Reeves v State of New South Wales

[2010] NSWSC 611

CITATION:	Reeves v State of New South Wales [2010] NSWSC 611 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	29 March 2010, 30 March 2010, 31 March 2010, 1 April 2010, 6 April 2010, 7 April 2010, 8 April 2010, 9 April 2010, 12 April 2010, 13 April 2010, 15 April 2010, 16 April 2010
JUDGMENT DATE :	23 June 2010
JUDGMENT OF:	Schmidt J
CATCHWORDS:	TORTS - negligence - duty of care - police officers - reasonable foreseeability of risk of psychiatric injury - failure to monitor psychological condition after a long career - plaintiff placed in stressful situations - assigning plaintiff a welfare role and duties at the Fraud Enforcement Agency for which he was not trained - failure to provide support in relation to welfare assistance provided to other officers during the Police Royal Commission - role and duties in a Police Service investigation of a Royal Commission witness resulted in adverse attention by Royal Commission and plaintiff's integrity being called into question - failure to support plaintiff after being adversely named in the Royal Commission - failure to ensure no exposure to harassment as a result - failure to ensure relevant and sufficient information provided to the Police Board - failure to provide debriefing or counselling after plaintiff was threatened by a gun and twice stabbed with a syringe in May 1998, or during the ensuing months of testing - failure to provide support once aware of plaintiff's psychological condition - failure to provide rehabilitation to allow plaintiff to remain employed in the Police Service - contributory negligence - whether plaintiff failed to take sufficient care for his own mental, emotional and/or behavioural welfare - whether plaintiff failed to monitor his own mental, emotional and/or behavioural status - whether plaintiff failed to seek timely and proper help from the defendant, or any other competent medical practitioner, for any mental, emotional and/or behavioural problems that he may have been experiencing - whether plaintiff failed to take proper and timely advantage of the services of the defendant's chaplaincy, peer support officers, welfare branch and/or psychology unit that were available to him - whether plaintiff failed to seek counselling in a timely matter - whether plaintiff failed to take all reasonable steps to prevent suffering psychological and/or psychiatric injury - contributory negligence not found - DAMAGES - measure and remoteness of damages in actions for tort - personal injuries - method of assessment - economic loss - loss of earnings and earning capacity - psychological injury is now entrenched - plaintiff's working life brought to an end - general damages awarded - damage awarded for past and future economic and other losses, calculated to retirement at age 65 - POLICE - internal administration - whether Police Service Rehabilitation policy applied - workers compensation - section 11A of the Workers Compensation Act 1987 - contributor to Police Service Superannuation Fund - Police Regulation (Superannuation) Act 1906 - policy applied - POLICE - tribunals and other authorities - Police Royal Commission - PROCEDURE - leave sought to further amend pleadings - no prejudice - leave granted - DEFAMATION - Intersection between the claimed duty and the law of defamation - no intersection between duty to provide accurate information about how plaintiff came to attention of Royal Commission and law of defamation
LEGISLATION CITED:	Civil Liability Act 2002 Crown Proceedings Act 1988 Occupational Health and Safety Act 1983 Police Board Act 1983 Police Act 1990 Police Service Act 1990 Police Service Regulation 1990 Police Regulation (Superannuation) Act 1906 Police Service Regulation 1990 Royal Commissions Act 1923 Royal Commission (Police Service) Act 1994 Teaching Services (Education Teaching Service) Act 1980 Teaching Services (Education Teaching Service) Regulation 1994 Workers Compensation Act 1983 Workers Compensation Act 1987
CATEGORY:	Principal judgment
CASES CITED:	Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; (2009) 259 ALR 616 Director of Public Prosecutions v Wran and Anor (1987) 7 NSWLR 616 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Haber v Walker [1963] VR 339 Hill v Chief Constable of West Yorkshire [1989] AC 53; [1988] 2 All ER 238 Henville v Walker and Another [2001] HCA 52; (2001) 206 CLR 459 Koehler v Cerebos (Australia) Limited [2005] HCA 15; (2005) 222 CLR 44 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Nationwide News Pty Ltd v Naidu & Anor; ISS Security Pty Ltd v Naidu & Anor [2007] NSWCA 377; (2007) NSWLR 471 New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 New South Wales v Rogerson [2007] NSWCA 346; (2007) Aust Torts Reports 81-926 Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 Reeves v New South Wales [2005] NSWSC 1138 Reeves v State of New South Wales [2006] NSWSC 857 Reeves v State of New South Wales (unreported, Hislop J, 13 November 2007) Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 Spring v Guardian Assurance PLC [1995] 2 AC 296; [1994] 3 ALL ER 129 State of New South Wales v Burton [2006] NSWCA 12; [2006] Aust Torts Reports 81-826 State of New South Wales v Kuru [2007] NSWCA 141; (2007) Aust Torts Reports 81-893 New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 State of New South Wales v Seedsman [2000] NSWCA 119; (2000) 217 ALR 583 State of NSW v Tyszyk [2008] NSWCA 107 Stewart v Ronalds and Another (2009) 259 ALR 86; [2009] NSWCA 277 Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PARTIES:	Stephen Anthony Reeves - Plaintiff State of New South Wales - Defendant
FILE NUMBER(S):	SC 2000/42152
COUNSEL:	Mr A G Melick SC with Ms K T Nomchong - Plaintiff Mr G Laughton SC with Mr N Newton - Defendant
SOLICITORS:	Marsden's Law Group - Plaintiff Crown Solicitor's Office - Defendant

- 20 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SCHMIDT J

WEDNESDAY, 23 JUNE 2010

2000/42152 STEPHEN ANTHONY REEVES v STATE OF NEW SOUTH WALES

JUDGMENT

1 HER HONOUR: Mr Reeves was medically discharged from the Police Service of New South Wales ('Police Service') in June 1999, after some 29 years service. These proceedings were brought in 2000 pursuant to the Crown Proceedings Act 1988. Mr Reeves seeks damages for psychological injuries which he suffered during the course of his work as a police officer. Changes made to the common law by the Civil Liability Act 2002 do not apply in this case.

2 Mr Reeves’ discharge followed five hurt on duty applications made in 1997 and 1998. Two related to injuries to his knees and three to psychological injuries. Four of these claims were accepted by the Police Service, as injuries for which it had responsibility, but one was not. That claim related to the psychological injury which later became the subject of these proceedings.

3 Mr Reeves claims that this injury was the result of his police work in 1995 and 1996 during and in the aftermath of the Police Royal Commission, while he was working at the Fraud Enforcement Agency ('FEA') as its staff officer. The consequence was that he was not promoted to the position of Commander of the Licensing Enforcement Agency ('LEA'), a promotion which he achieved on merit in 1996. Mr Reeves seeks damages in respect of this psychological injury in these proceedings. His case is that this injury was either exacerbated, or that he was further injured, during the period in which he was absent from his duties on sick leave from January 1997 to his discharge in 1999.

4 Mr Reeves had been seriously injured at work on a number of occasions prior to 1994, but his case does not rest on those injuries. Various interlocutory judgements have been given, which explain how it is that Mr Reeves’ claims came to be advanced in relation only to the injuries which he suffered after 1994. (See Reeves v New South Wales [2005] NSWSC 1138; Reeves v State of New South Wales [2006] NSWSC 857; Stephen Anthony Reeves v State of New South Wales (unreported, 13 November 2007, Hislop J). Mr Reeves’ history of service is nevertheless necessary to consider, in order that the matters over which the parties joined issue may be resolved.

Mr Reeves’ claim

5 Mr Reeves’ claims fall into a number of broad categories of alleged failure, including:

- failure to monitor his psychological condition after a long career during which he had been placed in dangerous and stressful situations;

- assigning him a welfare role and duties at the FEA for which he was not trained;

- failing to provide him with debriefing or counselling in relation to welfare assistance which he provided to other officers in the course of his work as staff officer during the Police Royal Commission;

- failing to implement a system to explain to Justice Wood his role and duties as an investigator under the direction of Mr Finnane QC, the Police Service’s representative at the Royal Commission, so as to prevent a misunderstanding of his role, which resulted in adverse comments about him being made and published in the media;

- failing to publish media statements or internal statements to correct inaccurate allegations that he had been collaborating with or working at the direction of Chief Superintendent Lysaught in relation to Detective Sergeant Haken;

- failing to debrief or counsel him after being adversely named in the Royal Commission;

- failing to ensure that he was not exposed to harassment as a result of his appearance before the Police Royal Commission;

- failing to ensure that relevant and sufficient information was provided to the Police Board and the LEA that the allegations that he was corrupt or inappropriately associated with Chief Superintendent Lysaught in relation to Detective Sergeant Haken were untrue, with the result that he was not promoted;

- failing to provide him with debriefing or counselling after he was threatened by a gun in March 1998 and after he was stabbed twice with a syringe in May 1998, or during the ensuing months of testing;

- failing to provide him with adequate psychological counselling once aware of his psychological condition in March 1997; and

- failing to provided rehabilitation so as to allow him to remain employed in the Police Service.

6 An allegation of breach of contract was also made, but was not pressed at trial, until after final oral submissions were advanced for the defendant. At that point, it was argued for the first time, inconsistently with the production of the Police Service’s rehabilitation policy in answer to a subpoena requiring the production of policies which applied to Mr Reeves and with evidence earlier led about that policy, that the policy did not apply to Mr Reeves.

7 This was disputed by Mr Reeves, for whom it was also then argued that the rehabilitation policy had, in any event, assumed contractual force; it had been breached by the Police Service; and there had been resulting damage. It will thus be necessary to resolve this dispute and the case so advanced for Mr Reeves in contract.

The defence

8 Mr Reeves’ claims were defended and contributory negligence was pleaded in the alternative. The defendant denied that it owed Mr Reeves a duty of care in relation to adverse remarks made about him by Justice Wood during the Police Royal Commission; or the way in which he was portrayed in the media as a corrupt police officer; that it had no obligation to take any steps to correct the view that he was corrupt or associated with corrupt police officers; nor any duty to address what had occurred in the Police Royal Commission, or in the promotion process undertaken by the Police Board, a separate statutory body to the Police Service.

9 The defendant’s case in relation to the two incidents in which Mr Reeves was involved in 1998 while on sick leave, was that he was not then rostered on duty and while it did not provide him with counselling after the two incidents, its response was appropriate. He was then under the care of medical practitioners, including a doctor, a psychiatrist and a psychologist. It denied that those incidents occurred during the course of Mr Reeves’ service, or during the performance of his functions as a police officer, or as an incident thereof. It was also denied that its treatment of Mr Reeves while absence on sick leave caused or exacerbated his psychological injury.

10 The scope of the duty of care which the defendant owed Mr Reeves was also in issue. The provisions of the Police Act 1990, the Police Board Act 1983, the Royal Commissions Act 1923, the Royal Commission (Police Service) Act 1994 were all relied on as conditioning the scope of that duty. Causation was also in issue, the defendant claiming that Mr Reeves’ injuries were not causally connected to any act or omission on its part.

11 In the alternative, the defendant claimed that any injury, loss or damage which Mr Reeves suffered was only the loss of a chance of a better medical outcome.

12 As to contributory negligence, it was claimed that Mr Reeves’ damages were partly caused as the result of Mr Reeves’ negligence and fault in relation to:

"(a) Failing to take sufficient care for his own mental, emotional and/or behavioural welfare;

(b) Failing to monitor his own mental, emotional and/or behavioural status;

(c) Failing to seek timely and proper help from the defendant, or any other competent medical practitioner, for any mental, emotional and/or behavioural problems that he may have been experiencing;

(d) Failing to take proper and timely advantage of the services of the defendant's chaplaincy, peer support officers, welfare branch and/or psychology unit that were available to him.

(e) Failing to seek counselling in a timely matter.

(f) Failing to take all reasonable steps to prevent suffering psychological and/or psychiatric injury."
The issues identified by the parties

13 The parties identified the issues remaining in dispute at the hearing.

14 The defendant admitted that it had a general duty of care for Mr Reeves, which required the taking of reasonable steps to avoid foreseeable risk of psychiatric injury. It did not admit any duty to protect him against mental injury. The scope of the duty remained in issue. The defendant admitted that the duty required it to take reasonable steps to avoid foreseeable risk of psychiatric injury arising out of Mr Reeves’ work as a staff officer at the FEA, including his welfare duties in that role and in relation to events which occurred during his service with the Police Service between 1994 and his medical retirement in 1999. The defendant denied any duty of care in respect of:

"(a) The actions of the Wood Royal Commission.

(b) The publication by the media of comments concerning the plaintiff arising out of the Wood Royal Commission.

(c) Taking steps to contradict evidence given at the Royal Commission concerning the plaintiff or statements made by the Royal Commissioner concerning the plaintiff.

(d) The response of other officers towards the plaintiff arising from in the matter referred to above.

(e) The actions of the Police Board.

(f) Not appointing the plaintiff to the position of Commander Licensing Enforcement Agency in 1996.

(g) The events in which the plaintiff was threatened on 11 March 1998.

(h) The events in which the plaintiff was stabbed twice with a syringe on 5 May 1998."

15 The parties were also at issue over whether the defendant had breached its duty of care to Mr Reeves in relation to its actions in relation to:

"(a) Monitoring the plaintiff's psychological condition after a long career in the Police Service.

(b) Assigning the plaintiff's welfare duties as part of his role as Staff Officer without providing him with training for that part of his role and not providing him with any debriefing or counselling following his alleged difficulties in that role;

(c) Not publishing media and internal statements to contradict any allegations, suggestions and inferences arising from Chief Superintendent Lysaught's evidence at the Police Royal Commission about the plaintiff's investigations concerning former Detective Haken and to clarify the plaintiff's role in the investigation directed by Mr Finnane QC in the Wood Royal Commission;

(d) Not providing him with any debriefing or counselling following the events with the Police Royal Commission.

(e) Not taking adequate steps to prevent harassment within the Service in following the events with the Police Royal Commission. (The Defendant did not admit that the plaintiff was harassed)

(f) Not promoting the plaintiff to the position in the Licencing Enforcement;

(g) Not providing debriefing or counselling after he had been threatened by a person in March 1998 and stabbed with a syringe in May 1998;

(h) Not providing any or any adequate counselling or assistance once the Defendant was aware of the nature and extent of his psychiatric injuries as from March 1997. "

16 The parties were also at issue over whether Mr Reeves’ psychiatric injuries were materially caused or contributed to by any breach of the defendant’s duty; over the foreseeability of the injuries which Mr Reeves suffered and the precise nature of those injuries. Other issues such as the duties of a police officer when off duty and the application and operation of certain policies and legislation also became the subject of contest.

Summary

17 It is convenient to briefly indicate at this point the conclusions which I have reached. These conclusions must be understood in a context where there was no question between the parties that Mr Reeves had suffered a psychological injury during the course of his police work and that he was not a corrupt police officer.

18 The conclusions reached include that Mr Reeves has met the onus which falls upon him to establish that the Police Service owed him a duty of care in relation to:

- the duties which he performed at the FEA

- the duties which he performed in the investigation of Mr Haken’s evidence, which had the result that Mr Reeves was brought to the adverse attention of the Royal Commission and his integrity was called into question

- his treatment by other police officers after he came to the adverse attention of the Royal Commission and his integrity was called into question

- the information it provided to the Police Board when Mr Reeves sought promotion to the position of Commander of the LEA when it sought advice as to how Mr Reeves had come to the attention of the Royal Commission.

- the representation which was invited of him, after his promotion was refused

- the support which Police Service policies envisaged Mr Reeves would be provided, but which were withheld from him
- the incidents in which he was involved in 1998

19 I have concluded that it was reasonably foreseeable that a breach of these duties would put Mr Reeves at risk of psychological injury and that the steps which the Police Service took to deal with these risks were not reasonable in the circumstances, apart from the steps taken by the Police Service in the aftermath of the two incidents in which Mr Reeves was involved in 1998. I have also concluded that there was no contributory negligence.

20 I have also concluded that the psychological injury from which Mr Reeves suffers is now entrenched and has brought his working life to an end. The injury was caused by the Police Service’s actions and omissions, with the result that Mr Reeves must be awarded general damages of $150,000, as well as other damages for past and future economic and other losses, calculated to retirement at age 65.

Mr Reeves’ credit and the defendant’s failure to call relevant witnesses

21 While Mr Reeves’ evidence was challenged on some matters neither his credit or that any of the other witnesses called by either party was put in real issue. The defendant’s failure to call evidence from various obvious witnesses was relied on in Mr Reeves’ case, in part to resist such challenges. Given the issues which need to be resolved, it is convenient to say something about these matters, before turning to consider what the evidence revealed.

Mr Reeves

22 The evidence showed that before his medical discharge from the Police Service in 1999, Mr Reeves was a very successful and experienced senior police officer. Parts of his account of his experiences in the Police Service were corroborated by the evidence of other witnesses, including those called by the defendant. That account was also corroborated to a very large extent by contemporaneous documents and accorded with the history which Mr Reeves had repeatedly given various medical practitioners in 1997 and subsequently. I found his evidence reliable.

23 While there were some discrepancies in histories recorded by medical practitioners, they were of a kind which one would expect, given the differing times at which Mr Reeves gave those histories; the state of his health at different times; the length of time after the events that some of his accounts were given; and the understanding of his accounts and the record made of them over the years, by various medical practitioners. When concurrent expert evidence was given at the hearing by four eminent psychiatrists, to which I will return, it was apparent that Mr Reeves was also accepted by each of them as having given them an honest account of his history and health.

24 It was not the defendant’s case that Mr Reeves was a corrupt police officer, notwithstanding that he had been called to give evidence before the Police Royal Commission. To the contrary, the evidence of police officers and former police officers, including those called in the defendant’s case, who had worked with Mr Reeves, was all in similar vein. They variously described Mr Reeves, before he became ill, as a senior police officer known to be successful, hardworking, able, trustworthy, dedicated, popular and enthusiastic. He had achieved rapid promotion over the years and had repeatedly been called on to act in more senior, responsible positions. He was acting in such a position when he took sick leave. He was known to have had an ambition to promotion to the highest office in the Police Service and was regarded by those with whom he had worked as an officer capable of achieving that ambition. He was well respected as a leader of others.

25 Consistently with this picture, despite having come to the attention of the Royal Commission, in 1996 it was the unanimous recommendation made to the Police Board by the selection committee, which included senior police officers, that Mr Reeves be appointed to the position of Commander of the LEA. No other candidate was put forward for consideration. That recommendation was consistent with the evidence in this case, as to Mr Reeves’ abilities and achievements in his career to that point. It was a recommendation made known to Mr Reeves, but was finally not accepted by the Police Board, which had concerns about Mr Reeves’ involvement in the Royal Commission.

26 On the evidence it was apparent that Mr Reeves’ health had already been affected as the result of what had happened to him in relation to the Police Royal Commission. The failure to achieve the promotion for reasons unconnected with his merit for the appointment, but because his integrity had been brought into question, was the final trigger for the psychological injury which Mr Reeves sustained. The evidence showed that this was not the result of any failure on Mr Reeves’ part, nor was his subsequent treatment by the Police Service the result of what Mr Reeves himself did, or failed to do. To the contrary, Dr Sharp, the Police Medical Officer who dealt with Mr Reeves, persisted with his internal enquiries as to Mr Reeves’ future in the Police Service, with the result that he received advice that Mr Reeves had the confidence of the Police Commissioner.

27 Unfortunately for Mr Reeves, this was not information conveyed to him, nor was it information on which the Police Service acted. Had it done so, it appears on the evidence of the experts that Mr Reeves may well have recovered from the serious and debilitating psychiatric illness from which he continues to suffer and which now seems entirely entrenched.

28 Consistent with this acceptance of Mr Reeves’ integrity was the evidence that some time after his discharge from the Police Service he worked as a volunteer at Western Suburbs District Rugby League Club, which led him to be recommended for the position of General Manager of West’s Rugby League Club, a position which he accepted in 2005. He was also a member of the Board of the Cabramatta Leagues Club from 1993 to 2004, there holding a position of trust and responsibility to which he was repeatedly re-elected. In these positions he appears to have received support which he did not receive from the Police Service, but he resigned from both because of ongoing problems with his health.

The evidence called by the defendant

29 The events in question occurred many years ago. While these proceedings were commenced in 2000, not long after Mr Reeves’ medical discharge in 1999, it took about a decade for them to be made ready for hearing, for reasons which it is unnecessary to explore. The defendant called evidence from a number of serving or former officers who had worked with Mr Reeves. It did not call evidence from others who could have given relevant evidence about matters in issue between the parties. This was not explained, other than in the case of the former Secretary of the Police Board, Ms Mary Christopher, who it had been proposed to call, but who could not be located.

30 The approach adopted left evidentiary holes, to which it will be necessary to make further reference. For Mr Reeves, it was submitted that the result was that necessary inferences flowed against the case which the defendant advanced. For reasons which will become apparent, there was considerable force in this submission.

31 There were a number of obvious witnesses who could have thrown light on the decision to conduct an inquiry into the evidence given by Mr Haken before the Royal Commissioner, the information provided by the Police Service to the Police Board about Mr Reeves, but they were not called. Nor were Dr Sharp or other senior employees responsible for how Mr Reeves was dealt with by the Police Service, after he took sick leave called.

32 The result was that no evidence was called to explain the operation of relevant Police Service policies directed to identifying and dealing with workplace stressors on police officers; the LEA promotion process; or why Mr Reeves' repeated approaches to the Welfare Branch for assistance met with no response. Nor was evidence called to explain the work which Mr Reeves was directed to undertake, which brought him to the adverse attention of the Royal Commission.

The Statutory Scheme governing Police Officers

33 As Gummow and Hayne JJ discussed in New South WalesvFahy [2007] HCA 20; (2007) 232 CLR 486 at [18], any consideration of this claim must begin with a consideration of the nature of the relationship between the parties, controlled as it was by the provisions of the Police Act 1990.

34 Section 8 of the Police Act provided that subject to the direction of the Minister the Police Commissioner was responsible for the management and control of the Police Force. This included its effective, efficient and economical management of the functions and activities (s 8(2). Section 8(3) permitted the Commissioner to “classify the various duties that members of the NSW Police Force are required to perform and allocate the duties to be carried out by each such member” and to issue, amend and revoke instructions given to members of the Service, as to the management and control of the Service.

35 Section 201 provided that a police officer who neglected or refused to obey any lawful order or to carry out any lawful duty as a police officer, was guilty of an offence.

36 The enactment of the Royal Commission (Police Service) Act did not alter this statutory scheme, although on the evidence it had a considerable impact on the Police Service and its operations.

37 By s 6 of that Act, police officers could be required to produce a statement of information to the Royal Commission. Failure to comply with a s 6 notice was an offence. The Royal Commission had the power to require documents to be produced to it and to have persons appear before it to give evidence. It had wide powers of search and seizure through a system of warrants. Privileges, such as the privilege against self incrimination, were abrogated by the legislation. The Commission had the power to take evidence in secret and to restrict publication of evidence given before it. Section 27 provided:

" Publication of evidence etc. (s. 112 ICAC Act)

27. (1) The Commissioner may direct that:

(a) any evidence given before the Commission; or

(b) the contents of any document, or a description of any thing, produced to the Commission, or seized under a search warrant issued under this Act; or

(c) any information that might enable a person who has given evidence before the Commission to be identified; or

(d) the fact that any person has given or may be about to give evidence before the Commission,

must not be published or must not be published except in such manner, and to such persons, as the Commissioner specifies.

(2) The Commissioner is not to give a direction under this section unless satisfied that the direction is necessary or desirable in the public interest.

(3) A person must not make a publication in contravention of a not make a publication in contravention of a direction given under this section.

Maximum penalty: 50 penalty units or imprisonment for 12 months, or both "

38 There was no evidence that any such directions were given in respect of any of the matters which were dealt with by the Royal Commission, relevant to the issues here lying between the parties.

39 Section 18A of the Royal Commissions Act must also be considered. It dealt with contempt of the Commission in circumstances where a person ‘does or omits to do anything which would, if the Commissioner the Supreme Court, be contempt of that Court, or if the person disobeys any order or summons made or issued by the Commissioner’.

40 It is against this statutory background that the issues lying between the parties must be approached.

The application of the Police Service’s Rehabilitation Policy to Mr Reeves

41 It is convenient to deal with this policy, before turning to a consideration of the events which led to Mr Reeves’ discharge from the Police Service. The issue of whether this policy applied to Mr Reeves only arose late in the defendant's case. It flowed from what the policy provided under the heading ‘Principles of Rehabilitation’:

"Timely intervention results in maximum gains from rehabilitation. The rehabilitation process should commence as soon as the injured employee's condition has been accurately assessed; the assessment is made within the context of the employee's actual medical condition, prognosis for the treatment of the injury/illness and the availability of suitable duties at the employee's workplace.

There must be a commitment on the part of all parties involved in the rehabilitation of the injured employee, e.g., the injured/ill worker, his/her union, the organisation, local commanders/managers and the various health care professionals. Participation in a rehabilitation programme is voluntary, however, employees must be aware that if they do not participate in an appropriate programme their weekly benefits payable under workers compensation may be reduced.

This condition only applies to employees of the Police Service falling within the jurisdiction of the Workers Compensation Act 1987 .

All members of the Police Service are expected to reflect the organisation's commitment to occupational rehabilitation.

The provision of occupational rehabilitation is an essential component in ensuring the health and productivity of the organisation's employees. "

42 Until final submissions the proceedings had been conducted on the basis that the Rehabilitation policy applied to Mr Reeves. It was certainly not suggested to Mr Reeves in cross examination that it was a policy which did not apply to him. That was a matter about which he could plainly have given evidence. He was the FEA staff officer responsible for monitoring implementation of such policies at the FEA. It was not suggested to him that there was a certain group of police officers, of which he was one, to whom the policy did not apply. Nor did the defendant call evidence from any other officer as to how this policy operated in the Police Service at the relevant time. The contemporaneous material suggested that it was a policy in general operation and one which the Police Service contemplated at the time applied to Mr Reeves. It was not, however, put into effective operation in his case.

43 It was argued by the defendant that the words emphasised 'This condition only applies to employees of the Police Service falling within the jurisdiction of the Workers Compensation Act 1987', meant that the entire policy did not apply to Mr Reeves. That Act did not apply to Mr Reeves. He was a contributor to the Police Service Superannuation Fund under the Police Regulation (Superannuation) Act 1906, pursuant to which the Fund only applied to members of the Police Service who became a member before 1 April 1988. The definition of ‘worker’ in s 3 of the Workers Compensation Act 1983 expressly excluded such members.

44 I am satisfied that this view of the rehabilitation policy may not be accepted. The argument depends on the words ‘This condition only applies to employees of the Police Service falling within the jurisdiction of the Workers Compensation Act 1987’ being read as if they referred to the entire policy, rather than to a particular condition. Had that been intended, the words ‘this policy’ would undoubtedly have been used, rather than ‘this condition’. They were not. The reason for that is apparent from the preceding words, which identify the condition to which reference is being made:

"Participation in a rehabilitation programme is voluntary, however, employees must be aware that if they do not participate in an appropriate programme their weekly benefits payable under workers compensation may be reduced."

45 Thereby it is made apparent that employees who do not participate in an ‘appropriate programme’ might have their workers compensation benefits reduced. That was a reference to the provisions made in ss 38 and 38A of the Workers Compensation Act, in respect of employees unreasonably refusing work or rehabilitation training. That is a condition which did not apply to police officers such as Mr Reeves, who became members of the Police Service Superannuation Fund before April 1988 and who, accordingly, were not at risk of having their weekly workers compensation benefits reduced by a refusal to participate in a rehabilitation programme under those provisions of the Workers Compensation Act.

46 That the policy was, nevertheless, intended to apply to all of those working for the Police Service was apparent, even if refusal to participate in a rehabilitation programme could not carry with it the penalty imposed by ss 38 and 38A of the Workers Compensation Act. That conclusion is reinforced when consideration is given to the policy, read as a whole.

47 The policy referred to ‘employees’ and ‘employees of the Police Service’, at various points, a term not strictly accurate in the case of police officers. Nevertheless it plainly encompassed them, as well as the public servants employed in that Service. This was apparent from references made elsewhere in the policy to ‘workers’; the health and safety committees established at Police District levels; employee representation from Patrols within the such Districts; and the role of local Commanders, Managers and Staff Officers. Nowhere in the policy was it suggested that it would not apply to police officers generally, or that it would not apply to any specified group of police officers, of whom Mr Reeves was one.

48 I am satisfied that the policy was one of general application which applied to Mr Reeves. That conclusion is consistent with other evidence, including documentary evidence produced by the Police Service itself. Indeed, part of the internal investigations conducted by the Police Service in 1998 into its treatment of Mr Reeves was concerned with repeated failures to adhere to this policy. The absence of any evidence led in the defendant's case to support the construction of the policy urged in only final submissions, also supports the view which I have reached on the terms of the policy itself.

Mr Reeves’ history in the Police Service

49 Mr Reeves’ took sick leave in January 1997 and sought treatment for stress. At this time Mr Reeves was working very hard, as were other senior officers, who were having to dealt with the impact which the Police Royal Commission was having on the Police Service's ordinary operations.

50 Witnesses called by both parties gave evidence of the impact which the Police Royal Commission was having generally, as well as of the stark difference in Mr Reeves before and after he became involved in the Royal Commission in 1995 and was refused promotion to the position of Commander of the LEA in 1996. He was described as having transformed from an outgoing, cheerful and enthusiastic person, to one who was silent and withdrawn, increasingly embittered by what he perceived to have been a lack of support provided to him by the Police Service. Mr Reeves described his condition when he took sick leave as one where he was suffering nightmares; his memory and concentration was impaired; he dreaded going to work and was increasingly unable to do so; and his temperament and relationship with his family deteriorated.

51 The change in Mr Reeves flowed from the time that he was instructed to conduct an investigation into evidence given before the Royal Commission by a police officer, Detective Sergeant Haken. Mr Haken was a corrupt police officer who had ‘rolled over’ to the Royal Commission and had identified other corrupt police officers to the Commission. Officers identified by such witnesses included the Commander of the FEA, Chief Superintendent Lysaught.

52 The Police Service had decided to investigate Mr Haken’s evidence, even though it was undoubtedly under ongoing investigation by the Royal Commission itself. It was Mr Reeves who was directed to undertake the Police Service investigation. It was this assignment which put Mr Reeves into a position where his integrity was called into question before the Royal Commission, when the investigation came to its notice. The investigation also came to be publicised as the result of evidence given by Mr Lysaught, in which he claimed an involvement in the investigation which he had not had. The result for Mr Reeves was that his integrity was also questioned by others, particularly other serving police officers, and later, the Police Board. In 1996 the Police Board refused his promotion to the LEA, not being satisfied as to his integrity. Mr Reeves was convinced that the result of his involvement in the Haken investigation was the loss of his reputation and the promotion to the LEA which he had achieved on merit in 1996 and the destruction of his career.

53 At the same time as these events were unfolding, Mr Reeves continued to work in the FEA staff officer role, where he had to monitor the welfare of other police officers involved in the Royal Commission. He himself did not receive such support. The medical evidence was to common effect. Mr Reeves sustained a serious psychological injury as a consequence of these events. Mr Reeves’ involvement in the Police Royal Commission was the start of a series of ongoing stressors to which he succumbed. That psychological injury was exacerbated as these stressors continued to affect him and he was subjected to further stressors, when he came to feel that he had been abandoned by the Police Service, after he took sick leave in 1997.

The impact of Mr Reeves’ prior work

54 There was an issue between the parties as to whether Mr Reeves’ prior work as a police officer had made him vulnerable to this injury. There was no question that he had been involved in a number of very serious incidents prior to 1994, which on the expert evidence were of such a nature that he was vulnerable to psychological injury at the time that they each occurred. While he exhibited symptoms of Post Traumatic Stress Disorder ('PTSD') after those incidents, the view of the medical experts was that his was a very resilient character and he never developed the disorder, at least until after he became involved in the Royal Commission. He became preoccupied with memories of these earlier incidents, which had occurred many years before, and began suffering nightmares about them again. His resilience began to break down at that time.

55 It is necessary to say something about this earlier history, which was not the subject of much contest.

56 Mr Reeves commenced as a police cadet in 1970 at age 16. In that year he first injured his knee during the course of his duties. In the course of other duties he was exposed to decomposed bodies at the Glebe and Liverpool Morgues. This was a disturbing experience. It was in 1973, while a probationary constable, that Mr Reeves suffered his first serious injury during the course of his duties, when he was stabbed in the neck with a broken glass. This was a serious, life threatening injury.

57 In 1975, while a constable stationed at Green Valley Police Station on general duties, Mr Reeves was called on to recover the body of a child who had died from SIDS from a distraught father, who was refusing to hand the child’s body to ambulance offers. During the course of the struggle the child’s body fell to the ground. This was an extremely distressing experience and caused Mr Reeves to have perhaps the strongest and most long lasting reaction, before he succumbed to psychological injury in 1996.

58 In 1976, while still a constable, Mr Reeves attended the suicide of a young girl who had hung herself. This, too, was a disturbing incident. In 1979, Mr Reeves was seriously injured when assaulted from behind with an iron bar in an incident in which a man dived from a window. Again, a very distressing experience.

59 Mr Reeves was promoted to senior constable in 1982. That year, while appointed to the Tactical Response Group, he attended the Minda Detention Centre where he was assaulted. Later that year he attended an incident at a house where a mentally unstable male armed with a knife was threatening his mother. Mr Reeves was stabbed in the leg. These too were significant, distressing incidents.

60 In 1983, Mr Reeves passed the sergeant’s examination and was transferred to the Organised Crime Squad and in 1986, to the State Drug Crime Commission (which later became known as the NSW Crime Commission). In 1988, Mr Reeves was promoted to detective sergeant and in 1989 he was transferred to the Drug Enforcement Agency (‘DEA’) Task Force No 1, where he filled a temporary vacancy as Investigations Co-ordinator.

61 Mr Reeves was promoted to detective senior sergeant in 1990 and was appointed Relieving Commander, Task Force No 1. Between 1989 and 1994, Mr Reeves was subjected to violence and threats by three criminals, Christie, Honeysett and Zizza, in a number of further distressing incidents. In 1990, he was appointed to head the NSW Crime Commission regional office at Wollongong and in 1992 was appointed as the Patrol Tactical Command at Wetherill Park Police Station. In 1993 Mr Reeves was appointed to the DEA and was seconded to the Casino Control Commission.

62 Mr Reeves’ claims do not concern the various incidents in which he was involved prior to 1994. It was his case, however, that they made him vulnerable to the injury which he later sustained and were relevant to a consideration of the duty of care which the Police Service owed him.

Mr Reeves’ duties at the FEA

63 It was in 1994 that Mr Reeves was promoted to the rank of detective inspector and was appointed as staff officer at the FEA where he reported to Mr Lysaught, previously his superior at the DEA. In this position, Mr Reeves' principle duties were:

"With an emphasis on the corporate policy of customer service, perform all duties efficiently and cost effectively within the values and strategies of the Police Service.

Provide management continuity in the absence of the Agency Commander.

Research and evaluate issues affecting Agency human resource management.

Provide daily briefings and advice to the Agency Commander on sensitive, complex or newsworthy issues.

Research, collate and analyse information, providing reports on specific projects, programs as required by the Agency Commander.

Act as the Commander's representative on designated task forces and committees.

Monitor major court proceedings, significant matters of legislation and media attention affecting the Agency.

Provide appropriate media responses when required.

Implement corporate human resource and associated industrial relations policies, programmes and services.

Provide career guidance to Agency staff.

Monitor the welfare, rehabilitation and performance of Agency personnel, referring to appropriate counselling services as required.

Manage the recruitment and establishment procedures for Agency administrative personnel.

Adhere to the Agency anti-corruption plan."

64 The evidence was that the practical result of the establishment of the Police Royal Commission and its investigations and hearings was a lot of additional day to day work for senior police officers, including Mr Reeves. Senior officers were working long hours to deal with the impact which the Royal Commission was having on the day to day work of the Police Service, whose responsibilities to carry out its normal operations were not diminished by the Police Royal Commission proceedings. When not called on to acting in other higher positions, when those officers were called away to deal with the Royal Commission, Mr Reeves continued to perform his duties as the FEA staff officer. In that role he was responsible for other staff who were negatively impacted by the Royal Commission, some of them very seriously.

65 When the Royal Commission was established the Police Service established a Royal Commission Response Unit which had a welfare unit to look into the welfare of police who appeared before the Royal Commission. Mr Reeves was briefed on the establishment of this unit in his staff officer role. The nature of that role and whether Mr Reeves had gone beyond his functions in the work which he undertook, was in issue between the parties.

66 It was from this work that Mr Reeves had been taken to undertake the investigation which the Police Service’s Royal Commission Response Team determined to undertake into Mr Haken's evidence. That investigation ceased, once Mr Lysaught was publicly questioned. He returned to his FEA work.

67 When giving evidence in the Royal Commission in 1996 Mr Reeves described his staff officer role at the FEA as including a welfare function and that he had considered himself equipped to undertake that function, before he was appointed to the position. In cross examination in these proceedings Mr Reeves agreed that his role was much broader than merely a welfare role, but it was his view that it was probably the most important of his principal duties at the FEA and that Mr Lysaught had directed him to look after the welfare of FEA officers. He explained that his role was to follow officers up to see if counsellors or Welfare had provided assistance and to provide support. He agreed that he had not given evidence before the Royal Commission of any difficulty in undertaking the welfare role he had there described.

68 Mr Reeves described his other duties as including management of the Agency; a limited involvement in budgets; overseeing rosters, postings and staffing levels; providing daily briefings to the Commander; and undertaking special inquires directed by the Commander, the Commissioner of Police or Internal Affairs. He explained that he regarded his rehabilitation duties as including counselling. He was obliged to refer officers who he identified as requiring assistance to the Welfare Branch, but there were problems on occasions when they did not follow up. He was cross examined at length as to the detail of the assistance which he provided to particular officers, including those who had become his friends, some of them his close friends.

69 Mr Reeves also described how some officers resisted further reference to the Welfare Branch, after its initial failure to follow up a referral and how he then tried to look after them himself. He explained how he perceived that to be a part of his role, as a relatively senior officer in the Police Service and that it was a role known to other senior officers at the FEA. The work which he was undertaking was the subject of discussion between him and other senior officers such as Mr Lysaught, Detective Chief Superintendent Steer and Detective Chief Superintendent Craig. He made regular reports on what he was doing at management meetings.

70 The FEA then had about 50 staff, 6 investigation teams and some lawyers. After Mr Lysaught was suspended, Mr Hansen and then Mr Speers were Acting Commanders.

71 Mr Reeves’ duty statement obliged him to monitor the welfare needs of police officers and public service personnel. In cross examination, he explained how he would refer an officer to the Welfare Branch, how a case officer would be appointed who would open a file and would later discuss the officer’s situation with him. He was not instructed or trained in how to undertake this duty, but plainly took this aspect of his work seriously and undertook it conscientiously. He came to the point where he was responsible for the welfare needs of 11 police officers, suffering from stress as the result of being adversely named before the Royal Commission, or experiencing personal or work related stress, as well as public service officers suffering from personal or work related issues.

72 Mr Reeves explained how he provided a shoulder to lean on, visited some officers at home, including one officer who attempted suicide, shortly after resignation and in the case of another, who did commit suicide. Mr Reeves then provided assistance to his family, including in relation to the funeral. Mr Reeves described how he began to find that this work got him down. His sleeping patterns were disturbed and he began to feel run down. It was not until a short while before he took sick leave, that Mr Reeves began discussing the difficulties he was experiencing with Mr Laney.

73 A number of officers who Mr Reeves had supported were called. Their evidence generally corroborated that of Mr Reeves. Some appreciated his support, others did not perceive that they had a need for his assistance, or perceived that what he was doing was to provide such assistance.

74 In issue between the parties was whether Mr Reeves did more than his role required of him, with the result, on the defendant’s case, that what he did was voluntary and in the pursuit of friendship, more than his duties. It was the defendant’s case that his obligation was only to refer people to counselling services as required and if performance deteriorated, to make a referral. There was a need to be vigilant and to speak to and listen to personnel who were having problems. Mr Reeves had the experience necessary to undertake such work and it was not foreseeable that it might result in him suffering psychiatric injury.

75 In his oral evidence Mr Laney explained that Mr Reeves had reported the welfare work which he had been undertaking at FEA management meetings during the Royal Commission. The place was then in turmoil and Mr Reeves had a lot of people to look after. He had also reported assisting officers outside the FEA. Mr Laney’s evidence was that people were then grateful for the interest and help Mr Reeves was providing to those officers. Mr Steer gave similar evidence.

Mr Lysaught

76 Mr Reeves worked with Mr Lysaught as his commander at both the FEA and the DEA. It was the defendant’s case that in his evidence Mr Reeves tried to ‘downplay’ his relationship with Mr Lysaught at the FEA. I do not accept that submission.

77 Mr Reeves had a senior role at the FEA in which he reported to Mr Lysaught, as was his evidence. He explained in cross examination that he had met Mr Lysaught when appointed to the DEA and had worked with him there for about 2 years. Mr Lysaught later supported his application for promotion to the FEA. They saw each other almost daily there, except when he or Mr Lysaught were relieving in other positions. Mr Reeves accepted that they had a close working relationship and that he believed that Mr Lysaught trusted him. He described them as having relatively limited social contact with each other.

78 That Mr Reeves had a good working relationship with a senior officer to whom he reported was consistent with the evidence as to his relationship with other senior officers with whom he worked and who supported his promotion applications. This was not evidence of any inappropriate relationship between he and Mr Lysaught. There was no evidence that Mr Reeves was aware that Mr Lysaught was corrupt. Nothing of this kind was suggested to Mr Reeves in cross examination. In its case the defendant proceeded on the basis that he was not a corrupt police officer.

The Haken inquiry

79 In 1995, Assistant Police Commissioner Donaldson directed Mr Reeves to assist Mr Finnane QC in the Royal Commission Response Team. It had been decided that the evidence given by Mr Haken would be investigated, so that evidence in reply could be prepared by the Police Service.

80 When they met, Mr Finnane asked Mr Reeves to obtain a statutory declaration from a named officer, as well as various documents. Assistant Commissioner Donaldson later directed Mr Reeves to interview Chief Superintendent Cluff, who provided him with a list of other police officers who might have information to provide. Mr Reeves subsequently spoke to Mr Lysaught, seeking approval for assistance to be provided to him by Sergeant Edgtton, to interview these identified officers. That approval was given and the interviews were pursued.

81 Mr Lysaught was called to give evidence before the Police Royal Commission on 18 September 1995. He had been identified as a corrupt police officer. As it turned out, so had Assistant Commissioner Donaldson.

82 The Royal Commission had become aware of the investigation being undertaken by the Police Service into Mr Haken’s evidence. When giving evidence, Mr Lysaught was asked about his relationship with Assistant Commissioner Donaldson and his knowledge of the investigations being conducted by the Police Service in relation to Mr Haken. Mr Lysaught denied that he was corrupt, or that Assistant Commissioner Donaldson was corrupt. He claimed that it was he who had delegated the task of obtaining statements about Mr Haken to Mr Reeves. This evidence was inaccurate. Mr Lysaught was then questioned by Justice Wood about his relationship with Mr Reeves and the propriety of the investigation being undertaken into Mr Haken.

83 Mr Reeves learned of these developments that same day. He contacted Assistant Commissioner McLachlan, who was the Commander, Special Agencies responsible for the FEA and asked whether he should continue his investigations. He was directed to cease and to contact Mr Finnane, who was at police headquarters. He and Detective Senior Sergeant Edgtton then went to see Mr Finnane. Mr Reeves asked why the correct position about the investigations he was undertaking for the Police Service had not been advised to the Police Royal Commission. Mr Finnane had not been at the Royal Commission that day, but told Mr Reeves that he would raise the matter with the Commission and that nothing would reflect adversely on himself or Detective Senior Sergeant Edgtton.

84 That assurance was not made good.

The media coverage of Mr Lysaught’s evidence and its consequences for Mr Reeves

85 The work of the Royal Commission was under intense media scrutiny. On 19 September 1996, reports published in the media referred to Mr Lysaught’s evidence and in an article published in the Sydney Morning Herald, Mr Reeves was described as ‘Lysaught’s lieutenant’. It was reported that the Police Board was meeting to consider Mr Lysaught‘s dismissal. Given the context, namely that Mr Lysaught had been identified as a corrupt police officer who had directed Mr Reeves to conduct an enquiry into Mr Haken’s evidence, that Mr Reeves was portrayed in adverse terms in these reports may readily be accepted. That was certainly Mr Reeves’ impression, as well as that of others, including other police officers who gave evidence in these proceedings. Mr Lysaught was soon afterwards dismissed.

86 The practical result for Mr Reeves was immediate and intense. He received numerous calls and enquiries about these reports from other police officers, friends and colleagues, who perceived his character and integrity to have been impugned. They asked him what he had been up to and if the reports were true. It must be accepted that Mr Reeves was very upset at these approaches.

87 The newspaper reports about Mr Lysaught concerned theft of drugs and money. Mr Reeves described being asked if he had been involved. He was asked if he was ‘off’, a term in use in the Police Service to describe a corrupt officer. Mr Reeves described other police officers refusing to speak to him, standing and leaving a lunch room when he entered, people laughing at his expense in public and calling out things like ‘here comes Lysaught’s lieutenant’.

88 Mr Reeves’ evidence was that after 19 September there were other media reports linking him to the adverse remarks which the Royal Commission had made about the Police Service investigation into Mr Haken and Mr Lysaught. Footage was shown of Mr Lysaught and he attending an event some years earlier, when other reports were made in the media about Mr Lysaught. The repeated inference was that he was linked to police corruption. Mr Reeves found that he was ostracised by other police officers and was the subject of regular suggestions from acquaintances and police officers about his alleged corrupt conduct.

89 Mr Reeves’ evidence was that it was from this time that he began suffering from anxiety and disturbed sleep; he also began ruminating about traumatic events in his earlier career and the lack of assistance which he had received from the Police Service, in relation to the aftermath of Mr Lysaught’s incorrect evidence.

90 The expert evidence was all to common effect. These events were considerable stressors, which put Mr Reeves at increasing risk of psychological injury. The evidence showed that Mr Reeves began to display increasing signs of such an injury.

91 The evidence given by other police officers supported that given by Mr Reeves. Mr Greiss’ evidence was that his concerns were assuaged by the explanation which Mr Reeves' gave him, but that he had been shocked by what he read, even though he knew Mr Reeves well, and did not know Mr Lysaught as well. The reports caused him to doubt Mr Reeves’ integrity. Mr Steer gave similar evidence. Mr Reeves was concerned about his future in the Police Service, a concern which Mr Steer did not perceive to be unreasonable, given the atmosphere then surrounding the Royal Commission.

92 Mr Valente also came to have doubts about Mr Reeves’ integrity, even though he had known him for many years. Mr Valente described the relationship between Mr Lysaught and Mr Reeves. Mr Lysaught had a manner that was unapproachable. Mr Reeves was the opposite and Mr Lysaught relied on Mr Reeves to virtually run the FEA. They were known to be close and that Mr Lysaught had a high opinion of Mr Reeves. He described the situation at this time as one where overnight, police officers stopped talking to each other, not trusting anyone. He had himself received five s 6 notices, which raised allegations which he believed were all baseless. He was never called before the Royal Commission and no evidence to substantiate the matters raised with him was led there. He said that in the circumstances, it was hard not to have doubts about other officers. Even though he had been good mates with Mr Reeves and he had never doubted Mr Reeves’ integrity before, Mr Valente had also been mates with Mr Lysaught. The result which Mr Valente observed was that Mr Reeves changed overnight. Mr Reeves later came to believe that as a result of Mr Lysaught’s evidence, his career was finished, when he did not receive the LEA promotion.

547 For its part the defendant claimed that the state of Mr Reeves’ knees had an impact on his ability to work and that it would be concluded that he would have retired before age 65. The evidence does not support the defendant’s approach.

548 At the time that Mr Reeves took sick leave, he was capable of performing his duties, so far as his knees were concerned. While he injured his knees in 1996 and again in 1997, he sought and obtained treatment. The advice given to the Police Service in 1997 by Dr Claffey was that from the point of his knees, he was capable of returning to work. That advice was consistent with the work which Mr Reeves later performed outside the Police Service and with the evidence of Drs Stephenson and Coolican. He would be physically capable of office based managerial police work. Mr Reeves would have received sick leave for any time off work for such treatment, had he remained with the Police Service. While Mr Reeves would have good and bad days, he would be able to continue until the pain from his knees became sufficient for him to seek treatment. He has not yet reached that point, although he contemplates having such surgery. Osteotomy in each knee would then provide pain relief and an increase in function, in which event he would not require knee replacement surgery until after his 65^th birthday and retirement from the Police Service.

549 It follows that problems with Mr Reeves' knees can form no part of an assessment of past economic loss.

550 I also accept Mr Reeves’ case on loss of promotional opportunities. I do not accept that Mr Reeves’ cross examination in the Royal Commission in relation to the possibility of any negligence in Operation Azure and Mr Reeves thereby contributing to the $340,000 loss sustained by the Police Service, would have resulted in him being promoted no further. Given the senior role which he was undertaking when he went on sick leave, the case so advanced may simply not be accepted. It is inconsistent with Mr Reeves’ history, both before and after he gave evidence before the Royal Commission.

551 I am satisfied that Mr Katehos' calculations must be accepted.

Future economic loss, superannuation and non renewable benefits

552 Mr Reeves’ calculations were conducted on the basis that he would retire at age 65 and that he would achieve a certain promotion. The defendant argued he would have retired between 58 and 60. On the evidence, I accept that a basis for the calculations advanced for Mr Reeves has been made out.

553 Mr Reeves had been successful in pursuing his ambitions prior to his failure to achieve the promotion to the position of the Commander of the LEA, a promotion which had also been achieved on merit. He had acted in positions at that rank, before he took sick leave. The evidence of other police officers including those called in the defendant’s case also supported the view that this rank was well within Mr Reeves’ capacity and one which he was likely to achieve.

554 I accept Mr Reeves’ evidence that he would have worked as a police officer to age 65, but for his psychological injury. The evidence shows that the state of his knees would not have precluded him from performing the work of a senior police officer occupying a managerial role, even though he requires ongoing treatment. Such treatment is available; Mr Reeves would have been entitled to pursue it, while taking sick leave; he intends to have it and if he does, the experts were of the view that he could continue to age 65, albeit with some discomfort. The level of discomfort which a person can tolerate varies. On the evidence Mr Reeves has high tolerance levels. In the circumstances, it must be concluded that he would have had treatment which would have permitted him to continue working as he intended.

555 It was submitted for the defendant that in his report, Dr Athanasou, who conducted a vocational assessment of Mr Reeves in 2007, had suggested that Mr Reeves had a retained earning capacity. This report noted amongst other things, that Mr Reeves ‘would not present as very employable’. Problems with personal adjustment were noted. Dr Athanasou’s report was prepared on the basis of an assumption that in theory Mr Reeves still had some residual capacity. While the medical experts had divided views about this, I have concluded in the face of all of the evidence that there is regrettably, no real basis for that conclusion. All that Dr Athanasou could see, was a potential for a limited range of part-time occupation at a lower skill level, but that Mr Reeves’ personal adjustment problems made even this problematic. He concluded that it would be difficult for even that potential to be exercised meaningfully exercised. That view must be accepted

556 Mr Katehos was cross examined as to the reliance which he placed by way of assumption on a document emanating from another organisation, Rainmaker, which had been commissioned by Furzer Crestani to provide figures as to long term credit ratings, assessed across the superannuation industry, not specifically related to the State Superannuation Scheme of which Mr Reeves was a member. The approach adopted was to look at a number of factors, over a long period of time, to arrive at an average. Mr Katehos had relied on the results of this research in his calculations and had assumed for that purpose that the report was correct. I accept his evidence as to the validity of the approach adopted to determining a reasonable long term credit rating.

557 Mr Katehos' calculations on these heads must be accepted.

Long Service Leave

558 I accept Mr Reeves' evidence that he would have foregone taking this leave until retirement. That was not only consistent with his own past conduct, but also with the evidence of other senior police officers as to their approach and the basis for that approach, which has certain advantages which make this attractive to police officers such as Mr Reeves, which it is not necessary here to explore, but which I am satisfied must be accepted.

Past gratuitous care and future attendant care

559 The occupational therapy reports provided by Ms Campisi and Ms Elder were not challenged in cross examination and no evidence was called by the defendant to contradict their conclusions.

560 Ms Campisi’s report dealt with Mr Reeves’ past and future needs in relation to gardening and home handyman assistance. Ms Elder’s report dealt with a range of matters, noting for example that in 2000 Mr Reeves had attempted a TAFE computer course, which he had been unable to complete, because of problems with concentration and memory. In his role as general manager of the football club in 2005 concentration and memory problems persisted, as did his anxiety about how he was perceived by others. She concluded that there would be difficulties in Mr Reeves obtaining any sort of work, even with intensive therapy, retraining and rehabilitation. Further evaluation of psychological functioning was recommended, as well as psychiatric and other treatment. She also supported Ms Campisi’s assessments.

561 The defendant's case was that assistance with mowing the lawns was only required for the initial two or three years and not thereafter, given Mr Reeves’ gradual improvement and that the state of his knees was what was affecting Mr Reeves.

562 Both Mr and Mrs Reeves gave evidence that he was physically capable of mowing the lawn, but that he did not do so, as consequence of his psychological illness and its effects. That evidence was supported by Ms Campisi and Ms Elder’s assessments.

563 I am satisfied that the plaintiff’s claims were in this respect made out.

Out of pocket expenses

564 The details of these claims were not challenged, but it was argued that out of pocket expenses had been largely met by the Police Service and therefore, no compensation was payable.

565 I accept that these claims were established.

Future Treatment expenses

566 There was a disagreement between the experts as to the extent of the ongoing treatment which Mr Reeves requires in future. He has received significant care in the past and continues on medication, but is not currently receiving psychiatric treatment for his entrenched illness. There is some hope that treatment which has not been tried to this point, might be of assistance including certain occupational rehabilitation and cognitive behaviour therapy. Medication for depression also requires review. Dr Phillips was the most pessimistic as to the extensive nature of the future treatment which might be required, of some 50 sessions and Professor Bryant considering 12 or 15 to be required. All experts agreed that there would be a need for re-assessment after the litigation; a new treatment plan and then some future care. Further medication will also be required, potentially for the whole of Mr Reeves’ life.

567 I have concluded that Mr Reeves has established his claim for future treatment expenses, in the case of psychotherapy sessions, on the basis of twenty four sessions.

Orders

568 Subject to the calculation of damages being checked and any submissions which the parties wish to advance in relation to costs, for the reasons given, I propose to make orders to the following effect:

1. Verdict for the plaintiff.

2. An order for damages in favour of the plaintiff, calculated in accordance with this judgment.

3. The defendant to pay the plaintiff's costs of the proceedings.

569 The parties are to bring in short minutes of order to give effect to the judgment. If there is any disagreement in relation to costs or calculations the parties have liberty to approach.

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21/07/2010 - Following corrections made pursuant to UCPR 36.17 (the "slip rule"):[408] - quotation from Wyong Shire Council v Shirt the name "Mr Reeves" replaced with the words "the plaintiff"[478] - words "should have foreseen" be replaced with words "could not have foreseen"[563] - the word "defendant's" be replaced with "plaintiff's" - Paragraph(s) [408], [478] and [563]