See v The Commissioner of Police

[2017] NSWDC 6

District Court

New South Wales

Medium Neutral Citation:

See v Commissioner of Police [2017] NSWDC 6

Hearing dates:

23 – 26 February 2015; 19 – 20 March 2015; 8 – 9 April 2015

Date of orders:

03 February 2017

Decision date:

03 February 2017

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Set aside the decision of the defendant made on 19 August 2014.

 

Determine that the suffering by the plaintiff of the infirmity of “chronic major depressive disorder” was caused by his having been hurt on duty. Deemed date of injury 8 April 2009.

 Order the defendant to pay the plaintiff’s costs.

Catchwords:

POLICE SUPERANNUATION – Whether P “hurt on duty” – P was shift supervisor at Lithgow on a Saturday night/Sunday morning when he received a report that a young woman was “missing” and could be in danger – Two other young woman had been assaulted earlier when seeking to meet up with the first young woman – Only one car crew available, but were processing an offender who had been arrested for a PCA offence and was in custody – Patrol commander had directed that at night no officer should work “one out” i.e. alone – P’s inaction caused a delay of between 40 and 45 minutes in following up the report – Next day, young woman found murdered – Complaint by member of public who made initial report about police inaction – Adverse media coverage – Internal police enquiry does not sustain complaint of dereliction of duty – Complaints to Ombudsman – Ombudsman’s report criticises P and the internal police enquiry – COP acquiesces in Ombudsman’s findings – P reprimanded by DCOP – Adverse psychological reaction to investigations, disciplinary action and media coverage – P medically discharged with infirmity of “chronic major depressive disorder – Whether infirmity caused by P’s having been HOD

 

WORKERS COMPENSATION – Whether P suffered injury arising out of or in the course of his police service – Whether P’s police service a SUBSTANTIAL CONTRIBUTING FACTOR to the certified infirmity – Whether infirmity caused by REASONABLE ACTION taken by D with respect to DISCIPLINE/PERFORMANCE APPRAISAL – Personal susceptibility to risk – WORKERS COMPENSATION ACT 1987 ss 4, 9A, 11A

 

WORDS AND PHRASES – “discipline” – “performance appraisal” – “predominantly”

STATUTES – Interaction of Police Act 1990 and Ombudsman Act 1974 – Whether Ombudsman invoked the correct powers in making her report – Whether COP and Ombudsman independent of each other in regard to COP’s relation with P

Legislation Cited:

Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Commonwealth Employees’ Compensation Act 1930 (Cth)
Ombudsman Act 1974
Police Act 1990
Police Regulation (Superannuation) Act 1906
Police Service Act 1990
Workmen’s Compensation Act 1925 (UK)
Workers Compensation Act 1987
Workmen’s Compensation Act 1897 (UK)

Cases Cited:

Adams v COP (1995) 11 NSWCCR 715
Ainsworth v The Ombudsman (1988) 17 NSWLR 276
Allen v Department of Community Services [2010] NSWWCCPD 78
ANZ Banking Group Ltd v Mercer [2000] NSWCA 138; (2000) 48 NSWLR 740; (2000) 20 NSWCCR 70
Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; (2009) 75 NSWLR 503; (2009) 7 DDCR 75
Botany Council v Ombudsman (1995) 37 NSWLR 357
Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32; (1999) 19 NSWCCR 135
Brady v COP (2003) 25 NSWCCR 58
Brooker v Thomas Borthwick and Sons (Australasia) Ltd [1933] AC 669; [1933] NZLR 1118
Callary v Wyong Shire Council (unreported, 27 August 1998, No 10194 of 1997)
Charnock v Department of Corrective Services (1993) 25 NSWCCR 193
Clover, Clayton & Co Ltd v Hughes [1910] AC 242; (1910) 3 BWCC 275 (HL)
Commissioner for Superannuation v Scott (1987) 71 ALR 408
COP v Minehan [2003] NSWCA 239; (2003) 1 DDCR 57
Commonwealth v Hornsby (1960) 103 CLR 588
COP v Ombudsman (9 September 1994, unreported, Sackville AJ, NSWSC Administrative Law Division)
Da Ros v Qantas Airways Ltd [2010] NSWCA 89
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
Darling Island Stevedoring & Lighterage Co Ltd v Hussey (1959) 102 CLR 482
Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; (2001) 22 NSWCCR 46
Department of Education & Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206
Dew v Maher (1996) 14 NSWCCR 56
Dive v COP (1997) 15 NSWCCR 336
Dotzauer v Strand Palace Hotel, Ltd (1910) 3 BWCC 387 (CA)
Dunn v Department of Education & Training (2000) 19 NSWCCR 475
Favelle Mort Ltd v Murray (1976) 133 CLR 580
Flanagan v Ackers Whitley & Co (1926) 19 BWCC 399
Gannon v COP (2004) 1 DDCR 380
Guardians of the Parish of Brighton v Guardians of Strand Union [1891] 2 QB 157 at 167
Hallet v COP (2004) 1 DDCR 580
Hockey v Yelland (1984) 157 CLR 124
Holovinsky v COP (No 2) (2006) 4 DDCR 122
Hood Construction Pty Ltd v Nicholas and Anor (1987) 3 NSWCCR 45
Humphry Earl Ltd v Speechley (1951) 84 CLR 126
Hunt v Department of Education & Training (NSW) (2003) 24 NSWCCR 642
Innes v COP (1995) 13 NSWCCR 27
Irwin v Direction General of School Education (unreported, 18 June 1998, No 14068 of 1997)
Ismay, Imrie & Co v Williamson [1908] AC 437; 1 BWCC 232
Jackson v Work Directions Australia Pty Ltd (1998) 17 NSWCCR 70
James Patrick & Co Pty Ltd v Sharpe [1955] AC 1; [1954] 3 All ER 216
Jeffery v Lintipal Pty Ltd [2008] NSWCA 138
“K” v NSW Ombudsman & Anor [2000] NSWSC 771
Kavanagh v Commonwealth (1960) 103 CLR 547
Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; (2000) 200 CLR 286
Kooragang Cement Pty Ltd v Bates (1999) 35 NSWLR 452; 10 NSWCCR 796
Kushwaha v Queanbeyan City Council [2002] NSWCC 25; (2002) 23 NSWCCR 339
Lander v British United Shoe Manufacturing Co Ltd (1933) BWCC 41
Larson v COP [2004] NSWCA 126; (2004) 3 DDCR 365
Lochgelly Iron & Coal Co Ltd v Walkenshaw [1935] SC(H.L.) 35; (1935) 28 BWCC 231
Manly Pactific International Hotel v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181
Maras v Broken Hill South Ltd [160] WCR 164
Maskery v Lancashire Shipping Co Ltd (1914) 7 BWCC 428 (CA)
McCarthy v Department of Corrective Services [2010] NSWWCCPD 27
McFarlane v Hutton Bros (Stevedores) Ltd (1920) 20 BWCC 222 (CA)
Mercer v ANZ Banking Group Ltd (2000) 20 NSWCCR 70
MGH Plastic Industries Pty Ltd v Zickar (1996) 187 CLR 310; (1996) 71 ALJR 32; (1996) 13 NSWCCR 680
Murray v COP [2004] NSWCA 365; (2004) 2 DDCR 31
Muscat v Woolworths Ltd [2000] NSWCC 16; (2000) 20 NSWCCA 283
Northern NSW Local Health Network v Heggie [2013] NSWCA 255; (2013) 12 DDCR 95
O’Neill v Lumbey (1987) 11 NSWLR 640; (1987) 3 NSWCCR 139
Partridge Jones & John Paton Ltd v James (No 2) (1932) 25 BWCC 328
Partridge Jones & John Paton Ltd v James [1933] AC 501; [1933] All ER 316; (1933) 26 BWCC 277
Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346
Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92
Read v John Lysaght (Aust.) Pty Ltd [1962] WCR 217
Saad v COP (1996) 12 NSWCCR 70
Schinnerl v COP (1995) 11 NSWCCR 278
Slazengers (Australia) Pty Ltd v Burnett [1951] AC 13 (PC)
Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504; [1934] WLR 15
Smith v COP (No 2) (2000) 20 NSWCCR 27
Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130
Stewart v NSW Police Service (1998) 17 NSWCCR 202
Stewart v NSW Police Service [1998] NSWCC 57
Stojkovic v Telford Management Pty Ltd (1998) 16 NSWCCR 165
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96
Treloar v Falmouth Docks & Engineering Co Ltd (1932) 25 BWCC 247 (CA)
Treloar v Falmouth Docks & Engineering Co Ltd [1933] AC 481; [1933] All ER 298; (1933) 26 BWCC 214
Watson v Qantas Airways Ltd [2009] NSWCA 322; (2009) 75 NSWLR 539
Whittle v Ebbw Vale, Steel, Iron and Coal Co Ltd [1936] 2 All ER 1221; (1936) 29 BWCC 179
Wicks v Dowell & Co. Ltd [1905] 2 KB 225
Wilson v Chatterton [1946] KB 360; [1946] 1 All ER 431; (1946) 39 BWCC 39

Texts Cited:

Annotated Civil Liability Act 2002 (NSW), 2nd Edition, 2013
Blakiston’s Gould Medical Dictionary, 4th edition (1979)
From Strict Liability to Workers Compensation, [2003] 36 N.Y.U.J. Int’l. L & Pol 53
Principles of the Law of Workers Compensation, 1981, Law Book Co Ltd
Schmidt’s Attorneys’ Dictionary of Medicine, (1996)
Shorter Oxford English Dictionary, 5th Ed, Vol 2
Taber’s Cyclopedic Medical Dictionary, 12th edition, 5th printing (1975)
Willis’s Workmen’s Compensation Acts 1925 to 1943, 37th Edition, July 1945 (Butterworths)
Workers Compensation (New South Wales) 1969, 1st Ed (Butterworths)
Workers Compensation (New South Wales) 1979, 2nd Ed (Butterworths)

Category:

Principal judgment

Parties:

Steven Andrew See (Plaintiff)
Commissioner of Police (NSW) (Defendant)

Representation:

Counsel:
Mr P O’Rourke (Plaintiff)
Mr M Hutchings (Defendant)

  Solicitors:
Kim Smith & Associates Lawyers/Carroll & O’Dea Lawyers (Plaintiff)
McCabe Terill Lawyers (Defendant)

File Number(s):

RJ677/10

Publication restriction:

Anonymisation of person in custody, “ARG”.

Contents

Title (or Subject Matter)	Paragraph
Abbreviations	1
HOD	2
Overview	3
The plaintiff’s background	7
The plaintiff’s recent training	11
Lithgow Police Patrol	12
Night shift: Saturday 1 March to Sunday 2 March 1997	15
A drink-driving arrest	18
Assaults on young women	23
The plaintiff’s response	28
Police action	38
Events on subsequent shifts	42
First resolution of complaint against the plaintiff	52
The Ombudsman becomes involved	57
The Ombudsman’s report	61
Irregularity	69
Power to investigate police conduct	71
DC Lawson’s actions	74
Treatment and return to work	76
Further HOD claim	78
1998 to 2008	79
The plaintiff ceases work	93
Medical opinions	99
Conclusion on the medical evidence	108
Principles	111
Did the certified infirmity arise out of the plaintiff’s service?	114
Did the certified infirmity arise in the course of the plaintiff’s service?	116
Substantial contributing factor	118
Factors personal to the plaintiff	121
Personal susceptibility prior to sec 9A	129
(A) British case law	129
(B) Australian case law	130
Application of s9A to the decided cases	131
Applying s9A to this case	132
Causation by action taken by the defendant	135
Was the certified infirmity in respect of discipline or performance appraisal?	143
Were the defendant’s actions reasonable?	146
Summary of s11A defence	156
Injury or disease?	157
Apology	158
Orders	159

Judgment

1. In this judgment a number of abbreviations will be used:

Legislation

PA: Police Act 1990

PRSA: Police Regulation (Superannuation) Act 1906

WCA: Workers Compensation Act 1987

Police Ranks

PC: Probationary Constable

Cons: Constable

D: Detective (as a prefix to other ranks)

SC: Senior Constable

LSC: Leading Senior Constable

Sgt: Sergeant

S. Sgt: Senior Sergeant

Insp: Inspector

Super: Superintendent

Ch: Chief (as a prefix to other ranks)

Cmdr: Commander (a position, rather than a rank)

AC: Assistant Commissioner

DC: Deputy Commissioner

COP: Commissioner of Police

Other

CAN: Court Attendance Notice (cf Criminal Procedure Act 1986 section 172)

GREAT: Government and Related Employees Appeal Tribunal

HOD: “hurt on duty”

LAC: Local Area Command

LMO: Local Medical Officer, general practitioner

NSWPF: NSW Police Force established under PA section 4

PMO: Police Medical Officer

PSAC: Police Superannuation Advisory Committee, established under

RSA section 24

PSF: Police Superannuation Fund, established under PRSA section 3

RDO: Rostered Day-Off

SOC: the statement of claim in these proceedings, being the further amended statement of claim filed on 17 November 2014 upon which the plaintiff was granted leave to proceed on 23 February 2015, together with two handwritten amendments made on that day

STC: SAS Trustee Corporation continued under the Superannuation Administration Act 1996

T: Transcript, T215.40 means transcript, page 215 line 40

HOD

2. HOD is defined in PRSA s 1(2):

“hurt on duty in relation to a member of the police force, means injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act.”

This provision imports all the entitling and disentitling provisions of WCA: Adams v COP (1995) 11 NSWCCR 715; Innes v COP (1995) 13 NSWCCR 27 at 29F; Smith v COP (No 2) (2000) 20 NSWCCR 27 at [18]; Hallet v COP (2004) 1 DDCR 580 at [10]. However, I have held that it does not import the procedural provisions of WCA such as the requirement to serve a statement of a worker which it is intended to use against him: WCA section 124 (now repealed). I shall have more to say about the interaction of the PRSA and WCA later in this judgment.

Overview

3. The plaintiff was attested as a probationary constable on 25 June 1979. He thereupon became a contributor to PSF. On 29 July 2010 PSAC determined that he was incapable of personally exercising the functions of a police officer by the infirmity of “chronic post-traumatic stress disorder with associated major depression.” On 5 August 2010 the defendant, by his delegate, determined that the suffering by the plaintiff of that infirmity was not caused by his having been HOD. The plaintiff was medically discharged form NSWPF on 19 August 2010. A dispute arose between the parties as to the nature of the infirmity certified by PSAC. On 7 August 2014 the STC Disputes Committee certified the infirmity as “chronic major depressive disorder”. On 29 August 2014 the defendant, by his delegate, determined that the suffering by the plaintiff of that infirmity was not caused by his having been HOD. These proceedings had been commenced on 17 November 2010, challenging the defendant’s determination of 5 August 2010. Following the second determination of the defendant, the proceedings were amended to challenge the defendant’s second determination. Accordingly, the issue for my determination is whether the infirmity of “chronic major depressive disorder” was caused by the plaintiff’s having been HOD.

4. The facts alleged by the plaintiff to be the cause of the certified infirmity are pleaded thus in SOC:

“a. On 2 March 1997 he was rostered as a supervisor at Lithgow Police Station. He was alone at the station. He was not allowed to leave the prisoner unattended at the station. He had a member of the public in custody with a charge of prescribed concentration of alcohol. Whilst the person was in custody he received two calls regarding the welfare of a female in the Lithgow area. Subsequently the woman was found to have been murdered.

b. The murder was the subject of extensive internal and external investigation and the Plaintiff was involved in same. A supervising officer told him that the best way he could assist in the investigation was to hang [himself] and indicated a hanging point and told him where to get rope from the local volunteer rescue squad. Later in that day the patrol [tactician] asked him why he had not yet [hanged] himself as he had access to ropes. The Plaintiff was devastated. He felt powerless to have prevented the murder. The Plaintiff was overwhelmed by the enormity of the tragedy and that if there had been sufficient staff at the station he could have prevented the death.

c. The murder on 2 March 1997 attracted a lot of media attention as to whether it was preventable. The Plaintiff felt under threat and defenceless. The questions of staffing at the station had not been within his power to control.

d. An internal investigation was conducted by Superintendent Amy. The Plaintiff was reprimanded regarding two telephone attendances from the person who was concerned for the female’s welfare, as the Plaintiff had compressed the calls into one telephone call in his account of the incident. The Plaintiff was of the opinion that the internal investigation was fair and the outcome was reasonable.

e. An ombudsman enquiry ensued and in approximately October 1997, the Commissioner of Police Mr Ryan and the State Ombudsman, Ms Moss, held a press conference and stated words to the effect “there was no reason why the prisoner held for PCA couldn’t have been locked away and processed with at some later time”. This was contrary to Police protocol and the findings of the internal investigation.

f. Shortly after the press conference the Plaintiff was directed to a meeting where he was met by Assistant Commissioner Dick Adams and interviewed by Deputy Commissioner Lawson. She reiterated the statements of the Ombudsman to him. He said that he was required to remain with the prisoner. The Plaintiff was devastated that he was blamed for the death of the woman and his action following Police practice and procedure on 2 March 1997 was not supported by his superior officer.

g. The Plaintiff did not return to full duties. In or about 1998 the Plaintiff transferred to Katoomba Police Station and remained on restricted duties whilst obtaining treatment from 1997 for a psychological injury of chronic major depressive disorder.”

In general, the Defence does not admit those facts:

“(a) The defendant does not admit the particulars alleged in paragraph 6(a) of the Statement of Claim.

(b) The defendant admits that the murder which took place on or about 2 March 1997 was the subject of investigations and that the plaintiff was involved but does not admit the balance of paragraph 6(b).

(c) The defendant does not admit the particulars alleged in paragraph 6(c) of the Statement of Claim.

(d) The defendant does not admit the particulars alleged in paragraph 6(d) of the Statement of Claim.

(e) The defendant does not admit the particulars alleged in paragraph 6(e) of the Statement of Claim.

(f) The defendant does not admit the particulars alleged in paragraph 6(f) of the Statement of Claim.

(g) The defendant admits that the plaintiff transferred to Katoomba Police Station in or about 1998 but does not admit the balance of paragraph 6(g) of the Statement of Claim.”

Paragraph 5 denies that the plaintiff’s “employment” was “a substantial contributing factor” to the infirmity as required by WCA section 9A. “Additionally or in the alternative”, the defendant in par 6 of the Defence relies on WCA s 11A alleging that the infirmity was wholly or predominantly caused by reasonable actions taken by or on behalf of the defendant with respect to “transfer, demotion, performance appraisal and discipline.” The Defence then provides these particulars:

“(a) Following the murder of a girl in Lithgow on or about 2 March 1997 a number of internal and external investigations were conducted involving the plaintiff.

(b) On 6 March 1997 the Patrol Commander informed the plaintiff that he would be spoken with about a complaint following the murder of Ms Lewis.

(c) The conduct of initial enquires into the complaint by Chief Inspector Leacy from 6 March 1997 to 8 May 1997.

(d) All actions of the defendant with respect to the NSW Ombudsman’s enquiry into the police investigation following complaints from Mr Tink, MP and Mrs Gay Gee.

(e) Managerial counselling of the plaintiff on 16 March 1997.

(f) Transfer of the plaintiff, at his request, from Lithgow to Katoomba in March 1997.

(g) Managerial counselling by Deputy Commissioner Lawson on 29 August 1997.”

Of the four matters referred to in s 11A pleaded in par 6, ultimately the defendant only relied on “discipline” within the meaning I ascribed to it in Kushwaha v Queanbeyan City Council [2002] NSWCC 25; (2002) 23 NSWCCR 339, although there may be some overlap with “performance appraisal”.

5. WCA s 9A commenced on 12 January 1997. It is relevant to all the facts alleged by the plaintiff in these proceedings. Consequential amendments were made to s 4 at the same time. The plaintiff bears the onus of proving that the work he did was a substantial contributing factor to the certified infirmity. WCA s 11A commenced on 1 January 1996. It was amended by the legislation that enacted s 9A, but merely to remove a duplication which would otherwise have occurred. It is relevant to the facts alleged by the plaintiff. The onus of proof of establishing any of the matters under s 11A lies on the defendant: Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346 at [48]; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; (2013) 12 DDCR 95 at [59](iii). The relevant parts of the definition of “injury” in WCA s 4 at the relevant times were:

“In this Act:

Injury:

(a) means personal injury arising out of or in the course of employment,

(b) includes:

(i) a disease which is contracted in the course of employment and to which the employment was a contributing factor, and

(ii) the aggravation, acceleration or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, …”

6. Leaving to one side the issue as to whether the certified infirmity is “injury” simpliciter or a “disease” and replacing the word “employment” with “service”, the issues can be expanded thus:

(i) the plaintiff must prove that the certified infirmity was caused by an injury

1. arising out of his service (a causal relationship), or

2. arising in the course of his service (a temporal relationship), or

3. arising both out of and in the course of his service, and

4. that his service was a “substantial contributing factor” to the injury;

(ii) if the plaintiff so prove, the defendant is required to prove, to defeat the plaintiff’s claim, that

1. the certified infirmity was wholly or predominantly caused by action taken or proposed to be taken by the defendant, and

2. the certified infirmity was with respect to discipline or performance appraisal, and

3. the action taken by the defendant with respect to discipline or performance appraisal was reasonable.

The elements of (ii) I take from Northern NSW Local Health Network v Heggie [2013] NSWCA 255; (2013) 12 DDCR 95 at [51]. There is no dispute that the certified infirmity is a “psychological injury” within the meaning of s 11A.

The plaintiff’s background

7. The plaintiff was born on 5 May 1960. At the beginning of March 1997 he was 36 years old. At the time of his medical discharge he was 50 years old. At the time of giving evidence he was 55 years old. He completed the Higher School Certificate at Galston High School in 1978. On 19 February 1979 he commenced as a trainee with NSWPF. As stated in [3] he was attested as a Probationary Constable on 25 June 1979. Policing has been his only career. He has always worked in general duties, i.e. uniformed police work.

8. His first posting was to North Sydney Police Station. He was appointed as a Constable of Police on 25 June 1980. On 23 November 1980 he was transferred to Hornsby. According to his evidence he became a part-time member of a police rescue squad at Hornsby, but his service register (exhibit C) suggests that he did so when he was at North Sydney. On 11 October 1981 he was transferred to Pennant Hills. He remained a part-time member of a police rescue squad. On 29 August 1984 he was promoted to Constable First Class. On 1 July 1985 he was transferred to Lithgow. At Lithgow he joined the Lithgow Volunteer Rescue Association. He still occasionally trained with the police rescue squad. He remains a member of the Lithgow Volunteer Rescue Association. He has been its captain and its training officer. The volunteers train every Tuesday night for at least 2 hours. On 29 August 1988 the plaintiff was promoted to the rank of Senior Constable. He had no further permanent promotion.

9. The plaintiff married his wife, Anne, in 1984. Recently, the plaintiff and his wife “bought his wife’s family home in Lithgow, which is on a 12 acre property outside of Lithgow” – report of Dr Peter Klug, 5 December 2011, p1 – part of exhibit FF. The plaintiff’s wife is a “Lithgow girl” and one can see that the plaintiff’s transfer to Lithgow on 1 July 1985 would have been welcome to both the plaintiff and his wife. Their relationship has been almost universally described as close and supportive although the plaintiff’s difficulties, which are the subject of these proceedings, have caused strain at times. The plaintiff and his wife have four children. Based on three different medical histories and the plaintiff’s evidence (T6.34) the children and their years of birth are:

James born 1989

Andrew born 1990

Caroline born 1992

David born 1994

This information is relevant to bear in mind as, when the plaintiff’s difficulties began in March 1997 he had four young children and the effect of his difficulties on his children was one cause of his distress and concern. It is also relevant to the plaintiff’s motivation.

10. The plaintiff had aspirations. As a senior constable, the plaintiff would often be a shift supervisor, i.e., in the absence of a sergeant, the senior officer at the Lithgow Police Station on a shift. He considered himself “a good supervisor” and believed he had a good chance of being promoted to the rank of sergeant. He completed the First Line Commander’s Course at the Goulburn Police Academy on 2 October 1990, the Management Development Course for Supervisors on 26 April 1994, the Incident and Emergency Management Course (Levels 1 and 2) on 6 September 1995 and the Safe Custody Course on 12 February 1997. He commenced a Diploma of Applied Policing at Charles Sturt University in 1996. Subjects that the plaintiff studied in that year and his results were:

Critical Issues in Policing	High Distinction
Operational Communication	Credit
Community Safety and Police Role	Credit

In 1997 he undertook three further subjects and obtained three Distinctions. By the end of 1997 he had earned the Diploma (exhibit D and T 9.49 to T10.01). I wholly accept that the plaintiff was seeking to advance himself in NSWPF, was actively seeking advancement to the rank of sergeant with an appropriate increase in responsibility and income. In fact, prior to the commencement of his difficulties, the plaintiff had applied for other positions in the upper Blue Mountains, positions at Mt Victoria and Lawson, both sub-stations of Katoomba, to the “more responsible position[s]” (T148.20), probably as permanent shift supervisor or officer in charge.

The plaintiff’s recent training

11. It is convenient at this place to draw attention to an important part of the plaintiff’s recent training. The predominant topic in the subject “Critical Issues in Policing” that the plaintiff studied in 1996 was deaths in custody (T10). That was followed by the Safe Custody Course that the plaintiff completed on 12 February 1997. The plaintiff gave this evidence:

“Q. At the beginning of 1997 how did you perceive your understanding of your responsibilities to prisoners?

A. I believe I had a good grasp of my responsibilities in regard to prisoners.

Q. In having that sort of grasp what sort of things did you take into account in terms of what the police would tell you, or what instructions you might have?

A. Any warning signs, you know whether alcohol, relationship problems, there are others. It was always emphasised that for the first three hours in custody are critical. It must be face to face with a prisoner in the first three hours. Many, many issues.”

According to the plaintiff, this training greatly influenced him on the night of 1 and 2 March 1997 when his troubles began.

Lithgow Police Patrol

12. The evidence in this case indicates that in 1997, NSWPF divided the State into Regions, Regions into Districts and Districts into Patrols. Lithgow Police Station was the headquarters of the Lithgow Police Patrol. Its Commander was Ch. Insp Barry R Leacy. This Patrol was in the Central West District which had its headquarters at Bathurst. The Acting District Commander was Super J G O’Neill. There is evidence that the Lithgow Patrol was in the Western Region and also in the North-Western Region.

13. The Patrol boundaries were Ilford to the north, on the Mudgee Road, Bell to the East, on Bell’s Line of Road, up to Mt Victoria on the Great Western Highway, Hampton on the Jenolan Caves Road, and Meadow Flat to the west, on the Great Western Highway. There were sub-stations at Portland and Wallerawang and a one-man station (“lock-up”) at Capertee. The only Police Station in the Patrol that was open for 24 hours 7 days a week was that at Lithgow. There were about 80 police assigned to the Patrol. That number included police at the sub-stations, detectives, Highway Patrol officers and members of the anti-theft squad.

14. Depending on the roster, the plaintiff could work as the shift supervisor for one or two shifts at a time, or for a whole week, fortnight or month (T12.46). In 1997, on a Saturday night shift there were generally rostered two car crews and a supervisor. A car crew consisted of two police, a driver and an observer. One car crew could be made up from police assigned to the Portland and/or Wallerawang sub-stations.

Night shift: Saturday 1 March to Sunday 2 March 1997

15. The shift supervisor started the night shift at 6pm, ceasing the next morning at 6am. The car crews, according to the plaintiff, commenced work at 7pm and concluded their shift at 7am. At 6pm on Saturday 1 March 2007 the plaintiff commenced a 12-hour shift as the supervisor. Rostered to work with him, commencing at 7pm were:

Cons Peter Foran (Lithgow)

PC Mark Hilton Hevers (Lithgow)

Cons M L Thornberry (Wallerawang)

Cons Christopher M Sinclair (Portland)

Messrs Foran and Hevers were theoretically the crew of police car identified as Lithgow 1 or Lithgow 10 and Messrs Thornberry and Sinclair were the crew of police car identified as Wallerawang 1. At the commencement of the night shift there was also a civilian administrative officer on duty but he or she finished work at approximately 11pm. Despite the generalised evidence given by the plaintiff concerning the shift structure, it is clear that the crew of Wallerawang 1 were rostered for duty from 6pm to 4am. Furthermore, the statements of Const Foran and PC Hevers also suggest that their shifts commenced at 6pm.

16. That evening a Debutante Ball was being held in the Crystal Theatre at Portland for a charity. According to a report made by Cons Sinclair (exhibit S2):

“the organisers of that Ball had requested a high police profile due to numerous incidents in previous years when that Ball had been held. Sgt Campbell [Portland Sector Supervisor] further requested that we remain in Portland when the Ball was due to end at about 2am until the hall was cleared and the patrons had disappeared from the street.”

This event in effect kept Wallerawang 1 out of Lithgow for the entire shift.

17. Messrs See, Foran and Hevers shared their duties. Those duties were as driver, as observer in the car and as officer in the police station. The evidence enables me to establish this arrangement:

Period      6pm to 10pm       10pm to 2am       2am to 6am

Driver      PC Hevers      Cons Foran      Cons Foran

Observer   SC See      SC See      PC Hevers

Station    Cons Foran      PC Hevers      SC See

The plaintiff’s statement (exhibit M) has this slightly wrong. He thought that Cons Foran was the first driver and PC Hevers was the second driver but the statements of the other two are consistent with what I have just found.

A drink-driving arrest

18. At 12.46am on Sunday 2 March 1997 the Lithgow car left the Police Station to patrol the Lithgow CBD and, in particular a nightclub known as the “Nitespot”. In accordance with Liquor Licensing requirements it closed at 1am. The police officers observed patrons departing from the nightclub. At 2.11am the Lithgow car returned to the police station and SC See and PC Hevers swapped roles. At 2.35 the Lithgow car again left the police station and patrolled areas where there had been “recent incidents”. The statement of Cons Foran of 12 March 1997 (exhibit P2) continues the narrative:

“I drove the vehicle east along Lett Street to Eskbank Street, where I turned it left into Eskbank Street and travelled towards Mort Street. As I approached Mort Street, I saw a brown coloured Ford utility travelling west along Mort Street at what appeared to be a speed above the sign posted speed limit. I followed this vehicle west along main street and as I passed Lithgow Police Station, the vehicle was not in sight.

I turned left into Lithgow Street and observed the vehicle stationary in the left turn lane, waiting to turn left into Main Street. This vehicle was stopped by the control of a red phase traffic control signal. The vehicle moved off when a green left arrow appeared and I followed the vehicle west along Main Street.

As we approached the intersection of Main Street and Ferro Street, I observed the vehicle to accelerate harshly and pull to the right side of the roadway, where it overtook a slower moving vehicle which appeared to be an older model [Ford Falcon] station wagon.

I followed this vehicle by overtaking the slower vehicle and [engaged] the red and blue flashing lights of the Police vehicle. The utility continued west along Main Street and to the left kerb about 20 to 30 metres east of the intersection of Main Street and Laurence Street. This was outside the hardware store.

I got out of the Police vehicle and approached the utility where the driver ([ARG]) got out and walked to the rear of his vehicle. I explained that he was stopped for the purpose of a breath test. The driver submitted to the breath test which returned a positive reading. The time of this offence was 2.56am on [2] March 1997.”

A large number of exhibits record the time of ARG’s offence at 2.56am, e.g. exhibit E (Lithgow Patrol Taskings, p 4), exhibit 6 (NSW Police Radio Log), part of exhibit H (Escorting/Arresting Officer Questionnaire, plus a copy of Cons Foran’s notebook), and the records also show the time of his arrest as 2.57am. At 2.59am the Radio Log indicates that a call was made by the Lithgow car to the Police Station advising that an offender had been arrested after a positive road-side test. The Lithgow car arrived at the Police Station at 3.00am (exhibit E).

19. The breath analysis machine at the police station was turned on at 3.02am. The operator was Cons Foran. The plaintiff explained the significance of this: “the breath analysis operators were instructed as soon as they’re … introduced [to the person to be tested] to press a function key and report the time that the person walks into the breath analysis room. And that key stroke is recorded at 3.02” (T22.16). I can readily accept that the car arrived at the station at 3.00am and that by 3.02am ARG had been escorted from the car into the station and into the room housing the breath analysis machine. The Escorting/Arresting Officer Questionnaire (part of exhibit H) records the 15 minute period of observation as commencing at 3.02am.The same form tells me that ARG admitted that he had been drinking at the Lithgow Hotel. He said his first drink was at 10pm and his last drink was at 1.45am. He admitted to drinking an unknown number of middies of Tooheys New beer. During that period he had not consumed any food. Cons Foran completed an “Observations” form (part of exhibit H). The relevant observations are these:

“Attitude:   Cooperative; cocky.

Actions:   Restless

Eyes:      Eyelids drooping; pupils pinpoint

Balance:    Unsteady; swaying; staggering …at scene and station

Movements:   Appeared normal

Opinion:   Moderately affected due to liquor.”

(The underlined matter has been added by Cons Foran, unprompted by the form.) There is then a heading “Contemporaneous Notes: under which Cons Foran has recorded seven matters. The final three matters are:

“Arrested at scene: [he said] “Bloody women”

Middies – “Spent about $35, … if that”

Food: “Aa, I had tea before I went out. I had tea about half 8.”

In the “Fact Sheet” (also part of exhibit H) that he prepared that morning Cons Foran also recorded that whilst he was speaking with ARG his breath smelt of intoxicating liquor. In that document he attributed the words “Bloody women” used by ARG as the explanation for his drinking. At 3.16am ARG commenced to blow into the analyser. At 3.18am the analyser returned a reading of 0.095 grams of alcohol per 100 millilitres of blood. The last two times as well as the time of 3.02am must be taken as accurate as they have been generated by the analyser itself. When Cons Foran advised ARG of the reading, he recorded ARG as saying, “Not much you can say about it, ay” and that he then shrugged his shoulders.

20. Cons Foran’s statement then states this about his further involvement with ARG:

“I then completed the appropriate entries in the Breath Analysis Data Record book. I attempted to [operate] the printer attached to the B.A.S machine without success. I then had to complete the section 4E certificate in writing.

[ARG] was then taken to the charge room and placed in the lexen dock for preparation of charging and processing. I remained in the B.A.S. room, where I made inquiries on COPS as to [ARG]’s licence details (whether licence was cancelled etc) and criminal history. I then began a COPS event to obtain the COPS number, where I exited COPS and began the Fact Sheet relative to the P.C.A. offence.

I was printing the completed Fact Sheet when I was approached by Senior Constable SEE, who informed me that two females had been assaulted near the Lithgow swimming pool. He then informed me that both females had been picked up by a taxi driver and conveyed to Lithgow Hospital for treatment of the injuries sustained in the assault.

About 4.18am on 2 March 1997, I left Lithgow Police Station with Probationary Constable HEVERS, where we travelled directly to Lithgow District Hospital to obtain details of the assault. …”

It is clear from PC Hever’s statement (exhibit Q2) and from his record of interview with Super J G O’Neill on 12 March 1997 (exhibit Q3) that PC Hevers stayed in the breath analysis room with ARG whilst the plaintiff and Cons Foran were “coming in and out”. He confirms that after Cons Foran advised ARG of the result of the test, ARG was escorted to the charge room and charged with mid-range PCA at “approximately 3.35am”. PC Hever’s statement continues thus:

“[ARG] was then fingerprinted and photographed by myself. While I was doing this I was informed by Constable FORAN that we had a job at the hospital. I said to Constable FORAN “What’s the Job?” He said “I think it’s an attempted sexual assault.” I said “Fair enough”. That was at about 3.50am.

After I fingerprinted and photographed [ARG], Senior Constable SEE entered the charge room and then continued with the charging and bailing of [ARG]. At approximately 4.10am Senior Constable SEE, read the bail conditions to [ARG] and had his property returned to him.

[ARG] was then released from custody, at 4.14am. Constable FORAN and I then got the sedan out of the van dock at the rear of the station and proceeded to Lithgow District Hospital.”

21. ARG’s matter was the subject of the then “On-line Charging” system. The charge sheet says that ARG was charged at 3.35am. The plaintiff’s evidence is that this was the “commencement” of the charging process. There is some confirmation for this on the document itself as ARG acknowledged receipt of a copy of the charge sheet at 4.10am. Because of his arrest at the police station, ARG’s personal effects were handed to the police. Property Docket No 0000841 has a time endorsed on it of 3.53am and ARG timed the return of his property to him at 4.05am. The time of 3.53am is not the time of either the commencement of or completion of the form, but rather the time that it was printed (T203.33 to 203.37). Before his release from custody ARG was, obviously, granted police bail. The grantor of the bail was the plaintiff. At T126.24 (in cross-examination) the plaintiff admitted that he “would have made the decision [to grant bail] about the time he commenced the on-line charging process” i.e. 3.35am as by then “[a]ll the relevant checks would have been completed.” but he then vacillated about that (T126.42). However, I accept that it would have been the last thing to be done before ARG was released from custody. The “relevant checks” would have been ARG’s licence details and criminal history, enquiries made by Cons Foran.

22. I can accept that, shortly after 3.18am when breath analysis was completed and then, after Cons Foran made the entry in Breath Analysis Data Record book and completed a section 4E certificate in handwriting, ARG was taken to the charge room. He had to be fingerprinted and photographed by PC Hevers and then the plaintiff commenced the charging process at 3.35am. There had to be completed:

1. the charge sheet;

2. the property docket;

3. the bail form;

4. the Facts Sheet (by Cons Foran, on a different computer program to that used in On-Line Charging (T125.30)); and

5. the On-Line Charging/Prisoner Cover Sheet (by PC Hevers, but whether at this stage or not is quite unclear).

I also accept that these documents, together with the Questionnaire completed by Cons Foran, if not completed by the plaintiff, had to be checked by him. Whether this occupied all the time between 3.35am and 4.14am when, according to PC Hevers, ARG was released from custody is not only a moot point, much debated in these proceedings, but one which remains quite unclear – the only direct evidence on it was given by the plaintiff, 18 years after the event.

Assaults on young women

23. Mrs Barbara Louise Morrison was (and may well still be), I infer, a long-time resident of Lithgow. In March 1997 she was working for another lady as a casual taxi driver. She undertook a shift of 12 or 13 hours commencing at 4pm on Saturday 1 March 1997. At a time that she estimated to be 2.45am on Sunday 2 March 1997 she was parked on the southern side of Main Street, Lithgow near Fossey’s hoping to obtain a fare from a customer leaving one of the nearby hotels. She saw two young women, Ms Melanie Spillane (aged 23 years) and Ms Kerry Anne Tonkin (also aged 23 years) leave the Lithgow Hotel and start to walk west along Main Street towards the nightclub “Nitespot”. She did not see where they went from there. Mrs Morrison then obtained a fare and drove to the western end of Lithgow. After dropping off her passenger she drove back towards the centre of the town. Paragraph 5 of her statement of 4 March 1997 (exhibit T1) contains this:

“5. … I was then driving East in Main Street when I came to the intersection of Main Street and Ferro Street. While I was nearing this intersection I saw a female in the middle of the street waving at me with both arms outstretched to stop. I then realised it was [Melanie] SPILLANE. When I stopped [s]he got into the front seat of the taxi next to me. She said, “Can you please ring the Police, I’ve been attacked. Kerry is still down there and I’m worried about her.” I said, “Calm down, your [sic] safe now.” I then pulled over and I rang the Police. I don’t know what time this was, but I am sure it was between 3am and 3.30am. I said, “It’s Barbara MORRISON. I am driving a taxi and I’ve just been hailed down by a girl that is very distressed. Her and her friend have been attacked down near the swimming pool. Her friend is still down there, can you send a police car.” The officer said, “I can’t help you, I will have to call one from Portland.” I said, “I will have to go down there then, it’s not good enough.

6. I then turned around and drove back to George Coates Drive and turned under the viaduct and then right into James Street. I then drove to the car park in Conran oval which looks over Conran Oval and Watsford oval. I then shone the car lights over the ovals and I saw Kerry out in the middle of Watsford oval which is the bottom one. [Melanie] was calling out to her and she came over to the taxi and hopped into the passenger side. I then contacted the Police Station again and spoke to the Police and I said, “It’s Barbara MORRISON again, I’ve found the other girl and one of them is bleeding from the back of the head. Would you prefer me to take them to the Hospital? He said, “Yeah if you don’t mind.”

7. I then drove back down James Street to George Coates drive. …

8. I then drove back under the viaduct and turned into Main Street and drove the girls to the hospital. I then stayed with the girls until the nursing sister came down and saw them. While I was with them at the hospital [Melanie] asked me to contact her parents for her and get them to come to the hospital. She then said to me, “I am worried about Allison.” I said, “Who’s Allison?” She said, “Allison Lewis. She lives in Park Parade, can you please ring her parents. She was supposed to meet us down at the pool. I’m worried about her.” I said, “No I think I should go back down to the Police, I don’t think I should ring her parents.” I was then about to leave and said, “I’ll ring your parents and I’ll go back down to the Police. Don’t worry about her.” I got into the taxi and tried to ring [Melanie’s] parents on the mobile but I couldn’t get a signal, so I moved the taxi down to near the old nurses quarters and rang [Melanie’s] parents and spoke to her mother as I was driving back along Bridge Street.

9. I then drove to the Police Station where I saw Constable See and I said, “Steve there [is] another girl down there and the girls are worried about her safety. They were supposed to be meeting at the pool. They want me to ring her parents up to see if she was home.” Steve said, “You can’t do that. Leave it with me. I said, “It’s pretty serious Steve.” I then left the Station and drove back up to the rank. I was at the rank for about five or ten minutes and it got the better of me thinking about what happened and I went home. When I left the rank it was 4.15am.”

24. There is no dispute that, in each of the calls identified in pars 5 and 6 of that statement, Mrs Morrison spoke to the plaintiff who was also the person to whom she spoke at the police station. Mrs Morrison’s telephone records were obtained in the police investigation. Her first call to the plaintiff was made at 3.18am and lasted 52 seconds. Her second call was made at 3.22am and lasted 26 seconds. The telephone call which she made to Ms Spillane’s parents, identified in par 8 of that statement, was made at 3.32am and lasted 42 seconds. Ms Spillane’s parents are Mr Kevin William Gee and Mrs Gai Gee. Mr Gee also provided a statement to the police. That statement corroborates Mrs Morrison’s evidence that she called Mrs Gai Gee and spoke to her about Ms Spillane. Mr and Mrs Gee and their other daughter then went to the hospital to see Ms Spillane.

25. Mrs Morrison made another statement to investigating police on 12 March 1997 (exhibit T3).That provides further detail:

“4. As I left the hospital I rang Melanie’s mum, Gai, and informed her that Melanie had hurt her head, and she was at the hospital and wanted her to come up and see her. I was at the intersection of Bridge Street and Mort Street when that conversation finished. I continued on down to the Police Station and parked in the five minute zone out front.

5. I entered the Police Station, where an officer came over and asked me what I wanted. I asked him was he the gentleman I spoke to and he interrupted me and said something that I didn’t take in. I interrupted him and said, “I’m the taxi driver that picked [up] the two girls that were attacked, and I’d like to see who I spoke to on the phone.’ He said to hold on and he would get him.

6. Steven (Steve SEE, I know him) walked out and he knew that I had rang. I said, ‘Steve, the attack on the girls was serious. There’s another girl down there. The girls (Melanie and Kerry) were really worried about her because she was on her own and meeting them down there. They want me to ring her parents up and find out if she got home.’ Steve said that I couldn’t do that, so I gave him the piece of yellow paper from my notepad in the taxi with her name and street (Park Parade) on it. I asked him if he could please do something about it, and I said, ‘Steve, it’s pretty serious.’ I was at the Police Station only a short time; about a minute or a minute and a half. Then I left.

7. I would describe the first officer I saw when I came to the Police Station as slight build, about 5’10” and with close cropped reddy or light coloured hair. He was in regular uniform. I had never seen him before. I don’t know his name.

8. When I left, I went back around to the cab rank.

9. I didn’t do any more jobs, and then I thought about what had happened and decided to go home a bit early. I should have worked until five, but I went home at 4-15am. I took that time from the taxi’s clock.”

There is no dispute that the policeman identified in par 5 of this statement and described in par 7 is Cons Foran, who described himself similarly to par 7 in his record of interview (exhibit P3, A18) and denied that any other policeman on duty that evening could be so described. Unfortunately, when interviewed Cons Foran could not recall speaking to any woman at the police station.

26. Further inquiries were subsequently made by the Ombudsman in an attempt to establish the correct chronology. On p 16 of the Ombudsman’s report of 20 August 1997 (exhibit Y) the following matters are stated:

“The following evidence was obtained through inquiries by this Office:

Lithgow Hospital records state that Melanie and Kerry were seen by a doctor at 3.40am. Their actual time of arrival at the hospital was not recorded, but advice from the Area Health Service states”

When the women arrived, the switchboard operator advised the night manager who then admitted the girls to the Emergency Department. The doctor was called at 3.35am.

The night duty supervisor was Sister Dianne Muldoon. Her recollection is that Mrs Morrison “came into the Department with the girls, but then went outside and out of her sight.”

The doctor, Dr Celeste Spamer, says that she looked at the kitchen clock when the phone rang and that the clock showed 3.35am. Dr Spamer says that the parents of one of the girls drove up to the casualty door at the same time as Dr Spamer entered casualty. This was at approximately 3.45am. The girls were alone with Sister Muldoon at this time.

Dr Spamer says she was with the girls for 30-35 minutes. She was with the girls for the whole time, part of which was spent in the “minor ops” theatre, where she stitched one of them. At this stage Sister Muldoon was at the reception desk in casualty. Dr Spamer says there was no one with the girls during the period they attended casualty other than Sister Muldoon and Melanie’s parents, Mr and Mrs Gee.

Mrs Gee says that, when Mrs Morrison rang “around 3.30am”, Mrs Morrison said that she had left the girls at the hospital. She thinks that Mrs Morrison said she was on the way to the police station. Mrs Gee says that she, her husband and their daughter, Nicole, arrived at the hospital at 3.45am. Following a conversation with Melanie and Kerry. Mrs Gee says that Mrs Morrison was not at the hospital at any time while Mrs Gee was there.

The following evidence should also be noted:

In a statement provided to Senior Constable [See], Mr Len Ashworth, managing editor of the Lithgow Mercury, says that Mrs Morrison rang him on 4 March 1997.He says that she told him the casualty block was closed when she arrived at the hospital and after making contact through an intercom it took about 10 minutes before a nurse arrived to open up.

Senior Constable [See] stated that the drive from Lithgow Hospital to Lithgow police station takes ‘between one and two minutes’.”

In his statement to the police Mr Gee states that he left the hospital with his other daughter to make a search of the area of the swimming pool (corner of James Street and George Coates Avenue) where he was at about 3.50am and that is not inconsistent with his reaching the hospital at 3.45am.

27. There can be no dispute that the times of Mrs Morrison’s three calls, recorded by Telstra and provided to the police, are accurate. At the time of Mrs Morrison’s first call to the plaintiff, 3.18am, Mrs Morrison had already rescued Ms Spillane. After speaking to the plaintiff, she went in search of Ms Tonkin. On or before 3.22am she had rescued Ms Tonkin before making her second call to the plaintiff at 3.22am over a period of 26 seconds. Travel time to the hospital would not have been much greater than 2 minutes. Exhibit J is a map of central Lithgow on which have been marked the then site of the hospital, the police station, the swimming pool area and the area where Ms Allison Lewis was found. Travel times between any relevant places could not exceed 3 minutes, bearing in mind travel conditions in the early hours of a Sunday morning, within Central Lithgow, not involving the Great Western Highway. However Mrs Morrison did interrupt her journey to the hospital to speak with two other taxi drivers (in one cab) to tell them what had happened (she had previously alerted other cab drivers to Ms Tonkin’s being “missing” by radio message) but that interruption would not have taken any longer than one minute. Accordingly, I accept that Mrs Morrison would have arrived at the hospital at approximately 3.26am. Mrs Morrison must have left the hospital by 3.32am at the latest to commence her call to Mrs Gee during that minute. When she left the hospital she did so after the two young ladies had been admitted into the hospital. According to Mrs Morrison’s statement (quoted at [23] above) “the nursing sister came down and saw them”. The Ombudsman’s report refers to “the night manager” admitting the two young women to the hospital and then to the “night duty supervisor” who was Sister Muldoon. It seems likely to me that the “night manager” and the “night duty supervisor” are both descriptions of Sister Muldoon’s role. I conclude therefore that by at least the beginning of 3.32am the two young women had entered the hospital building and were in the care of Sister Muldoon. Such a finding is not inconsistent with her taking a brief history, making a brief examination of each young woman and then calling Dr Spamer at 3.35am. Of course between 3.26am and 3.32am there can only have been 6 minutes or less, which is not consonant with the estimate of “10 minutes” provided by Mrs Morrison to Mr Ashworth but, firstly, that is hearsay, and, secondly, when one is waiting time passes very slowly and estimates of time spent waiting are often, unconsciously, exaggerated. The question then becomes: when did Mrs Morrison reach the police station and speak to the plaintiff? Even allowing 2 minutes to travel from the hospital to the police station and then parking the cab, entering the police station and speaking to Cons Foran, Mrs Morrison must have spoken to the plaintiff at 3.35am or 3.36am. The Ombudsman concluded that Mrs Morrison arrived at the police station at “about 3.35am”. Unfortunately, no re-enactment of Mrs Morrison’s journey from the hospital to the front counter of the police station was made. My conclusion on the evidence before me is that Mrs Morrison’s meeting with the plaintiff was somewhere during the period between 3.35.00 and 3.36.59am.

The plaintiff’s response

28. In discussing the response to Mrs Morrison’s two telephone calls and her short meeting with the plaintiff on this Sunday morning. I am required to consider what the plaintiff did but I approach what he has said about it circumspectly for good reasons. The plaintiff completed his shift that morning at 6.45am. Ms Lewis was still missing at that time and a search was underway to find her. About 2.30pm on that Sunday Ms Lewis’ body was found, buried in a long jump pit at the Jim Monaghan Athletics Oval (not far from the swimming pool) in Lithgow. She had been murdered. When the plaintiff went home, he went to bed. He was woken by his wife in the afternoon. She advised the plaintiff of the discovery of Ms Lewis’ body. The plaintiff worked another shift commencing at 6pm on Sunday 2 March 1997. His next rostered shift was on Thursday 6 March commencing at 8am. In the interim there was, predictably, media coverage of this major crime. The plaintiff’s wife’s aunt rang the plaintiff’s wife to advise that Mrs Morrison was going to make a complaint about the police response and, to that purpose, had attended the hospital to obtain faxes from A Current Affair. This upset him. He noticed that when he went “shopping people would look at [him] and turn to people they were with and mutter things”. That made him “very uncomfortable”. When he returned to work on 6 March comments were made by other police officers. He saw Mrs Morrison at the police station that afternoon and saw her enter Ch. Insp. Leacy’s office. The next day he was too ill to work. “The media circus descended on town”. On the evening of 11 March 1997, A Current Affair commented on the poor response of police to the report that Ms Lewis was missing and the times of Mrs Morrison’s calls as recorded by Telstra were broadcast. The plaintiff heard all this. On the following day at 10.16am he was served with a directive memorandum (exhibit L) requiring him to prepare a report. He was interviewed on that day, after making his report, by Super. O’Neill. There was another interview on 13 March 1997 between 9.30am and 11.15am. There was a third interview on 14 March 1997 with Ch. Insp Leacy for 37 minutes. There was an extensive police investigation, then an investigation by the Ombudsman after a complaint by a parliamentarian and then a public report by the Ombudsman, with continuing media coverage which the plaintiff believed was biased and unfair to him. The plaintiff has “lived” with the effects of “this” to this day. I would naturally expect him to be defensive and that his recollections of what occurred to be affected by his experience and therefore to be unreliable.

29. Mrs Morrison said that the plaintiff’s response to her first call to him was, “I can’t help you, I will have to call one from Portland.” In his report in response to the directive memorandum given to him on 12 March 1997. The plaintiff said this:

“At 3.18am I received a telephone call from Barbara Morrison a taxi driver. She informed me that she had been hailed by a woman who had been attacked. She further stated that a friend that she had been with at the time was missing. I immediately called Portland by police radio and informed them to come to Lithgow to attend to this incident. They replied that they were prepared to come in and advised me that it they were to attend the job it would involve overtime being incurred. My exact words to them was “If it has to be. It has to be.” They replied that they were responding immediately.”

In his statement (exhibit R2) Cons Thornberry said:

“We were called, at around 3.35am to an assault that had occurred at Lithgow. We were making our way to Lithgow when we informed SC Steve See that we finished at 4.00am and not 4.30am and we would probably incur overtime […]

At around 3.40am, we had travelled to half way between Portland and Wallerawang when SC See informed us that we would not be required to attend the assault in Lithgow.”

In his statement (exhibit S2) Cons Sinclair gives the same estimates of time but a little further detail:

“… about 3.35am when we received a call from Senior Constable SEE via the Police Radio that a female had been assaulted in an area near the Lithgow Swimming Pool. He further stated Lithgow 1 was off the air with a P.C.A Charge and the job was ours. I said, ‘We will do it but you realise we will be on overtime.’ He said, “When [do] you finish?” I said, ‘4.00am’. He said, ‘Can’t be helped, the job is yours.’”

Constable THORNBERRY and I then left the young people and started to drive to Lithgow. About 3.40am we received a second call via the radio from Senior Constable SEE saying, ‘Disregard the job. The girls are at Lithgow Hospital and Lithgow 1 will attend and take a report’. I acknowledged the call and we did a U-Turn and returned to Portland where we did a short Patrol.”

Clearly, the estimates of time of Cons Thornberry and Cons Sinclair are wrong. Mrs Morrison’s first call to the plaintiff was at 3.18am and her second call to him was at 3.22am. Each of Cons Thornberry and Cons Sinclair state that there were two calls made by the plaintiff: the first had to be before 3.22am and the second call after that time. There were about 4 minutes between Mrs Morrison’s two calls and each of the constables gives an estimate of 5 minutes between each call which is consistent in my assessment.

30. The plaintiff’s record keeping was poor. There is no record in the NSW Police Radio Log (exhibit G) of either call to Wallerawang 1. The General Station Pad record (exhibit F) either conflates Mrs Morrison’s two telephone calls or records only the second call and provides an incorrect time. The entry on the Station Pad is:

Date, Time and Action Required	Particulars	Police in Charge, Action/Result, Time, Date, Signature and Rank of Police Involved
2/3/97 3.31am From: Barbara MORRISON Lithgow Radio Taxis. Ph: [provided]	WOMAN IN DISTRESS I have just picked up a girl from behind the Lithgow pool. She is distressed and told me that she had been attacked. She is bleeding. I will take her to hospital	Lithgow 1 FORAN/HEVERS

31. There is no dispute that in response to her second call to the plaintiff, Mrs Morrison was told to take the girls to the hospital (see [23] above). The plaintiff’s statement of 12 March 1997 says this:

“At 3.22am I received another telephone call from Barbara Morrison. She informed me that she had located the other woman and told me that there was no further immediate concern for her welfare. She also said that one of the women was bleeding. She asked me whether she should take them to the Police Station or the Hospital. I told her that they should get immediate medical attention so she should take them to the Hospital and I told her that I would arrange for our car crew to see them there as soon as they were available. As I was informed that there was no longer any immediate danger I called Portland 1 and informed them that they were no longer required.”

32. I have already found that Mrs Morrison attended the police station and spoke to the plaintiff at 3.35 or 3.36am. At that time it is now common ground that both Cons Foran and PC Hevers were in the police station, involved in the charging of ARG. The Radio Log confirms that the Lithgow car went “off the air” at 4.19am, so the car must have left the station at 4.17 or 4.18am. Exhibit E (Lithgow Patrol Taskings p4), a record of the Lithgow car crew, tells me that the Lithgow car left the police station (“Time Out”) at 4.18am. I accept that to be accurate. What did the plaintiff do between 3.35/3.36am and 4.18am? He merely told Cons Foran of a new “job”. In [20] above I quoted what Cons Foran said in his statement. He was interviewed on the day he made that statement, 12 March 1997. The seventh answer recorded in that interview (exhibit P3) is this:

“I was in the BAS room attached to the Lithgow Police Station where I was completing associated paperwork for the processing of the PCA offender when SC See entered the room and informed me of an assault upon two females which had taken place previously and they had been conveyed to Lithgow Hospital.”

Unfortunately, Cons Foran was not asked to give an estimate of the time that the plaintiff informed him of the assault on the two young women. However, he made it quite clear that the plaintiff did not advise him about a missing person. Questions numbered 34 and 35 and his answers to them are these:

“Q34.   When did you first hear the name Alison Lewis?

A.    The first time I heard that name was upon my arrival at the hospital when I believe one of the other victims mentioned her.

Q35.   Is there anything you wish to add to this Constable Foran?

A.   The first time I had any knowledge of the involvement of a third person as a victim was when I was informed by the victims I spoke to at the hospital. I obtained brief details verbally from those victims and made my way directly to the vicinity of the Lithgow Swimming Pool.”

33. I have quoted in [20] above what PC Hevers said in his statement, of the communication he received from Cons Foran. He was also interviewed on 12 March 1997. The seventh answer he gave, contained in exhibit Q3, is this:

“To the best of my recollection I was in the charge room watching [ARG] and Cons Foran came in and told me there was a possible sexual assault or an assault on a couple of girls.”

He was not asked anything about the time of this conversation with Cons Foran, but there is nothing to challenge and no reason to doubt his estimate of about 3.50am. I have no hesitation in finding that shortly prior to 3.50am the plaintiff told Cons Foran, in the breath analysis room, of the new “job” and later at about 3.50am Cons Foran told PC Hevers about it in the charge room.

34. In his report of 12 March 1997, in response to the directive memorandum, the plaintiff said this:

“About the time that Lithgow 1 arrived at the Hospital Barbara Morrison arrived at the front counter at Lithgow Police Station. She handed me a yellow post-it note with a lot of writing on it. She informed me that the women at the Hospital are concerned about another woman they had planned to meet near the Lithgow Pool. I could just [read] the name Alison Lewis on the note.

A short time later Lithgow 1 called back on from the Hospital and they informed me that they were going to search the area around the pool for another missing person. They also informed me that the women would be attending the Police Station to give statements.”

The plaintiff was questioned on the same day. Part of that interview is this:

“Q11.   What time did the crew of Lithgow One leave the station to go to the hospital?

A.    I’m not sure of the exact time. But it would have been very shortly after 4.10 am, which is when the person signed for his property.

Q12.   Could it have been ten minutes or longer?

A.    No. As I recall on the radio log they called off at the hospital at 4.19

Q13.   How long does it take to drive from Lithgow Police Station to the Lithgow Hospital?

A.    To drive directly there would take between one and two minutes.

Q14.   You say that Barbara MORRSION arrived at the front counter of Lithgow police Station and handed you a note. How long did she remain at the Police Station?

A.   It would have been less than one minute.

Q15.    Did you have any conversation with her?

A.   She handed me the note and said this is the name of the girl, to the best of my recollection, who they were going to meet there and they were worried about her. I took the note. It was very hard to read, but I managed to make out the name “Alison LEWIS”. I said, “Thank you for that information, I’ll pass it on.”

Q16.   Is this the first time you became aware of a third person being involved?

A.   Yes.

Q17.   Do you recall what time this was?

A.    No, I don’t. But it was about the time the crew of Lithgow One were at the hospital.”

35. The plaintiff was again interviewed on 13 March 1997. The record of that interview is exhibit N2. I must quote it in extenso:

“Q5.   You recount that Mrs. Morrison, the taxi driver, came to the police station. Did you meet her directly at the station counter as she came into the Police Station?

A.    Yes

Q6.    Is it not the case that another police officer met her at the counter and came and told you that this woman was there to see you?

A.   Not that I recall.

Q7.   It is possible this could have been the case?

A.   Yes, it is possible, but to my recollection I met her.

Q8.   Can you tell me again, and you have your notes to refer to, the time as near as accurately possible, Mrs Morrison entered the Lithgow Police Station on the morning of the second March, 1997.?

A.   To the best of my recollection, it was about the time the crew of Lithgow One called off at the hospital. It may have been that they were about to leave the station to go up there, but it was about the time they were going up there to do the job. It may have been the car crew was still at the station, but just about to leave.

Q9.   I put it to you and please give this careful consideration, Constables Foran and Hevers were still at the police station when Mrs. Morrison came and spoke with you. What do you say about that?

A.    I’ve tried to remember this I’ve agonised over this. I just can’t be sure whether they were about to leave or whether they had already left. It is quite possible they were still there.

Q10.   Please refer to your notes. Is there anything you wish to add or subtract from your stated conversation with Mrs. Morrison when she came to the police station.?

A.   In my answer to Question 6, I said I believe I was told the offender had run away. I can’t recall whether she had said that, but – INTERRUPTED BY O’NEILL – I’m referring when Mrs. MORRISON came to the Police Station. By SEE, No that was the conversation as I remember it.

Q11.   Therefore, would I be correct in saying, following your short conversation with Mrs. Morrison at the Police Station you were aware that a female, Alison Lewis, was also regarded as missing?

A.   Yes. But all I had at that stage was a name. I had no description and as far as I know no other inquiries had been made to ascertain her whereabouts at that stage.

Q12.    Did you convey to Constables Foran and or Hevers this information regarding Lewis?

A.   As far as I recall I did. But as there was no supporting information at that stage, I requested them to attend the hospital and find more information.

Q13.   From what you have just told me is it then likely that Constables Foran and Hevers were in fact still at the station when Mrs. Morrison spoke with you briefly?

A.   Yes, it is possible. As I said before. I’ve tried to remember and agonised over this, but I’m not sure.

Q14.   I’ll ask you again. Did another officer come and tell you that there was somebody to see you at the front of the police station and here I’m referring to your meeting and conversation with Mrs. Morrison?

A.   They may have. From what you are saying obviously the car crew was still at the station, preparing to leave so obviously

Q15.   I am not saying the car crew was at the station. I’m asking you to carefully recall all the circumstances as the events of that morning unfolded, so as that I can accurately and truthfully obtain a sequence of events. Do you understand this?

A.   Yes, I understand that. As I’ve said, I’ve given this a lot of thought. I’m still just not sure whether [it] was the police it may have even been the cleaner, who met Mrs. Morrison at the inquiry counter. I’m sorry I’ve tried my best to remember.

Q16.    Do you wish to reconsider your statement regarding the times Mrs. Morrison came to the Police Station on that Sunday morning?

A.   As I’ve said a few times, I have tried to remember exactly what was happening when Barbara Morrison arrived I just can’t be sure whether the car crew was still there or whether they had left and I was tidying up the records in the charge room.

Q17.   Is it possible that Mrs. Morrison may have come to the police station as early as 3.35am on that Sunday morning?

A.   No. If I had that information at that time I would have called the police from Portland in again.

Q18.    Are you sure of your answer here?

A.    To the best of my recollection, Yes.

Q19.   What time does the cleaner commence duties at this Police Station on a Sunday?

A.    I’m not sure, I think about 4.

Q20.   I’ve been informed that Mrs. Morrison entered this police station and spoke with a police officer who is described as having very short fair hair. This person referred her to you. What do you say about this?

A.   From that description I would assume that was Constable Foran and that may have been the case. I just can’t be sure. I’m sorry but I’ve tried my best.

Q21.   I’ve been informed that Mrs. Morrison asked you whether she should call the parents of Lewis. What do you say to that?

A.   I don’t recall her saying that at all.

Q22.   I’ve been informed by Mrs. Morrison that she attended this police station and spoke to two police officers one being yourself prior to 3.40am on Sunday Morning the second of March. What do you say about that?

A.   As far as I recall it was later than that. But all I had as I said was a name when she arrived at the police station. And I felt it important to get information from the other two girls, before worrying the family. To find out what she was going to do and even at the completion of my shift at 6.30am we were still unsure as to whether she had actually gone to that location.

Q23.   What do you rely on to aid your recollection that this all took place later than 3.40am?

A.   I’m trying to remember what I was doing at that time and I believe, I know I was in the charge room. I’m trying to remember what I was doing but I’m not sure as to whether I was just tidying up the records or in the final stages of bail. I’ve tried. I know you consider it important. I just can’t remember.

Q24.   You referred in your answer to Question 22, in part “before worrying the family”. Why would this have been a consideration specifically at this time?

A.    Well, I thought it important to eliminate other possibilities before possibly causing needless concern for her family. Obviously it wasn’t needless, that’s in hindsight.”

Clearly the plaintiff attempted to maintain his original story but vacillated in light of questions which suggested that there might be evidence to the contrary.

36. In the interview conducted on 14 March 1997 by Ch Insp Leacy, the plaintiff said this:

“Q6.   Do you recall me asking you if you could have been confused about the time Mrs. MORRISON attended the police station and spoke to you?

A.   Yes, I do.

Q7.   Would you now recount that conversation, please?

A.   I’ve tried my best to remember the time Mrs. MORRISON, but I suppose I have suffered a deal of psychological stress and that has blanked a lot of it from my memory. I can’t be sure of my times, but if she came to the station about twenty to four, or about that time, then I know my training would have had me calculate the time it would have taken the Portland Car to get into town compared to how long it would take to complete the processing of the prisoner or to recall and get other police to the station to attend the incident. I consider there would have been very little difference in the response time of any of those three alternatives. This would be the normal process any supervisor would have considered in these circumstances and usually follow this sort of reasoning.

Q8.   Would you have followed that “sort of reasoning” on the morning of the second of March, 1997.?

A.   Well, as I said, I haven’t got that independent recollection of the sequence of events, but I’m sure that I would have followed that calculation in reasoning on that morning.

Q9.   Are you saying that the timing sequence by Mrs. MORRISON was correct?

A.   No, what I am saying is that I’m not sure. I just can’t remember. What I am conceding is that if her timing was correct, then I would have followed this course of action.

Q10.   Would it have been reasonable, given all the circumstances of the incident, to have followed that course of action?

A.   Yes, with the information available, which was that there was no danger to the two girls who had been assaulted and that the offender had decamped. Then I was given information that Alison LEWIS had arranged to meet the two girls near the pool. They were unsure whether she had really decided to stick to those arrangements or made other plans. They were very upset and it was very hard to get information from them. I got the opinion they were keeping some things back as if they were trying to cover their own backsides, probably that they were going to sneak a swim at the pool.

Q11.   With the value of hindsight, would you have taken the same course of action?

A.   Yes, given the same information and resources available. I feel so sorry for what the family is going through and disgusted at the effect the media has had on the whole community, but in the examination of the facts, I am confident that I acted professionally, under these circumstances.

Q12.   Is there anything more you want to say?

A.   Again, I am prepared to assist this inquiry in any manner whatsoever. I have nothing to hide and I am sorry that I haven’t got the precise memory of the sequence of events you want, but I have given a scenario of what have occurred if MRS. MORRISON[‘S] times are correct.”

The same phenomenon is clear in this interview, but it sets out arguments used subsequently by the plaintiff to justify what he did not do.

37. It ought be clear that between 3.35/3.36am and 4.18am when the Lithgow car departed the police station to go to the hospital that the only thing that the plaintiff did do was to advise Cons Foran of the intelligence Mrs Morrison had conveyed to the plaintiff at 3.22am and assign to the Lithgow car crew the task of attending the hospital and interviewing the victims. It is clear that the plaintiff did not do the following:

1. tell Cons Foran that there was a third young woman thought to be missing;

2. tell Cons Foran her name or the name of the street in which she lived (the plaintiff admitted in his sworn evidence that Mrs Morrison’s note did contain the name of Ms Lewis’ street T156.31);

3. hand to Cons Foran the note on yellow paper handed by Mrs Morrison to the plaintiff;

4. tell Cons Foran of Mrs Morrison’s perception of the seriousness of the situation;

5. ask Cons Foran and/or PC Hevers to expedite the processing of ARG;

6. tell Cons Foran and PC Hevers to stop processing ARG, attend to that himself and instruct the car crew to make urgent investigations forthwith;

7. ring up Ms Lewis’ parents as he said he would, as recounted in Mrs Morrison’s statement or, if he gave no such undertaking, making a decision to ring Ms Lewis’ parents and inquire if she were at home or, for example, that she had gone to the home of a relative or friend and had been safely accounted for;

8. call Wallerawang 1(which did not go off duty until 4.00am) to Lithgow either with or without expedition, to undertake a search or otherwise assist;

9. call Ch Insp Leacy at that stage for advice or assistance as he did at 5.20am;

10. in the alternative to (f), the breath analysis of ARG being complete, release ARG forthwith and post to him later a CAN (“future CAN”) freeing up the Lithgow car crew;

11. go straight to the hospital himself, make enquiries of Ms Spillane and Ms Tonkin about Ms Lewis;

12. leave ARG in custody under the supervision of PC Hevers and go with Cons Foran straight to the hospital to make inquiries of the two victims there.

Further permutations can be envisaged as to what the plaintiff could have done after his meeting with Mrs Morrison at 3.35/3.36am.

Police action

38. Once the Lithgow car crew interviewed Ms Spillane and Ms Tonkin there was prompt action. PC Hevers’ statement (exhibit Q2), with some corrections continues (from that quoted in [20] above):

“At … 4.19am Cons Foran and I called in at the Hospital. We were met at the front door of the casualty department by two women whom I now know as Melanie [Spillane] and Kerry Anne Tonkin. Cons Foran said to the two girls, “Are you the ones who called the police?” They said “Yes”. Cons Foran said, “Can you tell me what happened?”

Melanie said, “Well we were walking towards the pool to meet our cousin after we left the Nitespot. We got to the intersection of James Street and George Coates [Avenue]. That’s when Kerry was hit, then I was hit.” Kerry said, “Once I was hit I just started to run. I ran up and around the pool, and I could hear Melanie screaming.” Melanie said, “After I was hit, the person started to grab the strap of my handbag, then started to pull me into the oval. I put my foot on the gutter to stop him from dragging me any further, then the strap on my handbag broke and I got away. We were supposed to meet our cousin down at the pool but when were there we did not see her. We are a bit worried about it, because of what happened to us.”

Cons Foran and I had a quick look at the girls’ injuries. Cons Foran said to the girls, “if you go down to the police station we will go down to the pool and have a look for her now. Then we will come back and get a couple of statements off the pair of you.”

39. The narrative of what then occurred is best described by Cons Foran in his statement (exhibit P2):

“Probationary Constable HEVERS and I then left the hospital, calling back on at 4.25am, where we drove directly from Lithgow District Hospital, to the vicinity of Lithgow Pool. I drove the vehicle west along Main Street, turned right into James Street and travelled under the via-duct. I then followed James Street to the left to travel parallel to the railway line.

When I reached the intersection of James Street and Albert Street, I drove the police vehicle onto the dirt area of the carpark attached to the baseball field. I engage the alley light of the roof bar and caused them to shine over the playing field area. I then noticed a red Holden utility parked in the carpark area. I drove towards this vehicle and observed a male person seated behind the steering wheel. As I got closer to this vehicle, I saw a female sit upright in the passengers’ side. This female appeared to be laying down and across the bench seat. I stopped next to the vehicle and spoke to the driver and female. I asked if they had seen any persons around the area or heard any altercations. The male stated that they had only been there a short time and haven’t seen anyone or heard anything. I then left these persons. Upon my approach, I formed the opinion that they were engaged in a personal act and were not in distress or imminent harm.

139. Having reviewed the dictionaries and these authorities, I prefer to gloss “predominantly” with the adverb “chiefly”. To me it means much more than merely 51%, which is where “mainly” usually leads. To predominate something must eclipse each other factor and all other factors. Applying this test to what occurred between 6 and 17 March 1997, I am not satisfied that the defendant’s actions, through Ch Insp Leacy and Super O’Neill, was the predominant cause of the plaintiff’s mental condition.

140. The stressors between 7 April 1997 and 19 August 1997 (the day before the release of the Ombudsman’s final report) were not caused by any action taken by the defendant. The actions during this period are attributable not to the plaintiff’s “employer”, the defendant, but to Mr Tink MLA, perhaps Mrs Gee, the mother of Kerry Ann Tonkin, the Ombudsman and the media. By 14 August 1997 the plaintiff was again totally incapacitated: see [110](e) and (f). Some time was spent in addresses in considering whether the Ombudsman might be considered an “organ” of the defendant but, on reflection, that argument is untenable. It would lead to the proposition that any body having oversight of employer-employee relationship becomes part of that relationship, which might include unions, tribunals, courts and even the police force itself (in other “industries”). Learned Counsel for the plaintiff, Mr O’Rourke, in his written submissions (MFI 7) drew my attention to the case law which points out that the Ombudsman is independent of any body he or she may investigate: Ainsworth v The Ombudsman (1988) 17 NSWLR 276 at 283; COP v Ombudsman (9 September 1994, unreported, Sackville AJ, NSWSC Administrative Law Division); Botany Council v Ombudsman (1995) 37 NSWLR 357 at 367-368 per Kirby P, with whom Sheller and Powell JJA agreed; “K” v NSW Ombudsman & Anor [2000] NSWSC 771 (Whealy J) at [25]-[26].

141. The next stressor or stressors occurred on 20 August 1997 – see [110](e). What the Ombudsman did, and what the media did, are not the actions of the defendant. The defendant acquiesced in the recommendations of the Ombudsman publically. Again, I am not satisfied that the stressors of this day were caused wholly or predominantly by the action of the defendant. Absent the acquiescence of the COP, the publication of the Ombudsman’s report would have probably generated the same media interest, the same furore as actually occurred. I must return to the event of this day again, when considering another topic, the reasonableness of the defendant’s action(s).

142. The remaining stressors, the events at Police Headquarters on 29 August 1997 and the defendant’s handling of his claims for HOD benefits, I accept were wholly caused by actions taken on behalf of the defendant.

Was the certified infirmity in respect of discipline or performance appraisal?

143. In Kushwaha v Queanbeyan City Council [2002] NSWCC 25; (2002) 23 NSWCCR 339, I was required to consider what fell within the concept of “discipline” between [147] and [154]. I gave it a wide meaning. There was some fraternal disagreement between Walker CCJ and me about the meaning of “discipline” but that disagreement was only whether the worker’s conduct should be seen as a breach of his employment contract or of some industrial award or agreement or, for example, a breach of a rule, regulation of by-law that governed the work being done: Hunt v Department of Education and Training (NSW) (2003) 24 NSWCCR 642. In the current case, there is no argument that what the defendant did in answer to the complaint made by Mrs Morrison was “discipline” as, in effect, her complaint was an allegation of dereliction of duty by the plaintiff. “Discipline” was discussed by Spiegelman CJ in Department of Education & Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206 at [35] and by Sackville AJA in Northern NSW Local Health Network v Heggie [2013] NSWCA 255; (2013) 12 DDCR 95 at [52] but in neither case was the content of what falls within “discipline” discussed.

144. If I be wrong in categorising what was occurring to the plaintiff (as far as the defendant was concerned) as “discipline”, it may fall within the extended meaning of “performance appraisal” provided by Geraghty CCJ (as he then was) in Irwin v Direction General of School Education (unreported, quoted by me in Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32; (1999) 19 NSWCCR 135 at [31]) and by O’Meally CCJ in Callary v Wyong Shire Council (unreported, quoted by me in Bottle at [34]-[35]) and by Geraghty CCJ in Dunn v Department of Education & Training (2000) 19 NSWCCR 475. In Brady v COP (2003) 25 NSWCCR 58, Armitage CCJ was of the view that adverse criticism of a police officer in a Royal Commission could amount to both “performance appraisal” and “discipline”. In the present case, it was not submitted that what was happening between the plaintiff and the defendant up until 29 August 1997 was neither “discipline” nor “performance appraisal”.

145. However, the way the defendant has dealt with the plaintiff’s HOD claims can not be said to be either “discipline” or “performance appraisal”. The swift answer to this issue is the outcome of these proceedings: if the plaintiff be unsuccessful but the defendant’s actions in this regard were justified, they were reasonable. If the plaintiff be entitled to succeed otherwise in these proceedings, the defendant’s actions in this regard were unjustifiable and, therefore, unreasonable.

Were the defendant’s actions reasonable?

146. In Manly Pactific International Hotel v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181, Davies AJA pointed out that s11A was concerned with the process adopted by the employer:

“The criterion of s 11A(1)(b) is "reasonable action taken ... by or on behalf of the employer". The words "with respect to" are of wide application. Transfer, demotion, promotion, etc may be the subject of the action or proposed action taken by or on behalf of the employer or matters with respect to which that action or proposed action is connected or may themselves constitute the action or a part of the action. However, the provision does not speak of an injury caused by the transfer, demotion, promotion, etc of a worker but of an injury caused by action taken or proposed to be taken by or on behalf of the employer with respect to such a matter. The words "performance approval, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers" all clearly refer to matters other than the performance by a worker of his duties. The paragraph is thus looking to the worker's response to the employer's action or proposed action, not to the worker's response to employment conditions encountered after a transfer, demotion, promotion, etc. Senior counsel for Mr Doyle put the matter well when he submitted that the section was looking to the process of transfer, demotion, promotion etc rather than those acts per se.”

The test of reasonableness is an objective one. This was authoritatively established in COP v Minehan [2003] NSWCA 239; (2003) 1 DDCR 57. That was an appeal from a decision of Campbell CJCC given on 15 November 2002. His Honour adopted dicta of Geraghty CCJ and Truss CCJ to that effect. Those dicta can be found at [27] of the reasons of Foster AJA in Minehan. At [42] Foster AJA said:

“For my part, I am not prepared to adopt this view of the operation of s 11A. I am satisfied that the legislature did not intend to restrict its operation in this way. I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgment and in his Honour's judgment. The words "reasonable action", in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon breach of a duty of care.”

Sheller and Santow JJA agreed with Foster AJA. See also Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.

147. I shall now consider whether the defendant’s actions with respect to stressors identified at [110](b), (c) and (d) above were reasonable. Whilst some criticism can be levelled at some steps over this period, e.g. Ch Insp Leacy’s initial failure to outline Mrs Morrison’s complaint to the plaintiff on 6 March 1997 and his then delaying the processing of this complaint during his 4 RDOs when he attended to family business at Newcastle, it appears to me, objectively that the process during this period was reasonable. I do not understand Mr O’Rourke, for the plaintiff, to have submitted otherwise. Furthermore, the plaintiff himself made no complaint to me about the investigation which was being conducted by Super O’Neill or its outcome. He was “relieved” (see [54] above). In any event, the pleadings admit that the plaintiff formed the opinion that this investigation “was fair and the outcome was reasonable”: see SOC par 6(c) quoted in [4] above. Whilst criticism might be levelled at some steps in the process, it is the entirety of the defendant’s actions which needs to be considered: in Department of Education & Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206, Spigelman CJ (with whom Hodgson and Bryson JJA concurred) said at [96]:

“Furthermore, the case before Sheahan J primarily focused on the whole course of Departmental conduct as constituting the relevant “substantial contributing factor” for purposes of s9A. His Honour appeared to approach the s11A issue on the same basis. This is an appropriate course to adopt in a context concerned, and concerned only, with psychological injury arising from matters such as “demotion, promotion, performance, appraisal, discipline, retrenchment or dismissal”. Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the “whole or predominant cause” is the entirety of the conduct with respect to, relevantly, discipline.”

148. The remaining stressors which I need to consider under this heading are those of 20 and 29 August 1997 which are causally related and ought be considered together. At the heart of the reasonableness of the defendant’s actions is the final report of the Ombudsman (exhibit Y). An attempt was made by the Ombudsman to protect the plaintiff’s identity by describing him as “Senior Constable A”. This was a futile exercise as the media were aware of his identity and his name was publicly broadcast: see the evidence quoted in [65] above. The plaintiff’s complaint about the criticism levelled at him by the Ombudsman concerns the contents of the second paragraph of that part of the report which I quoted in [61] above. That expanded, somewhat, this view provided in the preliminary report (quoted more extensively in [58] above):

“Given my view of the evidence I am of the opinion that Constable See should have ensured a prompt response by police in following up the information which Mrs Morrison had provided to him at 3.35am. In light of the serious concerns which had been expressed by Mrs Morrison, there was no reason why a Lithgow car crew could not have been quickly sent to investigate the matter.”

In short, the final report sought to grapple with, or engage with, the requirements of the Police Force as to dealing with prisoners. The Ombudsman’s report did not seek to circumvent the Patrol Commander’s directive that at night car patrols should always be constituted by two officers.

149. The first thing to note about the Ombudsman’s view is that it is incorrect to say that the charging of ARG “had been completed” at 3.35am. The charging process began at 3.35am: see [21] and [22] above. The plaintiff maintained that the COP’s instructions and his recent training (see [11] above) required that a young, intoxicated male, with a relationship problem, arrested for the first time had to be in the care of two members of the NSWPF and could not be left in a police cell where there was only one officer at the police station and that he could not merely release him from custody without the necessary formalities being observed.

150. The relevant COP’s Instructions (or as near to them as Counsel could provide) are exhibit XX. They comprise twelve pages. The relevant parts of the Instruction “Screening Prisoners” are:

1. “When arresting, transporting, investigating, charging or confining persons in custody it is vital that you detect which prisoners are potentially dangerous to either themselves or other people. Preventing deaths, injury, or illness of prisoners requires identification of those at particular risk. The Prisoner Admission Management Form (PAMF) makes reference to prisoners who show any obvious pain, illness or injury, intoxication and suicide signs. ... You must be conversant with the custody questions in the PAMF which must be conscientiously completed every time a prisoner is to be placed in a cell or detained at a police station.”

2. “Screening prisoners upon admission is considered the most important aspect of assessing illness or suicide potential.”

3. “There are some fairly obvious warning signs regarding potential for suicide which can be identified. These warning signs may be direct statements while others may be indirect. They may be made to police, relatives, friends or other persons. Prisoners planning to commit suicide often speak about their plans and feelings. It is crucial that these indicators not be ignored. In particular, the screening process makes reference to prisoners who:• have medical problems• are severely agitated or aggressive• are under the influence of drugs or alcohol• are excessively despondent or guilty• have neck or wrist scars suggestive of previous self-inflicted injury• are irrational or mentally ill• have a history of suicidal behaviour• are arrested and placed in a cell for the first time”

4. “… the important thing to remember is if you recognise any signs, steps should be taken to prevent the opportunity for the persons to inflict self-injury or suffer illness.”

5. “The prisoner’s personal difficulties and background information, if available, can be a valuable contribution to the prisoner assessment.”

6. “AccountabilityPolice Generally:You are accountable if you disobey instructions or fail to properly discharge your duty of care towards prisoners. You are expected to reasonably foresee what might happen when certain signs and symptoms exist.”

7. Part 1.01 of the Instructions is headed “Apprehending officer’s prisoner assessment”. It contains this:“Personal difficulties and background informationYou may be in a position to provide information that would not be available to the custody officer that is of benefit to that officer’s assessment. Inform the custody officer if you are aware of any of the following details about the prisoner:• no prior arrests• suicidal thoughts• psychiatric history• history of suicidal behaviour• history of drug and alcohol abuse• has experienced a significant loss• lacks close family or friends in the community• family or friend has attempted or committed suicide• rejected by close friends (especially relevant to child offenders)• is very worried about major problems other than the arrest• holds position of respect in community and/or alleged offence causes public outcry• feelings of loneliness, worthlessness, helplessness or hopelessness …”

151. Whilst the plaintiff was not the arresting officer, as the station officer at the time that ARG was taken to the Lithgow Police Station, and also as shift supervisor, the plaintiff was the custody manager, or, as the title was at the time, custody officer (T18.37). The plaintiff was concerned about ARG’s age, 33 years old (“the end cusp of a high risk age range for a prisoner to self-injure and attempt suicide” – T20.13) his intoxication (BAC 0.095) and that he had a “relationship problem (“Bloody women”). That expression, used by ARG to explain his drinking, is capable of bearing multiple inferences, and therefore multiple explanations, and could be interpreted in the way the plaintiff said he did. The plaintiff regarded this as “a high risk factor for people in custody” (T20.05). As to the number of police required for processing an offender such as ARG, the plaintiff gave this evidence:

“Q.  In terms of the number of police officers that might be required to look after the prisoner in those sort of circumstances, is there a number?  Do we need two, do we need three?

A.  Generally two for officer safety.  It's not a good idea to have a prisoner behind you.  And when you are a breath analysis operator you have to face the instrument, the keyboard, and it ‑ someone has to be watching the person in custody to make sure he doesn't put anything in his mouth or there's no risk.

Q.  Before we get more specific, in general terms, were there any rules at the time in relation to what probationary constables could or could not do?

A.  Generally, just ‑ probationary constables could not work outside alone, one out.

Q.  Was there any particular directive under which the constables and yourself were working that particular night in terms of patrolling after dark in Lithgow?

A.  Yes, there was an instruction from Inspector Leacy about police were not to work one out after dark.

Q.  From the background that you described earlier, and from your own years of experience, was there any particular necessity in terms of the number of police officers that should be in the police station when there is a prisoner in the police station?

A.  The bare minimum would be the two.  But that would leave the front counter and the phones unanswered, so I would say three.

Q.  Why would it leave the front counter and the phones unattended?

A.  Cause the e breath analysis room is away from the front counter, and you wouldn't know if ‑ when people walk in.

Q.  Once that process is done, is there any reason why the prisoner couldn't go into the dock or into a cell?

A.  The prisoner did go into the dock, but ‑ for the initial part of the process, but then, all prisoners are fingerprinted, so he's removed from the dock for the fingerprinting process.

Q.  To take the point of the evidence that you were giving earlier about you perceived fellow to have elements of a high risk prisoner, what did that do as far as what you and the other two constables had to do?

A.  It just meant that we had to closely monitor him and gauge his demeanour.”

The thrust of the defendant’s case on this issue is whether the plaintiff genuinely held at the time these views as to ARG’s risk factors or whether they were ex post facto rationalisations. The plaintiff’s evidence given to me was given nearly eighteen years after the events in question and after the plaintiff had been pre-occupied with these events “for years”. However, the issues does not appear to arise at any time prior to the Ombudsman’s intervention. Neither the plaintiff, Cons Foran or PC Hevers were questioned in Super O’Neill’s investigation about ARG’s risk factors, their obligations to ARG or the time spent at Lithgow Police Station processing ARG from the time he returned a positive breathalyser finding of 0.095 BAC until his discharge from the Police Station at 4.14am. Super O’Neill accepted that Lithgow car crew were despatched to the hospital “at the first opportunity” and that there was “no doubt from the documentary evidence that the crew of Lithgow 10, Constables Foran and Hevers, were in fact engaged, in accordance with the Commissioner’s Instructions with a prisoner between the hours of 2.56am and 4.10am” (see [53] above). As I have pointed out at [60] above, Super O’Neill’s findings were supported by Ch Super Shears on 22 April 1997, as they had been by COP Ryan on 17 March 1997 (see [55] above). They had also been “reviewed” by Ch Super Graham (see [52] above).

152. The plaintiff’s position on this issue was provided to the Ombudsman by the plaintiff’s solicitors on 30 May 1997 – see [60] above, in the first “highlight” that I made of those submissions. Opinions on these matters can differ but, to my mind, the Ombudsman has not adequately grappled with the considerations that the plaintiff was required to make at the time. A prisoner might not be violent or uncooperative but could still be suicidal. If the plaintiff were required to choose between competing priorities, which priority should he ignore – COP’s Instructions or the Patrol Commander’s direction? To my mind it would be safer for a member of the NSWPF to disobey a direction from his immediate supervisor rather than COP’s Instructions. The plaintiff could have left Cons Foran and PC Hevers to deal with ARG and driven to the hospital – travel time “not much greater than 2 minutes” (see [27] above). There would have been no risk to him from working alone with Melanie Spillane, Kerry Anne Tonkin, Sister Muldoon and Dr Celeste Spamer. He could have interviewed the two young ladies, obtained Ms Lewis’ details and her proposed plan, returned to the Police Station, telephoned Ms Lewis’ parents and Ms Lewis’ friends, advised Cons Foran of what was happening and had the car crew out looking for Ms Lewis as soon as the processing of ARG was completed. Alas, that did not occur, but that is not what the Ombudsman found. The Ombudsman found that the plaintiff should have dealt with ARG otherwise than “in accordance with the Commissioner’s Instructions”, to use the terminology of Super O’Neill. To this finding of the Ombudsman, COP Ryan appeared to acquiesce: see [64] above.

152. At [74] above, under the heading DC Lawson’s actions, I expressed a view about Mr Ryan’s decision. I did not make any comment about the merits of that decision at that time. However, I am now called upon to determine whether that action was “reasonable” in the circumstances, that is whether it was reasonable action taken by the then Commissioner of Police with respect to discipline of the plaintiff. The Commissioner was in effect acquiescing to the Ombudsman’s finding as to what the plaintiff ought to have done which, in his own earlier opinion, and in the opinions of Ch Super Shears, Ch Super Graham, Super O’Neill and the plaintiff was contrary to COP’s Instructions. The defendant bears the onus of proof on this issue. In my view, that onus of proof has not been discharged. Furthermore, some support to that conclusion can be found in what subsequently occurred, in some of the actions of DC Lawson.

153. As I observed at [74] once the Commissioner had, himself, acquiesced in the report of the Ombudsman, his Deputy’s actions were inevitable. Perhaps naively, the plaintiff went to the meeting with DC Lawson armed with documentary evidence to support the position that he had espoused, through his solicitors on 30 May 1997, a position which had not been formerly challenged by anyone in NSWPF except Mr Ryan on 20 August 1997. As recorded in [67] above, both AC Adams and DC Lawson told the plaintiff, according to him, that he ought to have dealt with ARG by “locking him away” to be dealt with later. According to the plaintiff DC Lawson refused to hear the plaintiff’s arguments about his obligations when there was a person such as ARG in custody. In [67] I set out the plaintiff’s view of what occurred on 29 August 1997 and in [68] I quoted the substance of DC Lawson’s report. Did the plaintiff tell me the truth as he perceived it? There is a witness who could have rebutted what the plaintiff said, Mr Adams, then Assistant Commissioner and Regional Commander, but he was not called by the defendant nor was his absence from the witness box explained. If the plaintiff went to this meeting perhaps naively bearing documentary evidence, why should the plaintiff admit, implicitly, such naivety when, as I said at [74] the die had been cast, to anyone who appreciated the consequences of Mr Ryan’s volte-face, perhaps an agonising decision that he had to make. I am prepared to accept the plaintiff’s evidence on this issue. It follows, in my view, that the actions of DC Lawson were unreasonable actions with respect to the discipline of the plaintiff – her action was inevitable in response to Mr Ryan’s concession and on an acceptable view of it, amounted to a denial of natural justice, a denial of not only observing the audi alteram partem rule but also heeding it.

154. My finding at [75] above is also pertinent to this issue. I there accepted that the plaintiff did raise with DC Lawson a death in custody at Port Macquarie but that in some fashion she dismissed its significance. The Ombudsman criticised the police investigation into Mrs Morrison’s complaint. One will note in [68] that which DC Lawson said to Super O’Neill. However, neither Ch Super Graham nor Ch Super Shears was given any “counselling”. DC Lawson’s reprimand to the plaintiff does not appear to have been recorded on the plaintiff’s service register: see T327. Finally, I ought not leave the issue of “reasonableness” without pointing out that the Ombudsman’s report and the subsequent acquiescence with it and DC Lawson’s actions very much suggest fact-finding based on that wonderful advantage, the benefit of hindsight. No allowance appears to have been made for the possibility that Ms Lewis was not “missing” and in harm’s way but merely that her whereabouts were unknown to her two friends and that there might be valid reasons for not causing anxiety or concern for her parents. Nor was any allowance made for the possibility that, left unsupervised in a police cell, ARG may have come to harm.

Summary of section 11A defence

156. My findings under section 11A can be tabulated thus:

STRESSOR	WHOLE OR PREDOMINANT CAUSE	WITH RESPECT TO DISCIPLINE	REASONABLE ACTION
6 March to 14 March	NO	YES	YES
20 August	NO	YES	NO
29 August	YES	YES	NO
After 29 August	YES	NO	NO

In short, this defence is unsuccessful. I am aware, of course, that I must consider the defence in globo, as stated by Spigelman CJ – see [147] above. However, as the actions of the Ombudsman are not actions for which the defendant is liable, no defence under s11A can arise from the Ombudsman’s actions and, therefore, it has been necessary to divide my consideration of this issue. However, looking at the matter in globo, I still reach the same conclusion. The stressors prior to 14 March would not have resulted in the certified infirmity – the plaintiff would have recovered but for subsequent events. The major stressors were the events of and between 7 April 1997 and 29 August 1997. Events after that time, how the defendant dealt with the plaintiff’s HOD claims (which is not a disciplinary matter), could be described as perpetuating the condition and also as the final straw.

Injury or disease?

157. It follows that the plaintiff is entitled to succeed. At the commencement of [6] I left aside the question of whether what occurred to the plaintiff was injury simpliciter or “disease”. PRSA requires me by s10B(3)(a) to determine dates when the plaintiff was HOD. Each stressor can be seen as a blow, a punch, to his psyche. Whatever psychiatric condition was manifest initially, eventually the certified infirmity was diagnosed, the condition progressively deteriorated as the stressors became more severe and there was a permanent altering of brain chemistry. This is properly categorised as a disease of gradual process. The last stressor was on 8 April 2009.

Apology

158. I apologise to the parties for my delay in the delivery of these reasons. There were professional reasons for that delay. They have been explained to Mr O’Rourke. I am confident that a counsel as perceptive as Mr Hutchings will appreciate those reasons. I shall expedite any further applications the plaintiff may make to this Court.

Orders

159. (1) I set aside the decision of the defendant made on 19 August 2014.

(2) I determine that the suffering by the plaintiff of the infirmity of “chronic major depressive disorder” was caused by his having been hurt on duty. Deemed date of injury 8 April 2009.

(3) I order the defendant to pay the plaintiff’s costs.

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Decision last updated: 03 February 2017