S v State of New South Wales - [2008] NSWSC 933

No judgment structure available for this case.

CITATION: S v State of New South Wales [2008] NSWSC 933

HEARING DATE(S): 19, 20, 25-28, 30 March, 1-3, 14, 15 April, 12 June 2008

JUDGMENT DATE :
9 September 2008

JUDGMENT OF: Harrison J

DECISION: 1. Order that the limitation period within which the plaintiff was entitled to commence these proceedings be extended up to and including 13 July 2004.
2. Verdict for the defendant.
3. Direct that the matter be listed before me at some convenient date by arrangement with my Associate for the purposes of hearing further argument as indicated in pars [303] and [304], and for the purposes outlined at par [310], if required.
4. I shall hear the parties on the question of costs.

CATCHWORDS: NEGLIGENCE – duty of care – failure to provide safe system of work – undercover police officer sustained psychiatric injury in the course of her undercover work – retired hurt on duty - allegation that defendant breached its duty of care by, inter alia, failing to train the plaintiff, failing to provide adequate counselling, exposing the plaintiff to excessive periods of undercover work or failing to re-integrate the plaintiff into mainstream policing in an appropriate way – admitted causal connection between that work and the psychiatric injury but breach of duty denied - no breach of duty found – CAUSATION – whether causal connection between plaintiff's psychiatric injury and any breach of duty – injury caused absent the allegedly tortious conduct – LIMITATION OF ACTION – extension of limitation period by reason of psychiatric condition – s 52 Limitation Act 1969

LEGISLATION CITED: Civil Liability Act 2002
Limitation Act 1969

CATEGORY: Principal judgment

CASES CITED: Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44
Kotulski v Attard [1981] 1 NSWLR 115
McDonald v State of New South Wales [2001] NSWCA 303
New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021
Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362
State of New South Wales v Fahy [2006] NSWCA 64
State of New South Wales v Harlum [2007] NSWCA 120
State of New South Wales v Seedsman [2000] NSWCA 119

TEXTS CITED: Mullany and Handford's Tort Liability for Psychiatric Damage, 2nd Ed (2006)

PARTIES: S (Plaintiff)
State of New South Wales (Defendant)

FILE NUMBER(S): SC 20125/06

COUNSEL: R J Burbidge QC with D M Shoebrige (Plaintiff)
P Menzies QC with P D A Mallon (Defendant)

SOLICITORS: Edwards Michael (Plaintiff)
I V Knight, Crown Solicitor (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

9 September 2008

20125 of 2006 S v State of New South Wales
JUDGMENT

1 The plaintiff was born in 1964. She joined the New South Wales Police Service ("the police service"), then known as the New South Wales Police Force, in 1985. She was formally attested as a probationary constable on 17 May 1985. She left the police service on 13 May 2003 having attained the rank of sergeant. She has not worked in any paid employment since then. The plaintiff submitted a Hurt on Duty statement in August 2003.

2 During her employment with the police service the plaintiff undertook duties as an undercover police officer. The precise work that she performed in that role and the periods over which she performed it, are each described in considerable detail later in these reasons. It is uncontroversial in these proceedings that that work was stressful and that it materially contributed to the plaintiff's medical condition, which led to her retirement. It is also not in dispute that during the entire period that the plaintiff was a police officer, the defendant was aware that undercover work could give rise to a risk of psychiatric injury.

3 The plaintiff brings these proceedings in which she claims damages against the defendant alleging that it breached its duty of care to her in a number of ways. Although the particulars of negligence that were originally described in the various editions of her statement of claim were numerous, they had by the conclusion of the hearing become limited to only the following:

1. Failure to devise, institute and maintain a safe system of work so as to avoid injury to the plaintiff.

2. Failure to provide the plaintiff with adequate training to perform her duties.

3. Failure to provide the plaintiff with any or any adequate psychological and/or other counselling and/or psychological or psychiatric treatment.

4. Failure to establish and maintain good and recognised procedures for the re-integration of undercover police officers in the position of the plaintiff into mainstream policing duties.

5. Failure to devise, institute and maintain a proper or adequate system for the flagging of police officers involved in numerous critical incidents as being productive of cumulative stress.

6. Failure to put into operation any system or protocol or guideline for rotation of duties of the plaintiff after a stressful incident.

7. Failure to notify the Welfare Unit or Psychology Unit.

8. Failure to put into operation any system or protocols or guidelines for operational de-briefing and 'de-roling' (sic) of the plaintiff.

4 The defendant does not deny that it owed the plaintiff a duty of care in the circumstances. However, the precise scope and content of that duty are matters of contention. Moreover, the defendant denies that it had relevantly breached any duty that may have been owed to the plaintiff or if it had breached such a duty, that any loss or damage that the plaintiff may have suffered was causally connected to such breach. The defendant also asserts that the plaintiff had in any event contributed to her loss and damage by reason of her own fault and contributory negligence.

5 Central to the resolution of these issues is the precise identification of the work that the plaintiff performed as a police officer in general policing on the one hand, and the work that she performed as an undercover operative on the other hand. Although at one level it might not have been expected that an accurate assessment of these matters would prove to be troublesome, no significant or sufficient agreement about the precise nature or extent of the plaintiff's undercover work emerged. Because they lie at the heart of the plaintiff's case and the defendant's response to it, an understanding of these issues needs to be reached first.

The plaintiff's work for the police service

6 The plaintiff commenced at the Goulburn Police Academy in 1985 and graduated in first place in her initial training class of 210. She received the Police Credit Union award for that achievement. She was 20 years old when she commenced work as a probationary constable. She was by her own admission conspicuously ambitious. She spoke publicly at the time of aspiring to the rank of Commissioner.

7 Following graduation the plaintiff commenced an induction period at the Cronulla Local Area Command ("LAC") as a probationary constable. During this time she performed general policing duties. She hoped even then to work as a detective. In 1986 she commenced secondary training. She performed well and attained first place and received the Police Association Award.

Operation Explorer

8 In August 1986, the plaintiff was temporarily transferred from Cronulla to the Drug Strike Force to perform undercover criminal investigation work. She was to work on a relatively lengthy undercover operation known as Operation Explorer. This was aimed at drug dealers in the Kings Cross area. She was directed by her superiors to "go and buy some smack". She was shown a photograph of a man known as "Gerry" who said he was a dealer, and she was given $50 to make the purchase. She was told that he was often at the Sweethearts Coffee Lounge in Darlinghurst Road, Kings Cross.

9 The plaintiff went to see Gerry with another young female constable named Greta Crowe and a male constable whom she recalls only as David. They walked along Darlinghurst Road in plainclothes and found Gerry in Sweethearts. The plaintiff walked in and sat next to him. Gerry asked her if she wanted some gear. She said yes. He gave her a foil under the table in return for the $50. She then left. She bought from him again on two further occasions after that and gave evidence against him in court following his arrest. He was convicted. That was the plaintiff's first appearance in court.

10 The plaintiff was subsequently told of other places to go in Kings Cross, the Eastern Suburbs and the inner west of Sydney to buy drugs and to make contact with drug dealers and drug users. She was shown photographs of known drug dealers. She did what she was told.

11 Another part of Operation Explorer was directed at a notorious heroin supplier in the eastern suburbs whose name was Shane Milner. The plaintiff met him at the Bondi Hotel and they discussed drug dealing and purchasing. She bought heroin from him on a number of occasions. On one such occasion the plaintiff gave him money and he went away to make a purchase from a third party with her money and some of his own. He then returned with a quantity of heroin that was roughly four times the amount that her $50 would normally have purchased. He gave it to her to divide. She split it into thirds and kept one third for herself and handed the remainder back to him. She described all this in a running sheet and was later informed that she had technically rendered herself liable to prosecution for having supplied drugs.

12 The plaintiff later arranged for Mr Milner to supply her with a larger amount of heroin. It was intended to be a buy/bust operation in conjunction with the Waverley Drug Unit. Through her negotiations with Mr Milner she discovered the name of his supplier who was a woman who drove a white Mercedes. She was a longstanding target in the Eastern Suburbs drug milieu.

13 The plaintiff attended a briefing before this activity. She was told that she and Ms Crowe were to go to the Bondi Hotel in the presence of surveillance operatives outside the hotel. She was not given a radio or a listening device but said Det Sen Const Plotecky of Waverly Police gave her a switchblade knife. As she was given the knife she was told, "This Shane Milner is [a] real piece of work. He is a psycho and can just go off. So take this. Do you know how to use it?" She was taken aback. The plaintiff put the knife in her handbag without saying anything.

14 Ms Crowe and the plaintiff met Mr Milner at the Bondi Hotel. They were to get into a taxi with him and go to another location where a drug supplier would be. They would then hand over a couple of thousand dollars to purchase heroin. The plaintiff said she was really worried about losing the money. The plan was that they were to be followed closely by surveillance officers and when they met the supplier he would be arrested and the drugs and money would all be recovered. This did not occur.

15 After meeting Mr Milner, the plaintiff and Ms Crowe got into the taxi with him in a conspicuous way so that the surveillance crew would not miss them. The plaintiff looked out of the back window but could see no sign of anyone following them. The plaintiff did not know the area where they were going and recalls thinking that the surveillance officers must be good because they were invisible to her.

16 They alighted from the taxi at a bus stop at Kingsford. It was dark. A white Mercedes arrived, driven by a woman. Mr Milner asked her for the money. He said, "She won't let anyone else get in the car. I will jump in the car. She keeps the drugs internally. I will then get dropped off a few metres down the road". The plaintiff and Ms Crowe argued about whether or not to hand over the money. Mr Milner was saying, "Hurry up, she has to go". Ms Crowe gave the money to the plaintiff and she handed it to Mr Milner. He got into the car and it slowly drove away. Nothing else happened. They had no mobile phones and they were unable to contact anyone. They went back to the bus stop. They had lost the money and had not made an arrest. The plaintiff said she felt exposed on the street. They later waved down a passing police car.

17 In the events that occurred the surveillance team had not even seen them at the hotel. They had in fact been on their own for the whole time. The plaintiff thought about how dangerous it had been. She thought that they would be sacked. The plaintiff was told not to worry as that happened from time to time. The plaintiff does not remember receiving a formal de-briefing after this incident.

18 On another occasion during Operation Explorer Ms Crowe and the plaintiff met two young men at the Coogee Bay Hotel. They became friendly with them and the men sold them some cannabis. This happened on a couple of occasions. They went back to the young men's flat. They had regular jobs and did not appear to be in the business of selling drugs. These men were ultimately arrested and during an interview said that they did not believe that they had sold drugs to undercover police. The men were paraded past the plaintiff and Ms Crowe. Their faces showed shock and despair and they both started crying. The plaintiff felt terrible and thought that she and Ms Crowe had wrecked their whole lives and that they would lose their jobs. That was the first time that the plaintiff remembered being confronted with the personal and emotional implications of her undercover work. She did not speak to any senior officers about this and was not encouraged to do so.

Return to general duties

19 The plaintiff returned to general duties in January 1987. She had by then worked as an undercover police officer for four months. She was attached to the Cronulla LAC where she was given a permanent position. During this time the plaintiff undertook her First Class Constable examinations. She passed these examinations and placed second in the State. She remained intent on pursuing her career as a detective.

20 During her time at Cronulla the plaintiff was repeatedly contacted by the supervisor of the Special Forces (Undercover) Unit of the State Drug Group who was seeking to have her work permanently for that unit as an undercover agent. She did not accept that offer at first as she was focussed on furthering her career as a detective. Eventually the plaintiff was told that she would be given immediate access to the detectives course if she transferred to the unit of the (then) Drug Law Enforcement Bureau.

Transfer to Special Forces (Undercover) Unit

21 The plaintiff transferred permanently to this unit in January 1988. At that time she was the only female undercover officer. As a result she was constantly in demand by the Bureau in all manner of undercover operations. She worked permanent afternoon shifts but the job was all- consuming and she had to be available 24 hours per day. She always carried a pager. She was given a motor vehicle as well.

22 During this time the plaintiff was almost constantly working under an assumed name with fake identification. She usually worked alone conducting negotiations with criminals and organising the arrangements to purchase drugs. xx xxx xxxxxxxx xxxx xx xxx xxxxx xxxxxx xxxxx xxxx xxx xxx xxxxxxx xxxxxxxxx xxxxxx xxx xxxxxxx. She lived in a constant state of anxiety. The reality of the dangers that she faced on a day-to-day basis was often brought home to her during specific operations when she exposed herself to potentially violent criminals.

23 The plaintiff recalled on one occasion at the undercover unit having training in the use of a Berretta handgun. This was a small gun designed to be concealed on her person during undercover operations. The training focussed on close-range targets. She was told that she would only be required to use the weapon when in close proximity to the target such as in a car or seated across a table.

24 In the course of Operation Washing, which commenced in 1988, a search warrant was executed at the home address of certain targets with whom the plaintiff had been working undercover. A number of firearms were found there. She was told by Det Sen Sgt Stanioch that one of the targets had been overheard in the Waverly Police Station cells arranging with another prisoner for a contract to kill her.

25 The conspirators were notorious and dangerous criminals who had been involved in the attempted murder of a prison officer during an escape from Parramatta gaol. She was told by Mr Stanioch "to do anti-surveillance on [her] way home". She was deeply troubled by this. xxx xxxxxxxxx xxx x xxxxxxxx xx x xxx xxxxx xxxxxxxx xxxxxxxx xxx xxx xxxxx xxxxxx xx xxx xxxx xxx xxxxxxxxx xxx. The plaintiff learned of this when she saw a statement that he had made to the consorting police who were investigating a conspiracy to murder her.

26 As part of her undercover work there was a considerable amount of time spent socialising regularly with her (mostly) male undercover colleagues at the unit. This invariably involved the consumption of quite large amounts of alcohol. She did not speak of her anxieties during these sessions. The work environment was very "macho". The only acceptable response to the dangers and stresses of the work was to show no weakness.

27 The consumption of alcohol was an accepted and necessary part of the job of an undercover operative at that time. For example, the plaintiff recalls attending the inaugural New South Wales Special Forces (Undercover) Education course at the Goulburn Academy where alcohol was allowed in the common room during the course. This was to judge the students' behaviour whilst under the influence of alcohol, given its prevalence during and after operations in the unit.

28 The plaintiff formed quite real personal feelings for a number of the targets of her undercover work, many of whom were subsequently arrested and imprisoned. She raised her concerns about this potential conflict of loyalties and emotions in 1998 in a conversation with a superior officer Det Sgt Peter George. He was the supervisor of the Undercover Unit. The plaintiff asked him how she should deal with emotions regarding targets and the people involved in the drug trade. She explained why she did so:

"A. I was feeling, I was involved in an operation and I was meeting a lot of people involved in the drug trade. They were mainly street level dealers and I, they seemed to be just dealing to support their habit and they were friendly to me, they were trying to help me. I was just having a few concerns about how do we go about, if I start an operation how do I go about when these people are arrested and probably put into gaol, I was having problems with the implications of that and I said to Detective Sergeant Peter George, well, how do we deal with, how do I deal with this, what do I, what do I do, and he said to me, 'You've just got to work out what side of the fence you're on', meaning, 'You are a police officer. That is your job. That's what you have to do'. And that was as far as it went."

29 She did not raise the issue again.

30 The plaintiff recalled an incident early in her undercover career during Operation Domino in about May 1988. She worked with another undercover operative called xxx xxxxxxxx. They were targeting the distribution of heroin on the street through ethnic communities and gaming houses in and around Punchbowl. The plaintiff informed one of the targets that she worked at the desk in an escort agency as part of her undercover identity in that operation. She formed an ambivalent friendship with this target and was invited to his wedding and to his child's christening. He cooked meals for her and disclosed details of his criminal dealings.

31 This man was arrested as a result of the evidence gathered by the plaintiff and her partner. She had mixed feelings about this, including betrayal. She received no assistance from anyone about how to come to terms with these conflicting emotions. The plaintiff said that they were to become a pattern in her time as an undercover operative.

32 The plaintiff said that she was not only in constant demand as a female undercover operative but that she was successful as well. In about February or March 1989 she worked on a very large undercover job in Revesby. Due to her work in negotiations and dealings with the laboratory cook they succeeded in making a large arrest and the destruction of a methamphetamine laboratory with no cost to the department. However, this was very stressful for the plaintiff, especially during the arrest. For example, she "escaped" when the arrest took place and ran down the street chased by police with their guns drawn. For her work on this operation, the plaintiff was awarded the Peter Stuckey Mitchell Award for most outstanding police duty.

33 In April 1989 the plaintiff again performed well in her educational pursuits in the Police Force placing first in the detectives Potential Crime Investigators course. In September 1990 the plaintiff gained second place in the Detectives Training Course.

Operation Alpha Kilo

34 In 1990 the plaintiff went to court to give evidence in relation to Operation Alpha Kilo. That led to the arrest and prosecution of five well-known drug dealers with links to Colombia. They were violent and dangerous men. The operation was brought to a head when the plaintiff went into a vehicle with three of the four criminals with a large sum of money with which she was to purchase 2kg of cocaine. She was wearing a listening device and was arrested along with the other occupants of the car. Police surrounded the car with their guns drawn. They were all thrown to the ground and handcuffed, including the plaintiff.

35 The plaintiff was told that the reason that the operation had concluded at that time was due to concerns about her safety and the possible loss of the money if the deal progressed. When the matter went to court her superiors at the undercover unit informed the plaintiff that she would be offered witness protection together with transport to and from court each day. The court hearing went on for weeks and the plaintiff was extensively cross-examined for one of them. Despite promises of protection, support and assistance, the plaintiff was required to make her own way to and from court and to adopt anti-surveillance practices.

Operation Alpha Quebec

36 In 1991 the plaintiff worked on Operation Alpha Quebec. The target of that operation was a Dennis Preston who was an associate of the well-known and dangerous criminal George Freeman. The plaintiff met Mr Preston at his home and met his family and his young girlfriend at the time. She was required to present herself as a friend and to do what she could to establish a relationship of trust with the target and his friends and associates. Her work on this job led to Mr Preston's arrest. She was given an Award Commendation for her work on that operation.

37 The subsequent trial and cross-examination was what the plaintiff described as typical for her work. She was cross-examined vigorously and her veracity was challenged. The plaintiff said that episodes like that were common for her in the course of her work as an undercover operative. She was never provided with any assistance, either formal or informal, to deal with the conflicts that confronted her, or to come to terms with what she described as the essential fact of betrayal.

38 In February 1991 the plaintiff worked on a long-term undercover operation on the North Coast around Ballina and Byron Bay. She worked closely with x xxxxxx xxxxxxxxx. xxx xxxxxxxxx xxxxxx xx xxx xxxxx xxx xx xxxx xxxxxx xxxxx x xxxxx xxxx xxxx xxx xx xxxx xxxx. During this operation, the plaintiff was left largely to her own devices to make cold contacts at local hotels in an attempt to obtain evidence about serious drug dealers in the area.

39 The plaintiff recalled one particularly frightening episode when she attended a remote rural property with xxx xxxxxxxxx for the purpose of organising the purchase of heroin from a target. He was unstable and reportedly dangerous. The plaintiff had no back up, no listening device, no mobile phone and no firearm. She recalled a sense of real exposure and fear during her time on this property. She spoke to xxx xxxxxxxxx about her concerns. She was not aware of any process or person to whom she could turn in the New South Wales Police to help her to cope with the impact of these stressful situations. She simply accepted that she had to deal with them on her own. The plaintiff said that by that time "it had begun to seem normal".

Transfer to Parramatta Detectives

40 In April 1991 the plaintiff transferred to the Parramatta LAC as a Detective Senior Constable. She was assigned a junior plainclothes partner to work with her. During her time with the Parramatta LAC she was occasionally seconded to undercover placements with other LACs on their request.

41 The plaintiff had difficulty returning to work as a uniformed officer at a LAC. She was treated with suspicion by many other police officers that she thought looked upon her as an undercover operative concerned that she may have been associated with internal affairs. That suspicion, together with her lack of experience in front-line uniformed policing, meant that her transition to Parramatta was very difficult for her. She received no assistance with these issues from the New South Wales Police Force.

42 In 1991 the plaintiff completed her Associate Diploma in Criminal Justice from Mitchell College. Between 1991 and 1995 the plaintiff continued regularly to undertake undercover duties on an ad hoc basis throughout New South Wales.

43 In September 1994 the house that she was sharing with undercover operative xxx xxxxxxxx was searched by police in connection with allegations against him. The plaintiff's relationship with xxx xxxxxxxx came under considerable strain at that time and ended shortly thereafter.

44 In 1995 the plaintiff was awarded a Graduate Certificate in Public Sector management from Griffith University.

Transfer to Granville LAC – Chief of Detectives, Investigator

45 In April 1997 the plaintiff was transferred to the Macquarie Anti Theft Squad as an investigator. In that role she undertook investigations into property theft. That work involved close surveillance of local pawnbroking businesses as well as undercover duties. She also performed regular relieving duties in the Commander Supervisor roles as well. The squad was designed as a regional "flying squad" that was able regularly to use the plaintiff's undercover skills and experience. She undertook supervision of more junior officers as well as acting in the second sergeant's position when that was created at the squad.

"CE-1"

46 In xxxx the plaintiff worked as an undercover officer investigating a xxxxxx xx xxxxxxxx murders xx xxxxxxxxxx xxxxxxxx xxxx xxxx xx xxxx xx xxx xxxxxx xxxxxxxxxx xx xxx xxxxx xxxxx. In that role she was seconded to work with a police informant who was introduced to her as "CE-1". He was an intimidating man, even to the plaintiff with her particular background and experience. xx xxx xxxxxxxx xxxx x xxxxxx xxxx. xxx xxxxxxxxx xxxxxxxxx xxx xx xxxxxxxx. xxx xxx xxxx xxxxxx xxx xxx xxxx xxx xxxx xx xxx x xxxxxxx xx xxxxxxx xxxxxxxx, xxx xxxx xxxxxxxx xxxx xxxxx xxxxx, xxxxxxxxxxxxxxx xxxxxxxxxxxx, xxxx xxxx xxx xxxxxxxxx. Most disturbingly for the plaintiff, she had been told that xx xxx xxxx xxxxxxxxx xxx x xxxxxxxxxxxxx xx xxxxxxxx xx x xxxxxx xxxx xx xxxxxxxx x xxxxx xxxxx xxxxx xxxx xxx xxxxx xxxx xxxxx.

47 The plaintiff was required to xxxx xx xxxx xxxxx xxxx. xx xxx xx xxxxxxxx xxxxxxx xxx xxx xxx xxxxxxxx xx xxxxx xxx xxxxxx. It was hoped that some evidence concerning his involvement in the unsolved murders might be obtained. The plaintiff ended up with this man in an isolated location xx xxx xxxxxxx. She agreed that during this time she remained under surveillance from her colleagues.

48 On another occasion she drove the man to a suspect's house in another xxxxxxx location. The plaintiff spoke to the suspect's wife inside a house for a short while. xxxx xxxx xxxxx xxxx x xxxxxx xx xxxxx xxx xxx x xxxx xxxxx. During this time "CE-1" was wearing a listening device capable of transmitting conversation and any conversation he was having, and police were observing what they could from somewhere in the vicinity. The plaintiff denied that on this occasion she was under surveillance at all times. She said, "I was never under surveillance by other police when I went into the suspect's house xx xxxx xxxxxxx xxxx". A similar series of events occurred a short time later.

49 The plaintiff recalled that when she was staying alone in a motel xx xxx xxxxx xxxxx during this operation, "CE-1" would xxxx xxxxxxx xxx xxxxx xxxx xx xxx xxxx xxxxxxxxxx xxx xxxxxx xx xxxxxx xx xxx xxxxxxxxxxx xxx xxxxxxxx x xxx. The plaintiff described him as a very disturbed and disturbing man.

50 During her time with "CE-1" on that operation, he told her about his family and some of his life history. It was necessary for the plaintiff to xxxxxxx xxxx xxxxxxxxx, xxx xxx xxx xx xxx xx xxxx xxx, xx xxxx xxxxx xxxxxxxxxxxx xx xxxxxxx xxx xxxx xxxxx xxxxxx xxxxxxxxx. xx xxx x xxxxxx xx xxxxxxx xxxxxxx xxx xxxx xxx xxxxxxxxx xxxx xx xxxx xxxx xx xx xxxxxxxx xxxx x xxxxxxxx xxxxx xx xxx xxxxxxx xx xxxxxxx. The plaintiff said that she was horrified by this and did not know what to say.

51 When "CE-1" revealed to the plaintiff xxx xx xxx xxxx xx xxxx xx xxxx xxx xxxxxxx, the plaintiff thought that he was being serious. However, she made no record of it in her operation report and did not record it anywhere else. This man knew that the plaintiff was a police officer and yet the plaintiff made no report of what he told her as possibly amounting to the admission of a serious crime. The plaintiff said that at the time she "didn't put two and two together" and that she did not do so until about xxx xxxx when she saw a newspaper article. She was horrified to think that this man may have xxxxxxxxxxx x xxxxx xxxxxxxxxx xxxx x xxxxxxxx and that he knew who she was.

52 The plaintiff answered the following series of questions in cross-examination on this topic:

"Q. And that you were required to continue working with him?
A. Yes.

Q. You could have said, couldn't you, to those with whom you were working, hold it, this man has just confessed xx x xxxxxx. This is terribly dangerous, I'm out of here?

BURBIDGE: He wasn't confessing to x xxxxxx.

MENZIES

Q. Confessing to a very serious criminal offence, namely xxxxxxxx xx x xxxx, and I'm horrified and I don't want to have anything more to do with it. You could have done that, couldn't you?
A. Not really. I didn't feel like I could have done that then.

Q. Why not?
A. Because actually I was taking part in an operation to obtain information that we were investigating a xxxxxx xxxxxx.

Q. Do you say, is this right, the other matter was more serious, we were prepared to put up with whatever the risk might be of association with this man. Is that what you are saying?
A. No, no.

Q. When it was all over and you went your separate ways and you hadn't got anywhere, there was nothing then to stop you, if you were concerned about it, pursuing the matter, was there?
A. No.

Q. And you didn't do it?
A. That's right.

53 The plaintiff denied that the evidence that she gave about how she reacted to these events had been tailored by her to give an impression of distress at that time that she did not have in fact. The plaintiff said, "That's totally incorrect". She confirmed that her concerns arose because of what she had described in an earlier affidavit sworn 23 March 2005 in the following way:

"I realised that the xxxxxxxx xxxxx referred to in the article was the person ["CE-1"] referred to when at the time of my previous contact with him he said words to the effect, xx xxx xx xxxxxxx xxx xxxxxxx xx xxxxxx'. When I read the article, I realised that he had been xxxxxxxxx xx xxx xxxxxx. I became very scared and stressed. I was worried he would find me as he knew that I was a police officer and he had previously confessed to me in relation to that matter."

54 It was the plaintiff's realisation that she had been dealing with somebody who was apparently x xxxxxxxx, as well as the fact that he had confessed to her, that caused her distress. The plaintiff explained why notwithstanding this she told no-one about it. This was because "CE-1" had told her previously that he had police connections and police contacts. He was complaining to her about corrupt police and how he had been set up. The plaintiff said that if she had reported her concerns to the police, "CE-1" would have found out that it was her. The plaintiff agreed, however, that she was aware from her role as a supervisor that there were certain mechanisms in place by at least 2000 to provide assistance to people who might be at risk from dangerous criminals.

55 In or about xxxxx xxxx the plaintiff saw a newspaper article about a xxxxxxx xxxxx xxxxx xxxxxxxxx xxxxxxxxx. The article included a large picture of xxxx xxxxx. The plaintiff had an immediate flashback to her time with "CE-1" and remembers thinking how xxxx xxxxx xxx xxx xxxxxxxx xxxx he had referred to when he related to her xxx xx xxx xxxx xxx xxxxxxx. What she had been told became instantly real to her.

56 She recalled "CE-1's" 'confession'. She thought about working and living in close proximity to such a dangerous and violent man who knew that she was a police officer. Her anxiety and related symptoms increased. She developed heart palpitations and sweating. She became worried that "CE-1" might remember his confession to her. She felt fearful for her life and that of her partner. She told him about it.

57 Despite her fear of "CE-1" and her distaste for him, the plaintiff was required to continue to work with him xx xxx xxxxxxx xxxx. He came to her motel room and she visited the suspected killer's home in company with "CE-1" xx xxx xxxxxxxxx. xxx xxxxxx xxx xxxxxxxxxx xxxx xxxxx xxx xxxxxxxxx xx xxx xxxxxxx xx xxxx xx xxx xxxxxxxx xxxxx xxxxxx xxxx xxxxx xxxxxxxxxxxx. xxx xxxxx xx xxx xxxxxxxxx xxx xxxx xx xx xxxxxxxx xx xxxxxxxxx xx xxx xx xxx xxxxxxxx xxxxx xxx xxxxxxx xxxxxx, xxxxx xxx xxxxx xxxxx xx xx xxxxx. xxx xxxxxxxxxxxxx xxx xxxxxxxxx xxxxxxxx xx xxxxxx xxxxxxxxxx xxxx xxx xxxxxxxx xxxxxxxx xx xxx xxxxxx xxx xxxxx xxxxxxx xxxx xxxx xxx xxx xxxxxxx xx xxx xxxxxxxx xxxxxx.

58 During these visits the plaintiff was required to gain the trust of the target and to elicit admissions from him that were to be recorded on a listening device that she was to wear. On one occasion the plaintiff was talking to the target's girlfriend when she was asked if xxx xxx xxxxxxxx. The plaintiff said that she gave an incorrect answer and recalls thinking at the time that her slip had the potential to jeopardise the whole operation.

59 The plaintiff was never required to give any evidence about this xx xx xxxxxxx xx xx x xxxxxx xxxxx xxxxx "CE-1" xxxx xxxxxxxx. She agreed that following the operation she filled out a document commenting upon it that included the following statements:

1. "Supervisor only involved on main day and was not actually briefed prior. So in regard to scant knowledge received I believe he did a wonderful job, high concern for operative's welfare and safety."

2. "Amazing how informant and I able to build rapport and understanding in very short time."

3. "Had similar likes and dislikes et cetera et cetera. Correlated with my role so closely with dangerous criminal."

4. "Nearly forgot cover story (one child) when speaking with target's wife in first instance but then recovered."

Continuing education

60 In 1998 the police service introduced a new requirement for promotion from the rank of non-commissioned to commissioned officer. This involved a three-day course run at what were known as assessment centres set up as required. One such centre was set up at Parramatta. The new system also required officers who wished to obtain promotion to a Duty Officer position to pass the course.

61 The plaintiff undertook the course at Parramatta with approximately 20 other police officers in 1998. The course was quite demanding and involved practical and written elements over a three-day period. The plaintiff was the only officer from the Parramatta LAC to pass the course, which had a very high failure rate. In about April 1999, the plaintiff became engaged to her present husband. This was a very happy time in her life. In May 1999 the plaintiff was awarded a Bachelor of Policing from Charles Sturt University.

Return to Parramatta LAC 1999

62 The plaintiff next applied for and obtained the position of relieving Duty Officer at Parramatta. In late 1999 or early 2000 the plaintiff was frequently working as relieving Duty Officer in charge of the general duties police, detectives, highway patrol officers and prosecutors at the Parramatta LAC. She worked in that position for two-week periods. Her rank at the time was Det Sen Constable. In that capacity the plaintiff was directly responsible for approximately 100 or more police officers. At that time, Parramatta was classified as a Category 1 command, indicating that it was one of the largest LACs in New South Wales. The plaintiff reported directly to the Local Area Commander, initially Chief Superintendent Dana Jennings and later Chief Superintendent John Carroll. When she was not working as relieving Duty Officer the plaintiff worked as a general duties officer on a two person car crew and also relieved as a shift supervisor and team leader.

63 When working as a relieving Duty Officer the plaintiff was paid at a much higher than usual rate of approximately $800 per week in addition to her usual salary as a Det Sen Constable. For that reason the plaintiff said that there was quite a lot of competition for the role.

Operation Rhino

64 In early 1999 while on annual leave from Parramatta the plaintiff was asked by (then) Det Sgt Greg Birtles of the Orange LAC to work as an undercover officer in that area. The undercover unit had supplied her name. Her secondment to Orange had been approved by Parramatta and she was told that the job started the following Monday. The plaintiff agreed to go.

65 The plaintiff undertook the role of an undercover operative within a drug ring. She was introduced to a number of drug dealers in Orange. She was to pose as a drug user and supplier. The plaintiff purchased a number of different drugs including hash, heroin and amphetamines. She was given a number of targets for the operation. She made contact with most of them and she attended most of the hotels in Orange looking for drug dealers and dealings.

66 During this time the plaintiff lived alone in a motel in Orange. The work was quite demanding and stressful. In particular the plaintiff recalls visiting the houses of two female dealers who injected heroin in front of their children. The women were very welcoming to the plaintiff. The children were quite young and aged approximately three to five. The plaintiff recalled feeling quite overwhelmed and helpless at the predicament faced by the children. They were dirty and uncared for. There was little food in the houses. The plaintiff also recalls being quite anxious not only about the harm that the children were facing but also about the fact that their mothers' actions would probably lead to them being imprisoned.

67 The plaintiff's Hurt on Duty statement said that Orange was rated second only to Cabramatta as a major drug distribution city in New South Wales and that ambulance personnel were attending six drug overdoses per week and six fatal overdoses in two months prior to that operation. This operation targeted street level drug suppliers. Det Insp Birtles (as he now is) was the undercover supervisor for this operation. Sen Const Darcy was the case officer. The plaintiff agreed that Mr Birtles deferred to her expertise as to how these matters should proceed because she was more experienced than he was in undercover work. They discussed how the operation should run and she pronounced herself satisfied with the strategies to be adopted.

68 The main target of the operation was the principal drug dealer in Orange. The plaintiff remembers being told xx xxx xxxxxxxxx that he could "pick a copper a mile off". She was told that he had contacts in the local police and that he never did anything without having lookouts. He carried a gun. The plaintiff was told "to be really careful".

69 The location chosen was a public park in Orange. She went into the park xxxx xxx xxxxxxxxx. The plaintiff had with her a large amount of money to purchase heroin. She sat on the park bench and waited for the target to attend. It was early evening in March or April and it got dark before the operation ended, although a dispute about the precise time of day that this occurred emerged in the proceedings.

70 The suspect had stipulated that the transaction was to be quick. He was to put the drugs to be purchased on a table in the park at which the plaintiff was to be seated and he was to take money from the table and leave. The plaintiff agreed that Mr Birtles said something to the effect, "That's a perfect place for police, it's the safest location that could have been chosen for you". Despite this, she said that she felt very alone and vulnerable. She thought about the target's gun and his potential links with the local police. She said she was "really frightened". Her anxiety increased as she sat there.

71 During the operation, there were approximately six plain-clothes police officers in cars and in buildings nearby conducting surveillance on the plaintiff xxx xxx xxxxxxxxx within approximately 50 to 100 metres. The plaintiff agreed that she was wearing a device capable of transmitting her voice and conversations and that that was a source of comfort for her. She was unarmed xx xxxxxxxxxx xxxx xxxx xxxxx xxxx xxxx xxxxxx xxxxxxxxxx xxxxxxxx. The operation was ultimately aborted when the suspect was alarmed by the unexpected sound of police sirens and he left.

72 The following day the plaintiff spoke to Det Darrell Donnelly by phone. He was the operations co-ordinator for the Macquarie Region, which included Parramatta. She was still in Orange. He asked her how it was going. She replied, "I don't think I can do this any more". This answer and the events that surrounded it became particularly significant in these proceedings.

73 The plaintiff did not feel right after this. She continued to be upset and felt vulnerable and anxious. She was unable to communicate her thoughts about this with anyone in the police. The plaintiff never contacted welfare. Welfare did not contact her. She did not want to show any vulnerability to her fellow police officers. She said that she was concerned that if word got out that she was attending on welfare that her prospects of advancement would be adversely affected. The plaintiff also said that she thought that her experience as an undercover officer was quite different and unique and she did not expect that anyone in welfare would have anything useful to say that would assist her to deal with her specific problems. She thought that she would just get over it.

74 The operational aspects of Operation Rhino concluded not long after this and the plaintiff returned to Parramatta working as before. However from this time on the plaintiff began to notice and to experience problems that had not previously been apparent. These are discussed in more detail later in these reasons.

75 The plaintiff returned to Orange for the court proceedings that followed the conclusion of Operation Rhino. That was in late 1999. She was told that protection for her was being arranged as there had been threats made against her and her superiors wanted to keep her safe. She was one of the main witnesses. She was told by Mr Birtles, "All the crooks know it was an undercover officer and they know it's you. The magistrate is giving [sic] them harsh sentences". Upon hearing this, the plaintiff again recalled the children and their mothers and what would happen to the children if they were to be sent to gaol for a long time. It made the plaintiff feel sad and helpless. She wondered why she was doing her job. It made her "really upset".

76 In particular, the plaintiff recalled feeling genuinely fearful about the threats to her life. She felt exposed knowing that criminals, with possible links to the local police, knew that she was a police officer.

77 The plaintiff said that her fear was not lessened when she got to Orange. She once again stayed by herself in a motel in town. There was no police guard or protection to speak of apart from walking to court in the company of Mr Birtles for a block or so. That was the only protection that the plaintiff was ever offered or received in the whole of her time working undercover with the police. She also recalled that one of the criminals from Orange had connections in a suburb in Sydney next to the suburb where she lived at that time. That fact continued to intrude upon her thoughts.

78 The plaintiff gave evidence of what happened in the course of the operation in Orange:

"Q. And at that stage did you have some feelings which were different even from those which you were normally experiencing?
A. Yes, I did.

79 The following day the plaintiff had a conversation over the phone with Det Insp Donnelly. He called her while she was in her car and asked her how the operation had gone. That was when the plaintiff said to him, "I don't think I can do this anymore." This was not said in a light-hearted manner. He asked her whether she wanted him to contact welfare. The plaintiff said no and that she thought she would get over it. She thought at that time that there were far reaching consequences of contacting welfare and she did not want the police service to become aware that she was not coping. This was explained as follows:

"Q. And why was that?
A. Oh, I think there was a number of reasons. I think, I think that was one of the reasons I was putting on a bit of a brave face and, as he said, I didn't want to say that I couldn't handle it or I couldn't cope with it. The second reason was I thought it was just a little glitch and I thought I'd get over it. I definitely, I knew if I contacted welfare it would be on my record and would be on my police record, my personnel record and--

80 The plaintiff later agreed that her concern about revealing her illness was that it would possibly amount to a career-limiting or career-ending circumstance. She was not convinced that the confidentiality of a medical consultation would survive what she saw as the harsh realities of the police service. This was despite her understanding of the words of the sick leave policy then in force dealing with confidential medical consultations. However, the plaintiff did agree with the following propositions put to her in cross-examination:

81 The plaintiff also agreed that the only reason that she mentioned this matter to Mr Donnelly was because he asked her how she was going. When he asked her if she wanted him to contact welfare she said she would be fine. She reiterated that she never contacted welfare and welfare never contacted her at any time in relation to this incident or at any time in her policing career with respect to her undercover work.

82 The plaintiff agreed that before May 1999 she knew that she could attend the police psychology section for help if she needed it. She also knew that if she were psychologically troubled she could seek assistance from that source. In 1997 she was visited by an officer who was described as a health and fitness officer. That was part of the healthy lifestyle programme. That officer conducted checks such as weight, cholesterol, smoking, alcohol consumption and blood pressure. The plaintiff agreed she could have taken up any stress issues that she might have been having at that time with that person. The plaintiff said that she did not think that she had any such problems at that time.

Treatment

83 In early 1999 the plaintiff felt increased anxiety. She had difficulties sleeping. On occasion she had palpitations and would break out in sweats when very anxious. She also became fearful of loud noises and was troubled by the dark. She visited Dr Milinkic, a general practitioner. She was referred to a psychiatrist, Dr Sharah. The plaintiff told them her story but felt that she had difficulty communicating it in a way that they would believe or understand.

84 It was also not clear to the plaintiff what she could actually disclose to the doctors. It was all meant to be secret. She was apprehensive about speaking for this reason as well. She had never had explained to her what she could or could not disclose to medical practitioners in a therapeutic environment about the undercover work she had performed. This made access to treatment difficult for her.

85 The plaintiff was also particularly concerned to keep her psychological treatment separate from the police service, as she did not want it to be known that she was under stress or having mental difficulties. She was trying to get on with her career.

86 One incident in particular occurred when the plaintiff was conducting an Investigators Course at Parramatta in late 1999 or early 2000. The plaintiff was qualified to run such a course since being accredited in 1996. There was a backlog of junior officers in the Parramatta LAC who were waiting to undertake the course. As a result, the plaintiff decided in conjunction with the Local Area Commander to run a command based investigations course in the LAC. This decision was well supported at all levels.

87 The course took approximately nine months over three separate semesters. The plaintiff gave three-day face-to-face lectures each semester with assignments and paperwork. While the plaintiff was giving a drug lecture, a number of the students began to ask her questions about her experience as an undercover officer. She started to tell them some war stories. She was unable to continue. She became teary and overcome. She felt detached from her past. She left the room and another officer took over for her.

88 The plaintiff said that she "was in a real state". She went to see Chief Inspector Don Brown. She remembers crying in his office and telling him about how she had broken down during the lecture. She was told to go home and relax.

89 In 1999 the plaintiff became aware of two potential Detective Sergeant positions that were available and that she was keen to apply for. One was a Senior Patrol Investigator at Parramatta and the other was at Westmead Police Academy. She continued during this time to relieve as Duty Officer at Parramatta as before. Also in 1999 the plaintiff had passed the Assessment Centre for Senior Sergeant/Education and Training Field. That was how she wanted her career to progress at that time.

90 At about March 2000 the plaintiff again saw her general practitioner to complain about continuing anxiety. She was referred to Dr Selwyn-Smith whom she first saw in April 2000. She gave him her history: anxiety, palpitations, sweats, fear of loud noises and the dark, and her continuing sense of lack of safety for herself and her partner.

91 The plaintiff continued throughout 2000 to receive requests to perform undercover jobs from the undercover section. She did not feel up to such work and made sure that she was unavailable for them. In October 2000 the plaintiff returned to see Dr Selwyn-Smith. She has continued to see him regularly ever since.

Further matters

92 The plaintiff also spoke about giving expert evidence arising out of her experience as an undercover operative. During the time that she gave such evidence she was also from time to time involved in undercover operations and the follow-up court appearances associated with those operations. She said that it caused her concern that on some such occasions she would give evidence using her own name and on other occasions using a pseudonym.

93 The plaintiff also related how she was informed that she was no longer to be a member of the Special Forces unit with which she had started in January 1988 working full-time undercover. She continued with the unit throughout 1989 and 1990. After she completed her detectives course in September 1990 she arrived at work only to be told that that was to be her last day there and to hand in her gun. She asked why. She was told simply that the decision had been made. This troubled the plaintiff because at that stage she had had little exposure to normal mainstream policing and she was concerned about where was going to find work and how she would cope.

94 The plaintiff said that she did not include the nature of her illness (in any documents given to the police service) from 1999 or 2000 onwards partly because she thought that her career might be damaged and partly because she did not know what was wrong with her. In March 2000 the plaintiff saw Dr Sharah. She agreed that she might have told him that up until the incident in Orange she had regarded herself as invincible. For example the plaintiff gave the following evidence:

95 The plaintiff agreed that she told Dr Smith that she did not disclose any problems that she may have been having to the police service because she did not want to embarrass herself or end her career prospects. She simply wanted to overcome her problems and continue to work. She agreed that in 1998 and 1999 she was very driven and ambitious and frequently sought promotion. Even though the plaintiff first sought treatment from Dr Smith in 2000, she did not inform her employer of this fact before May 2003 when he issued a WorkCover certificate to her and put her off work. She agreed that if that had not occurred she would have continued to refrain from informing her employer of her condition. The plaintiff said, "I just wanted to get better. I just wanted to get back to work. I didn't want to take any time off work."

96 The plaintiff said that in 1988 she had no recollection of what was contained in the undercover course with respect to issues such as stress and the like. She had no recollection of what was contained in the undercover course, if anything, about welfare. However, within a few years of that time she became aware of the existence of the psychology unit, the police chaplaincy and the peer support scheme and generally of the availability of the welfare service to provide assistance for those who sought it. The plaintiff agreed that the Police Service Weekly, an internal police service publication that she received, were at least a source for her understanding of the existence of the various welfare facilities that were available. She said, "I was aware of the notices in the Police Service Weekly for the different services at different times, possibly from mid 90's but from late 90's".

97 The plaintiff then gave evidence in accordance with the following questions and answers:

"Q. And you were certainly aware of the sorts of - again from the same source - of the sorts of things that might indicate to somebody that they were suffering the consequences of stress or anxiety?
A. How was I?

Q. In the same documents as revealed to you the existence of the welfare service, I suggest to you that you were aware of what the symptoms and signs of stress were?
A. There may - there was probably some reference to symptoms and signs. I wasn't fully an expert.

Q. I beg your pardon?
A. I wasn't fully an expert on if I read anything about the possible symptoms or signs.

Q. But as I understand your position, until some time in 1999 or 2000, so far as you were concerned, you were not suffering any signs or symptoms that you recognised as being the signs or symptoms of stress, is that right?
A. No, that's incorrect.

Q. So you did have symptoms and signs which indicated stress, is that right?

HIS HONOUR: To her?

MENZIES: Yes.

Q. Which indicated to you stress?
A. Possibly. I didn't really - I didn't really understand what was happening to me and I didn't know what it was.

Q. Until you first went to the doctor in 2000, I think it was, you didn't think there was anything wrong with you which required medical attention so far as your mental state is concerned, isn't that the case?
A. That's incorrect.

Q. When do you say that in your own perception you thought there was something wrong with you with respect to your mental state?
A. After I came back from Orange in 1999.

Q. But before that, you thought you were fine, is that right?
A. Yes.

Q. And you have told us how you kept from your employer that you had any problems relating to your mental state until about 2003?
A. That's correct.

Q. And certainly before you went to Orange, you didn't think that there was anything that required assistance so far as your mental state was concerned, is that right?
A. I thought I was coping okay.

Q. And this is the case, isn't it, that had you been offered psychological or welfare assistance at any time before Orange, the probabilities are you would have said, "No thanks, I'm fine", isn't that right?
A. No.

Q. Not the case?
A. No.

Q. What do you say would have happened?
A. What do I say would have happened?

Q. Yes, if the boss had come along through the welfare section and said, "Do you need any assistance? Can we offer you some counselling?", what do you say you would have done?
A. I say I would have taken it.

Q. I beg your pardon?

HIS HONOUR: "I say I would have taken it".

WITNESS: I would have taken it.

MENZIES

Q. You would have taken it?
A. Yes.

Q. Even though when there was the opportunity to take up that very matter, you declined on many occasions, is that right?
A. Because it was handled differently. If someone from the undercover section came to me and said, "We think we should do this or we think - we will offer you this", and it would be within that - within that section, within that area and sort of all contained, I would have done it.

98 The plaintiff gave evidence of having to do undercover surveillance at Parramatta of an apparently notorious suspect accused of a series of sexual attacks on women in lifts in the west of Sydney. This was a matter that the plaintiff said gave her considerable concern. The plaintiff said that she was a decoy and was walking up and down the stairwells in the car parks in the Parramatta area in an attempt to draw out the so-called Sydney Lift Rapist to confront or attack her. She agreed that when she went to the car park where she ultimately arrested the suspect she was aware that there were other police in the immediate vicinity to assist her. She also knew that the suspect had been positively linked to a particular person by way of a registration number of his car. She was armed, as were other police officers.

99 The plaintiff was asked and answered the following question:

100 By the time that the plaintiff had completed her Hurt on Duty statement in August 2003 she had already been diagnosed by Dr Smith with PTSD. She had discussed with him her problems with working undercover. She also related to him that she had been the first female at the Police Academy and had been highly commended. She also told him that when she commenced her undercover work she was the only female doing such work. She told him that she had been threatened.

101 It was put to the plaintiff that before being assigned to undercover work she received training and that her assertions that she received none were false. The plaintiff said that her training was limited to "stop, search and detain" procedures and drug identification. She agreed that she was told how to account for drugs that may have been purchased as an exhibit. She adhered to her assertion that she was effectively thrown into undercover work without any other training or assistance that was unique to such work.

102 The plaintiff said that Det Sen Const Plotecky gave her a switchblade knife during Operation Explorer at the Waverly Drug Unit in 1986. She denied that that assertion was false.

103 The plaintiff denied that she entered the taxi at the Bondi Hotel with Shane Milner xxxxxxxx xx xxxxxxxx xxxxxxxxx. The plaintiff described what happened:

"We were told the police would be waiting outside the hotel, we were to walk out the main doors of the Bondi Hotel, get into a taxi, hail a taxi. And the other officer and I make a big scene of hailing a taxi, standing with the crook and we were told that surveillance police would be outside the hotel and they would follow us. We didn't know where we were going. They didn't know where we were going.

104 The plaintiff said that she had been reluctant to go into undercover work because of the impact that it may have on her career. She was asked about this:

"Q. What was your concern about your future career?
A. I, my plan for my future career was to go into detective work. That is what I wanted to do. I was, and at that stage to go into detective work you had to do what is called the bull-ring to get in the eligibility list to go into criminal investigation work and then you had to work in a plain clothes position at a police station for a period of time, I think it used to be two years, two years or sometimes three years, I don't know, until a position came up.

So I saw my career path, I wanted to become a detective and I had been told by other officers that I would be better utilised in the detective field rather than operationally in general duties and I had lots of encouragement in that regard. So I knew what I had to do was complete the bull-ring and then wait for a position to come up in a plain clothes position at a local police station, then undertake probably two years training as a plain clothes constable. Because only if you had two years, I think it was two years, only if you had two years training, plain clothes work were you then eligible to undertake the detective's course. That is how I wanted my career path to go.

105 The plaintiff said that she was "pressured" to go into undercover work. She said this:

"I was pressured in the fact that I was visited by the undercover supervisors. There were phone calls to me and the conversations related to the fact that we really need you at the undercover section, there is no females, we really need you at the undercover section. Will you come to the undercover section?"

106 She denied that she in fact applied for a job in the undercover section or that she was anxious to get such a position. She said, "I wanted to stay and become a detective but I felt they put so much pressure on me and then they told me we will let you do the detectives course if you come to the undercover section." This was so despite the fact that her application on 3 March 1987 said, "I enjoyed my previous time with the Drug Law Enforcement Bureau and I wish to further my career in this field of duty where I feel I can be utilised to a greater extent." Another application by the plaintiff on 1 March 1989 said, "Due to my understanding of the direction of my career path I requested a transfer to the Undercover Unit Special Forces Group of the State Drug Group. I hope I am successful with my application".

107 When the plaintiff left the Undercover Unit in 1991 and took up a position as a detective at Parramatta, one of the things that had troubled her during the whole of the period that she had worked undercover was that she had feelings of empathy or compassion for some of the people she was targeting. This was a matter that she took up from time to time with her supervisors. The plaintiff agreed that as a consequence of her own experience and her attendance at the courses where she trained she was very conscious of the sorts of pressures that were on undercover operatives and of the stresses that they faced. The plaintiff said this:

"I was aware of the stress that people can be under by my observations, and the stress that people can be under in regards to pressures from other police to get the job done, to have a time limit, to do your best, to do your best and get the job done. There was a lot of pressure from other police who, who just seemed to think that you just go out there and set up the deal and they were only there for the buy/bust part and they just seemed to think that - it was a lot of pressure to produce outcomes, to produce results."

108 Certainly by 1995 the plaintiff was aware of undercover operatives who had suffered psychological disorders apparently caused by the pressures of the job. The plaintiff said that there was danger connected to every undercover job. Debriefings did not occur. She denied that people who may have wished to threaten or harm her had no access to her true identity.

109 The plaintiff said that between when she moved to Parramatta as a detective in April 1991 and November 1995 she performed what she described as quasi-undercover duties. She described what this meant in the following way:

"Quasi undercover duties I referred to as sort of undercover duties where I went to a hotel in plain clothes, not known as a police officer, to see if there was any drug activity, to see if there was any licensing problems. Any underage drinkers. I think another quasi undercover operation was when I was at the Parramatta City Hotel and I just portrayed not a police officer, a, a patron of that hotel waiting for the, some people to come and rob the hotel."

110 Thereafter the plaintiff no longer went into covert premises. She said, "I didn't flash a badge and I was working in a quasi undercover capacity in the fact that I was investigating criminal activity or licensing activity. I was still performing my role as investigating an offence."

111 In 1992 the plaintiff was involved in Operation Quick Return with Const Ridley. This was in Queanbeyan. It lasted for a couple of weeks following which she returned to her duties as a detective at Parramatta.

112 In 1992 she performed undercover duties at the Xtreme Niteclub. The plaintiff did not go there wearing a listening device. There was no buy/bust. The plaintiff described her duties on this occasion as follows:

"I went to a strip club. I watched ladies dance and I watched them remove their clothing. I had a meal. I kept my eye on the manager of the club. I spoke to him, from memory I spoke to him and gained intelligence about the other patrons of the club. It was to establish a link to the other criminal activity. I reported on the information that I gained. At the end of the operation the manager was arrested for prohibited drugs and I think it was steroids. I went to court later for it."

113 The plaintiff next worked undercover a little later at the Hellfire Club at Parramatta. She observed some activities there and returned to her investigative duties at Parramatta. Then in 1993/1994 the plaintiff took a temporary transfer to the Major Crime Squad North West for a three-month period, and she assisted with an undercover operation at Penrith during that time. The undercover work did not occupy the whole of that three-month period. For the balance of that time the plaintiff remained at the Parramatta Detectives' Office doing ordinary detective work.

114 The next occasion on which the plaintiff worked undercover was on Operation Early involving the Sydney Lift Rapist, as described earlier in these reasons. This lasted about two days. The plaintiff then spent about one day undercover working on a car rebirthing racket. She was in fact the officer in charge of that investigation.

115 In December 1995 the plaintiff became Chief of Detectives at Granville. She subsequently lost that position on appeal by another officer. At some point at about that time the plaintiff did an undercover operation for Macquarie Fields command with nominated targets swallowing balloons of heroin. Over a two week period the plaintiff said that she did the following things:

"I met with an informant, I worked out a cover story, I went with the informant to a location to meet other people. I bought drugs. I then met other people and I continued negotiations with them and then I met some other people, culminating in the buy/bust of one lot of people going down when I was sitting in the car with the crooks and as soon as the police come running up with guns out, the - the crooks swallowed the heroin and - that they had in balloons so then we were all arrested and I was thrown to the ground and I remember I hurt my back".

116 At some point thereafter the plaintiff performed an undercover role in the streets of Granville and Guildford. This lasted for a period of a few weeks but only every second day or so.

117 In 1997 the plaintiff became the commander of the Macquarie Anti-Theft Squad. At some point during this time the plaintiff did undercover/surveillance work as part of Operation Ardmore. This lasted for approximately one week. She performed similar duties for one day at the Tollgate Hotel at North Parramatta. At about this time the plaintiff was assigned to duties with Task Force Belair. She was posted at Sydney Airport and may have been required to board a plane for overseas in company with a notorious kidnapping suspect at short notice but in the final analysis nothing happened that made this necessary. Even so, the plaintiff said that her duties caused her to feel distressed and fearful and concerned. She described how she felt in the following way:

"There was a missing woman, there was a ransom demand made, my job was to follow, to jump on a plane and follow the kidnappers when they picked up the ransom. I did not know where I was going to, what was going to happen, who were these people. I didn't know - as I said they - they made sure I had a passport so I could go anywhere. I was told I just - I needed to follow the kidnappers to wherever they went. Now, that was quite, um - it did - it did create anxiety. I was also told I may have to arrest them, I may have to - they didn't know what was going to happen. It was open-ended."

118 In 1998 the plaintiff worked undercover on Operation Imperial. During almost all of this time, however, she spent her time listening to tapes of secretly recorded conversations. Then in 1999 the plaintiff was involved as the commander and investigator and surveillance operative of Strike Force Napanee at Castle Hill. This only involved surveillance work.

119 The plaintiff said in re-examination, presumably limited to her own experience, that "nearly every undercover operation has never gone to plan". There was no issue in the proceedings that inherent in the work was the possibility that any proposed meeting with a target or drug dealer might not go according to plan or might go wrong and that this would cause angst and stress on the part of operatives.

120 The defendant expressly conceded on the first day of the trial that it did not take any issue with the plaintiff's assertions that she did all of these things, and indicated consistently with that concession that it would be not put to her that she did not. Furthermore, as mentioned already, the defendant expressly indicated that there was no issue that there was in general a foreseeable risk of psychiatric injury being occasioned to police officers who work under these circumstances, although there is said to be an issue about the foreseeability of the risk to the plaintiff in particular. There is no issue about the existence of a duty of care owed by the defendant to the plaintiff but the scope and content of the duty and the question of its breach are both in issue. Moreover the defendant puts in issue the existence of a causal connection between any loss and damage suffered by the plaintiff and any breach of its duty to her.

121 In these circumstances, therefore, it becomes critical to examine the plaintiff's particular psychiatric injury, to which her employment, in particular as an undercover operative, made an admitted material contribution, in order to determine:

1. Whether the plaintiff sustained a psychiatric injury in the course of her employment with the defendant.

2. Whether or not the plaintiff's psychiatric injury was reasonably foreseeable.

3. What was the nature (scope and content) of the duty owed to the plaintiff.

4. Whether or not the defendant breached the duty of care that it owed to the plaintiff in the circumstances.

5. Whether or not there exists a causal connection between the plaintiff's psychiatric injury and any established breach of duty on the part of the defendant.

Did the plaintiff sustain a psychiatric injury in the course of her employment with the defendant?

122 The starting point for this topic can be found in the defendant's early, and proper, concession that during the entire period that the plaintiff was a New South Wales police officer the defendant was aware that undercover work could give rise to a risk of psychiatric injury. Although this concession is more closely connected to the question of foreseeability (discussed below), it removes any doubt about the defendant's attitude to the possibility that someone in the position of the plaintiff could sustain psychiatric injury in the course of her work. The defendant's position on the precise issue emerged somewhat more clearly during the course of the hearing as the following brief extract from the transcript reveals:

"HIS HONOUR: There is no issue in this case, of course, that her work made a substantial contribution to her damage.

123 However, at the commencement of the hearing I was provided with a written list of 24 issues. I was informed that 17 of those issues were not in dispute but that the remaining seven issues were in dispute. The following issue fell into the second category:

"20. That the plaintiff's injury and disability was caused by the plaintiff being hurt on duty."

124 The defendant's position indicated by the quoted passage from the transcript and the formulation of that issue at the start of the trial are potentially, although not inevitably, contradictory one of the other. However, I have had a detailed regard to the defendant's submissions. At no point does the defendant appear to contest that the plaintiff's condition was caused by her exposure to particular stresses and stressors at work and in particular in the course of her work as an undercover operative. The defendant's submissions make it plain that the issue is one about the relationship, if any, between a breach by the defendant of any duty it owed to the plaintiff in the course of her employment and her medical condition, rather than the relationship between that condition and her employment simpliciter. In other words, the issue is the causation issue numbered 5 in par [121] above, and not a separate issue in contradiction of the concession appearing in the quoted portion of the transcript.

125 The only injuries and disabilities of which the plaintiff complains are psychological or psychiatric in nature. To the extent that the plaintiff has manifested any physical signs, or complained of physical symptoms, such as excessive sweating, fatigue or similar, they are clearly a function of her underlying mental condition. The expert medical evidence before me deals with the cause of that condition in considerable detail. Against the possibility that my understanding of the way in which the defendant puts its case on this issue is erroneous, I find as a fact that the plaintiff's injuries and disabilities were caused in the course of her employment or, in the words of the defendant, by the plaintiff being hurt on duty. This is for the following reasons.

126 The plaintiff had been a patient of Triple 333 Medical Centre since 1991. On 3 October 1999 Dr Wong saw her at that practice specifically for complaints regarding her employment as an undercover police officer. She gave a history of having worked undercover for the police force for the previous 15 years and that she had been having problems at work. On presentation the plaintiff was very worried and agitated and on the point of breaking down. She was very distressed, teary, restless and anxious. She was in need of a break from her work and a psychiatric referral. The plaintiff informed the doctor that she did not want time off work and that she "was too distressed to speak". On 6 March 2000 the plaintiff was referred to Dr Sharah and subsequently to Dr Selwyn-Smith.

127 The plaintiff presented herself to Dr Sharah on 13 March 2000. She was then observed to be suffering from anxiety in the course of which she felt herself shaking, unable to sleep well, exhausted, and with her mind racing with feelings of imminent loss of self-control. She reported to the doctor that that had been happening to her for a couple of years and that she had worked in a dangerous occupation "as an undercover agent for the police". He observed depression and anxiety to be present "to some degree".

128 Dr Sharah last saw the plaintiff on 14 March 2003. On 18 October 2004 he expressed the opinion that the "anxiety [the plaintiff] suffers and the panic attacks are associated with the type of work she has done, which involved great danger. The threat from a vicious criminal to her has precipitated the present state of agitation". He described the plaintiff's prognosis as good if she received the treatment that she needed, namely psychotherapy, medication and a rest from work and possible adjustment in her work situation.

129 Dr Selwyn-Smith saw the plaintiff for the first time on 10 April 2000. She reported that she had been involved in entrapment work and that she had been threatened. Initially she reported no worries about this. The plaintiff told the doctor about "CE-1" and other incidents. Dr Selwyn-Smith recorded that "[t]hese and other experiences have clearly taken their toll and she has developed marked agitation, anxiety and impairments in her concentration. There is also a history of chest pain and a general inability to relax". The doctor diagnosed an Adjustment Disorder with marked features of anxiety admixed with depression.

Did the plaintiff contribute to her loss and damage by reason of her own fault or contributory negligence?

277 The defendant particularised its allegations as follows:

(a) Failing to take sufficient or any care for her own mental, emotional and/or behavioural welfare.

(b) Failing to monitor her own mental, emotional and/or behavioural status.

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

(d) Failing to advise the defendant's welfare branch, chaplaincy, peer support officers or psychology unit, or any other competent medical practitioner, of any mental, emotional and/or behavioural problems she may have been experiencing.

(e) Failing to advise her supervisors of any mental, emotional and/or behavioural problems she may have been experiencing.

278 These allegations distil to two basic contentions. First, that the plaintiff kept her troubles to herself and cannot now complain about them if nobody noticed. Secondly, that if she was ill she should have sought some form of therapy, assistance or treatment and she failed to do so.

279 It is uncontroversial that a defendant will have to establish that a plaintiff's loss was caused or contributed to by the failings on the part of a plaintiff that are alleged. In this respect it is important to observe that the defendant's allegations of contributory negligence in large part mirror some of the plaintiff's own allegations of breach of duty. I am no more satisfied that the acts or omissions that are said to amount to contributory negligence are causally connected with the production of harm to the plaintiff than the breaches of duty alleged by her. I reject the submission that the plaintiff was guilty of contributory negligence for this reason alone.

280 Additionally, with respect to the suggestion that the plaintiff failed to disclose her condition to the defendant, I am not satisfied that that amounted to a failure by the plaintiff to take proper care for her own safety. There were strong indications in the evidence that police work in general and undercover work in particular was not for the faint hearted. There was a predominance of men over women in the police service and in undercover work the plaintiff was one of only a handful of women who were doing undercover work when she started. It is unrealistic to suggest in the context of a law enforcement agency that any employee with commendable and understandable ambition should be expected to imperil her prospects of advancement and promotion by disclosing to her superiors that she was unable mentally to cope with the work.

281 I am not satisfied that the plaintiff was responsible for any of her loss and damage.

Damages

General

282 The plaintiff turned 44 years of age on 15 June 2008. She became incapacitated for all work on 13 May 2003 when aged nearly 39 years. Her remaining working life from the date of judgment is 21 years to age 65. Her statistically suggested life expectancy is 45 years.

Non-economic loss

283 It was a feature of this case that the plaintiff's medical condition was not the subject of serious challenge or dispute. At least one reason for this was undoubtedly the fact that she was retired hurt on duty and the medical condition underpinning that decision is the same condition with respect to which she now sues the defendant. Another reason is the absence of any significant attack upon the plaintiff's evidence on this issue or upon the medical experts who supported her. There was a challenge to the suggestion that the plaintiff's condition will never improve but the underlying psychiatric pathology appears to be accepted. These matters are examined in more detail below.

284 Before dealing with these issues, however, I should indicate my impressions of the plaintiff. I have no doubt that the plaintiff is significantly and genuinely psychiatrically unwell. There were many opportunities for me to observe the plaintiff both in the witness box and in the well of the court during the balance of the proceedings. She gave her evidence apparently labouring under severe emotional difficulties. She had obvious trouble from time to time concentrating on questions or at least in giving answers that were altogether responsive to the question. She sometimes appeared not to understand or appreciate the precise issues and often gave rambling answers. She became tearful on a number of occasions at times that were not necessarily or apparently forensically difficult for her. She was often red faced, red eyed and weepy. She spoke of excessive perspiration that afflicted her and certainly appeared flushed from time to time in the witness box. Having regard to the person and the personality that she once was, the figure that she presented throughout the trial was very sad and much diminished. I have no reason to doubt that all of her evidence was given truthfully and to the best of her ability.

285 The ultimate diagnosis was that the plaintiff suffered from a post traumatic stress disorder following upon an original diagnosis of an adjustment disorder with marked features of anxiety and depression. There was even some suggestion of the existence of organic changes to the plaintiff's brain although the evidence about this was to my mind inconclusive. It does not matter in any event. Nor does the precise description of the plaintiff's condition have a very important role to play in the final result.

286 The plaintiff's condition tended to fluctuate. She had varying degrees of coping ability. She decompensates and breaks down. Dr Selwyn-Smith harboured fears for her safety from time to time. He thought that her prognosis was guarded. The only significant improvement that he observed was when she was admitted to St John of God Hospital at Richmond where she attended the anxiety and depression programme for approximately three weeks. That altered her to a degree because she appeared to respond well to the safe and secure environment of the hospital milieu. Unfortunately, the plaintiff relapsed shortly thereafter. She had difficulty reinforcing or adopting some of the coping strategies that she learned in hospital and she declined. The doctor thought that the cross-examination in court to which she was exposed would also have made things worse.

287 As far as the future is concerned Dr Selwyn-Smith thought that the plaintiff would require ongoing psychiatric and psychological interventions. His own preference was to re-admit the plaintiff to the post traumatic stress disorder programme at Richmond for three weeks of intensive therapy. The plaintiff requires close psychological and psychiatric monitoring and ongoing medication in the form of anti-depressants and hypnotic medication. She continues to experience high levels of anxiety, depression and insomnia. Her treatment regime will be required over a period of at least two years.

288 Dr Selwyn-Smith was cross-examined on the plaintiff's chances of recovery or improvement. He agreed that there were studies to suggest that PTSD sufferers fell into one of three categories without any form of treatment as a general rule with one third getting better spontaneously, one third regressing and one third staying the same. There was no evidence to suggest that a delay in onset of treatment was likely to make the treatment less useful. The doctor said, "Even though I have expressed the view that the prognosis is poor, I am of the view that she can improve further with appropriate and intensive treatment. That's my view". He was asked further questions about this:

"Q. And to what degree do you say with that treatment she would improve, expressed as a percentage?
A. Well, I can't give you a percentage, I am talking about her as an individual. My clinical experience and my knowledge of her is I think we can help her further. We can improve her. I am of the view, however, that she has indelibly printed memories which will not erase completely, but despite that I am hopeful that with further intensive treatment she will ameliorate in some of her symptomatologies.

289 The plaintiff's daily life is now fraught with fears and avoidance behaviour. She becomes anxious if she sees a police car or if she drives where she knows there is a police station. She holds irrational fears for the safety of her children. Her home life is disrupted. Her husband's evidence was that the plaintiff is no longer the impressive and self-assured, confident woman that he first met. Her ability to take care of the children and to attend to the tasks of daily living has been severely adversely affected.

290 It was submitted on behalf of the plaintiff that she was entitled to damages for non-economic loss at the rate of 50 per cent of a most extreme case. The defendant on the other hand submitted that the range for this head of damages was somewhere between 35 per cent and 40 per cent. Emily Owen, a treating psychologist in charge of the adult trauma programme at St John of God Hospital described the plaintiff as "a more severe case than [she had] ever seen". In my view the plaintiff is at least as severe as 45 per cent of a most extreme case and I would award damages calculated at that rate under this head.

Past loss of wages

291 The plaintiff claims net lost wages in the sum of $196,687 from 1 July 2003 to 17 March 2008 and interest on that sum of $24,156. These figures are extracted from a final report of King Actuarial Consulting Pty Ltd dated 25 February 2008 tendered without objection by the plaintiff. The assumptions upon which these calculations were made were not the subject of dispute in the proceedings, including the assumption that the plaintiff has not worked in any capacity since May 2003 by reason of her medical condition. The calculations are detailed in an earlier report dated 13 March 2006. Although the calculations were updated for the purposes of the hearing commencing on 17 March 2008, there is little utility in recalculating the sums up to the date of judgment having regard to the conclusions that I have reached with respect to the plaintiff's future loss of wages. I would have awarded the plaintiff past loss of wages as claimed.

Future loss of wages

292 The plaintiff's claim for future loss of wages has been calculated upon the following assumptions. First, that she would have remained a member of the New South Wales Police Service until the age of 60 when she would, secondly, have retired with the rank of Superintendent eighth year. The second assumption is based on a third assumption that the plaintiff would have been promoted to the ranks of Inspector Duty Officer, Chief Inspector and Superintendent on 1 July 2004, 1 July 2005 and 1 July 2015 respectively. The award rates of pay and other relevant conditions were not in dispute so that the arithmetical result that is produced is agreed.

293 I accept that the plaintiff would have retired at the age of 60. Although there was the opportunity to serve until the age of 65, there was evidence that this was not common in cases apart from those progressing to the rank of Deputy Commissioner equivalent or beyond. I accept that the plaintiff would have remained in the police service at least until she reached 60 years of age.

294 John Carroll retired from the police service in 2007 with the rank of Assistant Commissioner. He spoke of the plaintiff's likely career path to Inspector or Chief Inspector. He said that beyond that it was just speculation. However, the plaintiff originally aspired to seniority beyond this level. Whilst there can be no acceptable evidence that the plaintiff certainly would have reached the rank of Assistant Commissioner, there is good evidence to support the assumptions that underpin the plaintiff's calculations for future loss of income. The plaintiff's academic and operational excellence demonstrated throughout her career and attested to without exception by officers with whom she worked must be regarded as having set her apart from her contemporaries. The evidence about her is both extraordinary and uncontradicted. She was arguably headed for further success. The career path of Superintendent Julie Middlemiss, whose statement on behalf of the plaintiff was tendered in the proceedings, provides a valuable and instructive comparison against which to assess the plaintiff's probable career prospects up to the present time. In my opinion the plaintiff would have progressed at least as far and as quickly as Ms Middlemiss and in all probability further and faster. Attainment by the plaintiff of the rank of Superintendent by July 2015 is on one view a conservative prediction.

295 Dr Selwyn-Smith was asked about the plaintiff's prospects for return to some form of work in the future:

"Q. And your expectation, which I take it is more than a hope but is a clinical expectation based upon your experience, is that some amelioration will occur over the next couple of years, the consequence of which will be an improvement in function; is that right?
A. That's what I would hope for, yes.

Q. And that you would then expect that she will be able then to return to some form of employment?
A. Yes. Bear in mind she is not getting any younger, she is not qualified for anything else other than police work. It may take her - there may be some significant obstacles to overcome to get her in reasonable employment.

Q. You are conscious that she is plainly of a high order of intellect?
A. Oh, yes.

Q. And she has tertiary qualifications, albeit in policing?
A. In policing.

Q. But she also has tertiary qualifications, does she not, in such things as hypnotherapy, whatever that might be worth?
A. I am not sure she would get much work with hypnotherapy.

296 With respect to Dr Selwyn-Smith, I consider that that opinion is an over- statement of the prospects that the plaintiff will work again in any capacity. I would find as a fact that the plaintiff's psychiatric condition is such that, even though her treating doctor considered that she had some hope of returning to paid work in the future, on the balance of probabilities she will not do so. To the extent that there were any chance that the plaintiff might resume any work at all, it would in my view be unlikely to be relevantly remunerative or long lasting.

297 As at 17 March 2008, the then present value of the plaintiff's future loss of income, net of tax, relating to the period from that date until retirement at age sixty is $1,122,744. Allowing for a reduction for vicissitudes of 15 per cent, that produces a sum of $954,332, which I would have allowed under this head.

Loss of superannuation entitlements

298 Loss of superannuation calculations informed by the same data, findings and assumptions come to $196,349, or $167,652 allowing 15 per cent for vicissitudes. I would have awarded that sum under this head of damage.

Domestic assistance and care – preliminary issues

299 In the plaintiff's third amended statement of claim, as with previous editions of the pleading, there is no claim made for any form of so-called domestic assistance. This has not appeared to trouble either of the parties and that fact alone does not by itself trouble me either. This is because the plaintiff's case is particularised in her amended statement of particulars filed on 18 July 2007 in the following way:

(a) From May 2003 to 1 February 2007 – 9 hours per week in relation to laundry, washing dishes, grocery shopping, general household duties such as cleaning, gardening and assisting with the children;

(b) From 2 February 2007 to 4 March 2007 – 15 hours per week for duties in addition to that noted in (a) above as well as the additional duties of taking her children to school, collecting the children from school, organising breakfast with the children, making children's lunches, assisting with children's homework, assisting with cooking dinner and painting;

(c) From 5 March 2007 to 30 March 2007 – (the Plaintiff was an inpatient at St John of God Hospital) a claim is made for 50 hours per week in relation to the duties noted in (a) above plus all of the additional duties in relation to caring for the children and home maintenance;

(d) From 1 April 2007 to date a claim is made for 15 hours per week for all the duties noted in (a) and (b) above;

(e) A claim is made in respect of future domestic assistance from 2 April 2007 to date at the rate of 15 hours per week for a least two years and probably longer [sic] for the duties noted in (a) and (b) above;

(f) The claim for past domestic assistance is made at the statutory rate;

300 The way in which the plaintiff particularised her claim for 'domestic assistance' did not make it plain, or did not make it plain to me, how or in what respects the claim was a claim based on s 15 of the Civil Liability Act 2002 or s 15B of that Act or what was said to be the interaction between the two. For example, damages may not be awarded to the plaintiff under s 15B in respect of any loss of the plaintiff's capacity to provide gratuitous domestic services to the her dependants if (and to the extent that) she could recover damages for gratuitous attendant care services (within the meaning of s 15) in respect of the same injury that caused the loss, and the provision of such attendant care services to the plaintiff also resulted (or would also result) in her dependants being provided with the domestic services that she has lost the capacity to provide: s 15B(10). Oral submissions before me at the end of the evidence were not directed at this distinction and it was not something to which either party, or I, gave any particular attention. As will be apparent, s 15 deals with damages for gratuitous attendant care services whereas s 15B deals with damages for the loss of capacity to provide domestic services. The subsequent written submissions on behalf of the plaintiff suggested that a claim was made under both sections but the details of the claims remain obscure. No ultimately satisfactory analysis of the evidence relevant to the claims unfolded.

301 Furthermore, the defendant's submissions were principally directed to an issue said to arise upon the proper interpretation of s 15B, to the extent that it did not apply to the children of the plaintiff's husband from his first marriage. This was said in this case to be because of the definition of dependant, which is a restricted group wholly or partly dependant on the plaintiff "at the time that the liability in respect of which the claim is made arises". The defendant submitted that at the time that the liability in respect of which the claim under this section arose in the present case, there were no dependants (relevantly children) because the children of the plaintiff and her husband were not then born and the children of her husband's first marriage did not satisfy the definition for other reasons. The plaintiff appeared to maintain that no claim was made with respect to her husband's children but that their existence remained potentially significant on the issue of the time that the liability in respect of which the claim is made arose.

302 The state of confusion was enhanced by the plaintiff's written submissions in reply (see below) on s 15B to the extent that it was asserted that the plaintiff's claim under s 15B was "brought by the plaintiff in consequence of her inability to provide gratuitous domestic services to her dependents" which the submissions went on to describe as her "de facto partner's (later husband's) children and their own two children from the time of their birth in February 2000". This drew a sharp written response from the defendant stating that the "plaintiff's case for domestic assistance never included nor was it ever founded upon any claim for the children of the plaintiff's de facto partner (later husband)". A further written submission on behalf of the plaintiff in response only served to deepen the confusion as appears from the following extract:

in reply

303 Without suggesting or directing any criticism for the uncertain position in which the proceedings concluded on these issues, I am not satisfied that I have yet had the benefit of a completely informed legal or factual debate upon them. I certainly do not feel that I am yet in a position to deliver a reasoned decision on these issues in a way that does justice between the parties. Having regard to the conclusions that I have reached on liability, it will be apparent that my opinions and findings on these issues will only achieve significance in the event that my decision on liability is found to be wrong. In order to take account of that possibility, and in accordance with usual practice, my preferred course would be for the parties to re-list the matter before me if so desired for further limited argument prior to final orders being made or entered.

304 In these circumstances I will await the parties' responses as to what approach should be taken on the issues of care and domestic assistance.

Out of pocket expenses

305 These were agreed in the sum of $35,236.

Future out of pocket expenses

306 The plaintiff's claim for future treatment and medication was particularised as follows:

(a) Six consultations per year with her general practitioner at $80 per consultation.

(b) Three consultations per year with her psychiatrist at $225 per consultation.

(c) Twenty-six consultations per year with her psychologist at $186 per consultation.

(d) Four case conferences per year between the plaintiff's psychiatrist and her psychologist at $411 per conference.

307 The plaintiff has claimed in addition a series of regular admissions to St John of God Hospital at Richmond every year for a period of five years at $21,937 per admission.

308 It is obviously impossible to be certain about the course of the plaintiff's medical condition. Dr Selwyn-Smith was hopeful of some recovery or improvement and agreed that the plaintiff had at least a statistical chance of improvement and recovery. Having regard to the medical opinions to which I have been directed I consider that the plaintiff will in all probability require consultations with her general practitioner at least at the rate claimed by her. I also consider that three psychiatric consultations annually are warranted. I am less than satisfied, however, that fortnightly psychological consultations are necessary or that the plaintiff would be likely to adhere to such a therapeutic regime given her stoic personality and historical disinclination to seek medical help. Such a regime would seem to me to be appropriate for two years, reducing thereafter to monthly visits for the next three years before ceasing altogether. Case conferences on an annual basis would seem to me to be adequate having regard to the variations I have proposed. The costs of medication appear to me to be wholly reasonable and I would allow them in full.

309 The plaintiff was considerably assisted by her hospitalisation on an earlier occasion. It is almost certain that she would benefit from such intensive treatment again. I consider that two such periods of hospitalisation would be appropriate after one year and three years respectively.

310 I direct the parties to bring in short minutes reflecting the final sums ordered under these heads of damage.

The Limitation Act defence

311 The defendant has pleaded that the plaintiff's cause of action is barred by operation of the provisions of the Limitation Act 1969. These proceedings were effectively commenced by summons filed in the District Court of New South Wales on 13 July 2004. The plaintiff filed a notice of motion in that court on 1 June 2005 seeking orders that the limitation period be extended pursuant to s 58(2), s 60I, s 60G and s 60C of the Act. In the alternative the plaintiff sought declarations that the limitation period had not expired by the date of the filing of the statement of claim on 30 July 2004 on the grounds that the plaintiff's cause of action did not accrue until March 2000 or up to May 2003. The plaintiff also sought an order, presumably in the form of a declaration, that she was under a disability pursuant to s 52 of the Act from August 1999 and that the limitation period was suspended "for running from that time or part of that time".

312 The transcript for 14 April 2008 contains the following brief discussion that is relevant to the present topic:

"HIS HONOUR: In terms of the cause of action accruing, you say, of course, the reaction to the Orange incident is the first time the cause of action accrues?

BURBIDGE: Yes.

313 This was re-emphasised a little later as follows:

"HIS HONOUR: In other words she didn't have a cause of action exposed to these stressors until the Orange incident because they haven't caused loss but, once they did, that loss was referable to the series of breaches or one or many of them that you have identified in the past.

314 It is not in dispute that the Orange incident during Operation Rhino took place "in early 1999".

315 The plaintiff has filed an amended reply to which it is necessary to have regard in full:

(a) That the Defendant is estopped from denying that the Plaintiff suffered the infirmity or injury of post-traumatic stress disorder as specified in the Certificate of the Police Superannuation Advisory Committee, dated 27 October 2005 and was caused by the Plaintiff being hurt on duty.

(b) That the Defendant is estopped from denying that the Plaintiff's notional date of injury for the infirmity or injury of post-traumatic stress disorder as specified in the Certificate of the Police Superannuation Advisory Committee dated 27 October 2005 was 13 May 2003.

(c) That the Determination or Decision of the Commissioner's Delegate dated 16 November 2005 operates as an admission by the Defendant that the Plaintiff suffered the infirmity or injury of post-traumatic stress disorder, as specified in the Certificate of the Police Superannuation Advisory Committee, dated 27 October 2005 and was caused by the Plaintiff being hurt on duty. A copy of the Determination or Decision of the Commissioner's Delegate dated 16 November 2005 is annexed hereto and marked with the letter "A".

(d) That the Determination or Decision of the Commissioner's Delegate dated 16 November 2005 operates as an admission by the Defendant that the notional date of injury for the Plaintiff's infirmity or injury of post-traumatic stress disorder was 13 May 2003.

(e) In reliance upon the determination of 16 November 2005 the Plaintiff determined to continue to her common law action against the Defendant and thereafter did so.

316 A copy of the Determination or Decision of the Commissioner's Delegate dated 16 November 2005 is not in fact annexed to the amended reply that was filed in court on 19 March 2008.

317 The plaintiff's submissions in these circumstances were to the following effect. Section 18A of the Act is as follows:

" 18A Personal injury

(a) a cause of action arising under the Compensation to Relatives Act 1897 , or

(b) a cause of action that accrued before 1 September 1990, or

318 The plaintiff's cause of action accrued in or around October 1999 during Operation Rhino. This was the first time that the plaintiff ever exhibited symptoms consistent with PTSD. She said, "it was the first time I'd ever actually felt like that". The fact and the timing of the onset of this damage was not the subject of cross-examination, and not being inherently incredible, must be accepted: Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 per Gibbs J at 370-371.

319 Section 52 of the Act is as follows:

" 52 Disability

(a) a person has a cause of action,

(b) the limitation period fixed by this Act for the cause of action has commenced to run, and

(c) the person is under a disability,
in that case:

(d) the running of the limitation period is suspended for the duration of the disability, and

(i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or

(2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period.

320 Section 11 (3)(b)(i) of the Act provides:

(a) . . .

321 In State of New South Wales v Harlum [2007] NSWCA 120 her Honour Beazley JA (with whom Tobias JA concurred) concluded that the enquiry under s 11(3)(b) is directed to determining whether the person claiming to be under the relevant disability is able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice, and to give instructions about any action. Further, a fundamental aspect of bringing a claim is that it requires the exercise of willpower to initiate the claim. However, having the willpower is not the only question in making a decision to commence an action. The person is also making a decision to continue with the claim. See also Kotulski v Attard [1981] 1 NSWLR 115.

322 The plaintiff submitted that she was under such disability at least from her return from Orange in 1999. This is established according to the plaintiff by the evidence of Dr Selwyn-Smith, as well as that of the plaintiff and her husband.

323 Dr Selwyn-Smith concluded in his report of 6 April 2004 that "… Ms ["S"] has been significantly impeded in the management of her affairs in bringing a claim against the New South Wales Police Service in connection with her psychological features." In his report of 1 June 2005 he also expressed the following opinion:

"I am of the view that Ms ["S"] did experience significant psychological turmoil and I have estimated that this had its onset certainly by the Year 1999. She was in my view experiencing significant symptomatologies connected with her Post-Traumatic Stress Disorder. Because of the emotional turmoil experienced, this would, in my opinion have prevented her from appropriately weighing choices and certainly proceeding to appropriately manage her legal affairs. I would date the onset of her impairments in regard to managing her legal affairs from approximately 1999 up until early February 2003 when she did accept my advice and proceeded to obtain appropriate legal counselling pertaining to her work difficulties."

324 Dr Selwyn-Smith's opinion was not challenged in cross-examination. The plaintiff submitted that the bar for which s 52 provides operates in the circumstances of this case to stop time running against the plaintiff until February 2003. The uncontradicted evidence is said to establish that the plaintiff does not require an extension of time in order to maintain her action.

325 The issue of the cross-examination of the plaintiff or of Dr Selwyn-Smith on issues relevant to her capacity in the present context, to which the previous submission on behalf of the plaintiff alludes, was more than thoroughly debated on 14 April 2008; see transcript pages 1 to 10 on that day. Mr Menzies plainly indicated at page seven that he at no time intended to seek to cross-examine the plaintiff about the matter "because it is really an objective consideration of material and it is a medical opinion expressed upon the material".

326 In my opinion the debate was to some extent a diversion from the issue of whether or not the plaintiff was substantially impeded in the management of her affairs in relation to the cause of action in respect of the limitation period for which the question arises. I found the evidence of Dr Selwyn-Smith and the plaintiff herself on this issue to be compelling and convincing. I am fortified in my view by reason of my observations of the plaintiff to which I have earlier referred. Put shortly, if the plaintiff's psychiatric condition was even at least as severe and disabling in the period between 1999 and 2003 as it appeared to my observation to be when she gave evidence before me, then I would have no doubt that she was relevantly disabled within the meaning of that expression in, and for the purposes of, the Limitation Act 1969.

327 It follows that I would extend the period within which the plaintiff was entitled to commence these proceedings up to and including the date of filing of the summons in the District Court of New South Wales on 13 July 2004.

Orders

328 In these circumstances I make the following orders:

1. Order that the limitation period within which the plaintiff was entitled to commence these proceedings be extended up to and including 13 July 2004.

2. Verdict for the defendant.

3. Direct that the matter be listed before me at some convenient date by arrangement with my Associate for the purposes of hearing further argument as indicated in pars [303] and [304], and for the purposes outlined at par [310], if required.

4. I shall hear the parties on the question of costs.

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Citations

S v State of New South Wales [2008] NSWSC 933

Most Recent Citation

S v State of New South Wales (No 2) [2008] NSWSC 1116

Cases Citing This Decision

7

State of New South Wales v Briggs [2016] NSWCA 344

S v State of New South Wales (No 3) [2009] NSWCA 248

S v State of New South Wales (No 2) [2009] NSWCA 236

Cases Cited

9

Statutory Material Cited

2

Precision Plastics Pty Ltd v Demir [1975] HCA 27

State of New South Wales v Harlum [2007] NSWCA 120

CITATION:	S v State of New South Wales [2008] NSWSC 933
HEARING DATE(S):	19, 20, 25-28, 30 March, 1-3, 14, 15 April, 12 June 2008
JUDGMENT DATE :	9 September 2008
JUDGMENT OF:	Harrison J
DECISION:	1. Order that the limitation period within which the plaintiff was entitled to commence these proceedings be extended up to and including 13 July 2004. 2. Verdict for the defendant. 3. Direct that the matter be listed before me at some convenient date by arrangement with my Associate for the purposes of hearing further argument as indicated in pars [303] and [304], and for the purposes outlined at par [310], if required. 4. I shall hear the parties on the question of costs.
CATCHWORDS:	NEGLIGENCE – duty of care – failure to provide safe system of work – undercover police officer sustained psychiatric injury in the course of her undercover work – retired hurt on duty - allegation that defendant breached its duty of care by, inter alia, failing to train the plaintiff, failing to provide adequate counselling, exposing the plaintiff to excessive periods of undercover work or failing to re-integrate the plaintiff into mainstream policing in an appropriate way – admitted causal connection between that work and the psychiatric injury but breach of duty denied - no breach of duty found – CAUSATION – whether causal connection between plaintiff's psychiatric injury and any breach of duty – injury caused absent the allegedly tortious conduct – LIMITATION OF ACTION – extension of limitation period by reason of psychiatric condition – s 52 Limitation Act 1969
LEGISLATION CITED:	Civil Liability Act 2002 Limitation Act 1969
CATEGORY:	Principal judgment
CASES CITED:	Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 Kotulski v Attard [1981] 1 NSWLR 115 McDonald v State of New South Wales [2001] NSWCA 303 New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021 Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 State of New South Wales v Fahy [2006] NSWCA 64 State of New South Wales v Harlum [2007] NSWCA 120 State of New South Wales v Seedsman [2000] NSWCA 119
TEXTS CITED:	Mullany and Handford's Tort Liability for Psychiatric Damage, 2nd Ed (2006)
PARTIES:	S (Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	SC 20125/06
COUNSEL:	R J Burbidge QC with D M Shoebrige (Plaintiff) P Menzies QC with P D A Mallon (Defendant)
SOLICITORS:	Edwards Michael (Plaintiff) I V Knight, Crown Solicitor (Defendant)