Skinner v The State of New South Wales (No 2)

[2021] NSWDC 49

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Skinner v The State of New South Wales (No 2) [2021] NSWDC 49

Hearing dates:

8-10, 12, 15-19 February 2021

Date of orders:

05 March 2021

Decision date:

05 March 2021

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 685

Catchwords:

WORK ACCIDENT - work injury damages - former police officer's claim for damages for psychiatric injuries arising from exposure to traumatic incidents and workplace conflict - content of scope of admitted duty of care - whether breach of duty - whether causal link established between breach of duty and asserted psychiatric injuries established - assessment of damages - whether and to what extent events and circumstances in respect to which the State is not legally responsible contributed to plaintiff's psychiatric injuries - whether and to what extent contributory negligence defence made out to reduce damages

TORTS - intentional tort - claim for damages for psychiatric injuries partly based upon alleged harassment and bullying - mental element required to sustain the tort

PRACTICE AND PROCEDURE - application for leave to commence proceeding nunc pro tunc - proceeding commenced in March 2017 - leave application adjourned separately in 2018 and 2019 following absence of legal representation for the plaintiff - appropriateness of leave application being heard concurrently with trial in the circumstances – obligations upon parties and legal representatives to assist with dispatch of leave applications

Legislation Cited:

Civil Liability Act2002 (NSW) ss s3B, 5B, 5C

Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 60

District Court Act 1973 (NSW), s 44(d1)

Evidence Act 1995 (NSW) s 140

Police Force Act 1990 (NSW)

Workers Compensation Act1987 (NSW) ss 151D, 151M

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

Cases Cited:

ASB-Tech Services Pty Ltd (in liq) v Doeland [2003] NSWCA 167

Bunyan v Jordan (1937) 57 CLR 1

Carangelo v State of New South Wales [2016] NSWCA 126

Coal & Allied Operations Pty Ltd trading as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271

Coote v Kelly [2013] NSWCA 357

DC v State of New South Wales [2016] NSWCA 198

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

Feldman n Nationwide News Pty Ltd [2020] NSWSC 26

GIO General Limited v Love [2009] NSWCA 269

Gower v State of New South Wales [2018] NSWCA 132

Hegarty v Queensland Ambulance Service (2007) Aust Torts Rep 81-919

Jones v Dunkel (1959) 101 CLR 298

Jones v Murrumbidgee Irrigation Ltd (No. 2) [2020] NSWSC 613

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44

Malecv JC Hutton Pty Ltd  (1990) 169 CLR 638

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471

Northern Territory v Mengel (1995) 185 CLR 307

Prince Alfred College Incorporated v ADC (2016) 258 CLR 134

Purkess v Crittenden (1965) 114 CLR 164

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

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

Skinner v New South Wales [2021] NSWDC 36

State of New South Wales v Briggs (2016) 95 NSWLR 467

State of New South Wales v Burton [2006] NSWCA 12

State of New South Wales v Fahy (2007) 232 CLR 486

State of NSW v Burton [2006] NSWCA 12

State of NSW v Donnelley [2004] NSWCA 133

Tabet v Gett (2010) 240 CLR 537

The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762

The State of NSW v Donnelley [2004] NSWCA 133

Watts v Rake (1960) 108 CLR 158

Wilkinson v Downton [1897] 2 QB 57

Wilson v Peisley (1975) 7 ALR 571

Wyong Shire Council v Shirt (1980) 146 CLR 40

Texts Cited:

H Luntz, Assessment of Damages for Personal Injury and Death (revised 4th edition, 2016, LexisNexis Butterworths)

J G Fleming, The Law of Torts (7th edition, 1987 Sydney Law Book Company)

Category:

Principal judgment

Parties:

Ms K Skinner (plaintiff)
The State of New South Wales (defendant)

Representation:

Counsel:
Mr C Hart and Mr G Schipp for the plaintiff
Mr D Stanton for the defendant

Solicitors:
Prominent Lawyers for the plaintiff
SMK Lawyers for the defendant

File Number(s):

2017/90426

Publication restriction:

Nil

Judgment

A BACKGROUND

Overview

Issues

B THE SECTION 151D WC ACT APPLICATION

Procedural context

Delay in the hearing of the application for leave

The Leave Issue

The delay & the explanation for it

Attempts to obtain information from former solicitors

Suggested prejudice

Parties’ submissions

The plaintiff’s submissions

The defendant’s submissions

Consideration

The merits

Length of Delay

Prejudice

C FACTS

Preliminaries

The Chronology

Goulburn Police Academy & Newcastle station: October 1992-April 1993

North Sydney station: April – July 1993

Hornsby station: June 1994- November 1996

Waratah command: November 1996 – March 2003

The ‘Matthews episode’

Commander Shearer

Morisset station: April 2003 to September 2007

The Garland MVA fatality – June 2005

‘dead man Danny’ – October 2005

Commander Clarke

Conflict with Commander Clarke regarding GSOs

The suicide of Sgt Muir – late June 2007

Suicide of Gray – early September 2007

Toronto station: October 2007 to February 2010

Sgt Boyd’s report – October 2007

Explaining to the plaintiff her move to Toronto station

The plaintiff’s HOD claim – late October 2007

Further troubles with Ms McSweeney

Ms Hanna’s opinion – January 2008

Attempts to return to work – June 2008

Management of the plaintiff’s special sick leave & conflict with Superintendent Rae

Circumstances leading to medical discharge

Defendant’s additional evidence

D CREDIT

The plaintiff

SC Richardson

Mrs Shearer

Mr Clarke

E THE PLAINTIFF’S INJURIES

The Plaintiff’s medical evidence

Dr Alexander Murray

Professor Alexander McFarlane AO

Report of 30 May 2014

Report of 15 December 2015

Dr Toni Metelerkamp

Dr Spruce

Martin Peters

The Defendant’s Medical evidence

Dr Vickery

The Joint Expert report

Consideration

F SYSTEMS OF WORK

Documentary evidence

NSW Ombudsman’s ‘Officers Under Stress’ June 1999 report

Critical/Traumatic Incident Standard Operating Procedure for Reporting

Lay evidence

SC Richardson

Commander Clarke

Testimonial evidence

Statement evidence

Gary Odell

Murray Lundberg

Expert evidence

Plaintiff’s evidence

Professor McFarlane

Dr Murray

Dr Metelerkamp

Defendant’s evidence

Mr David Mutton

Concurrent evidence

Victim of nepotism and corruption?

Omission to identify - 2005

No monitoring - 2005

Seeing ‘dead man Danny’ – October 2005

Failure to pass on information at command handover - 2005

Whether the need for welfare was apparent in May 2007?

Reaction to the prospect of being sent back ‘on the truck’: second half of 2007

Influence of budgetary considerations on standard of welfare

Not giving the plaintiff the afternoon off after the psychologist appointment

Notice of psychological injury – October 2007 & the absence of response

Notice of distress – February 2008

The possible withdrawal of entitlement

The police psychologist’s report of February 2008 (Exhibit E)

The plaintiff’s personality

Assessment of experts

Limits on the value of the evidence of the experts

G FINDINGS ON DUTY OF CARE & BREACH OF DUTY

Duty of care

Breach of duty

Principles

Parties’ submissions on breach

Plaintiff’s submissions

The defendant’s submissions

Consideration

Intentional conduct causing psychological injury: 1999 - March 2003

Failing to conduct review – early 2003

Failing to follow up after EAP consultation in May 2017

Failing to arrange debriefing sessions following incidents in 2005

The Garland MVA fatality

‘dead man Danny’

Not allowing the plaintiff to continue as station manager because of budgetary reasons – May 2007

The decision to send the plaintiff back to Toronto without full mental health assessment

The 2005 traumatic events

Other events: January – March 2007

May 2007

The May 2007 EAP counselling session

The suicides – June – September 2007

Explaining the decision to send the plaintiff to Toronto – October 2007

H CAUSATION

Expert evidence

Plaintiff’s evidence

Concurrent evidence of experts

Causal effect of intervention in 2005

Problems with ‘directing’ treatment?

Time for diagnosis of PTSD

‘Substantially better outcome’

Exclusive causes for PTSD?

Disentangling events

Submissions

Plaintiff’s submissions

The defendant’s submissions

Findings

Failing to review plaintiff in early 2003, before her return to front line duties

Failing to conduct debriefings in 2005

Failing to assess the plaintiff’s fitness for general duties from May 2007 through to October 2007

The significance of the Hanna assessment –22 January 2008

I DAMAGES

General

Medical evidence

Comparable income

Past economic loss

Submissions

Plaintiff’s submissions

Defendant’s submissions

Future loss of earning capacity

Submissions

Plaintiff’s submissions

Defendant’s submissions

Consideration – critical factual findings

Credit to defendant for past compensation payments

Deduction on DC v State of NSW principles

Contributory negligence and failure to mitigate

Submissions

Consideration

Interest

Summary

Orders

Judgment

A   BACKGROUND

Overview

1. The plaintiff is a former member of the New South Wales Police Force (‘Police Force’). She worked in multiple stations across different parts of New South Wales over nearly two decades, in the period from October 1992 to February 2010. The plaintiff suffers from debilitating psychological injuries, in the form of Post-Traumatic Stress Disorder (‘PTSD’) and Major Depression. She brings a ‘work injury damages’ proceeding against the Defendant, being responsible for the conduct of persons in the Police Force, under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (‘WIM Act’). She contends that the Police Force owed her a duty to provide her with a safe workplace and safe system of work and that, over the course of her work, she was exposed to manifold acts of violence, death affecting others, as well as bullying and harassment directed to herself by other members of the Police Force. The plaintiff argues that the Police Force acted negligently in a variety of ways, but fundamentally, she contends that after negligently failing to identify her stress symptoms which caused her eventual psychological injuries, the Police Force should have developed a system in place to mitigate the effects upon the plaintiff in responding to stressful situations. In addition, there is a separate complaint about the adequacy of the Police Force’s response to her complaints of persistent bullying and harassment, which jointly or severally contributed to her psychological injuries.

2. The Defendant accepts that the Police Force owed a duty of care, although it says that the duty was modified in light of the special nature of the plaintiff’s service and, as indicated, admits that she has suffered psychological injuries. But the Defendant disputes that the plaintiff’s injuries were caused by negligence within the Police Force. Further, the Defendant says that its liability extended no further than the plaintiff continuing to receive statutory benefits under the Workers Compensation Act1987 (NSW) (‘WC Act’). Alternatively, if the plaintiff is entitled to recover work injury damages, the Defendant should receive credit for the statutory benefits that she has already received; the damages should be reduced on account of the plaintiff’s own contributory negligence (essentially her own failures to report to the Police Force her own symptoms of stress and seek out medical assistance) which also meant that she failed to mitigate her ‘damage’, and reduced further on account of other events causing the injuries for which it is not responsible.

Issues

3. The defendant also objected to the proceeding, raising the point that leave to commence the proceeding had not been obtained before the hearing. I determined to grant leave to the plaintiff to commence the proceeding, nunc pro tunc, on 17 March 2017, for reasons I will shortly supply.

4. The ultimate issues for the Court’s determination are:

1. The content of the defendant’s (admitted) duty of care in the circumstances;

2. Whether the defendant’s breached the duty of care;

3. Whether the breach is causative of the plaintiff’s injuries;

4. The extent to which, if at all, the plaintiff’s injury was also contributed to by the plaintiff’s contributory negligence (and the extent that the award of damages is to be deducted, under s 151A of the WC Act);

5. The nature and extent of the plaintiff’s injuries;

6. The assessment of the plaintiff’s claim for loss under s 151G of the WC Act, having regard to:

1. her average weekly earnings at the time of the accident;

2. her likely employment prospects uninjured;

3. her residual earning capacity;

4. her likely retirement age;

5. the extent to which her loss has been contributed to by a back injury sustained on 25 April 2006; and

6. the extent to which her incapacity is attributable to multiple psychiatric causes attributable to other events for which the defendant is not responsible.

B THE SECTION 151D WCACT APPLICATION

Procedural context

Delay in the hearing of the application for leave

5. It was curious that for a proceeding of this kind commenced on 17 March 2017, the validity of the proceeding had still not been determined when the hearing commenced in February 2021. At the time the matter came before me for hearing the Court had been supplied with an estimate of over two weeks, and possibly much more, for the length of the hearing.

6. In her affidavit sworn on 31 July 2018 (filed on 3 August 2018), in support of her application for leave, the plaintiff deposed that consent orders were made on 14 September 2017 for the service of an application for leave to commence the proceeding with supporting evidence by October 2017. That did not occur and in December 2017, further consent orders were made for service of an application, with supporting evidence, by 15 February 2018 and a hearing date on 17 May 2018. These directions were not complied with. Three days before the hearing date, her first solicitors, Carroll & O’Dea had filed a Notice of Intention of Ceasing to Act. This took effect on 22 May 2018. The plaintiff deposed that on 17 May 2018 when she was unrepresented, the proceeding was adjourned.

7. I was also informed from the Bar table that the application for leave had been brought and prosecuted whilst the plaintiff was formally unrepresented and that in 2019, the application had been adjourned in 2019 to be dealt with by the trial judge.

8. With respect to those whose decisions have contributed to this result, in circumstances where the defendant has at all times flagged its opposition to the grant of leave, in my opinion this procedural course was misguided in the circumstances. If the plaintiff, as applicant, was not ready, or was disadvantaged by reason of an absence of representation, to bring the application, the preferred course would have been to her to have procured representation (as she eventually did), and then hear the application.

9. The consequences of the current procedural course was that a motion brought in 2018 has been left unresolved for years, and the parties have subsequently spent substantial time preparing their cases, including presumably significant expense, in the ensuing two years upon a hypothesis that leave might be granted in the hope, at least in the plaintiff’s case, that all the preparation will not have been in vein. That said, the plaintiff has sought to exploit this forensic circumstance: she relied upon the joint expert report ‘in conclave’ dated 14 January 2021 as proof that the Defendant has not been prejudiced.

10. Once a work injury damages proceeding is commenced in this Court, like other civil proceedings, it is subject to the case management objectives referred to in ss 56-60 of the Civil Procedure Act 2005 (NSW). It is not consistent with those objectives for the leave application to be commenced, then be allowed to fester as long as this one did. Otherwise, if the defendant’s opposition is soundly based, it will likely have incurred substantial expense in defending a proceeding not validly commenced. An injured worker is also entitled to know, as soon as possible, whether his or her proceeding should be allowed to proceed.

11. I do not suggest any inflexible rule to the case management of such applications. Plainly, there are cases which, because of the relatively narrow factual dispute, concurrent hearings of leave applications and the hearing of the proceeding are a more efficient use of the Court’s time and the parties’ resources. But this case was not one of them. I acknowledge that one of the problems in this case was the status of the plaintiff being unrepresented at important stages. The plaintiff’ claim also ranged over matters of some factual dispute over a period of some ten years. But had the defendant’s ultimate position – which was not to contest the leave application on the basis of an absence of a sufficiency in merit – been conveyed to the Court at an earlier time, it seems to me that there was no real necessity to have the leave application heard concurrently with the trial of the matter, since the scope for the dispute on the question of leave was considerably truncated. Determining the leave application earlier could (if the defendant succeeded) have brought the proceeding to an end and avoided time and wasted expense. That this result has not come to pass, for reasons I now explain, does not lessen the desirability of that course. For proceedings of this kind and consistently with their obligations under the Civil Procedure Act, parties and their lawyers, should give full consideration and disclose to the judicial officers who manage such proceedings ways in which leave applications can be determined promptly and cheaply without derogation to the interests of justice.

The Leave Issue

12. Section 151D(2) of the WC Act provides that a person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

13. In the Defendant’s written submissions, reference is made to general authorities relating to the Court’s power to extend limitation periods. However, in Gower v State of New South Wales [2018] NSWCA 132, White JA (who delivered the leading judgment) said (at [186]) that the limits of the discretion to extend limitations periods are marked by the subject matter, scope and purpose of the relevant legislation. His Honour (at [186]-[187]) said that where a statute imposes barriers against the bringing of claims that result in delay, leading to a loss of evidence, but permits leave to be given for the commencement of proceeding, the proper exercise of discretion is likely to be highly influenced by whether the claim is apparently meritorious and the degree of prejudice to the defendant. It is not imperative to refuse an application to extend the limitation period if the delay has resulted, or is presumed to have resulted, in the loss of evidence that affects the chance of a fair trial. That may, his Honour said, be the consequence in a particular case, but it is not an inevitable rule.

14. Simpson AJA generally agreed with White JA’s analysis in this regard (Basten JA was in the minority on this point). Her Honour emphasised (at [228]-[230]), that on the facts in that case, it was inapposite to say that the applicant had deliberately allowed the limitation period to expire when, due to the absence of evidence as to the relevant degree of Whole Permanent Impairment, the applicant could not realistically commence proceedings within the limitation period.

15. The observations of the Court of Appeal, in Gower, represent the most recent exposition of the principles by the Court of Appeal that should guide the exercise of my discretion; and are particularly salient when it comes to my consideration of the adequacy of the explanation for delay. It remains the position that the other important remaining considerations concern whether there is any actual prejudice, beyond presumptive prejudice, to the defendant and the merits, such as they appear, of the applicant’s case.

12. The Defendant opposed the application for leave, on two grounds. It says that no reasonable explanation has been given for the delay in commencing the proceeding. Secondly, the Defendant has suffered substantial prejudice because of the delay. As indicated, the Defendant makes no submission that the plaintiff’s claim is inarguable or that the plaintiff’s claim is so apparently weak that this would be an additional basis for declining the grant of leave. This was one of the factors which led White JA in Gower, when exercising the discretion afresh, to reject the application.

13. Since there is no challenge to the arguability of the plaintiff’s case on the merits, it is unnecessary to descend to the minutiae of all of the incidents set out in the plaintiff’s pleading, except to the extent that they generate the complaint of prejudice, in the sense of the Defendant’s inability to call evidence.

The delay & the explanation for it

18. For this leave application, the plaintiff relied upon multiple ‘evidentiary statements’ she had prepared for the proceedings generally and an affidavit, all comprised in a 3-volume tender bundle (Ex D on the application).

19. In the plaintiff’s affidavit sworn 31 July 2018 (filed on 3 August 2018), the plaintiff specifically sought to address the delay in the bringing of her claim. Putting the matter very generally, this affidavit, again prepared whilst the plaintiff was unrepresented, presented a narrative featuring the involvement of multiple firms of solicitors.

20. This began with her representation by John Palmeiri Law Firm in early February 2009, when she says, he commenced to investigate bringing a lump sum workers compensation claim. She deposed to Mr Palmeiri arranging for her assessment by Dr Street. She saw him on multiple occasions and shortly after she became medically discharged from the Police Force, on 18 March 2010, she received a Work Place Injury (‘WPI’) assessment of 29%. On 10 November 2011, a certificate of determination confirmed a 22% WPI.

21. On 10 April 2012, notice was given to the Insurer of the plaintiff bringing a claim for work injury damages. The notice claimed that the plaintiff was exposed to various traumatic experiences in her period of employment up to May 2010; although these experiences were not particularised. The notice also contained the allegation of negligence, with generalised particulars, particulars of her impairments (including but not limited to suffering chronic PTSD) and heads of loss.

22. Towards the end of this notice, reference was made to one of the plaintiff’s ‘evidentiary statements’ being incorporated. The notice observed that the insurer was already in possession of this witness statement. The plaintiff said that she compiled the statement at the request of her then solicitor, in 2010. The statement was about 50 pages in length. Relevantly, the statement identified names of police officers who were privy to the plaintiff’s narrative account of events and who the Defendant subsequently contended had been medically discharged and/or were unavailable to give evidence in the trial. Without limitation, this included officers Trott, Shearer, McSweeney, Kenny, Clarke, Sharman, and Boyd.

23. On 24 April 2012, the Insurer’s solicitor responded by requesting particulars. There was no reference to the plaintiff’s evidentiary statement and no denial of the correctness of the proposition that the Insurer was in possession of it. A feature of this was to request particulars of the allegation of negligence; however, no particulars per se were requested in connection with the evidentiary statement referred to in the plaintiff’s notice – and in the Insurer’s possession - regarding the ‘traumatic experiences’ the plaintiff asserted that she had been exposed to.

24. There were few objective indications of progress of the claim until March 2013, although reference was made to a request for further particulars on the Insurer’s part. The plaintiff referred to suffering the effects of her injury. On 14 March 2013, the employer gave notice declining liability.

25. Under cross-examination on the leave application, the plaintiff said that she learnt about the existence of a limitation period from a letter from the Insurer in the period in which she retained Mr Palmeiri and that there was some discussion with Mr Palmeiri about it. Although she was not precise about it, she appeared to accept that she learnt about the limitation period proximate in time to the denial of liability, being March 2013.

26. The plaintiff says that she lost confidence in Mr Palmeiri and the next month, on 9 April 2013, that she engaged a new solicitor, Mr Anthony Hetherington of the firm Whitelaw McDonald Solicitors, at Kotara. On 16 May 2013, Mr Hetherington received the file for the plaintiff from the previous firm.

27. The plaintiff recalled conferring with Counsel, Mr Edwards, but that occurred in August 2013 and there was no indication as to what had occurred in the preceding 3 months. The next month, solicitors for the insurer and Mr Hetherington had communications regarding the provision of particulars.

28. In October 2013, the plaintiff was assessed by Professor McFarlane in person. The Court is informed that the plaintiff chased up the expert numerous times in early March and May 2014. Eventually a report was obtained on 30 May 2014. In that report, Professor McFarlane diagnosed the plaintiff as suffering from PTSD and a Major Depressive Disorder.

29. In June 2014, the plaintiff’s Counsel, Mr Edwards passed away. Perturbed by a loss of confidence in Mr Hetherington, the plaintiff sought to terminate his retainer and requested his release of the files, but in August 2014, that request was denied.

30. Under cross-examination on the application for leave, the plaintiff was referred to email correspondence to Mr Hetherington dated 10 March 2014, in which the plaintiff evinced an understanding of various evidentiary items which were required to prepare the Pre-Filing Statement eventually served in June 2016.

31. In late August 2014 she contacted new solicitors, Carroll & O’Dea, at that firm’s Newcastle branch. In December 2014, a letter of instruction was issued to Mr David Cockburn to prepare a liability report. Aside from this, little happened until March 2015, when Mr Brown advised that a material witness was a close friend. The plaintiff’s file was transferred to the firm’s Sydney office where it was dealt with by Ms Nadia Baker.

32. However, as at 4 March 2015, the plaintiff did at least send an email to a range of persons requesting their assistance in procuring the complaint and investigation history of various officers.

33. The Sydney office of the firm did not request documents within the Whitelaw McDonald files until June 2015.

34. In July 2015, the plaintiff received request for assessments for a psychiatrist, Dr Vickery and an orthopaedic surgeon, Dr Pillemer.

35. In late August 2015, Ms Baker received the files from Whitelaw McDonald. Around the same time, Ms Baker received a draft liability report from Mr Cockburn, with the final version only received in October 2015.

36. On 15 December 2015, Professor McFarlane sent to Ms Baker a supplementary report.

37. On 31 December 2015, Dr Murray prepared a report. In it, he referred to Professor McFarlane’s report of 30 May 2014. Dr Murray considered that by 1995 she was either suffering from an ‘Acute Stress’ Disorder or PTSD.

38. On 20 June 2016 the plaintiff’s ‘Pre-Filing Statement’ prepared under s 315 of the WIM Act was served. The covering letter referred to 7 volumes of material that were relied upon. Unsurprisingly (and mercifully) the 7 volumes were not put before the Court. On 15 July 2016, the defendant’s Pre-Filing Defence was received. On 25 July 2016, Ms Baker served a sealed copy of an application for a mediation. The mediation occurred on 10 November 2016 but was unsuccessful.

39. The plaintiff deposed to reading a file note of a conversation between Ms Baker and a person from Whitelaw McDonald on 9 August 2016 from which she inferred that the latter solicitors had not supplied Carroll & O’Dea (Sydney office) with the whole of her file.

40. The plaintiff commenced this proceeding on 17 March 2017.

41. In her affidavit of 31 July 2018, the plaintiff stated that from February 2009 to May 2018 she had received ‘conflicting legal advice’ from different solicitors and barristers. That statement was treated as a submission on the application. The plaintiff went on to state that the gist of the advice she received was that she should not have a Pre-Filing Statement issued until such time as all her evidence had been obtained. She deposed to her reliance upon legal advice at all times, especially the time for filing and service of documentation to support her claim.

42. She deposed to being aware of ‘the time limit’ but understood (or perhaps more accurately expected) that it would be extended in circumstances where she took all reasonable and necessary steps to advance her claim. As noted, under cross-examination, she appeared to suggest that she learnt of the limitation period around March or April 2013.

43. She deposed that at no time after the issue of her notice to make a claim in April 2012 did she ever intend to abandon the claim. She concedes that there have been periods where she had been slow in providing instructions, but believes that at those times she was afflicted by the symptoms of her conditions for which she now seeks compensation.

Attempts to obtain information from former solicitors

44. Mr Awwad’s affidavit of 8 February 2021 annexed correspondence sent to former solicitors, seeking their assistance in February 2020 to explain delay. The timing of the correspondence was explicable because a mediation was due on 26 February 2020. Though not the subject of direct evidence as such, I was informed that no response was received from any of the firms.

Suggested prejudice

45. The Defendant relied upon two affidavits of Ms Katrina Jenkins, the solicitor for the Defendant, dated 11 January 2019 and 9 February 2021 (the second day of the trial) which was supplementary in nature to the first.

46. In her first affidavit, Ms Jenkins commenced by noting the serial references in the plaintiff’s pleading to other police officers being witnesses to events occurring at the multiple number of police stations in the period that she was a police officer, being from 1992 until 2008.

47. The plaintiff’s statement of claim itemises many incidents involving violence and death which, over the course of time, she says caused her to develop psychological injury. Overlaid with those traumatic events there were incidents of alleged bullying harassment of general mistreatment by her colleagues and/or supervisors or managers.

48. Ms Jenkins deposed that after the proceeding had commenced, she made inquiries of NSW Police about the status of those police offices and was informed that some of them were no longer serving in the Police Force, some had been medically discharged or retired. She also deposed to attempts to obtain witness statements from these officers, involving the investigative firm QuantumCorp. In September 2017, she received a report from QuantumCorp. A number of officers (Michelle McSweeney and Mark Sharman) declined to be interviewed, whilst others (Inspector O’Dell, Commander Clarke and Superintended Shearer) could not be contacted due to the nature of their personal medical discharges. Ms Jenkins’ understanding was that the officers in the latter category were rendered unfit by reason of themselves having the condition of PTSD. Some other potential witnesses had not responded to attempts to contact them.

49. After receiving the plaintiff’s evidence in support of the earlier application for leave (filed in August 2018), Ms Jenkins deposed to further efforts to contact potential witnesses. She stated that most had been discharged by reason of their own psychological conditions. But after receiving details of their last known addresses in October 2018, Ms Jenkins commissioned a further investigation, this time through the agency Procare. Procare prepared a report dated 27 November 2018. That report was updated in December 2018 and again in January 2019.

50. Ms Jenkins caused subpoenas to attend to be issued to witnesses whose addresses had been located; but investigators could not locate addresses for former Commander Clarke or former Inspector Trott.

51. Ms Jenkins prepared a supplementary affidavit, attaching communications about witnesses she received in January 2019. The prospective witnesses McSweeney, O’Dell and Sharman have psychiatric conditions themselves which prevent them from giving evidence.

Parties’ submissions

The plaintiff’s submissions

52. On the aspect of delay, the plaintiff’s Counsel argued that she did not deliberately run down the limitation period. The legislative requirements for the claim she was making made it difficult for her to commence the proceeding earlier than she did; and, further, after she had obtained the WPI impairment for psychological injury, there was further delay occasioned by a combination of her own difficulties in handling her condition and difficulties associated with her representation by lawyers.

53. On the aspect of prejudice, the plaintiff argued that this complaint lacked substance in the context of the plaintiff notifying the Police Force in April 2012 of her intention to bring the claim, at which point the Defendant had in its possession a 50 page narrative account implicating virtually all of the police officers which the Defendant now says are either medically discharged or are ‘unavailable’.

54. From this, the Defendant was able to make inquiries and forensic decisions (including denial of liability) on the basis of the information acquired through the inquiries, before deciding to decline liability. If it took this significant forensic decision without having interviewed the police officers identified in the plaintiff’s exhaustive evidentiary statement, that was a matter for the Defendant but it could not now complain that it has been deprived of the opportunity to interview them on account of the plaintiff’s delay in commencing the proceeding.

55. Reference was made to Ms Jenkins’ first affidavit indicating that the Defendant had identified relevant witnesses, but many of them had ‘psychological conditions’. Some were uncooperative. Any lack of co-operation from these witnesses could not be attributable to delay by the plaintiff. Of the ten witnesses identified, only two, Messrs Clarke and Trott did not have addresses recorded for them. For one of them, an agent of the defendant had spoken to Mr Trott but inexplicably did not obtain contract details. In Mr Clarke’s case, near the commencement of this trial, the plaintiff established that he had a prominent social media profile as a corporate director. All but these two witnesses had been issued with subpoenas to attend in 2019, thereby indicating that contact details for witnesses were available, and relevant information could be obtained.

56. If these witnesses had been medically discharged or had incapacitating psychological conditions presenting an impediment to them giving evidence for the Defendant, than these were circumstances which could not be laid at the plaintiff’s feet. With the exception of former officers O’Dell, Clarke, McSweeney and Fielding, all of the officers were medically discharged, and had their respective last days of service even before the plaintiff notified the Police Force of her intention to bring a claim. It could therefore not be said that any delay by the plaintiff in commencing the proceeding resulted in the Defendant being able to try to contact them to ascertain whether they could assist.

The defendant’s submissions

57. The defendant submitted that the significant delay is not satisfactorily explained. At least by 2010, the plaintiff was armed with enough information, after an expert report was obtained from Dr Street. Alternatively, from 2012, when she notified the insurer of the claim, she took a period of another 4 years before serving her Pre-Filing Statement. Although it was true that the plaintiff had changed her solicitors various times in that period, that was only a partial explanation. Although it may also be accepted, for the purposes of the application, that her condition affected her capacity to progress her claim, there were indications in the emails she had sent out in April 2015 and March 2015 to indicate that she knew what needed to be done.

58. The defendant submitted that ‘full and satisfactory explanation’ requires full account of the conduct, including the actions, knowledge and belief of the claimant from the date the cause of action accrues until the date of providing the explanation. Further, the extent to which, if at all, conduct by the plaintiff’s solicitor is relevant depends upon the circumstances. In Coal & Allied Operations Pty Ltd trading as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271 Ipp JA said (at [35]) that acting on legal advice in letting a limitation period expire may be a significant factor in a grant of leave to commence a proceeding, but that this would require evidence that the advice was misguided or proof that new evidence has been discovered, or perhaps that the claimant may have acted with due diligence. The plaintiff had access to the files of her solicitors to help her assemble evidence. She did not suggest that the content of these files was such as to present an impediment.

59. The Defendant submitted that the prejudice customarily presumed should not be underestimated: the longer the period of delay, the more likely it would be that the quality of evidence will diminish. In addition to presumptive prejudice, there was also actual prejudice.

60. The defendant relied upon the Court of Appeal’s decision in State of NSW v Donnelley [2004] NSWCA 133 for what the Court had to say on the matter of prejudice. That case carried an unerring similarity to the basal facts in this case. As in this case, so too in Donnelley, the claimant was a police officer, who asserted that over a substantial period of time (over eleven years), the claimant developed psychological injury as a result of exposure to many stressful events, where the alleged negligence consisted of a course of dealing with the Police Force. In particular, as was the case here, part of the negligence in Donnelley concerned complaints with how the Police Force monitored or supervised the claimant’s activities as symptoms of psychological injury manifested. Several points from the leading judgment of Giles JA were emphasised. First, because of the nature of the claim, the claim did not exclude from consideration evidence of all of the events generating the stress and that necessarily would require, if the claim was to be fairly defended, opportunity for the defendant to call witnesses ([53]-[54]). Secondly, it was no answer to say that any gaps in the capacity of an opponent to call witnesses could be made good by the availability of records in the opponent’s possession. Depending on the nature of the claim and the factual issues generated, they may or may not be adequate to alleviate prejudice sustained because of added memories and lost evidence (at [51] & [54]).

61. The Defendant relied upon Ms Jenkins’ evidence of witnesses who were unavailable.

62. Separately, the Defendant also relied upon the observation of Handley AJA (with whom Young JA agreed) in GIO General Limited v Love [2009] NSWCA 269 at [36]-[37] regarding the onus of proof of actual prejudice. His Honour noted that although an opponent to the grant of leave may carry an evidentiary onus to establish actual prejudice, the ultimate onus of proving the absence of appreciable prejudice rested upon the claimant.

Consideration

The merits

63. As indicated, I do not propose to canvas the underlying merits of the plaintiff’s case. Because of the way in which the Defendant has opposed this application, this is unnecessary. The merits are therefore to be regarded as neutral. In this way, the plaintiff is in a more advantageous position than the claimant in Gower where, it will be recalled, the weakness of the claimant’s case told against the favour of the grant of leave.

Length of Delay

64. When assessing the adequacy of the explanation for delay, general statements in cases on limitations provisions, regarding the date when the cause of action accrues, made in other statutory contexts must, as White JA determined in Gower, must give way to the considerations applicable to s 151D. Further, as White JA and Simpson AJA (who dissented in the outcome) observed in that case, the particular statutory considerations of note are that for all intents and purposes, until a Pre-Filing Statement has been amassed, a claimant cannot practically commence a proceeding since he or she will not have a ‘viable’ cause of action. Further still, unless and until a claimant obtains a WPI impairment assessment of 15%, in any proceeding brought, the claimant could not recover damages.

65. In my view, this means that the most significant period for assessing the length of delay is not so much when the cause of action accrued per se, as might be expected under ordinary limitations provisions, but from the date that a WPI Impairment Assessment was obtained to when the Pre-Filing Statement could have been served.

66. By November 2011, the plaintiff procured an assessment of WPI impairment indicating an entitlement to bring a claim for work injury damages. In April 2012, she notified the employer of her intention to bring a claim.

67. The covering letter serving the Pre-Filing Statement indicated that it comprised no less than 7 volumes; not including the 50 page narrative statement. The significance of this was that by then, the Police Force (and any applicable insurer) was on notice of the prospect of its facing a claim that the injury claimed to have been suffered was the result of the negligence of the Police Force. As indicated, virtually all of the names of the witnesses who, the Crown suggested were are ‘unavailable’ had been identified and, with the benefit of the Police Force’s own internal records could have been interviewed before the employer, the Police Force, through its insurer, declared the decision to decline the claim. It was notable that when it had the opportunity to do so, the solicitors for the Insurer did not seek particulars of the variety of traumatic experiences that claimant asserted that she had suffered to give rise to her claim of negligence. In view of the exhaustive nature of the plaintiff’s evidentiary statement, that was not surprising. In these respects, the plaintiff is again placed in a more advantageous position than the claimant was in Gower.

68. The plaintiff’s Pre-Filing statement was not served until June 2016. It was not an especially long time between the service of the Pre-Filing Statement and the commencement of the proceeding in March 2017, especially when part of that time was taken up with an unsuccessful mediation.

69. To my mind, the critical period for assessing delay was from April 2012, when she gave notice of her claim to bring a claim for work injury damages, until June 2016, when she filed her Pre-filing statement.

70. I did not consider that the length of delay from the time she filed the Pre-filing statement to be unreasonably excessive. I accept that there were periods of months not specifically accounted for. The plaintiff herself accepted that. However the plaintiff gave evidence that, aside from delays caused by changes of solicitor and chasing of experts for evidence, she was debilitated by the psychological injuries which the Defendant accepts she has suffered from. Although the Defendant’s Counsel exposed, through brief cross-examination, that the plaintiff had some capacity to give instructions and a consciousness of the evidence she might need to prepare her Pre-Filing Statement, it was not a wholly balanced view of the evidence to pluck out two emails in order to make a submission that she had a capacity herself to progress the claim in this 4 year period sooner than she did.

71. It needs to be recalled that the expansive scale of the plaintiff’s claim covered a period of virtually 20 years of her service. It also needs to be recalled, as was emphasised in Gower, that unlike other statutory frameworks, the particular statutory framework places a high premium upon plaintiffs essentially completing their evidence before they commence a proceeding; to get it all right; lest there be real constraints upon the plaintiff’s capacity to adduce evidence after the proceeding has commenced^[1] . An illustration of the last point in this proceeding is the Defendant’s objection that what is apparently supplementary evidence from the plaintiff’s medical experts should not be admitted because of that constraint.

    1. I referred to this circumstance in my reasons dealing with the issue of the admission of supplementary expert reports: Skinner v New South Wales [2021] NSWDC 36 at [36]

72. I generally agreed with the submission advanced for the plaintiff that, in addition to the changes of solicitors, the emails identified by the Defendant in March 2014 and March 2015 presented an unusual demonstration of a claimant adopting responsibility for gathering evidence. It was not clear, from the isolated way in which those emails were brought to the claimant’s attention, how if at all this circumstance may be attributable to the difficulties that the plaintiff encountered with her respective solicitors. The defendant’s Counsel did not, in fairness, seek to overstate this point about the pro-active steps the plaintiff took herself. He fairly acknowledged that it showed a personal level of diligence which was to her credit on the application. His point was that it would be too glib for the plaintiff to blame the 4-year period of delay upon her singular reliance upon different sets of solicitors.

73. I did not consider that the plaintiff was attempting to do this: her explanation for delay relied upon an amalgam of circumstances: the complexity and scale of her case; the difficulties with multiple firms (including her capacity to retrieve files from them) and the debilitating effects of her condition, which probably waxed and waned, in their intensity, and the consequence for her capacity to progress the bringing of the claim. It is pertinent to reiterate here that the Defendant accepted that she has serious psychological injuries and did not dispute that her condition had been contributed to (in a medical, if not legal, sense) by her exposure to a range of traumatic episodes occurring throughout her career in the service.

74. To the extent that there are suggestions that this may have been a requirement, in my view, it was unnecessary for this Court, on an application of this kind, to be venturing views upon whether the conduct of the various legal representatives who have acted for the plaintiff over the years was negligent. This was the subject of the plaintiff’s ‘evidentiary statement’ of 16 August 2019. For one thing, those representatives are not on trial in this interlocutory application and it would be unfair to make findings about their conduct without them being heard.

75. The period of delay was adequately explained.

Prejudice

76. I accept that prejudice may be presumed in a general sense, particularly in relation to the quality of the evidence that the Defendant is able to adduce from such witnesses as it proposes to call. But the capacity of witnesses to recall events many years before differs. As later became apparent at the hearing (after the present application had been determined), Commander Lee Shearer, for example had almost no recollection of her dealings with the plaintiff. Commander Clarke, in contrast, had a better recall of his dealings with the plaintiff; especially when documents were brought to his attention. At any rate, the validity of this concern may partly be assessed by reference to the Defendant’s capacity to have called evidence which it contended was permanently lost or diminished because of the delay.

77. That brings me to the real issue, being the question of actual prejudice. I reiterate, in Gower, White JA (with whom Simpson AJA agreed) found (at [188]) that it is not mandatory for an application for extension to be refused if delay has actually or presumably resulted in a loss of evidence affecting the chance of a fair trial.

78. A difficulty with the position relating to the evidence at the time that the application was heard (the Defendant wanting it to be determined separately and in advance of everything else) the Defendant provided no clear delineation as to the issues that these relevant witnesses may give. Prejudice, in this context, is a relative concept. As Hodgson JA said in ASB-Tech Services Pty Ltd (in liq) v Doeland [2003] NSWCA 167 at [35], it should be measured by reference to the likely issues in the case. There was and is no dispute that there is a causal connection between the plaintiff’s service in the Force and her psychological injuries in the medical sense; although there is a hotly contested issue whether it is the negligence of the Police Force which has caused that injury (and also whether the plaintiff’s own conduct contributed to it). Further, the evidence of the medical experts who has assessed the plaintiff more or less indicated a consensus that she suffers from a genuine and recognisable psychiatric illness. This was not a case, for example, of any prejudice caused by loss of medical records.

79. The actual prejudice, if it existed at all, was centred upon what might be described in a composite sense as the ‘liability’ issues, and in particular what the police did to assist police officers dealing with stress and psychiatric issues and what it could have done.

80. I am cognisant of what Giles JA said in Donnelley, about the difficulties that can arise for a defendant when a plaintiff belatedly commences a proceeding of a very substantial scale, in terms of the factual matters. But in circumstances where the Defendant accepted that trauma was, to some degree, an inherent or inevitable feature of the service of this plaintiff, and where it was accepted that she had developed a recognised psychiatric illness, proof of every single one of the 30 or so separate trauma-inducing events identified in the plaintiff’s pleading, including, for that matter, proof of bullying or harassment, did not need to be positively established to make out a case of liability. The main battleground, as I saw it, at the heart of the leave application, was the responsiveness in the Police Force to dealing with the developing symptoms of psychiatric illness in the plaintiff and whether, its response could be viewed, overall, as reasonable. Although that was a matter about which the plaintiff could give some evidence, generally, it would be expected that the Police Force would have records of what protocols and procedures were and it was not suggested that these were lost or could not readily retrieved because of the delay in the commencement of the proceeding.

81. There was the suggestion, in particular, that the defendant was unable to identify what ‘systems of work’ were in place to prevent or mitigate the risk of officers suffering psychological injuries because of exposure to traumatic events. To the contrary, judicial decisions such as Briggs and Sills, considered later in these reasons, indicate the existence of those systems has been a fertile source of personal injury litigation for years. Although this was not known at the time of the leave application, the defendant eventually relied at the trial upon witness statement of officers as far back as 2013.

82. Nevertheless, a subsidiary issue concerned how the plaintiff herself let her developing symptoms or concerns be known. This was the subject of evidence from the plaintiff in at least one expansive witness statement (which later became Exhibit A) which the Police Force had in its possession from 2012.

83. The Defendant’s Defence (filed on 20 April 2017) indicated that police records were able to pinpoint, with precision, the date ranges where the plaintiff was stationed throughout her career spanning 18 years. I inferred that even if it had not received information from the plaintiff, the Defendant would have been able to ascertain from its records who were the persons responsible for her supervision and management at each of those points. At any rate, from the time that the Defendant was notified of the plaintiff’s intention to bring a claim in 2012, and her specific identification of police personnel who were witnesses to the same traumatic events, or participants in alleged acts of bullying or harassment, or who were her supervisors and managers, I inferred that the Defendant had the means of readily identifying who were the plaintiff’s supervisors and managers at those various places.

84. Although Ms Jenkins referred to some difficulties about those witnesses, the issue of actual prejudice needs to arise from the plaintiff’s delay in commencing the proceeding itself. Finding, as I did, that the plaintiff had enough information to identify the police officers by at least 2012, the more focussed question was what prejudice did the Defendant sustain as a result of the further 4 year period of delay lapsing with the filing of the plaintiff’s Pre-Filing Statement in June 2016.

85. In the case of Ms McSweeney, who featured prominently in the plaintiff’s evidentiary statement of August 2019, she apparently declined to be interviewed. Mr Gary O’Dell also refused to assist. The most recent evidence, that they have psychiatric illnesses, did not alter the inference that the Defendant’s inability to call them was not the result of delay by the plaintiff in commencing the proceeding.

86. Reference was contained in Ms Jenkins’ material in January 2019 to former Commander Clarke and Superintendent Shearer, not being contactable because they themselves had been discharged because of their own conditions. At least in the case of Mr Clarke, he appeared well enough to engage in corporate activity. He was active on social media (or at least the LinkedIn platform) and the director of a consulting company so the suggestion that it was not possible to contact him fell away. Ms Shearer’s position was not evident two years on down the line at the time of the hearing of the application. In the event, after the Court determined this application, both officers were called by the Police in its case.

87. Ms Jenkins indicated that for all but two persons, officers Clarke and Trott, subpoenas to attend had been issued for two persons whose addresses had been obtained. If the Defendant had contact addresses for all but two, it was not apparent why, other than because of a refusal to cooperate, they could not give evidence.

88. As to Mr Trott, there was no evidence of what, if any, further efforts had been made by the Defendant as to his whereabouts in the period of two years since Ms Jenkins prepared her affidavit. He is mentioned, briefly, in the plaintiff’s evidentiary statement in the employer’s possession as at 2012. No evidence was put before the Court as to what, if any, interviews were conducted on behalf of the defendant of Mr Trott at that time, or thereafter.

89. In my view also, significance also needed to be given to the scale of the claim. This was not a case of a single incident witnessed by the plaintiff and a single witness for the defendant who is demonstrably unable to call to give relevant evidence. Even if, to take one example, it was impossible for the Defendant to call officer Trott, who, it appears, was at Waratah police station in two discrete periods during the entirety of the plaintiff’s 18 year period of service, that circumstance did not, in my view, justify depriving the plaintiff of the opportunity to advance a claim for the entirety of the period.

90. In view of the notice it had about the plaintiff’s claim since 2012, I was not convinced that the Defendant had truly been deprived of the opportunity to assemble evidence and contact witnesses and to enlist their assistance. The fact that ten people were identified by the Defendant and 8 of them were the subject of subpoena suggests that the concern about an inability to call witnesses is overstated. For the remaining two of them, clearly one (Mr Clarke) currently carries a public profile and for the other (Mr Trott), the position was more uncertain. (Ultimately, Mr Clarke was called). It was not altogether clear how material former Officer Trott’s evidence might be but, as I have said, the Defendant did not miss out on the opportunity to elicit his response to what was said about him in the plaintiff’s evidentiary statement. Further, the circumstance that some of the police witnesses became medically discharged and had left the service, in large measure, were matters that occurred even before the time in 2012, when the plaintiff notified the employer of her claim. It could not fairly be said that any incapacity or unwillingness on the part of those particular persons can be attributable to the plaintiff’s delay in commencing the proceeding.

91. Overall, I did not consider that such prejudice as might be sustained, presumptively attributable to the plaintiff’s delay, was of such significance to deprive the Defendant of a fair trial, which is why I determined to grant leave to the plaintiff to commence the proceeding nunc pro tunc on 17 March 2017. Costs of the application for leave are to be costs in the cause.

C   FACTS

Preliminaries

92. The plaintiff’s evidence was constituted primarily by two witness statements (Exhibits A and B). The first was prepared by her in or about 2010 and the second was prepared by her and signed on 19 August 2019. After initial opposition, the defendant did not ultimately press its original objection to her evidence in chief being given in that form. Nor did the defendant press its initial objection to Exhibit B as being evidence sought to be admitted which contravened s 318(1)(d) of the WIM Act.

93. I intend no criticism of the plaintiff when I say that it was hard to follow her evidence from those statements. Prepared as they obviously were without the assistance or involvement of a lawyer, they were filled with her opinions and perceptions of events and the actions of colleagues, supervisors and managers, which were barely admissible. They were not seamlessly chronological. In some instances, read contextually, it is obvious that she got certain dates wrong. This was unsurprising when one considers when she wrote them. Even the first one, written in either 2009 or 2010, was narrating some events which occurred before the turn of the century.

94. The focus of much of the plaintiff’s evidence was her dealings with her supervisors and managers within the Chain of Command. It is pertinent to describe the Command Structure of the relevant sections of the New South Wales Police Force, as it affected the plaintiff.

Annexed to these reasons is a sketch diagram (Exhibit D-2), indicating the command structure during the period of the plaintiff’s service, and the personnel who filled the relevant offices.

95. It is also pertinent to note that the focus of cross-examination of the plaintiff was not upon her detailed description of the events and incidents occurring, whilst she was performing her general duties. No real challenge was mounted about her recollection of those events. To a small degree, that evidence was corroborated by Senior Constable Richardson, who testified of two such events when he served with the plaintiff in 2005. Absent special reason shown to the contrary, I accept the plaintiff’s account of incidents of a violent nature which are apt to induce trauma. In these reasons, I propose to use the shorthand description ‘traumatic events’ to compendiously refer to those events.

96. The thrust of the inquiry made of her in in cross-examination was her recollections and beliefs upon her dealings with persons within her Chain of Command.

97. To anticipate things somewhat, where the experts later distinguished between the traumatic events and workplace concerns of bullying, harassment and perceived mismanagement as contributing factors to the plaintiff’s development of psychological injuries, the cross-examination almost exclusively focussed on the latter.

The Chronology

98. The plaintiff was born in 1972.

Goulburn Police Academy & Newcastle station: October 1992-April 1993

99. In October 1992 she joined the New South Wales Police Force. She initially commenced training at the Goulburn Academy. In the same year, she was placed at Newcastle police station. Whilst seated in a police car driven by SC Scully, she observed a man dressed in a sailor’s uniform approaching the car. SC Scully reversed the car to escape but collided with another vehicle. The plaintiff saw the man firing a rifle into the air before shooting himself in the face. The plaintiff says she has never forgotten this incident; never quite being sure whether or not the man was not trying to shoot her.

100. In her witness statement (Exhibit B), the plaintiff said that after that incident, she returned to her class at the Academy and was made to participate in what she called a ‘show and tell’ session. A few weeks later, the plaintiff was heard to make a joking reference to ‘seeing martians’. This caused her to be referred to the PMO in Sydney, a referral the plaintiff did not appreciate; as she felt embarrassed at being called out of the class. The PMO eventually ‘cleared’ her (about 10 weeks later).

North Sydney station: April – July 1993

101. Between April and July 1993 the plaintiff was stationed at North Sydney police station. In about the middle of 1993 she was called to the scene of the aftermath to a suicide by a 19 year-old female. The plaintiff was approximately of the same age as that victim. This was the first suicide she had attended and one that was said by her, in Exhibit B, to still play on her mind.

Hornsby station: June 1994- November 1996

102. After a stint at the Mona Vale police station from the middle of 1993 to the middle of 1994, she was stationed at the Hornsby Police Station. During her period at Hornsby police station she observed a number of traumatic events: she observed a suicide of a married man (with two children), by hanging, at Hornsby Heights; she attended the scene of an armed robbery which resulted in a double murder at Hornsby Heights; and she attended the scene at a fatal motor vehicle accident at Wahroonga. In her witness statements, she described, in vivid detail, the immense difficulties of dealing with the aftermath of these events, such as informing and trying to assist the next of kin.

Waratah command: November 1996 – March 2003

103. In 1996, the Police Force amalgamated various local area commands in the Newcastle region. Mayfield police station fell within the Waratah Local Area Command. The plaintiff stayed at Mayfield and subsequently worked at Wallsend.

104. In this period, she was exposed to a man shooting himself in the head. After this the plaintiff was required to console the dead man’s daughters.

105. In March 1998, the plaintiff saw Dr Spruce. Dr Spruce had previously serviced the plaintiff’s father. Her consultation with Dr Spruce concerned a relationship break-down. The plaintiff was observed to be in tears. Dr Spruce considered her mood was reactive to the disturbances in the relationship. Under cross-examination, the plaintiff agreed with Dr Spruce’s assessment of that consultation.

The ‘Matthews episode’

106. Between 21 September 1999 and June 2000, an unpleasant series of events occurred, relating to another police officer, Senior Constable David Matthews, during which, the plaintiff stated, he had made sexually suggestive actions. The plaintiff had narrated that there had been previous tension between her and Matthews. The plaintiff had been in a different rostering ‘team’ to the one led by Matthews, where the teams had operated in what seems to have been semi-competitive fashion and Matthews was responsible for denying the plaintiff a favour.

107. The plaintiff reported his conduct to her supervisor, Sgt Robertson (although Sgt Robertson was said to have witnessed Matthews’ conduct). She did not, however, make a complaint herself and at that stage went on leave, returning on 14 October 1999. Sgt Robertson took up the matter with Superintendent Trott, Commander of the Waratah LAC, who launched an investigation. But upon her return from leave, the plaintiff understood that Matthews had made a complaint about the plaintiff; and other members of her ‘team’. Dissatisfied with Superintendent Trott’s lack of response, the plaintiff made a complaint to the Equity and Diversity branch of the police in Sydney. Soon, she was transferred to the Anti-Theft Squad in Newcastle, under Sgt Ian Lovell. Eventually, an internal affairs investigation was conducted; which caused sufficient stress to the plaintiff as to require her to take leave. She felt as if she was the ‘person of interest’, not the complainant. By the end of this period, she was asked to sign a ‘no further action’ report, with a view to ending the investigation. This was after being interviewed in 2000 by a psychologist, Mr Agriesti who, on her account, indicated that it was unlikely that any further action would be taken. The plaintiff was dissatisfied with management’s response to her report.

108. The plaintiff’s evidence of Matthews’ conduct was corroborated by Sgt Robertson, what constituted a complaint addressed to the Police Integrity Commission, which was adduced in the proceeding. But Sgt Robertson’s evidence went further and was suggestive of mismanagement. Sgt Robertson accused the Local Area Commander, Commander Trott, of lying. Sgt Robertson also provided a further, more detailed account of SC Matthews’ serious misconduct in a written statement. Sgt Robertson’s statement also expanded on how the complaint against Matthews snowballed into Matthews bringing his own complaint against Robertson. He also provided other detail of misconduct concerning Matthews.

109. In September or October 1999, the plaintiff attended a funeral of Bob Williams, at which she was observed to have collapsed. She accepted that she was having increasing difficulty performing her work.

110. Looking back on the Matthews episode, on 30 January 2002, the plaintiff told a psychologist that she felt guilty and responsible for officers going on stress leave. She felt that her ‘unofficial’ concerns regarding Matthews’ conduct had been mishandled by management.

111. But returning to the narrative, the plaintiff returned from leave on 14 October 1999 in circumstances which displeased her.

112. On 17 January 2000, the plaintiff applied for and was denied a position on secondment with the Regional Target Action Group. In April 2000 she requested a secondment to the Regional Anti-Theft Squad. This occurred for some part of that year before she returns to Waratah Station, in a team which was led by James Gill.

113. On 16 March 2001, the plaintiff had a meeting with Superintendent Lee Shearer. The subject of that meeting was the incidents and events concerning Matthews. The plaintiff said that Officer Shearer had indicated that she was not interested in pursuing the issue and made it clear that she did not wish for people (like the plaintiff) to make waves.

Commander Shearer

114. Before proceeding further, I should note that Mrs Shearer was called as a witness for the defendant. She was in the NSW Police Force between 1987 and 2010. She was the Acting Superintendent of Waratah Station from February 2001. She was the LAC – Waratah.

115. Mrs Shearer said in her evidence that she became aware of a complaint about officers at Waratah and understood an investigation had been carried out into a number of officers before she took her position. She herself was not involved in the investigation. She identified two ‘camps’ of personnel who were in conflict with each other. She identified personnel who fell into the camp. She acknowledged that the divisions caused internally from these camps caused ‘friction’.

116. In her capacity as Commander at Waratah, she had no recollection of conversations with the plaintiff, including any discussion about the outcome of any investigation.

117. On 29 August 2001, the plaintiff stopped work at Wallsend. It appears that her supervisor, Sgt Gill had asked her and her partner to leave a job that they were working on to attend John Hunter Hospital and attend upon a deceased person. The plaintiff complained that she was being ‘”loaded” up with work. A psychologist who interviewed Sgt Gill recorded the latter saying that the plaintiff had described him as a ‘crap supervisor’ who made ‘crap decisions’. She obtained a medical certificate from Dr Moses, her general practitioner, who noted that when she attended she was stressed, depressed, shaking and teary as a result of conflict at work. He diagnosed her as suffering from depression and anxiety and prescribed an antidepressant and referred her for counselling. At about this point, she started to see Dr Murray Wright, a psychiatrist.

118. She was subject to a Stress Assessment Report of Ms Meg Campbell-Dowling and Mr Rod Gutierrez.

119. The plaintiff recalled seeing a treating psychiatrist, Dr Wright, who assessed her as being fit to return to work, on full duties, but on restricted hours. This occurred on 30 October 2001. She presented with symptoms of depression. Dr Wright considered that she had had a major depressive episode, which was responding to antidepressant medication and time away from work.

120. Dr Wright prepared reports dated 6 December 2001 and 29 January 2002. The plaintiff indicated that she had reached the point where she felt she could no longer function. The former report had been provided to the GIO for the purpose of assisting the plaintiff to make a claim. The latter report featured the finding that the plaintiff was “still unfit for work, review again in a month with a view to return as early as March (2002). Expect she will require six more monthly visits.” On 22 February 2002 the plaintiff was notified that her claim had been declined.

121. In February 2002, she was referred to Rehabilitation Concepts to assist with her return to work. In March 2002, she was offered, but declined, peer support.

122. The plaintiff recalled that upon her return, Superintendent Shearer asked her why she was away sick. The plaintiff had wanted to return to general duties, on restricted hours, but Commander Shearer wanted to know her reason for taking sick leave before considering her request. When the plaintiff answered “Management”, she recalled Superintended Shearer saying “I suggest you seek alternative employment.” She returned to work on restricted duties. Mrs Shearer did not recall any discussions with the plaintiff after January 2002 about a return to work.

123. On 11 March 2002 the plaintiff obtained a number of medical certificates from Dr Wright, which refers to the plaintiff’s “work related stress” and “major depression”. Dr Wright certified that she was unfit in the period from 27 February 2002 until 17 March 2002. She was expected to be fit for suitable duties from 18 March 2002.

124. The plaintiff returned to work on restricted duties on 21 March 2002. The plaintiff was referred to the minute of a ‘Return to Work’ meeting on 19 March 2002. Reference was contained within it to an offer to the plaintiff to have a peer support officer but the plaintiff explained that her preference was to rely upon the support of her friend, SC Watters. The plaintiff was asked in cross-examination about this preference. The plaintiff acknowledged that she knew of the position of peer support officer, but explained that she was not going to discuss to a person in that position about her issues concerning Matthews or Shearer, even one from a different command.

125. On 15 April 2002, Dr Wright cleared her to work with her only restriction being that she work for half of the usual time.

126. On 15 May 2002, she attended the PMO (Dr Chern). A referral form prepared by Commander Shearer indicated that the reason for it was doubt about her fitness to undertake duties of a police officer. The plaintiff’s behaviour was described as “irrational, aggressive and sometimes abusive”. Mrs Shearer had no recollection about the referral when she gave her evidence.

127. In the PMO’s letter to Commander Shearer on 17 May 2002, the plaintiff was reputed to be frustrated about her inability to return to operational duties whilst being directed to remain in the station; especially when her own treating psychiatrist cleared her for a return to full operational duties, albeit with restrictions on hours. The plaintiff was also reputed to have been regretful for what was perceived by others as her aggressive and abusive behaviour. The ‘plan’ was for her to be subject to continuing restriction and envisaged the need to seek clearance from her treating doctor before there be any further review. A note from the PMO File indicates that the issues that were discussed concerned ‘Management’ and that discussion concerned whether she had Major depression.

128. On 20 May 2002 she obtained another medical certificate from Dr Wright, indicating that she was fit for part-time full operational duties from that date to 30 June 2002. She saw the PMO again on 21 May. Dr Chern recommended the plaintiff be returned to full operational duties with certain restrictions: working part-time, working in units of no less than two officers when out on operational duties. She was scheduled for review in two or three weeks. The plaintiff was reviewed by the PMO in June 2002 and again before she was permitted to resume operational duties.

129. In late May 2002 she returned to the Wallsend station. On 31 May she had a meeting with Shearer. The plaintiff was ordered out of the station, asserting that she was escorted by the Duty Officer in a very public fashion.

130. On 14 June 2002, the relieving LAC, Waratah (B Liston) tasked both Duty Officer Taylor and Acting Sergeant Shiels with monitoring the plaintiff’s disposition in the workplace and, specifically, to record observed incidents where it appeared her anxiety levels had increased. It was observed that she had been treated for depression and anxiety.

131. On 24 June 2002 the plaintiff returned for review to the PMO. The note on the record refers to her being tearful when confronted with the possibility of remaining on restrictions. It recorded the plaintiff’s expressing her belief that she was experiencing the same problem with an attempt to transfer her from the LAC. The note recorded the PMO’s inference of a ‘Continuation of workplace conflict’. The PMO recommended that she work no longer than 19 hours in units of no less than two officers. A reference was made to EAP (‘Employee Assistance Program’) counselling being of potential assistance to her.

132. On 8 July 2002 a letter was sent from the Director of Health Services (G Jackel) to the Senior Police Medical Officer. The letter recorded Superintendent Shearer’s concerns about her ability to provide suitable duties to the plaintiff. The LAC Waratah had asked to be fully consulted in relation to the plaintiff’s rehabilitation program and particularly before she was found to be suitable for operational duties.

133. On 29 July 2002 plaintiff was reviewed by Dr Wright. The result of it, relevantly, was to see the plaintiff working at the Lake Macquarie LAC. She was assessed as being fit for operational duties for 8 hour shifts, 3 days each week.

134. On 13 August 2002, Allan Thompson sent an email to the Lake Macquarie LAC, referring to the plaintiff’s conflict with the Command management team about her return to work and referred to a discussion with the plaintiff to complete 3 of 8 shifts whilst on rehabilitation at Morisset. The same day, Sgt Williams sent an email to 11 persons foreshadowing the plaintiff’s commencement of work at Morisset, in the station area on 19 August 2002.

135. On 14 August 2002, Commander Shearer raised concerns with the Acting Regional Commander Northern Region about the plaintiff’s mental stability and her suitability to remain in the workplace. Commander Shearer attached two witness statements were made by Ms White (a financial controller) and Ms Fielding (staff administration officer), to the effect that the plaintiff had intimidated the latter with a knife. The plaintiff was asked whether she had ever wielded a knife in close proximity to Debbie Fielding. The plaintiff was dismissive of the suggestion, describing it as “farcical”.

136. On or about 19 August 2002, the PMO (Dr Chern) sent a message to Commander Thompson, indicating that he did not support the plaintiff being re-located to Morriset. He was sceptical of the suggestion, apparently emanating from the plaintiff’s psychiatrist, Dr Wright, that she be permitted to work alone in the station.

137. On 20 August 2002, reports were prepared, respectively, by Leading SC Mark Cousins and Sgt Farmer to LAC, Waratah. Leading SC Cousins noted the plaintiff’s negative attitudes towards Commander Shearer and Manager Woodbridge and recorded her perception of her being victimised by both of them in relation to the work program and other (non-specified) issues. Sgt Farmer identified the plaintiff’s stress-related illness as occurring 4 years before after the plaintiff’s complaints about other officers. The plaintiff was recorded as blaming management for her illness, particularly senior management, and made accusations about corruption. She was perceived as displaying “almost” a hatred of LAC and its manager and showing little interest or motivation at work. Sgt Farmer did, however acknowledge that prior to her illness, she was competent and had a good workplace performance.

138. On 23 August 2002, the PMO (Dr Chern) reviewed the work performance reports. He found no evidence of any concern with the plaintiff dealing with the public and suggested the restriction upon the plaintiff needing to work with another officer (of same or more senior rank) be lifted.

139. A Return to Work Plan covering the period 26 August to 30 September 2002 approved the plaintiff for full operational duties for 8 hours, 3 days a week. The document identified the plaintiff as having ‘depression/anxiety’. Commander Clarke accepted that if WorkCover certificates indicated a psychological condition, than this should have provided notice to HR about the fact, or prospect of that kind of injury. He agreed, further, that the content of the RTW (‘return to work’) plan constituted notice in command that she still suffered from depression and anxiety. In re-examination, with reference to multiple health practitioners on the Return to Work Plan form, Commander Clarke noted that it was a rarity to have multiple inputs, such as the PMO (Dr Chern), an officer’s private practitioner (here, Dr Wright) and reference to reports by the plaintiff’s supervisors.

140. On 28 August 2002, the plaintiff was examined by the PMO. Notes of that examination recorded that the plaintiff had decided to make a complaint about Shearer and had criticised a few people. With apparent reference to Shearer, the plaintiff had used the expression ‘divide and conquer’. She indicated that she was relieved when told that she would be transferred.

141. This was the subject of a report from the PMO (Dr Chern) to Commander Little, LAC Lake Macquarie, dated 10 September 2002. Dr Chern opined in the report that she was ‘overly focused’ on management matters which may have detracted from her attention to operational duties. The plaintiff was assessed as fit for operational duties. It was noted that the plaintiff continued to see Dr Murray Wright, her treating psychiatrist, for ongoing assessment and treatment.

142. Dr Chern informed the Superintendent about the review by email that same day. Later in the day, Ms Shearer indicated that the plaintiff had been moved to Lake Macquarie LAC so no longer presented, at least in the short term, a management issue for the Waratah command.

143. On 29 August 2002, another confidential report of an assessment of the plaintiff was made by Acting Sergeant Shiels at Waratah station. It appears to have been sent to the LAC and staff administration officer at Waratah. It was very negative in its content: although she met basic organisational needs, the plaintiff was described as having a self-centred attitude and did not function as a team member. She was criticised for having little interest in meeting customer needs.

610. All of the contemporaneous medical evidence, including evidence of a psychiatrist (Dr Spruce) and psychologists made no reference to the sort of symptoms associated with PTSD until after the plaintiff’s medical discharge from the Police Force. Although it is true that her witness statements are filled with vivid details of the traumatic episodes, it was not until those statements that the plaintiff identified symptoms consistent with that particular disorder. Professor McFarlane identified the plaintiff’s back injury as being a turning point, in April 2006. But the psychological consequences of that event contributed to the discrete psychiatric illness of depression; and not, in my view, to PTSD.

611. In so concluding, I acknowledge the opinion evidence of Professor McFarlane and Dr Murray to the contrary. But their evidence as to the likelihood of PTSD being diagnosed, whilst strongly asserted, did not persuade me how or why the disorder could have been identified in 2007 and accordingly I am not persuaded that it is more probable than not that the PTSD would have been diagnosed in 2007.

612. That being so, in my opinion, it is unnecessary to assess the vexed question of whether any negligence of the Police Force, at any time, increased the risk or the severity or chronicity of her suffering PTSD.

1. DAMAGES

General

625. The plaintiff’s claim for damages is not subject to this Court’s ordinary jurisdictional limit^[17] .

     17. District Court Act 1973 (NSW), s 44(d1)

626. On the basis of the findings, the assessment of damages is to proceed on the basis that the negligence of the Police Force, for which the defendant is responsible, from May of 2007, and continuing through October 2007, caused the plaintiff a significant psychiatric illness, identified formally as Major Depressive Disorder. No submission was made by the defendant as to which of the symptoms rendering the plaintiff incapacitated to work were attributable to her Major Depressive Disorder and which were attributable to her PTSD.

Medical evidence

627. In the Joint Report, the experts agreed that the plaintiff was incapacitated for work since she went on sick leave on 11 November 2008. Prior to that, there were periods of intermittent incapacity. The experts also agreed that the plaintiff has no capacity for employment in an open workforce. She has a chronic and disabling condition which will significantly impact on her quality of life and prevent her re-entry into the workforce.

628. In her psychologist report, Dr Meterlerkamp also considered the plaintiff unfit for all work, within and outside the Police Force. She noted her inability to manage stress, manage change or spontaneity, poor conflict management skills and concentration difficulties.

629. When the experts gave their evidence concurrently, they were asked whether the resolution of the litigation, in which the plaintiff has been absorbed since March 2017, might aid the chances of her return to some kind of employment.

630. Dr Murray was equivocal about this: the litigation had instilled a sense of purpose. He made the fairly self-evident point that the plaintiff was likely to better off if she won, rather than if she lost. Nevertheless, on balance, he thought the prospect of her working again was very low. Professor McFarlane agreed. Dr Vickery was less pessimistic. Dr Vickery did not explain how a person who he diagnosed with OCD, or a personality disorder, and who agreed had PTSD and Major Depression could enhance the prospects of future employability if the litigation ended favourably for her.

Comparable income

631. The plaintiff was referred to references she had made to Professor McFarlane in 2013 or 2014 about her providing horse-riding lessons. Counsel for the defendant explored with her whether this may have yielded some residual earning capacity. The plaintiff clarified that the lessons were given only to 2 sisters and, although she had taken out some insurance which might have geared her to provide lessons to others, the expense associated with this activity outweighed the income. She said in her cross-examination that, with her partner, she was currently looking after a number of horses. She no longer rode them. She explained that she was concerned that could respond in dangerous ways to her anxiety. She did not, or could not, sell them either because of their age.

632. Senior Constable Richardson is a Level 6 Senior Constable. For the last financial year (ended 30 June 2020) he said his gross income was $110,000 and he took home $2,900 net per fortnight. He explained that within the rank structure, there are various levels of seniority at the level of Constable (Levels 1-5), Senior Constable (Levels 1-6) and then Sergeant. Progress through those levels required time service, but also the passing of examinations. But even when examinations were passed, promotion would also depend upon the availability of positions.

633. With its Schedule of Damages, the plaintiff annexed the rates for non-commissioned officers (form Probationary Constable to Senior Sergeant, 5^th Year), but also commissioned officers, starting from Inspector.

Past economic loss

Submissions

Plaintiff’s submissions

634. Taking an average of the earnings from the hypothetical possible progression of the plaintiff’s career in the police force to a Level 1 inspector to the time of trial, the plaintiff claims net average weekly earnings of $1,877.68. Allowing 639 weeks since she was last employed, the claim for past economic loss is $957,218.81.

635. The claim for past superannuation (11%) is $107,294.07.

Defendant’s submissions

636. The defendant submits that she would have risen to the rank of Senior Constable, Level 5 (Step 2) by July 2009 and then risen no higher than to the rank of Senior Constable Level 6 (the same level as SC Richardson) in July 2010, and would have held that rank until her retirement.

637. The defendant also submits that allowance should be made for the plaintiff’s inability to resume normal duties from ANZAC Day 2006 because of her back injury, which significantly impacted upon her capacity.

638. It submitted that a greater than usual deduction should be made for vicissitudes.

639. It calculates her past loss, since 11 November 2008, as $778,302.77.

Future loss of earning capacity

Submissions

Plaintiff’s submissions

640. On the hypothesis that the plaintiff would have become a Level 1 Inspector with the multiplier applied to $1,877.68, then deducting for vicissitudes (15%), the sum of $1,031,034.09 is claimed. The plaintiff justified the assumption that she would have gone on to become an inspector. There was a rate of attrition within the Police Force and with ongoing seniority, she was likely to attain that rank.

641. The claim for loss of future superannuation (at a level of 12.5%) yields the amount for this component of $128,879.26.

Defendant’s submissions

642. The defendant submits, again, that the plaintiff would have risen no higher than the rank of a Level 6 Senior Constable, until retirement. Assuming the same level of net weekly earnings for an officer in that position $1,382.88, with the multiplier and 15% vicissitudes, that would yield a sum of $473,432.37.

643. The loss of future superannuation (at a rate of 13.2%) is $55,648.78.

644. The defendant submits that the plaintiff’s future earning capacity is reduced by 25% to reflect the reduced earning capacity she has because of her back injuries.

Consideration – critical factual findings

645. I find that the plaintiff has no residual earning capacity on the open market, as substantially agreed by the experts.

646. I do not consider that the evidence is sufficient to find that the plaintiff would, but for the negligence of the Police Force, have gone on to become a Level 1 Inspector up to trial, or beyond. In particular, no evidence was adduced as to the requirements, other than the length of service, to attain such position. Being an Inspector is a pronounced step beyond the rank of a senior non-commissioned officer. Different qualities are required and although SC Richardson spoke highly of the plaintiff himself, there was no objective evidence that spoke of her compatibility with a leadership position of that kind, whatever her industriousness and enthusiasm might have suggested throughout her career. Further, progress to that position would be affected by a range of other variables including vacancies and the extent of competition for positions. For the purpose of assessing past loss, I prefer the defendant’s submission that she would have risen no higher, in rank, than Senior Constable Level 6.

647. I do not accept the defendant’s submission that on account of comparables, that she was bound to retire by the age of 60, for which there is no evidence.

648. I do not consider that any prediction could be made about any improvement in the plaintiff’s capacity on the basis of the determination of this litigation. That is simply too speculative.

649. On the other hand, in relation to future loss of capacity, notwithstanding a relative paucity in the evidence, I assess that there was a not insubstantial prospect, which I assess at 30%, that for the duration of her career, she would eventually have become a Level 2, Leading Senior Constable. Unlike the rank of Inspector, it does not seem to me that the possibility of attaining that rank was out of reach if, as the defendant contended, she was capable of obtaining the rank of Senior Constable Level 5, Step 2 virtually 11 years ago.

650. In terms of the duration of her career, as will become apparent, I have accepted that a greater than usual discount should be given for vicissitudes. Doing the best I can, I consider that her career was likely to end by the age of 60. If, as I find, by 2007, prior to any negligence causing her loss or damage, she was only fit for restricted duties in a station, because of her back injury, technological developments being what they likely would become, it may be problematic that a police officer could continue in the capacity.

651. In the light of these findings on the damages, the parties should try to reach agreement on the components for past economic loss (including past loss of superannuation, and the Fox v Wood component) and future economic loss (including future superannuation).

Credit to defendant for past compensation payments

652. Neither party made submissions regarding the sum that has to be credited to the defendant, under s 151A(1)(b) of the WC Act.

653. This should be addressed when the short minutes are brought in.

Deduction on DC v State of NSW principles

654. The defendant submits that the plaintiff’s total award should be reduced further by 80%, in accordance with DC v State of New South Wales [2016] NSWCA 198 (‘DC’) for the effects of the plaintiff’s injury flowing from a multiplicity of psychiatric causes, including events for which the defendant is not responsible. That is, the defendant should only be liable for the psychiatric harm suffered from, and not before, the date of breach of duty. This submission was based upon Dr Vickery’s assessment in his 2015 report.

655. There is evidence of a predisposition to depression and anxiety. It was actually diagnosed in August 2002; even though it appeared that the plaintiff went into remission. Dr Spruce, in his May 2008 report, believed, on the basis of the history given by her that depression first was evident in 1999. There was a suggestion, not fully developed in the evidence, or submissions for that matter, that the plaintiff self-identified with certain genetic traits of her father, who Dr Spruce believed had bipolar disorder. Then in 2006, the plaintiff became terribly distressed to learn that her sister and one of her parents received diagnoses of cancer. Her father also died in January 2007.

656. The plaintiff submitted that the defendant could not rely upon DC in circumstances where there was earlier conduct, prior to 2005, contributing to her overall condition, for which the defendant was liable.

657. In DC, Ward JA expressly endorsed the following proposition from Professor Luntz:

“…the plaintiff must prove on the balance of probabilities that the defendant’s negligence did contribute materially to the present symptoms (this is the legal onus that rests on the plaintiff). Once that is satisfied, there is an evidential onus on the defendant of proving that the alleged pre-existing or subsequent natural condition did exist and that this condition in its natural progression would have produced similar symptoms. If the defendant is unable to satisfy the evidential burden, the court will reduce the plaintiff’s damages for contingencies to no greater extent than in the ordinary case. If, however, the defendant shows that there was a real chance that the plaintiff would have developed similar symptoms from a natural condition attaching to the plaintiff, the court will make a greater reduction than normal to reflect this increased chance.”

658. Sackville AJA, in his concurrence, noted that it can be difficult, in the realm of psychiatric injury, to identify with reasonable precision the pre-existing injury which has been exacerbated by a defendant’s negligence, echoing (at [393]) the point raised by Basten JA in State of New South Wales v Burton [2006] NSWCA 12 at [76], that precision in such cases, at least in relation to aetiology, “tends to be an aspiration rather than a reality”.

659. In my opinion, care needs to be exercised when seeking to elevate the observations of Ward JA into a binding principle of new law. Basten JA, who admittedly was in dissent, noted (at [158]) that it was ‘contestable’ to reduce a damages award by the proportional discount imposed by the trial judge in that case. Basten JA’s reservations have subsequently been noted, with approval, in subsequent cases at first instance in the Supreme Court of New South Wales^[18] .

     18. Feldman v Nationwide News Pty Ltd [2020] NSWSC 26 at [173]; also Jones v Murrumbidgee Irrigation Ltd (No.2) [2020] NSWSC 613 at [982]

660. Sackville AJA expressly indicated (at [402]) that there was room for debate about how damages should be assessed following the circumstance of it being established that the plaintiff had a pre-existing disability. His Honour referred to the High Court’s earlier decisions in Watts v Rake (1960) 108 CLR 158 and Purkess v Crittenden (1965) 114 CLR 164.

661. In Purkess v Crittenden, Barwick CJ, Kitto and Taylor JJ referred to Watts v Rake and said at 168-169:

“We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial... it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant’s case or evidence extracted by cross-examination in the plaintiff’s case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant’s pre-existing affliction or what its future effects, apart from the result of the defendant’s negligence, were likely to be. That being so we think it was proper for him to deal with the case on the basis that the defendant’s negligence was the cause of the appellant’s permanent disability and, accordingly, we propose to deal with this appeal on the same basis.” (emphasis supplied)

662. Both decisions of the High Court were reconsidered by Ipp JA in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, a decision of the Court of Appeal post-dating the High Court’s decision in Malecv JC Hutton Pty Ltd  (1990) 169 CLR 638. As his Honour said at [106], at the point when the Court is considering the assessment of damages (as distinct from causation), the possibility of a pre-existing condition giving rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury is relevant to considering the vicissitudes; as do, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.

663. His Honour was conspicuously reinterpreting the High Court’s earlier decisions in Watts and Purkess in the light of Malec principles. However, in my opinion, the principle articulated by Ipp JA is consistent with the line of authority going back to the High Court’s decision in Wilson v Peisley (1975) 7 ALR 571 at 574 per Barwick CJ, being that although there was a fair chance that some precipitating cause other than the defendant’s act would have brought the plaintiff to the same state, this would not necessarily have occurred, the court must evaluate that chance and discount the damages accordingly ^[19] . I do not understand Ward JA in DC v State of New South Wales as espousing any different principle. To the extent however, that the defendant invites me to engage in some extensive computation and apportionment of all the causes, other than the negligence, contributing to the plaintiff’s ultimate condition, I do not understand Ward JA to suggest that such course is mandatory. Rather, in a common law claim for damages for personal injury where the injury is psychiatric in nature, in my view, the Court is entitled to adopt a robust approach in evaluating the contributions as a whole.

     19. H Luntz, Assessment of Damages for Personal Injury and Death (electronic version, revised 4th edition, 2016, LexisNexis Butterworths) at [2.2.1]

664. The defendant submitted that it discharged its evidentiary onus of proving that there were multiple causes of the plaintiff’s PTSD resulting in the need for an apportionment of damages. Professor McFarlane said that there was a substantial contribution to the PTSD from events occurring before 17 June 2005. Dr Murray also referred to conflict between the plaintiff and her workplace.

665. The plaintiff submitted that it was for the defendant to disentangle the causes of her condition, which it did not do. The Police Force continuously engaged in negligent conduct which caused the discharge and her incapacity on the open market.

666. Here, it is likely that the plaintiff had a predisposition to a psychiatric illness, like depression. Professor McFarlane (Exhibit R, p 22) and Dr Spruce (in his report of 5 May 2008) thought so. But notwithstanding her pre-disposition to depression, which flared in 2002, given the medication prescribed for her, the plaintiff had managed the condition to such a degree that it went into remission. But in 2006, close family members received diagnoses of cancer, which affected the plaintiff’s mental health and her father died in January 2007. In my opinion, the fear and sense of dread at the prospect of returning to the frontline and then the suicides of colleagues in 2007 had a very profound and debilitating effect upon the plaintiff, probably greater than she realised at that time. The failure to assess and treat her reaction to the deaths of her colleagues had spin-off effects. It galvanized, in particular, what others might have regarded as her strident advocacy for the welfare of officers in a way that caused conflict with her colleagues and only worsened her condition and substantially diminished her capacity to meet, with something approaching equanimity, the prospect of her returning to general duties. I accept the plaintiff’s evidence that, in late October 2007, she reasonably interpreted her treatment in a way that suggested to her that the Police Force did not see a role for her other than to be ‘on the truck’ and consider that this filled her with dread. This accelerated further her condition. I accept her evidence that after informing Commander Clarke that she could not cope with operational duties anymore, the latter’s response was that he could only offer her operational duties; a response that, although honest and possibly well-meaning, was detrimental to her mental health.

662. I do not accept Dr Vickery’s view that the plaintiff has OCD contributing to her incapacity. That opinion was a medical outlier.

663. To the extent to which any ‘apportionment’ of causes should be assessed, the probable effects of the plaintiff’s pre-existing disposition to depression had been managed for a significant period of time and could, with proper assessment and treatment, continued to be managed in a way that did not destroy her capacity to work on the open market, which occurred onwards from about February 2008 and which, I have found, was caused by the Police Force’s negligence, for which the defendant is responsible.

664. I take into account, in addition to the plaintiff’s pre-existing disposition to psychological injury, the plaintiff’s back injury, which is unrelated to the defendant’s negligence, as I have found it, and has also diminished the plaintiff’s capacity to work on the open market. I note here the absence of other qualifications obtained by the plaintiff since she left school, which would necessitate substantial re-skilling. I accept that a not insubstantial part of the plaintiff’s depression is based upon a retrospective narrative of the events that occurred during her period of service prior to 2007. Other than the back injury, however, to the extent that it is possible to distinguish in symptomology between disorders, it is the symptoms of depression which account for the lion’s share of contribution to incapacity to work.

665. I would make a greater allowance for the contingencies, to reflect the chance that the pre-existing disposition and other circumstances for which the Police Force were not responsible would have achieved the same result. I assess that deduction at 40%.

Contributory negligence and failure to mitigate

671. By its Defence, (in paragraph 11) the defendant particularised this defence as follows:

1. failing to take reasonable care and/or precaution for her own safety;

2. failing to report her psychological symptoms to her supervisors when she became aware, or ought to have become aware, that she was experiencing same;

3. failing to disclose the true nature of her psychological symptoms to her supervisors when she first became aware, or ought to have been aware, that she was experiencing same;

4. failing to seek out medical assistance when she first knew, or ought to have known, that she was suffering from psychological symptoms

672. The defendant also asserts (with reference to s 151L of the WC Act a failure to mitigate her loss or damage (inferentially) for the same reasons. The defendant made no distinction between contributory negligence and mitigation in its submissions. Indeed, it made no submissions about a failure to mitigate at all.

Submissions

673. The defendant submitted that the plaintiff failed to engage with the system making available treatment for her. Further, if she really had symptoms of PTSD, there is no evidence to indicate that she made reference to them to the persons who assessed or examined her during the period of her service.

674. The defendant submitted a deduction of 30% for contributory negligence.

675. The plaintiff submitted that the defendant has not discharged its onus of proof. She should not be criticised for any failure to access services when, realistically, none were offered; other than EAP (limited to 6 sessions), peer support and access to a chaplain who might be seen no more than once a year. Such genuine attempts as were made by Command to protect her welfare occurred whilst she was at Toronto, from early 2008, well after the onset of her injury. Contrary to the claimant in Doherty, a case relied upon by the defendant^[20] , this plaintiff never did decline the opportunity to receive intervention.

     20. Doherty v State of New South Wales [2010] NSWSC 450 at [270]

Consideration

676. The compensable damage, as I have found, was caused by the negligence was the plaintiff’s Major Depression, established by the failure of the Police Force to have her properly assessed from May 2007.

677. Contrary to the defendant’s submissions, which were pitched at a rather abstract level, I do not accept that, as a generalisation, the plaintiff concealed her psychological issues from command. In May 2007 she told Commander Clarke that she could not cope. Around the same time, she availed herself of the EAP facility which all the experts accepted was a reasonable step for her to take in her own interests. At one point, she had also seen a Chaplain. She saw the psychologist in late October 2007. She may not have used the ‘Peer Support Officer’ facility, but Mr Mutton’s evidence indicated to me that this was, with no disrespect to him or anyone else within the Police Force, probably the weakest of the services supplied to general duties officers, from personnel whose training consisted, apparently, of not much more than a 3-day training program. In this regard, the plaintiff’s concerns were with workplace colleagues and conflict with them, and her supervisors. It is very doubtful if peer support officers would have assisted her to lessen the psychological harm she sustained through the workplace from 2007.

678. This particular plaintiff was not the sort who, by nature, concealed matters that were troubling her. She was seen to cry on occasions, certainly in and from 2005. She was no ‘shrinking violet’ when asking her supervisor to be excused from delivering death notices. Nor was she reticent in making workers compensation claims; having made a few of them during the period of her service and lodging WorkCover certificates to assist her to do so.

679. Her ‘adaptational’ or ‘attributional’ style, resulting in conflict with colleagues, supervisors and managers, was on display in the early part of the century which, unsurprisingly, resulted in one of her earlier commanders, Commander Shearer, making a referral for her assessment. One surprise amongst many is that after the plaintiff’s transfer to the Lake Macquarie Command, there was little or no follow up; despite Commander Clarke’s concession that, had he known of the plaintiff’s history, that might have had some bearing upon his decision-making.

680. Given that I have found that the damage she suffered psychologically was occasioned by conduct amounting to a failure to assess, save for a qualification, I adopt the observation made by Sackville AJA in not dissimilar circumstances in Sills (at [172]) that it would be unjust for the plaintiff to be found contributorily negligent by reason of conduct which was the product of the very condition the Police Force should have detected and addressed.

681. The qualification is this. I consider that the plaintiff was depressed when she saw the police psychologist, Ms Hanna in late January 2008. Although I acknowledge that she had an interest in applying for a new position within the Police Force and a natural incentive to minimise her condition, had she been more forthcoming than she was with Ms Hanna, far from averting the situation of her being assessed as fully fit for general duties (including having access to a firearm), and had a truer picture of her psychological condition emerged, I consider it probable that some of the later stress occasioned to her arising, for example, from the looming withdrawal of her special sick leave by Superintendent Rae may have been avoided. Nevertheless, I consider that her own contribution to her psychological condition to be small, relative to that of the Police Force. As I have indicated, Ms Hanna’s assessment in January 2008 was inherently inadequate for her needs at that time, and before. For someone with this officer’s history, which was known or which should have been known, I consider it appropriate that there be a 10% deduction in her damages award because of contributory negligence. When comparing culpability and causative effect, it is not being excessively paternalistic to expect the Police Force to have acted upon multiple triggers to ensure an officer at high risk of significant psychological injury was properly assessed at the times I indicated here.

Interest

682. The plaintiff claims interest under s 151M of the WC Act. That will be also need to be calculated in the short minutes.

Summary

683. I have found that:

1. The Police Force’ breach of duty in failing to conduct a thorough mental health assessment of the plaintiff from May 2007 and through and beyond October 2007 caused the plaintiff to suffer Major Depression;

2. The plaintiff has not established that the breaches of duty I have identified as against the Police Force caused her to suffer PTSD or worsen the severity of that condition;

3. The plaintiff is entitled to Judgment against the defendant, being vicariously liable for the conduct of personnel within the Police Force;

4. There should be a 40% reduction in damages on account of the contingencies;

5. There should be a 10% reduction for contributory negligence.

684. The parties will be given opportunity to reformulate their positions on the amount of damages, with interest and appropriate credits or deductions from the damages award, in the light of these findings. The parties will also be given the opportunity to consider their positions on the question of costs.

Orders

685. The Court orders that:

1. The parties should confer with a view to reaching agreement on dispositive orders within 7 days. If agreement is reached, an agreed minute can be sent to my Associate and orders will be made in chambers.

2. If agreement has not been reached within 7 days of these reasons, the parties are to submit their respective short minutes of order, coupled with short outlines of submissions (not exceeding 5 pages excluding attachment of relevant documentation) identifying the scope of disagreement and putting the parties’ respective contentions. In that event, the Court will determine appropriate orders on the papers, unless indication is given to the contrary.

3. Liberty to apply is granted on 2 days’ notice by email communication to my Associate.

Exhibit D-2 - Skinner v NSW (51502, pdf)

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Endnotes

Amendments

05 March 2021 - Uploaded annexure

05 March 2021 - Fixed typographical error

Decision last updated: 05 March 2021