgee local area command of the New South Wales police service.

3. The plaintiff in the course of his general duties pleads that he was involved in a series of very stressful and hazardous incidents including repetitive incidents, whereby he was exposed to stress and trauma of a cumulative nature. In particular, in March 1999 he was the victim support officer in the murder of a seventeen year old girl ("Ms X") and the distress he suffered as a result of this role, for which he had received no training, was a significant problem for him.

4. After several incidents in which the plaintiff became agitated and distressed, he was unable to perform his duties by 30 October 1999, on which date he was directed by his superior to report off on sick report. He never returned to work. On 31 January 2001 the Police Superannuation Advisory Committee determined that the plaintiff was incapacitated for police duty due to a condition described as "post traumatic stress disorder" with a background of "obsessive compulsive personality traits" noted, but the Committee considered that this infirmity was not duty-related.

5. The plaintiff was discharged from the New South Wales Police Service as medically unfit on 8 February 2001. On 11 September 2002 Judge Bourke in the Compensation Court of New South Wales at Mudgee determined, in a comprehensive and insightful judgment, that the plaintiff’s infirmity was caused by the plaintiff being hurt on duty. The plaintiff then became aware that he had a cause of action at common law and brought proceedings.

6. The plaintiff provided the following particulars of negligence in relation to the conduct of the defendant as his employer:

(a) failed to observe that the plaintiff was in a position of peril in the circumstances;

(b) exposed the plaintiff to a risk of injury which could have been avoided by reasonable care;

(c) failed to implement and/or properly and/or adequately implement measures to protect the plaintiff from injury as a result of his work and its pressures;

(d) failed to educate and warn the plaintiff of the effects of repeated exposure to trauma involving stress in the workplace and performance of his work as a victim's support officer;

(e) failed to provide adequate support staff with medical experience including counselling and welfare support for the plaintiff in circumstances of the type and amount of work performed and the trauma associated therewith;

(f) failed to provide adequate debriefing and support to the plaintiff to assist the plaintiff to avoid the risk of injury in performance of his duties;

(g) failed to observe or determine that the plaintiff had obsessive compulsive personality traits and the likely effects of repeated trauma and stress on him.

A preliminary issue – the role of particulars in assessing issues relevant to the proceedings

7. The defendant complains that in answers to particulars in relation to the allegations contained in paragraphs 7(c), (d), (e), (f) and (g) the plaintiff made fatal concessions. The first of these was that "colleagues observed he was being adversely affected by [stress and trauma]" yet there was no system for reporting the fact and no counselling was given, and secondly that "the defendant did not tell him anything" about the possible effects of cumulative stress and trauma "and told him nothing about and gave him no training about the benefits of counselling".

8. Further, in response to a question concerning how it was alleged that the defendant failed to provide adequate support staff and medical experience including counselling and welfare support, the answer given was "there were none". Again, in relation to a similar question in the answers to particulars (question 35) the same assertion was made, namely that there were no procedures for providing "adequate debriefing and support".

9. The defendant submits that accordingly the case it came to meet was that there were no services available and/or provided by way of counselling so as to prevent the plaintiff from suffering psychological injury by reason of exposure to traumatic and stressful event throughout his career. Objections were taken to evidence being led that the services provided were inadequate (as opposed to non-existent).

10. In evidence given by the plaintiff, it became clear that he was aware that there did exist a Welfare Branch and a Psychology Section within New South Wales Police. The defendant submitted that this is a critical concession by the plaintiff because it means that not only are the general allegations of no system at all made out against the State, but the evidence goes further to establish that the plaintiff, knowingly these service were available, decided not to use them.

11. The first point that needs to be considered is precisely what case the parties came to meet on the pleadings and particulars.

12. What the defendant has overlooked is the insertion of the key word "adequately'' in paragraphs (c), (e) and (f) of the particulars of negligence in the statement of claim. What the plaintiff’s case was all about was not an assertion that there was no assistance of any kind whatsoever, but rather that there was, to use the words in particular (c) of negligence, a failure to implement and/or properly and/or adequately implement, measures to protect employees such as the plaintiff from injury as a result of his work and its pressures. This is again seen in the use of the phrase "reasonable care" in paragraph (b). The only paragraphs put in the form of absolute failures were "failed to educate and warn the plaintiff of the effects of repeated exposure to trauma involving stress in the workplace and performance of his work as a victim support officer" (particular (d)) and failure to observe the particular obsessive compulsive personality traits and the likely effects of repeated trauma and stress on him (particular (g)). In addition, particular (a) was pleaded as an absolute.

13. As to the first of these particulars, particular (d), there was never any evidence before me that the plaintiff received any education in order to perform his work as a victim support officer. Accordingly, this particular is correctly pleaded as an absolute. As to particular (g), this played little or no role in the trial and was not the subject of any submissions. Particular (d) complains of failure to observe the plaintiff’s position of peril and the evidence led on this was that the plaintiff’s superiors lost opportunities to help the plaintiff.

14. The function of particulars is to enable a party to know the case that he/she has to meet, not to function as a substitute for evidence. The case that the defendant came to meet, and that the plaintiff ran, was the case about inadequate measures to protect the plaintiff, not a case about a complete lack of measures to protect the plaintiff. The sole exception to this was the failure to educate and warn the plaintiff in relation to his work as a victim support officer.

15. The particulars that were tendered were by way of elaboration of the case pleaded. The thrust of them, by and large, was that the failure to supply adequate support staff, debriefing or other message was so great as to amount to little or no assistance at all.

16. Further, it is submitted that the plaintiff made a significant factual error in his evidence (at T-107) when he denied that every aspect of his duties was constantly scrutinised. It was asserted that the particulars provided in 2003 "established" (written submissions page 8) that the plaintiff was in fact "constantly scrutinised". This is seen as an admission by the plaintiff that he was in fact under observation by persons with an interest in his mental well-being.

17. Once again, the function of particulars is to enable the opposing party to know the case he/she has to meet. The provision of particulars is not a substitute for a sworn affidavit. As to the plaintiff’s evidence, while inconsistent statements of fact are legitimate matters for cross-examination, the contents of answers to particulars should not be treated as if those answers to particulars constitute a prior inconsistent statement other than in very clear cases. Indeed, as Sperling J observed in R v Cassar, Sleiman and Kalache (No.12) [1991] NSWSC 352 at [18], in the context of inconsistent statement evidence, the use in civil cases of apparently inconsistent statements in civil pleadings "would ordinarily be so devoid of value in answering an earlier inconsistent statement ... as not to be arguably probative at all". This is all the more the case where the alleged admission is a statement provided in the course of providing a lengthy answer to particulars where the document is drafted by someone other than the plaintiff. Commonsense dictates that the person who wrote the words "constantly scrutinised" to describe the manner of the supervision of the plaintiff’s employment between 25 February 1974 and 30 October 1999 was making a general statement and at worst this statement is an exaggeration.

18. The defendant in oral and written submissions generally addressed the plaintiff’s pleaded particulars as if they were one amorphous mass, as if evidence which was led against one particular amounted to evidence going to all particulars. Where there was a statement in the particulars of an absolute kind (e.g. the statement that there was no support in particular (d)) which appeared to be in conflict with other particulars (e.g. particulars (e) and (f), which referred to failure to provide adequate support rather than no support) the defendant submitted that the relevant sentence from the answers to particulars should be narrowly construed to force the plaintiff to reduce his case from "no adequate" to "no"'.

19. I do not accept that the defendant's preliminary contention that the plaintiff’s concessions means the defendant has no case to meet. Firstly, even if the defendant's concession is correct, it is not in dispute that the defendant never provided the plaintiff any education, support or other counselling to enable him to perform the difficult role of victim's support officer, so the plaintiff’s substantial case would remain for the defendant to meet. Secondly, as I read the answers to particulars, the occasional piece of infelicitous drafting does not purport to derogate from the plaintiff’s claim as particularised in his pleadings. Thirdly, apart from some specific areas of objection, the defendant permitted the leading of evidence about lack of adequate counselling or support (as opposed to no support) without objections. Fourthly, it is in fact my findings on the evidence before me that there was indeed a total failure to provide any counselling facilities or to provide adequate support staff with medical experience including counselling and welfare support. Reduced to one sentence, my findings of fact are that all the defendant provided to country NSW police officers in the plaintiff’s geographical area was one exhausted welfare officer whose office was his car (and whose welfare office was being shut down over much of the crucial period) and some old Police Gazette magazine articles of such a superficial nature that even if the plaintiff had been able to locate them (which I find was impossible) they would have accorded him no assistance.

20. I now turn to a consideration of the evidence in these proceedings.

The evidence of the plaintiff

21. The plaintiff who was born on 8 February 1955 and grew up in Lithgow and Katoomba, became a probationary constable in the New South Wales Police Service at the age of nineteen having left school at the age of sixteen. He married at the age of nineteen and he and his wife, with whom he has had a lengthy and close marriage, had their first child in 1974 and their second surviving child (but third child) in 1976. Between May 1979 and October 1999 the plaintiff attended a series of distressing accidents and crime scenes which were as follows:

(a) From 5 May 1979 he attended a serious fatal motor accident in Sutton Forest in which the two victims were killed.

(b) In the early 1980s he attended a serious fatal head on collision between a pantechnicon truck and a motor vehicle containing a husband and wife, two young children and a baby. During the plaintiff’s attempt to rescue the children from the car the baby fell some one and a half metres into a table drain and was locate dead; the plaintiff blamed himself. He also blamed himself for harming one of the young girls as she was trapped, injured, in the car and screamed when he attempted to extricate her.

(c) The plaintiff attended another serious motor accident in Sutton Forest on 15 July 1980 in which the two victims were killed.

(d) In late 1981 the plaintiff was negotiating with a disturbed eighteen year old carrying a rifle in what sounds to have been a situation akin to a potential hostage situation in that other family members were present. The disturbed eighteen year old committed suicide by shooting himself in the head in front of the plaintiff and the boy's parents.

(e) On 31 October 1987 the plaintiff attended a serious fatal level crossing motor vehicle accident on the Dunedoo/Mendooran Road in which three persons were killed.

(f) On a date unknown to me Superintendent Sullivan (now retired) conveyed the plaintiff to an accident on the Sydney Road out of Mudgee involving the death of a ten year old boy following a head on collision involving a French rally car and observed the plaintiff to be upset and almost teary.

22. Although these were the most significant incidents recalled by the plaintiff they were not the only ones. There were other on-going stresses, including the circumstances in which he was often left on his own on Friday and Saturday nights to answer calls from members of the public about criminal activity by reason of roster failures due to inadequate staffing levels in the area.

23. The plaintiff sought some medical assistance from his general practitioner and obtained a prescription for tranquillisers. From the time of the plaintiff’s transfer to Gulgong in 1996, his condition began to deteriorate. It is not possible to put a precise date on this gradual decline. By 11 May 1998, when he consulted Dr Nicholson at Mudgee with marked anxiety and a mild depressive illness, he was having difficulties requiring medication.

24. In or about December 1998 the plaintiff attended a pistol shoot exercise to become familiar with the Glock hand weapon on issue to police officers. Because he has a small hand he had trouble holding the gun. Although he scored a hundred per cent in the written part of the examination he became upset when he could not handle the gun and was unable to complete the course. By the time he came to re-do the course in May 1999, the event which had the greatest impact of the plaintiff had occurred, namely the circumstances in which he became the victim support officer for the family of Ms X, who was murdered on an unknown date at the end of February 1999 and whose body was discovered on 2 March 1999.

25. By coincidence, the day before the body of Ms X was discovered, Inspector Signorelli had been called in by the plaintiff in relation to some on-going difficulties at the police station. The plaintiff had a junior whose work had been seriously affected by his matrimonial problems; the junior police officer's wife had brought her boyfriend to live on the premises (which were a police residence) and there were applications for an apprehended violence orders in relation to the occupation of the premises. Mr Signorelli (as I shall hereafter refer to him) was the welfare officer for the Western District and he had completed courses in, among other areas, marriage guidance counselling. On the day in question, the saga of the occupation of the lock-up premises at Gulgong was largely resolved, but Mr Signorelli realised that the plaintiff had a number of emotional issues arising out of his police service (T-610). He also acknowledged, although he had no training as a psychologist, that these matters went further than the dispute with the junior officer with matrimonial problems.

26. Mr Signorelli was effectively the sole welfare officer for a vast geographical area, and his resources consisted of himself and his car. When he was absent from his city office, which was most of the time, nobody else was manning his desk.

27. Mr Signorelli, who gave evidence and was cross-examined, presented as a caring, compassionate and hopelessly overworked officer doing his best in impossible circumstances. His training was limited to grief and marital counselling services, but even so he could see that the plaintiff was already under serious stress prior to the discovery of the body of Ms X. Unfortunately, Mr Signorelli did nothing to bring the plaintiff’s condition to the notice of the Psychology Section or his superiors despite the fact that it was reasonably clear to him that the plaintiff was having difficulties performing his job and in fact required medication in order to get through the day, having commenced to seek medical assistance by seeing his general practitioner since about May 1998 for the purpose of obtaining medication. All that Mr Signorelli did was to make a follow up phone call during the period April to May 1999 when the plaintiff was on annual leave, which resulted in the plaintiff consulting with the Police Welfare Branch shortly thereafter but which did not result in any further action. Mr Signorelli did write a follow-up letter but having regard to the circumstances in which this letter came to the attention of the court is very belated circumstances and having regard to the evidence of the plaintiff in reply when this matter was finally put to him I am of the view that this letter was never sent or if sent was never received by the plaintiff. In any event, there was no follow up of the letter and the plaintiff continued in the downward spiral which occurred as a result of his acting on behalf of the family of the murder victim Ms X.

28. Prior to the plaintiff commencing to have difficulties in the mid to late 1990s he had been a man in good health who had a happy family life, was popular in the local community (at one stage having been made citizen of the year in 1990 by the Coolah Shire Council) and who was often asked to perform community oriented tasks ranging from coaching the netball club and junior league, being a member of the P & C and hospital committees, acting on a committee which purchased an aged hostel in Dunedoo, being an activist to ensure proper traffic lights and safeguards at level crossings were installed and generally performing his duties as an active, useful and well liked member of the small country community in which he lived. In addition, the plaintiff was ambitious. Although he had left school at sixteen he wanted to continue his education. He undertook a Bachelor of Arts course at the University of New England and he did well, obtaining results at the distinction level.

29. There was ample evidence from other police officers of the high regard with which the plaintiff was held in the Police Service. Retired Inspector Sullivan gave evidence that he noticed the plaintiff’s high quality work while the plaintiff was in a neighbouring patrol at Dunedoo and he set out to "poach" him across to Mudgee. Having obtained the plaintiff as a worker in his team, he noted that the plaintiff always performed expected levels and so he gave him all the difficult jobs which included such matters as looking after Exhibits, where the plaintiff, a meticulous man by nature, not only implemented an excellent scheme but a system that has been used in other patrols since that time. It was his evidence that the plaintiff enjoyed great respect not only from those below him but also from those above him and that this extended right throughout the district (T-290). When he became aware that the plaintiff wanted to progress he encouraged him to apply for a position of Sergeant at Forbes even though this would mean losing his services. Although there were thirty-nine applicants the plaintiff obtained the position with no appeal from any of the disappointed applicants a situation which was very unusual in the appeal prone promotion procedure in the Police Service (T-291). Retired Inspector Sullivan then "poached" the plaintiff’s services again for the position of officer in charge of police at Gulgong. Among his duties included the starting up again of the ethics committee for the Mudgee area upon his return.

30. As a person who was the plaintiff’s immediate superior for a considerable period of time, Retired Inspector Sullivan's opinion carries a great deal of weight with me. Although the plaintiff was still at Sergeant level after twenty five years, this was because of the nature of work in the country, where a police officer who wished to work in the country might take a sideways promotion (as the plaintiff had done) rather than proceed up the ladder. However, in relation to the plaintiff s future prospects, Inspector Sullivan said that he expected that he would reach commissioned rank and go on to Superintendent or even further. He was quite confident the plaintiff could obtain commissioned rank and certainly become a Superintendent (T-297). Certainly the plaintiff’s university record indicates his ability to study and sit for exams successfully and also to apply himself in an efficient manner. I regard this of being of more assistance than the fact that the plaintiff failed in his first attempt at an assessment centre, as the evidence was that this was a common occurrence on the road to obtaining commissioned rank.

Witnesses for the plaintiff

31. The Plaintiff called the following former or current police officers:

(a) former police officer Bruce White;

(b) Senior Sergeant Spradbrow;

(c) former Superintendent Michael Sullivan;

(d) Senior Constable Pinel;

(e) Detective Inspector David Payne;

(f) former Superintendent John Honeysett;

(g) Superintendent Single.

32. The defendant submits that all of the current and former police officers describe the plaintiff as being a quality police officer and gave no evidence as noticing any deterioration in his mental condition until the latter part of 1998. It is submitted that this means there is no evidence other than the plaintiff’s recollection that he felt any general deterioration in his psychological condition in the years leading up to the latter part of 1998 or early 1999. Accordingly, the defendant submits that the plaintiff’s evidence must be treated with caution as it has been given with the benefit of "hindsight".

33. However, this is in fact not the evidence. In particular, it was the evidence both of the plaintiff and former Superintendent Michael Sullivan that when the plaintiff attended a very horrific accident involving the death of a ten year old child the commander noted that the plaintiff was reactive at the scene to the extent that it surprised him, particularly in view of his previous knowledge of the plaintiff as a stable police officer and an otherwise robust individual. He was concerned that the plaintiff was expressing emotion to the point of being fury at the death of the child. Inspector Lette, when questioned about this incident, conceded that she would expect a supervisor to make an inquiry at least on this occasion (T-670). This was one of a series of missed opportunities and I accept the evidence of the plaintiff’s supervisor, Superintendent Sullivan, that the plaintiff’s behaviour was of concern to him (T-293,290).

34. Senior Constable Spradrow gave similar evidence about the conduct of the plaintiff on the pistol shoot exercise in December 1998 (T-268). He described the plaintiff’s problems including behaviour he considers was inappropriate and that he appeared to be losing his nerve (T-268). Superintendent Single was present on this occasion. Senior Sergeant Spradrow thought that Superintendent Single must have heard or seen at least part of this inappropriate behaviour, but neither Senior Sergeant Spradrow nor Superintendent Single did anything by way of inquiry or further investigation of the plaintiff’s psychological or emotional condition. All that Senior Sergeant Spradrow did was arranging for the plaintiff to resubmit for the course at a later time (May 1999).

35. Once again, when the plaintiff attended this course in 1999 he showed signs that he was not coping and he appeared to be losing his self-confidence and when Senior Sergeant Spradrow told the plaintiff he was considering failing him from the course, the plaintiff broke down and became agitated and emotional. He was talking about his inadequacies, saying he thought he was a failure and describing the murder of Ms X with which he had by this stage become obsessed. It is of great significance that he told Senior Sergeant Spradrow that he should just go and put a bullet in himself (T-270). In addition, Senior Sergeant Spradrow noticed the plaintiff’s hands were shaking when he was holding his weapon. However, Senior Sergeant Spradrow did not consider it appropriate action to take the gun from the plaintiff, but allowed him to continue working and wearing his gun as a frontline police officer exposed to continuing trauma and stress.

36. In his evidence to the Court, Senior Sergeant Spradrow admitted he had no training in recognising signs of depression or anxiety in police officers and said that in retrospect what he should have done is take the plaintiff’s gun immediately away from him and report the matter to his supervisors and have a further follow up particularly in view of the fact that the plaintiff had cried when he had this emotional breakdown (T-270). He said that he feared the plaintiff would in fact do something "silly" (from which I assert he feared potential suicide attempts) from comments he had made and from the fact that the plaintiff was admitting to having difficulties coping, and that he considered the plaintiff would be better off with a non-operational role in the Police Service while he was in this state (T-271).

37. Further evidence was given by Senior Constable Robert Pinel who was a colleague and was effectively under the control of the plaintiff at Gulgong during 1999. He was in a position to observe the impact of the investigation into Ms X's murder and he regularly saw the plaintiff having dealings with the family of the victim (T-311). It was of particular concern to him that he observed the plaintiff being over-zealous in the treatment of young people on the streets of Gulgong, flying off the handle and becoming upset, thumping the table and going red in the face and looking like someone with potential for a stroke (T-314-315). Again, he had no training and there was no system whereby he could have taken any action to have assistance granted to the plaintiff in the circumstances.

38. Finally, there is the evidence of Mr Signorelli who met the plaintiff on 1 March 1999 in relation to another matter. Unlike the other police officers who had seen the plaintiff, Mr Signorelli did have training, although of a limited variety, to recognise symptoms of emotional distress. He realised the plaintiff had a number of emotional issues. He could see that this went well beyond the dispute for which he had been summoned. He was concerned enough to make a follow up phone call and write a follow up letter, but as indicated elsewhere, I have found that the follow up letter was never received by the plaintiff and the follow up phone call simply occurred too late.

39. In addition, there is the evidence of the plaintiff’s wife. She was a convincing and honest witness. She described how the plaintiff was very emotionally stable over the first 20 years or so of his service and rarely took days off (T-209) but began to react to stressful incidents, especially those which involved children who had been killed (T209-213).

40. A further problem that I have with the submission of the defendant that there is no evidence other than the plaintiff’s recollection of a general deterioration is that there really was no one who was in a position to monitor the plaintiff’s ability to perform his work in any way. The plaintiff’s isolation in the Police Service by reason of his geographical isolation and lack of any support structure meant that he was, according to the evidence of himself and other officers, left alone a great deal. When rostering arrangements with a neighbouring police station broke down, as appeared to be the case quite frequently, particularly on Friday nights, he would be patrolling on his own without backup.

41. A point is taken by the defendant in written submissions (paragraphs 7-8) that the plaintiff in the course of his duties was subject to assessment, transfers and promotion and that "every aspect of his duties was constantly scrutinised", yet not once was the plaintiff assessed or evaluated to determine his personality traits or any susceptibility he may have to become ill from repeated trauma and stress. It is submitted that the plaintiff’s answers to particulars amounts to a concession that the plaintiff was in fact being constantly scrutinised and that "those instructions must only have come from the plaintiff himself".

42. As indicated earlier, I regard this as a misreading of these answers to particulars. What the answers to particulars appear to be attempting to do is to point out that, while the plaintiff’s ability to perform police work was the subject of assessment, there was no procedure for assessing his emotional well being.

43. The plaintiff was the subject of a sustained cross-examination on this point and, as he often did, would start out disagreeing with a proposition, become depressed and in a self-defeating way end up agreeing with the cross-examiner. His demeanour on these occasions was that of a man in extreme depression. He would slump forward in the witness box, often red in the face and looked distressed and tearful. I am of the view that apparent concessions made by the plaintiff in such circumstances should be weighed against the other evidence in the case, rather than merely accepted at face value.

44. The objective evidence is that there were occasions when the plaintiff’s level of distress was such that even untrained observers, such as his superiors, were able to pick it up. They were concerned, but they did nothing about it. Accordingly, I reject the defendant's submission that there is no evidence of other persons noticing deterioration and I further reject the submission that the plaintiff conceded he was under some form of constant assessment which meant that he was under observation by these officers.

Facilities available in the 1980s

45. The defendant submits that "at some indeterminable point of time during his career [the plaintiff] became aware of both the Welfare Support Branch and thus the Psychology Branch within NSW Police during the 1980s" (submissions, page 3) and that for unexplained reasons he simply did not access these services.

46. The plaintiff said in his evidence that he was aware of there being a welfare section in the 1980s (T-117 ff) and that he did not consult them because he did not believe he had a problem.

47. The first issue for determination is when and for what purpose the police welfare section came into existence. The defendant in its submissions makes no reference to evidence being led about the welfare section and what facilities it had to offer the plaintiff during the 1980s. There was no evidence called from anyone who worked in the police welfare section during the 1980s and no evidence tendered about this body's activities and whether they included psychological counselling during the 1980s.

48. Inspector Jennifer Lette, who is the chief psychologist for the New South Wales Police Service, gave evidence that, according to the New South Wales Police Service Records, a welfare section was established in 1982 and in 1987 a Psychology Section was established. The chief psychologist for the Police Service was a Mr John Roue. I have no further information about these services.

49. In 1988 or 1989 the Police Service began publishing the Police Service Weekly. All articles from this publication which dealt with stress were tendered. No articles were tendered for the period 1988-1990.

50. I now propose to consider the evidence about facilities available from 1990 onwards.

Facilities available in the 1990s

51. Between 1990 and 2001 there were six possible sources of assistance for NSW Police with health problems:

(a) the Health and Fitness Unit, which conducted seminars about stress (for example, a four day course on stress in 1991). Although I inquired about the activities of this organisation, I never heard anything about their activities, and judging by the articles published in the Police Service Weekly, their preoccupation was with weight, diet, substance abuse and general health checkups. It is no part of the defendant's case that the plaintiff should have consulted the Health and Fitness Unit or should have attended their courses and accordingly this organisation is of no relevance, as Mr Lonergan conceded in oral submissions;

(b) articles in the Police Service Weekly, which contained information about psychological problems. I heard a great deal of evidence about these articles during the trial, and each of them was put to the plaintiff. I have summarized these in detail below;

(c) the police Welfare Branch (in a general sense, as opposed to the availability of Mr Signorelli);

(d) the Psychology Branch;

(e) the Peer support system;

(f) the availability of a specific Welfare Branch officer for the Western Region (Mr Signorelli).

52. I shall now consider each of (b) to (f) in turn.

Articles in the "Police Service Weekly"

53. It is necessary to go through each of the articles tendered as being articles in the Police Service Weekly, which the plaintiff is alleged to have been able to have access to. No articles were tendered for the period prior to 1990, so I shall commence with 1990.

(a) 1990

54. There were 11 articles in the Police Service Weekly in 1990, and two of them were about the Police Psychology Unit. These articles appeared in the editions of 15 January, 22 January,19 February, 26 February, 14 May, 21 May (2 articles), 28 May, 4 June, 13 August and 22 October.

55. There were two articles from the Police Psychology Unit. One refers to the Police Psychology Unit as having been "recently ... expanded" and sets out briefly the workings of the unit and contact points, and another relates to the peer support scheme.

56. The article on page 28 of the 14 May issue refers to the availability of "stress management courses" between May and August 1990 and next to it (on page 29) is an article about the role of drugs and alcohol in aggravating stress (there is no suggestion the plaintiff suffered either of these problems). Other articles refer to nutrition tips to lessen stress (there is no suggestion the plaintiff had eating-related stress problems).

57. Also appearing in the magazine in January 1990 were courses that were to be run by the Health & Fitness Education Unit (this is the body about which I heard nothing during the trial), during the following year (i.e. in 1991, not 1990). All of these courses were run in the city and were, according of the text of one such advertisement, limited to eight persons (both police and public service) at a time, so the number of police officers who could attend would be very small. Unfortunately these stress seminars seem to have been held irregularly and rarely after 1991, judging by the mere handful of further advertisements over the next ten years.

58. Although Jan Westerink, the Chief Psychologist, wrote about the peer support scheme on 21 May 1990 and invited feedback, she never contributed another article to the Police Service Weekly during the rest of her career as police psychologist. Nor did the other persons posing with Ms Westerink in the photograph accompanying the article about the Police Psychology Unit on 13 August 1990. She inserted an advertisement for the peer support program on 18 November 1991 (exhibit 31) but subsequent advertisements were unsigned or signed by others.

59. The work of the Psychology Unit is described in the article as follows:

"The psychologists assist with post trauma counselling. For officers who have been involved in such things as child murder, shooting incidents, prolonged rescues, hostage situations, and so on debriefing can help prevent long term Problems'"

The article goes on to say that:

"The psychologists are available to give lectures on work and lifestyle issues and are available 8 am to 4.30 pm Monday to Friday "but may be available after hours in very special circumstances""

60. This is not an article welcoming calls from general members of the police service. It is clearly stated that this unit is available for mandatory critical incident debriefing (which is the "services provided") and that other tasks include lecturing on a general basis.

61. This particular publication does conclude with a comment that the article should be "kept handy", so that the unit can be contacted, but there is no follow up article containing this information in any further issue of the Police Service Weekly for the remainder of the plaintiff’s career in the Police Service (i.e. from 1990 to 1999).

(b) 1991

62. In 1991 there were 8 articles and two advertisements. These articles dealt largely with alcohol abuse problems and the establishment of the peer support system. There was a statement by Commissioner Lauer (7 January) and by Commissioner Avery (18 March) referring to this system.

63. On 7 January 1991 the Police Media Unit placed a media release in the Police Service Weekly (Annexure 20 to Ms Lette's statement) responding to criticisms by the Sunday Telegraph that the psychological and welfare support to police officers was "pitifully inadequate". Mr Lauer, the Police commissioner, said that there were 12 officers in the welfare branch available on a 24 hour basis to provide assistance to "all NSW Police Service employees and their families" and that this included an additional two drugs and alcohol counsellors. In addition, the Psychology Unit provided "counselling services to individuals or groups (including families of police) as required and/or requested" as well as the critical incident debriefing referred to in the Psychology Unit's article in the previous year. The Commissioner's description of the work of the Psychology Unit is different to the description given by the Psychology unit in its article in the previous year. It is asserted that these officers are available on a 24 hour basis and provided assistance as required, as well as for critical incident debriefing. However, I find that this was an overstatement. There was no evidence before me of such a broad scheme.

64. The Commissioner goes on to describe the importance of the peer support system, noting it is undergoing a six-month trial. I have dealt with the peer support system in more detail below.

65. An article dated 18 March 1991 makes it clear that the Sunday Telegraph is not the only critic, and that there has been internal criticism of the Police Service's Welfare and Psychology Unit, particularly after the suicide of a Senior Constable Tickle.

66. The Major Incidents Policy was published on 25 March and referred to the availability of counselling for those officers finding themselves under stress following involvement in a major incident.

67. While there were around 10-11 articles about stress in 1990 and 1991 (all of which are summarised above) there was a dramatic reduction in the number of articles from that time onwards.

(c) 1992

68. In 1992 two articles appeared in the Police Service Weekly about the peer support officer scheme. No other articles about stress or counselling were published. I note from submissions by the defendant that the only document he refers to as being a document of significance for the period 1992 – 7 is annexure 46, a document which described the "Employee Assistance Branch" which does not form part of the Police Service Weekly (see the defendant's supplementary submissions, paragraphs (h) to (j), which jump from 1991 to 1997 in terms of chronological entries). This is a document of the most general import. It is not clear to me when or how it was made available to police officers.

(d) 1993

69. In 1993 one article about the peer support scheme was published in the Police Service Weekly. Three articles were published about alcohol abuse. The defendant also tendered an article about the appointment of a police chaplain. It is no part of the defendant's case that the plaintiff should or could have consulted the police chaplain. None of these articles would have assisted the plaintiff.

(e) 1994

70. In 1993 only one issue of the Police Service Weekly had any articles about any aspect of health or stress, namely the 6 June issue which contained two articles, one about the Trauma Control Committee and the other commenting generally about welfare and counselling. The Trauma Control Committee article related to major incidents and the adjoining article is superficial in content.

(f) 1995

71. The next article about stress issues appeared more than a year later, namely on 31 July 1995. This article was a report of a seminar. A second article published that year, a two page article on stress management, was of more relevance but still very general. The only other article tendered for 1995 was another article (27 November) about the police chaplain.

72. From 1995 onwards the number of articles about work stress, counselling or other issues, became even rarer.

(g) 1996

73. The only article tendered for 1996 was an article of 3 November which advised police to have a healthy lifestyle. This would be of no assistance to the plaintiff.

(h) 1997

74. The only article tendered for 1997 was an article on 18 August again advising police to have a healthy lifestyle. A short advertisement about free health checks also appeared.

(i) 1998

75. There is one article tendered for 1998 was an article about women's health. There were three advertisements for free checks - a health profile, a Healthy Heart article and an article/advertisement about psychological testing. The defendant in supplementary submissions (see submission (1)) places much weight on the fact that this short article sets out what psychological testing is for. However, it is made clear that this is testing of a vocational nature "to select personnel" so that employees are "placed in jobs they are qualified to do" and is aimed at reassuring people who have to sit for these tests that they have been in use for this purpose since World War 1 and are widely used in the public and private sector. There is no reference whatsoever to stress. It would have been of no assistance whatsoever to the plaintiff.

(j) 1999

76. No articles were tendered.

(k) 2000

77. No articles were tendered. By this time the plaintiff was no longer working.

(l) 2001

78. In 2001 an article about psychological well being appeared. By my calculations, this article was the first article (as opposed to an advertisement) to appear about stress since 1995.

The plaintiffs access to the Police Service Weekly, including back copies

79. The plaintiff agreed (T-126) that police were encouraged to read the Police Service Weekly. Photocopies of two entire copies of this publication were tendered. It is a weekly publication of about 40 pages on average and contains information of a wide ranging nature about police activities, training, social functions and promotion to higher rank.

80. It is submitted to me that the "numerous" excerpts from the Police Service Weekly meant that there was a "plethora of written information concerning the existence of the Psychological/Welfare Units and, as well, particulars concerning the need to take care and be alert for any psychological problems being experienced" (submissions, page 6). Further, it is submitted that the plaintiff himself conceded this at T-153.

81. As I have indicated elsewhere, it was a feature of the plaintiff’s presentation as a witness that in the course of his lengthy cross-examination he would become exhausted and distressed and agree to what was being put to him. It was the plaintiff‘s initial evidence that he could not recall reading any of these articles and he said on other occasions that he did not recall having such information. Accordingly, I propose to have regard to the objective evidence about the availability of this publication.

82. The Police Service Weekly was distributed weekly to police stations around the State and the plaintiff’s evidence was that he would photostat and circulate articles of relevance. It is of significance that these publications were distributed to police stations rather than individuals. There was no evidence of any practice of storing past issues for future reference, or of such a practice being recommended. The plaintiff was transferred to Gulgong Police Station as Officer in Charge in 1996. There is no evidence past issues of the Police Service Weekly were stored at Gulgong for access by police officers, although such a process would be necessary for there to be access to back issues, given the evidence of transferring police officers to different stations.

83. The plaintiff was reading, therefore, a weekly publication with a total of about two thousand printed pages per year (36 - 40 pages times 52 weeks). It does not appear to have been annually indexed. Articles about the Psychology Unit would have been a very tiny fraction of this information. In particular, in the five years before he went on leave in October 1999 and particularly after he was transferred to Gulgong in 1996, there were only a handful of articles about health (including irrelevant articles, such as women's health) and four advertisements. Even if the plaintiff had been advised to keep back issues of the publication in Gulgong Station (which is not the subject of evidence) and had been able to consult them (despite the absence of an index) he would not have found any articles for the period 1996-9 providing him with assistance or information.

84. It may be, in my analysis of these articles, that I have overlooked or miscounted some of the advertisements tendered, as they were placed in different tender bundles. I also note there was an article in the Policing Issues and Practice Journal in July 1997 (Vol 5 No 4) and there are some other documents which are referred to in more detail below. However, given the minuscule amount of space devoted by the Police Service Weekly to issues of health and counselling, any mathematical error by me would make very little difference.

85. The plaintiff was not cross- examined about any recommendation by his employer to keep back issues of the Police Service Weekly. It was conceded by the defendant that the Police Service Weekly was not given to every individual officer but to each police station.

86. I make the following further findings about the inaccessibility of articles in back issues:

(a) the two back issues of the Police Service Weekly that the plaintiff obtained and tendered during the trial do not have indexes, nor is there any evidence of an annual index, so finding an article in a past issue would be very difficult;

(b) the plaintiff was transferred to Gulgong Police Station in 1996 and in the absence of some evidence that police officers (as opposed to police stations) were obliged to retain back issues, any failure to retain relevant back issues would be as a result of Gulgong Police Station's prior officers' failure to keep back issues;

(c) as I have indicated above, apart from one article in 1997 and 1998 about a healthy lifestyle and a couple of advertisements for health checks, there were no articles of any kind about stress for the period 1996 to the date of the plaintiff ceasing work. Thus even if the plaintiff had been conscientiously reading and preserving each issue of the Police Service Weekly over this period, there was nothing in it for him to read. There was no cross-examination about back issues being available from other sources.

87. Taking all of the above into account, it is my finding that the articles relied upon by the defendant as providing information to the plaintiff were in fact inaccessible to him.

88. Having considered the quantity of these "numerous" excerpts (to quote the submissions of counsel for the defendant) I now turn to a consideration of their quality. First, I should observe that almost without exception they were towards the back of the publication, as the page numbers show, and the examples of this publication which were tendered show that such stories featured amongst "lifestyle" or "soft" news stories.

89. As to the quality of advice given, as the summary I have set out above makes clear, these articles were superficial, short and largely about healthy lifestyle. References to the availability of counselling were few, and were generally expressed to be for clear-cut trauma incidents. It is my finding that the quality of these publications was superficial to the point of being largely useless.

Other sources of information to the NSW Police about stress

90. Attached to the statement of Ms Lette, the police psychologist, are some other documents which it is asserted were available to the plaintiff to tell him about stress. The documents to which I was taken by the defendant (in addition to those discussed above) are as follows:

(a) Document headed "On-the-job training scheme - Stress" (Annexure 1 to Ms Lette’s statement)

91. This is the text for a lecture which Ms Lette said was mandatory for police. It is undated but the articles for further reading (at the end) cover the period 1976 - 1979 so the likelihood is that this is a document of some antiquity. There is no evidence the plaintiff attended any such lecture. The text is in such general terms that it would have been of little assistance if he did.

(b) Critical work incidents lecture - 1989 (Annexure 2 to Ms Lette’s statement)

92. The plaintiff agreed (T-125) that it would have been relevant for him to have seen such a document, but there is no evidence he attended such a lecture in 1989. All this document does is to advise a supervisor that "if necessary, supervisors should notify Welfare Branch, Police Chaplains or the Psychology Section for additional support" (paragraph 16). This would not have been of assistance to the plaintiff even if he did attend.

(c) Article headed "Time Management" - 1990 (Annexure 16 to Ms Lette's statement)

93. This article recommends time management for a number of reasons, one of which is that it reduces stress. The plaintiff’s colleagues spoke highly of his time management and neatness skills and this article has no relevance to the issues in this trial.

(d) Police Service Handbook - 1999 "Welfare Section" (Annexure 64 to Ms Lette's statement)

94. This extract, updated as at 1 January 1999, identifies the facilities available to officers including "counselling – trauma and counselling – general". There is no evidence as to what was in the Police Service Handbook on this issue prior to 1 January 1999; I note there is a handwritten statement that the Handbook from 1999 to the present contains the information that is set out in the one and a half columns on this page.

95. The information is scant. The statement is made that police officers are entitled to counselling when involved in a major crisis or traumatic event, and that "your commander will organise" for a debriefing following fire arm incidents, major disasters, deaths in custody or other incidents at the commander's discretion. There is a short paragraph for local area commanders, the advice that general counselling is available for matters such as work related difficulties, terminal illness, conflict and relationship issues and emotional/psychiatric/psychological illnesses and conditions. The other sections refer to the separate sections on deaths of employees and the availability of three police chaplains and regional chaplains. No phone numbers or other contacts are provided. This publication would be of little or no assistance to someone needing to know if they were entitled to counselling.

(e) Other documentation

96. Although not referred to in evidence or submissions, Ms Lette's statement attaches a number of other documents. Many of them are not relevant because they postdate the plaintiff’s problems, or are for groups of persons who are not police officers (e.g. Annexure 65, which is a talk delivered to the Prosecutor's conference on 3 June 1999). Documents were tendered in relation to special needs groups such as police in undercover work and homicide. These documents set out the special assistance that was given to police officers who were the subject of allegations in the Police Royal Commission or the PIC.

97. None of these documents could be of assistance to a stressed police officer in the New South Wales countryside wanting to know who to contact for advice or counselling. The plaintiff did not belong to any of these special needs groups. Police officers in the country were not identified as a group with any special need by reason of, for example, country car accidents or isolation; the policy of deciding who was a "special needs" group was not clear.

98. I also note the evidence that no assistance was available to the plaintiff on the intranet or internet. He in fact had no training on the use of these, and there was no evidence of documentation or information being sent to police stations by internet.

Conclusions concerning the availability of information about counselling

99. It is thus my finding that the publications relied upon by the defendant are so few in number and so superficial in content that the plaintiff would have had no idea of his entitlement to have counselling if he had wanted to seek it. What little documentation there is speaks of counselling being available after significant incidents, and with the approval of the commander. That documentation would have been unobtainable by the plaintiff in his country police station, where he did not have access to (or if he did, could not use) the internet, where there was no peer officer to consult, no library of publications in the police station to assist and no structure for review of his position by those who were his superiors.

100. However, a member of the Welfare Unit did come to see the plaintiff in March 1999, and I now turn to a consideration of the evidence of Mr Signorelli.

The Police Welfare Branch and Inspector Signorelli

101. According to Inspector Lette, the NSW Police established a Welfare section in 1982. Mr Signorelli, who was not a psychologist but who had completed courses in critical incidents, bereavement counselling and marital problem counselling, was a welfare officer who was called in for situations of the kind for which he was trained.

102. When Mr Signorelli started doing this work in 1990 he described himself as a novice. He found himself in charge of a geographical area that is two thirds of the State of New South Wales, where there were (at the time the plaintiff was having problems), around 3,500 police officers and their families as well as support staff, all of whom were entitled to call upon him.

103. Not surprisingly, Mr Signorelli was described by other officers who gave evidence as being run off his feet. He had no secretarial support and while he was travelling around New South Wales in his car (which he engagingly described as "my office") there was only an answering phone in his Sydney office.

104. Mr Signorelli came to see the plaintiff not because of the plaintiff’s problems but because the plaintiff consulted him about a junior police officer whose problems with his wife had led to domestic violence proceedings. The plaintiff wanted Mr Signorelli to sort the problem out because the police officer's wife had moved her boyfriend into the police housing accommodation and the situation was difficult for all concerned.

105. Mr Signorelli dealt with the situation with tact and skill and then went on his way a day or so later. He did realise, from his dealings with the plaintiff, that the plaintiff was under stress and was sufficiently concerned to write him a letter some time later. That letter was discovered only belatedly during the litigation, after the plaintiff’s cross-examination was completed. The plaintiff in evidence in reply denied receipt of the letter.

106. I accept the plaintiff’s denial. Given the burden of Mr Signorelli's workload and the lack of secretarial support, the likelihood is that the letter was either never put into the police postal system. Such was the state of Mr Signorelli's workload that he never realised he did not receive a reply and he appears to have forgotten about the letter entirely until he gave evidence in these proceedings, when an office copy of the letter was discovered on the file.

107. In 1999, when the letter was written, Mr Signorelli had another problem, in that the welfare unit was being revamped and he was going to be "out of a job", to use the words attributed to him by another witness. It is no criticism of Mr Signorelli that he was under a lot of work pressure during 1999 and failed to observe, inter alia, that his letter to the plaintiff had either not been sent or, if sent, unanswered.

The Psychology Branch

108. The Psychology Section (as it was then called) was established in 1987. The Chief Psychologist was John Roue.

109. From May 1992 - 1996 the Psychology Section was part of the Employees Assistance branch, according to Inspector Lette. From 1996 to 2001 the Psychological Section formed part of the Health and Workplace Services Branch and there was then a "name change" in 2001 to the Health Services Directorate, according to the defendant's submissions (page 9).

110. Inspector Lette's evidence was that from the time she commenced her duties in the Psychology Unit in 1994 it was not uncommon for supervisors to phone the Psychology Section indicating a concern with one of their officers (T-627). She acknowledged the Psychology Unit was, up until the time the plaintiff ceased his employment, short-staffed (T-629) but said that in all this time there had never been a case where she said no to a request from an individual for help or turned down a request to perform a "debrief' or to attend a station to provide a lecture.

111. In the section of this judgment concerning the information available to the defendant about the need for police counselling, I have considered a series of concessions made by Inspector Lette both in these proceedings and also in the Transcript of Evidence in Bernasconi v State of NSW concerning the activities of the Psychology Section. Importantly, in the Bernasconi trial, she conceded it was impossible for the Psychology Unit to offer a statewide service with an office in Surry Hills and that there was outsourcing by the provision of funds to enable members of the Police Service to see private practitioners. There was no evidence that the plaintiff was ever made aware that if he needed counselling he could attend a local counsellor at the expense of the Police Service and I note also, as I have set out in further detail below, the evidence of Inspector Lette in the Bernasconi v State of NSW proceedings that the Psychology Section travelled in the countryside less and less frequently between 1994 and 1999 and the money that would be used to fund activities such as travelling was supposed to be diverted to pay public providers (Bernasconi, T-8).

112. Accordingly, I find that the services available from the Psychology Unit were so limited as to be non-existent. The plaintiff was not made aware of the availability of assistance for persons in his position. The Psychology Unit offered no assistance to Victim Support Officers.

The Peer Support Scheme

113. A number of the articles in the Police Service Weekly described the Peer Support Scheme. The only article the previous Police psychologist, Jan Westerink, wrote for the Police Review Weekly was on this topic (see the Police Service Weekly on 21 May 1990). Other articles on peer support appear on 4 March 1991 and 17 June 1991. In 1992 the only articles about counselling are about the peer support scheme; the article dated 10 August 1992 contains a list of peer support officers (which the plaintiff said, without contradiction, was inaccurate). The other article, on 9 November 1992, devoted two pages of praise to the scheme. In 1993 an article on peer support was published on 10 May. After that time, the peer support scheme received little or no publicity.

114. It was the plaintiff’s evidence that he was the peer support officer for his area. He completed a two day course in order to become a peer support officer in 1993 - 4 and it is submitted by the defendant (page 2, supplementary submissions) that this "educated the plaintiff on stress management issues" (and see T-150).

115. The defendant tendered a list of persons who were asserted to be peer support officers in the area. It was the plaintiff’s evidence in reply that there were no other peer support officers in the area because the officers on the list, about which he was cross-examined in reply, had either come to the area after he went on sick leave or had ceased to be (or never worked as) peer support officers.

116. During the conduct of the case the peer support scheme was a significant issue for cross-examination of the plaintiff. However, it is barely mentioned in the submissions of the defendant, apart from the educative value of the plaintiff doing the course in 1993, and Mr Lonergan indicated in oral submissions, in response to questions from me, that the peer support scheme was relied upon by the defendant only for its educative value to the plaintiff as a result of doing the course.

117. The description the plaintiff gave of the course content makes it clear that the course contained material at about the same educative value of a newspaper article on dealing with stress. He could remember very little about it. No course materials were tendered. The peer support scheme was never put in place in the plaintiff’s geographical area. He was the peer support officer in any event. There is no evidence he was ever called upon to be a peer support officer or to utilise any skills he gained.

118. The peer support scheme was a failure in terms of rendering assistance to officers in the plaintiff’s area. I find that he gained little, if anything, from the course. Given the personality traits that psychologists have observed in him and reported on for this case, it is possible that being the peer support officer could have been harmful rather than beneficial in that it gave him a false sense of security, but in the absence of evidence on this issue I will not make such a finding. The peer support scheme was no substitute for providing trained personnel to help traumatised or depressed persons such as the plaintiff.

119. Having considered the sources of information the defendant submits were available to the plaintiff, I now turn to the defendant's own awareness of the needs of police officers for counselling or other assistance in relation to the stresses caused by police work.

The information available to the defendant about the need for police counselling

120. The plaintiff submits that from the late 1980s the defendant was aware that the following situations could expose police officers to stress:

(a) sieges and/or traumatic pursuits;

(b) suicidal unexpected death;

(c) death/serious injury to children;

(d) attending scenes where the victim is known to the officer or reminds him of a loved one;

(e) life-threatening situations;

(f) situations attracting media attention;

(g) dealing with body Parts;

(h) responding to a high number of difficult situations in a short space of time;

(i) dealing with events so out of the ordinary as to produce a high level of immediate/delayed emotional reaction.

121. It is not in dispute that most of the incidents on this list occurred to the plaintiff.

122. The following information was available to the defendant from about 1990 about the potential for injury from events such as these:

(a) research literature such as papers by Dr Neil Adams (1990) and Jan Westerink (1990) stressing the need for pro-active counselling services;

(b) reports such as the ALPHA report of 30 September 1992;

(c) information resulting in police circulars such as the circular dated25 March 1991
("Major Incidents Policy'');

(d) information about the risk of mental or psychiatric injury resulting from decisions such as State of NSW v Seedsman [2000] NSWCA 119 where the NSW Court of
Appeal helpfully and carefully analysed both the evidence and the legal obligations (see Inspector Lette's agreement that since Seedsman the Police Service needed a global approach focused on prevention rather than reaction, at T-659).

123. The New South Wales Police Circular No. 91/46, which comprised part of Exhibit H, had the following to say under the heading "Major Incidents Policy":

" Police Counselling
Where police officers are subject to trauma or undue stress associated with a major incident, it is mandatory that counselling be provided and that the services of the Medical and Support Services Branches of the Police Service be used. Commanders should be alert to the symptoms of trauma and stress."

124. It was the unchallenged evidence, not only of the plaintiff but of the superior officers that he called, that he had attended a series of incidents where he was faced with extreme trauma and distressing scenes, and that over this period of time not only did he receive no specific training in stress management or recognising either the effects of stress from one incident or the effect of cumulative stress.

125. A series of concessions were made by Inspector Lette concerning the plaintiff’s employment over this period and I summarise these as follows:

(a) If the plaintiff was attending incidents as described he should have been approached or monitored by his commanders (T-651).

(b) In particular, attendance at a level crossing where there were multiple victims and the plaintiff had to take an active role in the retrieval of bodies, notification of next of kin and identification, including the preparing of reports for a Coronial Inquiry, Inspector Lette conceded "I would be very disappointed if he was not offered" [something along the lines of counselling] (T-625).

(c) No difference can be drawn between police officers working in perceived high risk areas because other officers can just as easily experience the death of a colleague in action, child murders, multiple fatalities and other serious incidents which may have an impact on them and there was no system in place within the Police Department to protect those persons in general, or the plaintiff in particular, apart from advertising services available to them (T-662-663). I have noted, in the section in which I have analysed all of the advertisements made available to me for the purpose of this trial, that apart from a brief period in the early 1990s, when there were some advertisements inserted for a limited number of police officers to attend such courses, advertising of stress courses for members of the Police Service generally was a rare event. Indeed, Inspector Lette conceded that it was her view, a view shared by her colleagues, that not enough was being done to reduce the incidence of injury by stress in the Police Service (T-666.36-44). This is despite the insightful comments by the Court of Appeal in State of New South Wales v Seedsman which put the Police Service on notice that it should develop proactive strategies to prevent or mitigate the impact of stress upon employees, as opposed to having a reactive approach (T-659.39-51).

(d) In particular, in relation to the murder of Ms X, Inspector Lette conceded that a police officer who is obliged to discharge responsibilities to family of a murdered girl could be placed in psychological conflict if there were delays or obstructions of the investigation, including a possible mishandling of the investigation, and that persons providing such advice should have some training in going about their duties so they did not become too close to the victims and have their objectivity impaired (T-670).
(e) Evidence concerning the plaintiff’s attendance at a horrific accident involving the death of a 10 year old child when in the company of his commander and the commander having given evidence that he noted the plaintiff was reactive to an extent which surprised him given his knowledge of the plaintiff. Inspector Lette agreed she would expect the supervisor would make an inquiry at least on such an occasion (T-670).

(f) I was supplied with a copy of the transcript of the evidence of Inspector Lette in the proceedings of Bernasconi v The State of New South Wales . Inspector Lette described in cross-examination the Psychology Section's involvement in the peer support program (7 May 2004 at page 6). In particular, she gave evidence that in her journeys throughout country New South Wales (in particular in that case the south-west region) she tried to maintain contact with the local peer support officers and be part of locally based programs. There is no evidence before me in this case that any such visit was ever made to the plaintiff by any member of the Psychology Unit, although he was the peer support officer for the region. I note also that Inspector Lette conceded it was impossible for the Psychology Unit to offer a statewide service with an office in Surry Hills (Transcript 7/5/04, page7) and that there was out sourcing by the provision of funds to enable a member to see a private practitioner. However, none of the publications which have been tendered in these proceedings refer to the availability of any such service, so the plaintiff was not on notice that if he had needed counselling he could have attended a local counsellor at the expense of the Police Service. Indeed, it was the evidence of Inspector Lette that between 1994 and 1999 the activities of the Psychology Section in travelling through the country side became less frequent because the money that would have been used to fund things like travelling was then diverted to pay public providers (7/5/04 T8).

126. In conclusion, the concessions made by Inspector Lette support a conclusion of fact that the defendant was aware of the risk of injury to officers exposed to any of the situations in (a)-(i) and the report of 17 May 1990 makes clear that the psychologists in the employ of the defendant and indeed the defendant were aware, not only of the risk and the concomitant duty of care, but of the foreseeability that critical and traumatic incidents of the kind described in reports published in the early 1990s were capable of causing harm by way of psychiatric illness in general and post-traumatic stress disorder in particular. The defendant was also aware of the symptoms caused by the stress including recurrent nightmares and flashbacks concerning the traumatic incident, disturbance to sleep and emotional reaction including the impact on the police officer’s family and the consequential impact of such emotional problems on concentration, memory and work performance.

127. In particular, the New south Wales Police service was aware that there were special risks in relation to police officers who were fulfilling the role of victim support officer and I now turn to a specific consideration of the evidence of the defendant's knowledge of the role of the victim support officer and the failure to provide any assistance of any kind whatsoever to the plaintiff to enable him to fulfill this role without any counselling support or indeed any training to perform such a role.

The Police Service's knowledge of the role of the Victim Support Officer

128. Ms Martha Jabour said in her evidence that the entitlement of the victim's family to a victim support officer was a statutory right under the Victims Rights Act 1996 (NSW). While there is no precise provision in that Act for there to be a victims support officer, it appears to be drafted on the expectation that victims and their families will be consulted about a number of matters including the investigatory process and certain decisions on the part of the prosecution.

129. The Victim Support Policy and Procedures (Version 2), November 1999, sets out the position of Victim Support Officer and the obligations and duties concerned. The role of the victim support officer as set out in Victim Support Policy and Procedures (Version 2) was to do precisely what the plaintiff did.

130. The evidence of Detective Inspector Payne, who was the officer in charge of detectives in the Mudgee Patrol, was that the plaintiff was already fulfilling this role and functioning as part of the team when he came into the investigation. He spoke to the plaintiff about fulfilling this role and authorised it (T-352) and, in particular, said that "because of the limited resources we had I wanted to maintain the detectives to conduct the investigation" and went on to say that because the plaintiff had already been speaking to the family "I allowed Bruce to continue in that role [the victim support officer role] with liaising with the family" (T-352.23-.25). In other words, he authorised the plaintiff continuing in the role that the plaintiff said he had accepted with the knowledge and support of his superiors.

131. Similar evidence was given by Mr Wright, a retired police officer, who was seconded to Gulgong in March 1999 following the discovery of the body of Ms X. He described how the homicide squad had attended and the matter had been handed back to the local area command for investigation and said he was part of the team used to "prop up" (T-241) the investigation. He was emphatic that the officer in charge was Detective Inspector David Payne in cross-examination and refuted claims that another inspector called Peter Cotter was in charge. (The Defendant never called this person). He described the plaintiff as having the best working knowledge of what had been happening in the investigation (T-242-243) and described the plaintiff’s level of involvement in the investigation as being the victim liaison officer noting:

''He formed the basis of the communication between the deceased's family and the police, which prevented a barrage of people approaching Ms X."

132. He was asked how vital such a role was and he said "just critical". This was because at the time there were a number of investigators and each person had their own "agenda" and "instead of having five or six people contact Ms X whose been through it all, we had one person, and that was Bruce Pearce". Mr Wright went on to say that:

"He took on that role because, as the officer in charge of the police station in Gulgong, he was the figurehead of the New South Wales Police there."

133. Mr Wright described how Ms X was passing on information to the plaintiff which the plaintiff would then pass onto the investigation team (T-244). Mr Wright endorsed the manner in which the plaintiff had been made the victim support officer in that he discussed it with his fellow officers and he assumed the role (T-245), that the role of victim support officer was an essential task, that it was common for there to be a victim support officer in murder investigations and that the role of the victim support officer was to do what the plaintiff was doing, namely to open a liaison between the police and the victim's family.

134. Mr Wright had some comments to make about the impact that problems in the investigation of the murder of Ms X in March 1999 had on the plaintiff during the following months. It is not relevant for the purpose of this judgment for me to outline what those difficulties were. These are matters for the coroner in the event that there is ever a coronial inquest into the death of Ms X.

135. Senior Constable Pinel gave similar evidence of the plaintiff’s role as victim support officer. He started work on the day that the body of Ms X was discovered and he drove the car out to the scene of the crime and then to the house of Ms X while the plaintiff went in to break the news to the family. His understanding of the plaintiff’s role was that the plaintiff was the main family liaison officer to keep in contact with the family besides other duties with the investigation, but the role of dealing with the family as the family liaison officer was, Mr Pinel believed, his allocated task (T-311). He noted thereafter that when Ms X contacted the police station to inquire about the murder of her daughter she was asking for the plaintiff, and Mr Pinel would take messages and pass them on (T-311).

136. No other person was appointed Victim Support Officer and it was the evidence of Inspector Payne that the most appropriate person was the plaintiff because of his geographical position, his personal relationship with the victim's family (T-320), his local knowledge and his interpersonal skills. Inspector Payne said another factor was the limited resources he had to conduct the investigation, which meant that he wanted to maintain the investigating detectives as investigators (T-320). In addition, Ms X had communication problems with one of these investigators, and an attempt to arrange for her to have independent counselling failed.

137. In response to assertions of the defendant that the plaintiff took this role on himself and was on a frolic of his own, the plaintiff said in cross-examination that he took this role on with the knowledge and assent of his superior officers and of the officers in charge of the investigation. This was challenged on the basis that the officers nominated by the plaintiff were not in charge of the investigation. As it turned out, they were, and the detective asserted to have been in charge (a Detective Cotter) played no part in the investigation at the scene, according to the evidence of the detectives who investigated the murder and who gave evidence before me.

Conclusions

138. All the evidence points to the plaintiff taking on the role of Victim Support Officer within the knowledge and approval of his superiors and the investigating team, and that he continued in this role with the knowledge and consent of his superiors and the investigating team. No witnesses were called by the defendant to refute this.

139. The Victim Support Policy and Procedures (Version 2), November 1999 sets out the position of Victim Support Officer and it is clear from the evidence of Ms Jabour that the appointment of such a person was an essential matter in murder cases such as the murder of Ms X. There is some limited statutory support for this in the Victims Rights Act 1996.

140. There is no evidence before me that the defendant provided any assistance to persons appointed Victim Support Officers through its Psychology or Welfare Units, or that information was made available to police officers such as the plaintiff about the stress arising from performance of this difficult role.

Missed Opportunities

141. The plaintiff identifies a number of opportunities for the colleagues and superiors of the plaintiff to have been put on notice by his conduct as to his psychological deterioration in circumstances where, in the discharge of their duty they should have taken appropriate action to have the plaintiff assisted:

(a) Mr Sullivan, who is now retired but who was previously an inspector, gave evidence that he saw the plaintiff affected by the death of a 10 year old boy to an extent that Mr Sullivan considered to be of concern.

(b) In December 1998 the plaintiff completed a pistol shooting course and his conduct was observed by Senior Constable Spradbrow, who gave evidence (T-268) that the plaintiff’s superior officer from Mudgee was present. Although it was the evidence of Mr Spradbrow that in his capacity as the course organiser he was concerned about the plaintiff losing his nerve and having difficulty handling the revolver, he did nothing about this (-T268). Similarly the plaintiff’s superior officer from Mudgee, Mr Single, did nothing. Mr Spradbrow again did nothing in May 1999 when the plaintiff continued to have difficulties completing the gun handling course, and at one stage the plaintiff told Mr Spradbrow that he thought he should go and put a bullet in himself (T-270). Mr Spradbrow observed the plaintiff’s hands shaking and that he was having trouble with the use of the gun, as well as expressing emotions which were inappropriate for a police officer handling a loaded weapon. It was the evidence of Mr Spradbrow that he had had no training in recognising signs of depression or anxiety in police officers, but that in retrospect he saw that he should have taken the plaintiff’s gun from him immediately and reported the matter to his supervisors for further follow up, particularly after the plaintiff broke down and wept while at the shooting range (T-270). Mr Spradbrow said that even without any training he feared that the plaintiff would do something silly from comments that had been made, in circumstances where it was obvious that the plaintiff was having difficulty coping and Mr Spradbrow in fact came to the opinion that the plaintiff would be better off with a non-operational role in the Police Service (T-271). Although Mr Spradbrow had such concerns, he did not take appropriate action to take the plaintiff’s gun from him but permitted him to continue working in a situation where he was wearing his gun as a front line police officer exposed to continuing trauma where he may have to use his gun. He did so on the basis that he hoped that he could work further with the plaintiff to improve his handling of the gun.

(c) There was considerable evidence concerning the plaintiffs deterioration being noticed by colleagues and superiors after the death of Ms X, which meant that the plaintiff was the victim support officer for the family. Senior Constable Robert William Pinel gave this evidence (T-311), as did Mr Wright and Detective Inspector Payne. The plaintiff submits that it is of particular concern that Senior Constable Pinel observed the plaintiff being over-zealous in relation to treatment of young people on the streets of Gulgong. It was Senior Constable Pinel's evidence that he in fact spoke to his superior (who was the plaintiff) about his behaviour. However, not only did Senior Constable Pinel have no training, there was no system whereby he could take action to have his own superior obtains assistance in the circumstances.

(d) Finally, there are the circumstances in which Mr Signorelli met the plaintiff on 1 March 1999, coincidentally one day before the discovery of the body of Ms X. Mr Signorelli acknowledged in his evidence that he realised the plaintiff had a number of emotional issues (T-610) which went well beyond the dispute with Constable Ireland for which he had been summoned. Mr Signorelli did nothing to bring the plaintiff’s condition to the notice of the Psychology Section or his superiors, despite the fact that it was evident to Mr Signorelli that the plaintiff was having difficulties and Mr Signorelli was aware the plaintiff was taking medication for these difficulties. Mr Signorelli's attempts to follow up with a phone call and a letter achieved nothing. I have already indicated earlier in this judgment that I find that the letter Mr Signorelli prepared was never sent to the plaintiff. He telephoned the plaintiff, but this really was an insufficient approach to an officer who was clearly having difficulties.

Conclusion: The defendant missed all these opportunities

142. I have already referred to each of these incidents at some length elsewhere in this judgment. Each of these was a missed opportunity for the plaintiff to have his emotional problems recognised and treated. Following the visit of Mr Signorelli, the plaintiff became the victim liaison officer in the murder of Ms X and this was, on the psychiatric evidence as well as on the plaintiff’s own evidence (and the evidence of his colleagues), a task that would have been beyond his emotional capabilities.

143. Having made findings of fact, I now turn to a consideration of the legal issues in these proceedings.

The Law relating to issues of liability

144. In Schellengberg v Tunnel Holdings Pty Limited (1999) 200 CLR 121 at 152, the heavy obligations imposed on an employer and owed to its employees extends to taking reasonable steps in accident prevention and not waiting for accidents to happen before safeguarding the health and safety of employees. The standard of care for an employee's safety is not a low one, and requires the taking of protective measures which are reasonably open to an employer: Bankstown Foundry Limited v Braistina (1985-1986) 160 CLR 30. The test of foreseeability is still the test described by the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.

145. The defendant submits that before the plaintiff can obtain a verdict in his favour he must prove that the injury was caused or materially contributed to by a proven negligent act as pleaded or an omission on the part of the State of New South Wales to protect the plaintiff’s psychological well-being and refers me to s.5D of the Civil Liability Act 2002.

146. The plaintiff’s statement of claim was filed on 20 December 2002. Accordingly, the plaintiff falls within the group of plaintiffs whose cause of action is affected as to quantum only by the Civil Liability Act 2002. However, the provisions of s.5D Civil Liability Act, which relate to issues of liability, do not apply to the plaintiff’s cause of action.

147. The defendant's original written submissions on causation were less than one page (see pages 15-16 of the defendant's written submissions). Essentially, it was asserted that the plaintiff was performing his role as a police officer in a thoroughly professional manner and impressed both his superiors and the public and accordingly, causation cannot be established.

148. The defendant is here confusing the issues of liability and causation. On the issue of liability, I adopt the general principles concerning duty of care and foreseeability, explained by the High Court in Wyong Shire Council v Shirt (supra) and as set out by the plaintiff’s counsel in paragraphs 7 to 14 of the plaintiff’s written submissions.

149. If I were to find that there was a breach of duty of care but that the injuries the plaintiff suffered were not caused by the breach of duty but by some other form of causation, that would be a separate issue for determination.

150. The defendant's submissions on this point are confusing. Essentially, what the defendant appears to be submitting (written submissions, page 13) is some form of defence of volenti on the basis that the plaintiff brought his misfortunes on himself by reason of assuming the role of victim support officer voluntarily to the family of Ms X from March 1999 onwards, which victim support role was over and above any requirement of his duties as a sergeant of police. In relation to causation it is also asserted that in addition to his assumed role of providing support to Ms X's family, he really had problems for other reasons, namely with a junior officer in his command (whose marital problems caused the plaintiff to contact Mr Signorelli), failing gun handling courses at the Assessment Centre and being upset at the direction in which the New South Wales Police Service was being taken by the then Commissioner of Police, Mr Ryan.

151. In response to a request from me the defendant provided additional submissions on liability and also, again at my request, briefly considered quantum.

152. The first issue for consideration is the question of duty of care and foreseeability.

Duty of care and foreseeability

153. As indicated elsewhere in this judgment, the substantial number of documents set out in the plaintiff’s Exhibit H, the concessions of Inspector Lette in cross-examination and the evidence of the plaintiff and his witnesses are indicative that the defendant was on notice of the exposure of persons such as the plaintiff to psychiatric illness, yet failed to take any steps in order to ensure that there was any system in place, either for the plaintiff’s superiors to take the matter further, or for the plaintiff to be automatically referred, following the traumatic accident investigations on which he worked (and in particular the murder of Ms X) or to have regular checks by the Psychology Unit or some other person or persons on its behalf, or to provide Mr Signorelli with the kind of assistance which would mean he could have done his job in such away that the plaintiff would not have been a missed opportunity for him.

154. It was submitted on behalf of the defendant that the plaintiff was aware of the availability of counselling services yet failed to avail himself of them. This submission must fail for a number of reasons. Firstly, provision by an employer of a counselling or other psychiatric intervention service to be availed of at the will or discretion of a worker does not discharge an employer from its duty of care to take reasonable steps to ensure a safe system of work is in place: State of New South Wales v Cossey [2002] NSWCA 361. Secondly, psychiatric or psychological injury is not like a broken arm, and a person suffering such a condition may not be aware of the nature and extent of his illness. The employer's obligation is to establish, maintain and enforce accident prevention as is his responsibility: Unver v Liftronic Pty Limited [1999] NSWCA 275. Thirdly, notwithstanding apparent admissions made by the plaintiff in the course of cross-examination and relied upon by the defendant, I find that the plaintiff’s awareness of there being counselling facilities was, at best, a vague belief that there was a service available for recognised traumatic cases such as hostage situations or multiple deaths. The plaintiff never knew counselling was available or appropriate for someone experiencing the events he experienced while the victim support officer for Ms X's family or that the cumulative effect of the series of stressful incidents at which he attended over a long period of time could result in his needing the services of a counsellor, psychologist or psychiatrist. Further, I find that what little information about such services was provided by the defendant was so difficult to access and so unhelpful and superficial in its content as to amount to being no information at all. Finally, having regard to the limited nature of the funding available for the service, even if the plaintiff had availed himself, or sought to avail himself, of the services of the Welfare Unit or Psychiatric Unit, the likelihood of his problems being recognised and treated in a timely fashion, or indeed at all, were very small indeed.

155. The defendant in further submissions drew my attention to the decision of the High Court in Koehler v Serebos (Australia) Ltd [2005] HCA 15 which was handed down on 6 April 2005. The facts in that case were as follows. The appellant had been employed full-time by her employer as a sales representative for two years, negotiating sales of the employer's product to independent supermarkets. In March 1996 the appellant's employer lost the right to distribute an important range of products and retrenched the appellant, offering her re-engagement as a part-time merchandising representative. This involved a "territory listing" over quote a large area and the appellant immediately said that there was no way she could do this amount of work. She complained many times orally and in writing that she had too big an area to cover, too many stores and very little time. Her complaints were directed to whether the work could be done and none suggested difficulties she was experiencing with her health. She suggested either reducing the number of stores she should visit or to be allowed to work a fourth day. The employer took none of these steps and the appellant became ill. This consisted partly of physical problems by reason of lifting cartons of the employer's product and partly also to a major depressive illness of which her work was a cause.

156. McHugh, Gummow, Hayne and Heydon JJ observed at paragraph 21 that the content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations the parties owe one another under the contract of employment, the obligation arising from that relationship which equity would enforce and any applicable statutory provision. Their Honours (at paragraph 23) rejected the proposition that the only question to be considered was whether this kind of harm to this particular employee was reasonably foreseeable. Their Honours held that the appellant agreed to perform the duties which were a cause of her injury and that the employer had no reason to suspect the appellant was at risk of psychiatric injury. This invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned (at 35). However, two caveats should be entered. Firstly, the duties originally stipulated in a contract of employment, if varied by an employer, may lead to a change of circumstances. Secondly, the judgment is not to be read as foreclosing questions about the construction of individual contracts of employment.

157. Essentially, this was a claim, as Callinan J noted at paragraph 47, that the employer failed to provide the appellant with a safe system of work, namely one which did not make unrealistic demands of her. His Honour held (at paragraph 55) that it was "far-fetched and not foreseeable" that the appellant, a competent seemingly well woman, would suffer within six months of taking up a part-time position a disabling psychiatric injury or indeed any psychiatric injury by reason of the work that the position entailed, in terms of its volume.

158. Each case must turn on its facts. There is substantial and extensive evidence that the work of police officers is such that the foreseeability of injury requires them to have a Psychology Section and debriefings after traumatic incidents. This is a totally different kind of work to selling grocery products part-time.

159. The defendant particularly recommends to me the fact that several witnesses in a position to observe the appellant on a regular basis discerned no changes in his personality or symptoms of any kind before he became ill. Neither the plaintiff nor his doctor when he first consulted him believed he was suffering from a psychiatric illness. It is submitted that this case is on point because "prior to becoming ill, the appellant manifested no vulnerability to psychiatric illness" (written submissions, page 8). It is submitted here that "several witnesses in a position to observe the plaintiff on a regular basis discerned no changes in his personality or symptoms of any kind before he became ill" (T-241, 264 and 365).

160. However, I repeat that this is not the evidence. At T-241 Mr Wright's evidence is that in his casual contact with Mr Pearce prior to being seconded to Gulgong in March 1999 he did not observe anything untoward in his demeanour. However, during the five days he spent in Gulgong, he observed that the plaintiff was "finding things very difficult" (T-245) on his own admission and he went on to say that he noticed the plaintiff was tired, drawn, very nervous, frustrated (T-249) and that this continued in his telephone conversations with the plaintiff after Mr Wright returned to his duties and left Gulgong. The evidence at T-264 from Mr Spradbrow similarly talks about the plaintiff’s good impression upon him, but he goes on to note that when the plaintiff came to the Glock course in December 1998 he made very different observations. While Inspector Payne at T-365 said that he could not recall conversations or obvious signs about whether the plaintiff was being affected by a mix up at the morgue where the body of Ms X was inadvertently delivered without its head. However, the rest of his evidence was different to this and at T-364 he said that this occurrence (namely, the delivery of the body of the deceased without her head) did have a significant effect on the plaintiff. Inspector Payne could not assist the Court by saying why, if he saw a distressed officer, he did not get on to the Psychology Unit for advice other than that his principal concern was for the very distressed members of the family and the need for the Homicide Victims Support Group to arrange counselling. No such arrangements were made by Inspector Payne for Mr Pearce. At best, this evidence at T-365 by Inspector Payne appears to conflict with his earlier evidence. The overwhelming picture he painted was of a person under severe stress.

Conclusions concerning liability

161. The risk of injury to the plaintiff from the performance of his duties was not merely foreseeable but actually known to the defendant. However, the defendant failed to provide any information or counselling system of substance, preferring low-cost alternatives such as the "peer support" scheme for police to counsel each other, or giving Mr Signorelli the hopeless task of covering large parts of rural New South Wales without assistance. The plaintiff’s problems crystallized with his role as victim support officer in the Ms X murder investigation.

162. As I am satisfied that the risk of injury was not only foreseeable but known, I now turn to the issue of causation.

The issue of causation

163. The defendant alternatively submits that the plaintiff did not suffer post traumatic stress disorder at all or any other psychological injury as a result of any act or omission of his employer. The defendant draws my attention to the report of Dr Roberts, who was not required for cross-examination, to the effect that the plaintiff’s symptoms are insufficient for such diagnosis. It is further submitted that any problems the plaintiff had were as a result of unrelated matters and in particular matters that are not the subject of the allegations of negligence, namely his failure at the Assessment Centre, his problems with a junior police officer and his "assumed" role of support to Ms X's family.

164. The plaintiff’s failure at the Assessment Centre was, according to both the plaintiff and other witnesses a not-uncommon result of the high standard expected by police officers seeking promotion. The plaintiff gave evidence in a straightforward manner concerning his failure at the Assessment Centre and I am satisfied by his assertions that this played no part in his development of any psychiatric problems. The plaintiff was intellectually very confident by reason of his ability to complete university courses and did not suffer a loss of self esteem by reason of his failure to pass a Police Assessment course.

165. It was the evidence of other police officers who were called in these proceedings that such failures were not uncommon. Insofar as Dr Roberts purports to assert that failure in an assessment for promotion in some way contributed to the plaintiff’s psychiatric problems, I reject such a submission and prefer the reports of Drs Walker, Dinnen and Klug. I note the submission that these doctors were not informed about a number of recent issues, including the failure at the Assessment Centre. However, having had the benefit of hearing cross-examination of the plaintiff’s medical experts, and hearing them adhere to the opinions they hold notwithstanding being given this alternative theory for the plaintiff’s illness, I accept and prefer their opinions. It would be contrary to the weight of the whole of the evidence in these proceedings for me to find that the plaintiff's emotional problems arose from such a comparatively trivial matter when compared to the evidence, not only of the plaintiff but also of his wife, to the effect that once he became the victim support officer for Ms X's family, this murder investigation literally consumed his every waking moment.

166. The defendant further submits that the plaintiff’s concerns over the marital problems of a junior officer was an explanation for his own emotional problems. Again, it would be contrary to the whole of the weight of the evidence for me to make such a finding.

167. Finally, the defendant submits that the role of support to Ms X's family was assumed by the plaintiff. I have already found that this role was not assumed or taken upon the plaintiff by himself but a role that he accepted in circumstances where almost from the very first his accepting and continuing in this role was as a result of the approbation and approval of his superiors and of the murder investigation team. There was no evidence to the contrary called on this issue by the defendant.

168. I note the defendant specifically refers to what is asserted to be an admission by the plaintiff (at T-174) that he was never directed to assume the position of victim support officer. This and other apparent admissions by the plaintiff need to be treated with caution. In my capacity as the trial judge I had the opportunity to observe the plaintiff in the witness box. He had to endure a sustained and vigorous cross-examination. He is obviously a man with profound emotional difficulties. At times he did not express himself with complete clarity. The answer in question which is relied upon by the defendant, when read in context, not only with the rest of this answer but with the testimony as a whole, makes it clear that what the plaintiff was in fact saying was that the investigating police from Homicide agreed that a victim support officer was required, that from having been the person who was present when the body was found, had to restrain Mrs X from going to her daughter's body, had to break the news to the family, and was the person best known to the deceased's family, that the role came upon him in circumstances where, having taken the role he was encouraged to maintain the liaison almost from the very first moment.

169. In relation to the issue of causation, as well as the issue of damages, it is appropriate that I now turn to a consideration of the medical evidence provided by both parties.

170. The plaintiff has presented a series of medical reports and I have also had the advantage of reading the decision of Acting Judge Bourke of the Compensation Court of New South Wales (see Exhibit H). The defendants do not challenge the plaintiff’s medical condition, but rather put forward as their medical case a psychologist, Dr Roberts. It is put to me that it is of significance that the defendant has chosen not to serve the report of Dr Haik, a consultant psychiatrist who examined the plaintiff on behalf of the defendant (plaintiff’s submissions, paragraph 67).

171. It is submitted that this would assist me to draw the comfortable conclusion as to the real situation exposed more fully and precisely by the medical reports tendered in support of the plaintiff’s case.

172. There is much to be said for this submission. However, I will briefly note the report of Dr Roberts, and in particular her assertion that while he describes ongoing symptoms of a post traumatic stress reaction, he does not describe the full clinical criteria in relation to the incidents about which he complains.

173. I do not accept this submission (in paragraph 11.8 of her report), nor do I accept that the plaintiff does not have sufficient symptoms to warrant a "full blown diagnosis" (paragraph 12.8 of her report) of post traumatic stress disorder.

174. She described with some force the cumulative impact on police officers of doing a lot of accident attendance work where events will end up "like collages of mangled bodies, blood, horror". She noted that "little children are always particularly upsetting for them (T-470). She described how police officers who were on general duties in country reads or in Accident Investigation Teams would have a "big overlap" where these ghastly images would keep recurring, and she particularly noted "particularly in the country area where there's always big distance and lack of staff, a very big overlap between the accident attendance and investigation and the specialised forensic".

175. She went on to say:

"Well... if people keep on working in the area that is stressing and damaging them, the results will go on. People can learn from good psychologists dealing with police officers. They can learn how to cope better with their own feelings, their own reactions. It can certainly, you know, tell the Police Service that certain people have had enough and if they're not moved from this high stress damaging area, there will be a bigger decompensation coming, it has the – assessment – certainly has an important role in alerting the Police Service in its duty of care, I think. Also alerting those in charge that someone may need psychiatric – detailed psychiatric – assessment and treatment. I think that it's probably the case that everyone working in these areas does pay the price as time goes by and it's probably a matter of when, not whether or not. So, assessing people soon after or a bit beyond that in time after appalling experiences is important in preventing people just in compensating and losing their career, and of course also in preventing them in going further still and killing themselves."

176. What was made clear by Wendy Walker was that his position in spending 10 years at Dunedoo, a small rural community, and then at Gulgong, he knew large numbers of people in the town who were likely to be the victims or otherwise involved in the crimes scenes he was called to. Wendy Walker explained that it added to the trauma and suffering to know the victims and then have the long, ongoing connection with the family, and she said "it is very heavy going for police officers in the country".

177. Having heard the evidence in this case, I think that this last sentence really encapsulates the problem. It was heavy going for police officers in the country, and this is in part because of the isolation, in part because of the close relationships that build up between the police officer and the local community and in part because of the sheer stress of police work. However, what is important to note here is that unlike Dr Roberts, who seeks to fragment the plaintiff’s causation into a number of different causes, Wendy Walker has seen the causative link between the very essence of the plaintiff’s day to day work as a police officer and his cumulative deterioration, made all the more rapid by his work as the Victim Support Officer in the murder of Ms X, which was the last straw for this already overstressed police officer.

178. Accordingly, I am of the view that the medical evidence comfortably satisfies me that the plaintiff can make out causation.

Quantum

179. The claims for damages by the plaintiff fall under the following headings:

(a) damages for non-economic loss under the Civil Liability Act 2002;

(b) past economic loss;

(c) future economic loss.

180. The plaintiff’s past expenses have been paid by his employer and are not the subject of any claim. The plaintiff makes no claim for future out-of-pocket expenses and specifically reserves and seeks to protect his rights to such expenses pursuant to the provisions of s.12D Police Regulation (Superannuation) Act.

General damages

181. The plaintiff was a police officer with exceptional quality who played an important part in the local community where he was regarded with respect as a leader in the community. His very active social life included activities as coach and president of local sporting clubs, involvement in the local primary school (including a period of time when he was a member of the P&C committee) and membership of community associations such as the hospital committee. He played an active role in motor safety matters and played a part in getting traffic lights and proper safeguards installed at level crossings. In 1990 he was named citizen of the year by the Coolah Shire Council.

182. In addition, the plaintiff sought to improve himself by undertaking further studies. In addition to the various courses he undertook as a police officer to further his career, he undertook a Bachelor of Arts course at the University of New England and did well at this course (see Exhibit H). It was his ambition to study law.

183. The glowing description of the plaintiff’s physical and mental health prior to the onset of his psychiatric problems was perhaps best put by his wife who said that it was as if "my husband walked out the front door [one day] and he has never been back" (T-222). He has gone from being a strong and reliable and healthy member of the community to a man who is dependent upon medication, unable to complete his university studies, fills in most days just wandering around and becomes obsessed with simple matters (for example, if he is expecting a phone call the entire day will be focused on the phone). He has completely lost all sexual interest and is impotent and they do not have a social life of substance (T-221).

184. I received no submissions from the defendant as to the quantum of non-economic loss. The defendant's submission appears to be that the plaintiff has not suffered any psychological breakdown and if he has it is not as a result of his being unable to fulfill his duties but as a result of his "assumed role" in providing support to the family of Ms X and other asserted reasons. I have indicated elsewhere that I have rejected the defendant's arguments on causation and, further, that I am satisfied the plaintiff did not "assume" a role of becoming the victim support officer but took this position with the knowledge, consent and approval of the relevant superior officers.

185. The defendant further contends that if the plaintiff did suffer post-traumatic stress disorder with depression as a consequence of the negligence of the defendant, then for the critical period of time prior to 1999 he was still able to cope and indeed excel at his work and that, in the circumstances, the allowance for general damages ought to reflect the fact that the plaintiff was not in a significant manner debilitated from performing his duties.

186. While the plaintiff’s psychiatric problems were contributed to by his long history of increasing stress in response to his work situation, the immediate trigger to his condition was his participation in the investigation of the murder of Ms X, in which investigation his role was as the victim support officer. He was, however, quite significantly distressed before that date and corroboration of this can be seen not only from the evidence of witnesses such as Mr Spradbrow, but also from his consultation of his own doctor and the seeking of medication which, for a person of the plaintiff’s strong personality, was a surprising move.

187. Consequently, I reject the assertion that the plaintiff was not in a significant manner debilitated from performing his duties. More importantly, the debilitation which prevented him from performing his duties was most significant. The impact on his whole life, including his ability to perform his duties, was marked. The evidence of Constable Pinel about the plaintiff overreacting to young people in the street, the evidence of the plaintiff’s wife about the plaintiff going about his duties without the necessary appointments (i.e. his gun) and the evidence of Mr Spradbrow about the plaintiff talking about putting a bullet through his head are of particular concern. This is not a picture of a plaintiff who is able to perform his duties in a high risk high stress job such as being the police officer in charge of a police station in a country town.

188. Having regard to the Civil Liability Act scale, I am of the opinion that the plaintiff has suffered psychiatric injuries of a most severe nature and which warrant being regarded as 30% of a most extreme case. The cumulative effect of a series of traumatic situations had placed crack lines in the plaintiff’s character which the difficulties of performing his role as victim support officer without any training broke wide open. It was as a result of his disintegrating personality that he overreacted to even comparatively minor matters such as teenagers misbehaving in the town and more major matters, such as the conduct of Senior Constable Ireland (the reason for Inspector Signorelli being called in) and the plaintiff’s failure to obtain promotion in September 1999 he was simply unable to cope with because of his pre-existing profoundly damaged personality. Ultimately, the quite trivial incident in which he broke down and was unable to cope with rostering problems for Friday and Saturday nights in Gulgong, which led to his breaking down and becoming more and more unbalanced during the course of an interview with Inspector Single on 13 October 1999, was such a trivial incident (bearing in mind that this event had occurred many times before) as to indicate the degree to which the plaintiff was not able to cope with even simple daily frustrations of his employment.

189. Accordingly, I award the plaintiff the sum of $92,000 for non-economic loss.

Past economic loss

190. I have received no submissions concerning past economic loss from the defendant.

191. In accordance with the provisions of the actuarial report, past economic loss is claimed from 8 February 2001 to 30 June 2003 in the sum of $104,681. Thereafter net loss of $932 per week to 21 April 2005 (a total of 93 weeks) is claimed. This adds up to $86,676. This was the date on which I reserved judgment, although subsequent further submissions were received by me up until 3 June 2006.

192. Interest on past economic loss has been computed at $27,715. Accordingly, past economic loss is $191,357 plus $27,715 which equals $219,072.

Future economic loss

193. It is submitted on behalf of the defendant that future economic loss based on a residual earning capacity of $644 per week and allowing for the usual 15% for vicissitudes would range between $136,717 and $333,464 depending upon the rank that the plaintiff would realistically have achieved. It is submitted on behalf of the defendant that the plaintiff’s residual earning capacity ought to be set at 25% for the following reasons:

(a) The psychiatric/psychological evidence is to the effect that whilst presently there is concern about his ability to resume gainful employment, this will improve following the finalisation of litigation (Dr Jones' report 28 April 2004 and 10 June 2004 and Dr Roberts' report 15 September 2003).

(b) In addition, the fact that many people who observed the plaintiff prior to 1998 discerned no changes in his personality or symptoms causes the defendant to submit, in relation to general damages but also, as I understand Mr Lonergan's oral submissions, future economic loss, that for the critical period of time he was still able to cope with and indeed excel at his work.

194. Again, I have rejected the submission that the plaintiff was able to perform and indeed excel at his duties prior to going off work.

195. The plaintiff’s written submissions assert that the plaintiff has a nil residual earning capacity. It is submitted that the appropriate way to deal with a possibility that the plaintiff may have some residual earning capacity in the future would be to increase the normal discount for vicissitudes from life from 15% to 20%. It is also submitted that while the plaintiff gave evidence he would not work past 60 years of age, if he had obtained legal qualifications there would have been some chance he would have continued past that age to 65 at least.

196. It was the plaintiff’s evidence that he would not work past 60 years of age. In my view, the likelihood of him continuing in employment to the age of 65 with legal qualifications is unlikely. I prefer to accept the plaintiff’s evidence that he would not work past 60 years of age.

197. The economic loss report of Messrs Dolman Bateman of 19 April 2004 (Exhibit 6) gave estimates between $136,717 and $332,464 depending upon the rank the plaintiff would realistically have achieved. It is submitted that the plaintiff’s residual earning capacity is in the order of 25% in the future.

198. It is my view that it is appropriate to assume the plaintiff has some residual earning capacity. He has a very stable prior employment record and clearly has a strong work ethic. The reports of Dr Jones and Dr Roberts deserve some weight. None of the doctors postulate that the plaintiff will never get better.

199. Accordingly, in my view it is appropriate that I should find the plaintiff’s future economic loss should be discounted to allow for 25% residual earning capacity. Accordingly, using scenario B of the plaintiff’s actuarial report, which gives a figure of $422,950 which less 25% is $317,213, such a sum would, after allowance of the usual 15% for vicissitudes, come to $269,631.

Schedule of damages

Non-economic loss --- $92,000.00

Past economic loss --- $219,072.00

Future economic loss --- $269,631.00

Total --- $580,703.00

Orders

(1) Judgment for the plaintiff in the sum of $580,703.00.

(2) Defendant to pay plaintiff’s costs.

(3) Liberty to restore in relation to costs or pursuant to slip rule.

(4) Exhibits retained for 28 days.

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