Wilson v SAS Trustee Corporation (No 4)

[2023] NSWDC 224

District Court

New South Wales

Medium Neutral Citation:

Wilson v SAS Trustee Corporation (No 4) [2023] NSWDC 224

Date of orders:

27 June 2023

Decision date:

27 June 2023

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

See pars [211]-[213].

Catchwords:

WORKERS COMPENSATION – SPECIAL STATUTORY COMPENSATION LIST - POLICE – Conditions of Service – Hurt on Duty Pension -Application to Increase Pension – Further Application to amend Certificate of Infirmity to include a further infirmity – Original decision of Defendant made on 29 March 2000 – Application to amend made by letter of 3 December 2019 but declined on following day – Whether Defendant had power to make the amendment - Whether Court had jurisdiction to grant relief sought - Whether application time-barred – Proper construction of statutory scheme.

WORDS AND PHRASES – Whether infirmity of mind established by making of a diagnosis and/or the experience of symptoms.

Legislation Cited:

Evidence Act 1995 (NSW)

Freedom of Information Act 1989 (NSW)

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796

Police Regulation (Superannuation) Act 1906 (NSW)

Superannuation Administrative Act 1996 (NSW)

Workers Compensation Act 1987 (NSW)

Cases Cited:

Day v SAS Trustee Corporation [2020] NSWDC 381

Day v SAS Trustee Corporation [2021] NSWCA 71

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796

Lembcke v SAS Trustee Corporation [2003] NSWCA 136; (2003) 56 NSWLR 736; (2003) 25 NSWCCR 464

Lenihan v SAS Trustee Corporation [2020] NSWDC 815; (2020) 34 DCLR (NSW) 259

March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506

Miles v SAS Trustee Corporation [2016] NSWDC 56

Morris v George [1977] 2 NSWLR 552

National and General Insurance Co. Ltd v South British Insurance Co. Ltd (1982) 149 CLR 327

Pascoe v SAS Trustee Corporation (unreported 15 March 2022)

Pascoe v SAS Trustee Corporation [2022] NSWCA 244

Pascoe v SAS Trustee Corporation [2023] HCASL 69

SAS Trustee Corporation v Miles [2018] HCA 55

SAS Trustee Corporation v Rossetti [2018] NSWCA 68

SAS Trustee Corporation v Woollard [2014] NSWCA 75

Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 39 NSWLR 87; 17 NSWCCR 716

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Plaintiff – Steven John Wilson
Defendant – SAS Trustee Corporation

Representation:

Counsel:
Plaintiff – Mr Morris SC, Mr O’Neill
Defendant – Mr Ower
Solicitors:
Plaintiff – Cardillo Gray Partners
Defendant – State Super

File Number(s):

RJ 258 of 2019 (2023/200329)
RJ 171 of 2020 (2023/200348)

Publication restriction:

Nil.

Judgment

Background

Plaintiff’s background

Early police career

Exposure to psychic traumata in early police career

Blacktown general duties

Left knee injury 26 July 1994

Exposure to psychic traumata at Blacktown

A. SIDS

B. Dismembered body

C. Elderly lady in bath

D. Body of young woman split in half

F. Double murder and suicide

G. Murder of sexual assault victim

H. Murder and suicide at Prospect

J. Attempted hanging in police cells

K. Attempt to resuscitate a heart attack victim

L. Hanging at Quakers Hill

M. Suicide of Cons SB

N. Industrial accident

O. Incident at Crows Nest

Attendances on Police Psychology Unit – 1991

9 July 1991

10 July 1991

16 July 1991

23 July 1991

8 August 1991

17 October 1991

Evidence of Vicki Ann Wilson

Evidence of Mr Gary Raymond

Significance of the Plaintiff’s seeing psychologist in 1991

Attendances on Police Psychology Unit in 1993

24 November 1993

Positives

Action

22 December 1993

Significance of the Plaintiff’s seeing psychologists in 1993

Attendances on Police Psychology Unit in 1996 and 1997

7 November 1996

8 January 1997

Significance of Plaintiff’s seeing psychologist in 1996/97

Transfer to Kings Cross

Knee injury 30 December 1997

Attendance on Police Psychology Unit from 1998

Medical Discharge

Treatment after PSAC certification

S12D gratuities

Subsequent employment to 2012

October 1999 – September 2000

January 2000 – May 2000

June 2000 – November 2000

January 2001 – June 2001

June 2001 – October 2001

January 2002 – March 2004

March 2004 – March 2005

October 2005 – November 2005

December 2005 – March 2006

May 2006 to May 2008

20 October 2008 to 17 July 2009

3 August 2009 to 16 September 2011

The Plaintiff is bullied at WSC

Treatment after WSC declined liability

When was PTSD more recently diagnosed?

No contest on the existence of PTSD

Plaintiff’s workers compensation claim

Employment history after WSC

Kmart Australia Ltd

Hudson Global Resources (Aust) Pty Ltd

Fire Administration Services Pty Ltd

Life without Barriers

GFC Rutherford Pty Ltd

Peoplefusion Pty Ltd

Steve Wilson Heart ‘n’ Head PT Services

Poolwerx Long Jetty

NSW Health Service: Central Coast Local Health Service: Gosford Hospital

Salary of the Plaintiff’s office

PLAINTIFF’S SECOND APPLICATION

Plaintiff’s psychic symptoms 1998 to 2010

Scheme of the Act

Consideration

Can PSAC’s certificate of 29 March 2006 be amended?

Notice

The “limitation” issue

Appropriate relief

PLAINTIFF’S FIRST APPLICATION

What would the Plaintiff be earning if uninjured?

What could the Plaintiff earn in his injured state?

Backdating

Orders

Matter No RJ 258 of 2019

Matter No RJ 171 of 2020

Associate’s note

Judgment

Background

1. HIS HONOUR: The Plaintiff is a former sergeant of police. He was attested as a probationary constable of police on 2 April 1982 and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 (“the Act”). On 29 March 2000 the Police Superannuation Advisory Committee (“PSAC”), established under the Act, acting as a delegate of the Defendant, certified that the Plaintiff was incapable of discharging the duties of his office due to the infirmity of “chondromalacia patellae (of the) left knee”. On 4 April 2000, the Commissioner of Police, by his delegate, decided that that infirmity was caused by the Plaintiff’s being “hurt on duty” (“HOD”) by an injury that occurred on 30 December 1997. On 6 April 2000 the Plaintiff was medically discharged from the NSW Police Service (“NSWP”). He thereupon became entitled to a superannuation allowance, or pension, based on 72.75% of the salary of his office, from time to time, ever since.

2. There are before me two applications. The first, that of 2019, is for an increase in that pension entitlement since the date of his discharge. The Defendant granted an increase to 77.11% of the salary of the Plaintiff’s office on 22 February 2019 but the Plaintiff alleges that that is not commensurate with the Plaintiff’s incapacity for work outside the NSWP and seeks an increase to the maximum permitted under s.10(1A)(b) of 85%. This is relatively straightforward.

3. The second application, that of 2020, is not. On 18 November 2019, the Plaintiff made an application for “HOD pension by a former member of NSWP under s10B(2) of the Act”. That was received by the Defendant on 21 November 2019, but it declined to entertain the application. In a letter dated 3 December 2019 it said this to the Plaintiff’s solicitor:

“Section 10B(2) is only applicable to a ‘former member’ of NSWP ‘who has resigned or retired’. We note that your client neither resigned nor retired from NSWP. Although the term ‘retired’ as defined in s10 includes discharged as referred to in section 7 or 14, we note that your client was discharged under s10B(1). It is therefore clear that his purported application under s10B(2) is invalid. STC [the Defendant] has no power to deal with it”.

By letter sent by email on the same day, 3 December 2019, the Plaintiff’s solicitor asked the Defendant to “amend our client’s s10B(1) certificate to include the infirmity of ‘post traumatic stress disorder’”. Post-traumatic stress disorder (“PTSD”) was the subject of the application under section 10B(2). By another letter dated 4 December 2019, the Plaintiff’s solicitor drew the attention of the Defendant to certain provisions of the Act and the Superannuation Administration Act 1996. The Defendant responded to both of the Plaintiff’s solicitor’s letters of 3 and 4 December 2019 by letter of 4 December 2019 which said this:

“With regard to your request for your client’s s10B(1) certificate to be amended, I regret to advise that the [Defendant] has no power to grant your request as it is functus officio in regard to your client’s application under s10B(1). As you know, PSAC’s decision pursuant to s10B(1) was made on 29 March 2000 and your client was notified of that decision by letter dated 29 March 2000. Your client was subsequently legally represented by Taylor & Scott, who did not cavil with that decision.

To be clear, [the Defendant] having made its decision (via its delegate) on 29 March 2000, has no power to make a further decision pursuant to s10B(1).”

4. Paragraphs [10] to [13] of the Amended Statement of Claim in the 2020 matter (upon which I granted the Plaintiff leave to proceed on 18 October 2021) are these:

“10. The Plaintiff is aggrieved of the Defendant’s decisions of 29 March 2000, 3 and 4 December 2020.

Particulars

(1) The Defendant has failed to give real and genuine consideration to the Plaintiff’s application for a certificate of incapacity and/or amendment of his certificate of incapacity.

(2) The Defendant has failed to investigate the Plaintiff’s application for a certificate of incapacity and/or amendment of his certificate of incapacity.

(3) The Defendant is not functus officio.

(4) The Plaintiff’s applications are not invalid.

(5) The Defendant has the power to amend the Plaintiff’s certificate of incapacity issued on 29 March 2000 or, alternatively, to issue a certificate of incapacity pursuant to s10B(2) of the Act.

(6) The Plaintiff notified the Commissioner of Police of his suffering from the infirmity of post traumatic stress disorder within 6 months and prior to his resignation.

(7) The Plaintiff was incapacitated for the duties of his office on 29 March 2000 as a consequence of suffering from the infirmity of post traumatic stress disorder.

11. The Plaintiff brings these proceedings pursuant to s.21 of the Act.

Particulars

The Plaintiff is aggrieved of a decision made by the Defendant on a matter that arises under the Act by reason of his being hurt on duty.

SAS Trustee Corporation v Rossetti [2018] NSWCA 68

12 The Defendant’s decision was not made under s67 of the Superannuation Administration Act 1996.

Particulars

Section 67(5)

SAS Trustee Corporation v Rossetti [2018] NSWCA 68

13. The Plaintiff seeks an order pursuant to s.21(4)of the Act that the decisions of the Defendant dated 3 and 4 December 2019 be set aside.”

Plaintiff’s background

5. The Plaintiff was born in September 1959. Dr Michael Diamond, Consultant Psychologist, interviewed the Plaintiff on 5 August 2021. Part of his history is this:

“Developmental and family history

Mr Wilson is the eldest of five brothers. They are closely spaced in age. His youngest brother is now aged fifty five. They were born and raised within an intact marriage. He was raised at Ryde in Sydney.

His father is now deceased. He died at the age of seventy six after a cancer diagnosis. His father was a qualified electrician who worked at Garden Island and then for Sydney City Council continuously until his retirement. He described his father as a traditionalist. He said he was a good provider sufficient to send all the brothers to private Catholic schools.

His mother is alive and well, aged eighty three. He noted that she has recovered from cancer of the breast, bowel and thyroid over the years and is doing well.

He described family life in positive terms. He described a happy family environment where they went on holidays, celebrated Christmas and birthdays and where family members still remain close.

I mentioned to Mr Wilson that I had read that there was some tension in his relationship with his parents documented in some of the psychology notes while he was in the Police. He said he was close in age to his next brother who turned out to be a high achiever earlier on. Mr Wilson said he was compared with him when they were younger. He commented that he did his achievement later on in his life. When he was younger he said he was not as focused or as compliant as his brother and they clashed. Over the years this had settled down. He said he was strong-willed and was quite comfortable to do things his way.

He commented that his father had views about the boys not being university material. He said his father was slow to acknowledge their academic and intellectual abilities. Nevertheless, he grew up knowing that his father was proud of him and his brothers.

His social history as a child was of a settled, confident boy. He was part of his peer group at school and made long term friendships. He was close to his brothers and remains so. He grew up as a sports-loving youth and continued throughout his adult life to be involved with sports. He was comfortable amongst females growing up.”

He attended St Charles Primary School at Ryde and the Holy Cross College in the same suburb, leaving with the school certificate in 1974. According to a history recorded by Prof. James Bright on 23 October 2017 the Plaintiff “hated [high] school and did not like the Christian Brothers. He was best at maths and worst at spelling. He represented his school in rugby league.” Until relatively recently, the Plaintiff was an active sportsman. He was very much involved with the Parramatta Eels R.L.F.C. when he was living in Sydney.

6. After leaving school, the Plaintiff commenced and completed an apprenticeship as a sheet metal worker, attending Granville TAFE. He completed his apprenticeship in 1981, according to Prof. Bryant’s history. On 11 January 1982 he entered the Police Academy (then at Redfern) which led to his being attested as a Probationary Constable on 2 April 1982. He was then 22 years old.

7. The Plaintiff first married at the age of 17. His first wife’s name was Rita. She bore him a daughter whom they named Jaime Louise. They separated and divorced when the Plaintiff was aged 21 years.

Early police career

8. On 3 April 1982, the Plaintiff commenced general duties at Redfern Police Station. On 26 September 1982 he was transferred to Mascot Police Station. Whilst at Mascot, he started working in criminal surveillance. Exhibit 3, the Plaintiff’s “Service Summary” shows a transfer to “Administration” at Mascot on 10 April 1983 and to criminal “Investigation” on 3 June 1984. In his oral evidence the Plaintiff referred to this work as being in the surveillance unit of the CIB. All told, he thought he did this work for about three years. He described this work as “doing recordings, doing stuff like taping people, following people….. Bugging houses, offices, those sorts of things…. Basically the undercover work…. Maybe sitting at the bar just watching someone, following somebody in a car, those sorts of things, going to houses and…. drilling holes and putting bugging devices in”.

9. On 31 May 1987, having reached the rank of Constable First Class on 2 April 1987, he was appointed to the Police Academy as a fitness instructor, weapons instructor and defensive tactics instructor. On 17 April 1988 he was transferred to “Youth Clubs”, initially to Bankstown PCYC, then Hornsby PCYC, then briefly to Canterbury PCYC on 13 March 1989 before being transferred to Blacktown PCYC later in 1989.

10. When the Plaintiff was at Bankstown PCYC, he met Ms Martha Jabour who was President of the Sudden Infant Death Association and the Plaintiff working with her in Sudden Infant Deaths (“SIDS”).

11. In 1985, the Plaintiff commenced a relationship with Vicki, whom he married. Their first child, a son Matthew, was born in December 1989. They later had a second son, Daniel, born in July 1993.

Exposure to psychic traumata in early police career

12. Within the first six months of his service, the Plaintiff was exposed to his first trauma, probably at Mascot. This was his description of the event:

“A. The first time I was exposed to any incident was a motor vehicle accident on Botany Road where a motorcyclist had gone underneath a truck and he was decapitated which was at night. At the time we were trying to search for his, his head, his decapitated head. And back in those days the railway line on the, on the, the side of the railing, upon inspecting, I found his helmet. At that time I didn’t know his head was in it so I picked up the helmet and saw his head in the helmet.”

Another event that he recalled during his first period of general duties was when a V6 Volkswagen’s brakes caught fire on Qantas Drive between the International and Domestic Air terminals. The Plaintiff’s evidence was this:

“A. At the time I observed the person in the car, it appeared to me that the person was trying to get out of the car, but the car was on fire and, yeah. We couldn’t get, we couldn’t get close enough to the car to, to get him out.

MORRIS

Q. And I take it that the person was lost?

A. He was, yeah.”

He also recalled attending a backyard toilet at Botany in which a teenager had hanged himself. The Plaintiff lifted his body up in order to be able to cut it down, but the deceased “defecated all over me”. The Plaintiff appeared to me to be more concerned with being soiled than with the lifting of the teenager’s body.

13. Whilst in the surveillance unit he did work in relation to the Milperra Massacre. In relation to the Anita Cobby murder he was involved in taping prison calls. He was also involved in surveillance in the Janine Balding murder, which he found “disturbing”. He also gave evidence about surveillance work he did in respect of the death of a young lady who had been set on fire:

“… we did night time surveillance on the cemetery where she was set alight because they had information that the offender was continually going back to the cemetery, and we did night time surveillance on…. the cemetery.”

Although this was eerie, there was “no blood or gore” involved.

Blacktown general duties

14. According to Exhibit 3, the Plaintiff was transferred to Blacktown general duties on 18 February 1990, although it is possible that he started in that role earlier, from Blacktown PCYC, and the official records were late in catching up to the reality. I have come across this phenomenon often in dealing with cases such as this. However, the first recorded event at Blacktown, of which I am aware, occurred on 9 March 1990. On that occasion, other police had arrested a drunken man outside Tiffany’s Night Club for offensive language. He was being escorted by them, on foot, back to the Blacktown Police Station but was resisting them. During a scuffle at the police station, the Plaintiff was thrown backwards and landed on his left side on the ground of the courtyard. He fractured his left fifth metacarpal. The Plaintiff is left handed. He was taken to Blacktown Hospital. He later came under the care of Dr M.D. Johnston and was referred to Dr John Bosanquet (orthopaedic surgeon). His dominant left hand was placed in plaster. This was accepted as HOD. The Plaintiff was off work for at least 10 days. This injury is, of course, irrelevant to the current issues. However, all the records kept by the NSWP were tendered. The volume of those records is to be contrasted with the complete lack of other records of other events which are alleged to be of great moment.

Left knee injury 26 July 1994

15. On 26 July 1994 the Plaintiff was involved in arresting an offender who had assaulted his sister. The offender kicked the Plaintiff in the left knee causing him to lose balance and to fall heavily on to the edge of a concrete verge at the rear of the premises where the assault occurred. The Plaintiff’s occurrence pad entry contains this:

“As a result I felt severe pain in my left knee making it difficult to work without pain. I attended Blacktown Hospital where they X rayed the knee and found there were no breaks. The Doctor treated the injury stating that there was severe bruising underneath the knee cap and has issued me a certificate for 3 days commencing on 27/7/94 and concluding on 29/7/94. Dr Fabian has advised that I attend my local physician for further treatment to the injury.”

16. The Plaintiff’s GP was Dr Michael D. Johnston of Westmead. He initially referred the Plaintiff to the late Dr John Harrison, orthopaedic surgeon. On 10 August 1994, Dr Harrison carried out an arthroscopy at the Hills Private Hospital. The operation report contains this:

“Pathology found: He had a stable range of movement in that left knee with a slight effusion and perfectly normal medial and lateral compartments and cruciate ligament complex.

At the patella-femoral joint he had an area of chondral damage of Grade II configuration with a fissure through the margins of the central facet on the posterior aspect of the patella involving an area of about 1cm to 1.5cms across combined with fissuring in a vertical cleavage pattern down through the trochlear area more to the medial than the lateral side of the trochlear area in the intercondylar region which was again of Grade II configuration.

Operative approach & technique: Through standard portals the knee was examined. An arthroscopic chondroplasty to smooth the affected area on the central facet on the posterior aspect of his patellar was performed but nothing other than photographic documentation of the lesion to the trochlear was done as it has the capacity to repair itself although part of fissure extended down to bone.

After a thorough washout the wounds were closed with steri-strips and a padded bandage applied.”

17. However, the Plaintiff’s symptoms persisted and Dr Michael Johnston then referred the Plaintiff to Dr Michael Johnson, another orthopaedic surgeon. In a report of 25 May 2000, Dr Johnson recorded this:

“When I saw him on the 13 December 1994 he was complaining of pain and giving way. Clinically he had marked retro-patellar crepitus and a positive Osmond Clark test and a further arthroscopy was advised in view of the increasing symptomology.

He agreed to the arthroscopy and it was carried out at the Mater Hospital at Crows Nest on the 18 January 19[9]5. At this arthroscopy he was found to have considerable chondral damage to the patella as evidenced by the video print outs which he has in his possession, and a surrounding synovitis. These areas were dealt with arthroscopically. Following this he had further physiotherapy.

He was reviewed on the 31 January 1995 when he said he had improved but he still had some pain with contraction of his quadriceps and physiotherapy continued.

He was seen on the 28 February 1995 and he told me that he was good. Cycling was giving him no trouble but there was still some slight crepitus and quadriceps wasting which he needed to build up further. At his request a certificate to return to work on light duties was provided.

He was next seen on the 4 May 1995. He said his left knee was good. When sprinting for a bus on one occasion he had had some pain. His knee had given way on one occasion going up steps. Clinically there was then slight crepitus, slight discomfort with Osmond Clark test and normal quadriceps. He was fit to continue at work. Anti-inflammatories were advised to continue whilst he continued building up his muscles.”

18. This knee injury was accepted by NSWP as HOD and the Plaintiff’s absences from work were compensated as were his treatment expenses.

Exposure to psychic traumata at Blacktown

19. The Plaintiff gave oral evidence about 14 different topics or events which he relies upon that occurred whilst he was stationed at Blacktown. I shall assign to each of those a capital letter to make subsequent identification of the event easier. I give them in the order that they were given in evidence, but I doubt that this is a chronological order. Very few events can be actually dated.

A. SIDS

20. Because it became known at Blacktown that the Plaintiff had worked with Ms Jabour in relation to SIDS, “every time” a child’s death occurred its investigation was assigned to the Plaintiff as he was called in to assist those who were investigating it. On any such occasion he was exposed to both the deceased child and to the child’s grieving parents. This evidence was given:

“HIS HONOUR

Q. Of course one of the problems with that is that sometimes you had to look upon the parents as potential suspects because for all anyone knew, the child could have been suffocated?

A. That’s correct your Honour and that was one of the things that came out very much from the stuff that we worked or that I worked with Martha Jabour on was the fact that many of these instances the parents were being treated as criminals and they shouldn’t have been. They should have been treated with compassion, empathy, and they were not being treated that way. So my, my role there was to assist other police in terms of treating the parents with respect. We eventually got bassinets put into ambulances instead of putting baby in a body bag.

Q. It was affecting a cultural change in the way that the emergency services responded to SIDS, isn’t it.

A. That’s correct your Honour, yes. One of those particular ones was I got called to a young child by the ambulance that appeared to be – have bruises over her body. We got to the hospital, and was begging the – because the parents were quite distressed and I was begging the doctors to let them into the emergency surgery or emergency so they could spend the time with their child. The child passed away. It was then discovered that the child had meningococcal. That I was done your Honour.

Q. Were you--

A. I was completely done. I was – I sat in the gutter with the parents and just burst into tears. I’d had enough.”

When working at Blacktown the Plaintiff always had a young son, although he appears to have ceased cohabitation with Vicki in 1990. This evidence was given:

“Q. Did you notice anything during this period about your relationship with Vicki?

A. Yeah, it wasn’t good. I was irritable, nasty. Quite often I’d be withdrawn. She would ask me questions. I wouldn’t answer her. I slept with my hand on my baby, on Matthew. Every time he stirred I, I was awake.

Q. How was your sleep during this period?

A. Maybe an hour, two hours.

Q. What was the problem?

A. I couldn’t, I couldn’t sleep. Every time Matthew stirred, I’d be awake. If he murmured, I’d be awake. I was so worried that he’d, he’d pass away, I just had to be alert the whole time.

Q. Did you have any difficulty or did you have any issue with nightmares or anything like that at that time?

A. Yes, I did. Other things started to, to pop up. Such as the, the other incidents that I’d been to. I didn’t want to tell Vicki, that wouldn’t be fair to her. I didn’t want to expose her to what I’d been exposed to.”

B. Dismembered body

21. A man who had been drinking walked in front of a train between Doonside and Rooty Hill railway stations, spreading his body parts over a distance of some 500m in the vicinity of an overbridge. The Plaintiff and an ambulance officer walked along the railway tracks “picking up body parts”. When they returned to the train, a fireman directed their attention to the deceased’s entrails “hanging underneath the train.” The Plaintiff and the ambulance officer then collected these and put them in the body bag. The next morning, at the morgue, the examining doctor pointed out that the deceased’s “rib cage” was missing and they (“we”) had to go back to the scene and collect the missing body part. It seems likely to me that only some part of the rib cage was missing – a whole rib cage is too large to “miss”.

C. Elderly lady in bath

22. The Plaintiff was called to the suspected suicide of an elderly lady at Prospect. She had “taken a load of pills” and then got into a bath filled with water. She had been in the bath “for some time”. The Plaintiff went to pull her from the bath: “I’ve basically degloved her. I’ve grabbed her arms and I can still feel her hands coming off… in my hands”.

D. Body of young woman split in half

23. A young man, with his girlfriend next to him, was speeding, whilst driving a Toyota Celica in Doonside. He lost control and the car left the carriageway and “wrapped round a telegraph pole”. The car was split into two parts. One part of the young lady was in one part of the car, and the other part of the young lady was in the other part of the car.

E. Death of pregnant women in MVA

24. A young woman had only very recently told her family that she was pregnant. She was driving a car on Prospect Road. Her sister was her passenger. She was stationary at traffic lights. A “hit and run driver” had collided with the woman’s car. She died and miscarried because of her injuries. Her foetus did not survive. Her sister was injured and taken by ambulance to Blacktown Hospital. The Plaintiff said in evidence: “I opened up the car door and she was already pronounced dead and obviously she miscarried after the accident…. I remember putting my hand on her knee or her leg, just saying I’ll look after [you], and then I had to go around and tell the parents… they were just beside themselves”.

F. Double murder and suicide

25. This event is best described by the Plaintiff himself:

A… I’m not quite sure of the date but it was certainly after Daniel was born. There was an incident where I – myself and another senior constable went to a domestic where a father had not returned his two girls. We spent some time investigating that particular incident. We’d visited the, the Lalor Park Hotel where we discovered that he’d actually bought a gun and then we started searching for them. That was the morning shift. We went back to the police station and spoke to Inspector Bennet where he told us we could actually continue on searching for them. At 2am of that morning we got a call to say that there was a – which we’d caught them down that street, Bessemer Street, a thousand times.

But we got a call that there was a strange car and that a neighbour had heard a couple of bangs; didn’t know what they were. When we got to the scene, he’d shot his two daughters who were about eight and nine years old; they were twins, I’m not quite – I can’t remember now. But then he shot himself. When – we left him in the car and obviously did what we were required to do but when the coroner turned up who happened to be – or the pathologist turned up, Peter Ellis, told us that the girl near the door had been alive for some time.

I remember myself and the other senior constables said that we’ll take them out of the car. We weren’t going to go anywhere near the father, we just--. So, I remember pulling the, the first child out of the car and I can still remember the smell; there was a strong whiff of strawberries. I can still remember it; I can still see it putting her in the, in the bag, she had purple lips. And then we got the other child out and put her in the, in the body bag as well while scientific, at that stage, did what they were required to do; taking photographs.”

G. Murder of sexual assault victim

26. At one time the Plaintiff was working as a domestic violence officer. A lady attended the police station, seeking that an AVO be taken out against her “boyfriend”. When talking with her, the Plaintiff noticed a “fairly substantial cut” on the right side of her neck. He questioned her about that and she “broke down”. She admitted that she had been sexually assaulted by her “boyfriend”. The Plaintiff took a statement from her and referred her to detectives. Whilst the lady was with the detectives, the Plaintiff attended Blacktown Court House and spoke with a Magistrate and obtained an AVO. He then arranged for the lady to go to a women’s refuge in Blacktown but the lady refused to go there as she wanted to stay at home with her elderly parents for whom she cared as part of her Asian culture. The Plaintiff’s evidence continued in this way:

“I spent quite a bit of time with this young lady and she ended up been murdered, disembowelled. I heard that on the news. I was driving my own car as I was driving to work. I got to work. Obviously I knew where she lived and I just knew it was her and I jumped in the car and went straight around there and saw the deceased on the front yard on the, on the, on the front footpath. She had been disembowelled. And the same knife that disembowelled her was the one that cut her throat earlier.

Q. What was your reaction to that?

A. A sense of guilt, a major sense of guilt. I still to this day say to myself I should have just picked her and thrown her in the car and taken her to the refuge, to this day, to this very moment. I didn’t do enough. I didn’t protect her which was my job. It’s just a waste. I’m sorry.

Q. After that incident did you approach [peer support officer], do you recall?

A. I can’t recall at that stage approaching the [peer support officer]. I know, I can you that some – at that time I can’t recall. But I do recall going to a conference 12 months or approximately 12 months later in Goulburn. Prior to that I’d been around and saw the Crown in relation to that murder, and they wanted me to identify the deceased. They showed me photographs of the deceased. Not long after that they told me I would also be required to give evidence because obviously I had spoken to her.

At the peer – I went down to a peer support conference. I think that was in the November, from memory. And I broke down at the peer support when they – I got a message to say that I would no longer be required to attend court that he had pleaded guilty and that I wasn’t required. When I got that message I came back into the room with a whole lot of other people there and they had been discussing various things and I just broke down in the room. I just burst into tears.

Q. Can you tell his Honour what triggered that?

A. Again, it was just a sense of, a sense of loss, a sense of guilt. Just the fact that I couldn’t protect her. I was feeling very, very distressed, I didn’t know why I was, why I was crying, I had no idea. Inf act I had no idea why I was, why I was so emotional at the time.”

27. According to a history recorded by a police psychologist on 7 November 1996, this event occurred “in 1995” but that seems unlikely as the offender’s trial for murder was due to start on 6 November 1996. It is possible that the psychologist intended to write 1993. If the psychologist did that, or if the psychologist recorded an incorrect history, then the notes of another police psychologist referred, perhaps, to this event on 24 November 1993. I shall discuss the police psychology notes later.

H. Murder and suicide at Prospect

28. A couple who had been living together at Prospect separated, the children remaining with their mother. One morning, the man took their children to school, returned to the family home and stabbed his estranged wife, the children’s mother, to death, and then committed suicide. The Plaintiff gave this evidence about the effect of this event on him:

“A. That had a great impact on me in terms of the fact that I had two children, and basically this selfish to be honest with you, this selfish bastard had robbed the children of both parents. I remember her – seeing her lying on the floor in the foetal position holding her stomach, I can still see that and the kids saying, ‘Well where’s mum and where’s dad?’ I remember that. Then myself and a detective, I think it was Dallas.. (not transcribable).. from memory, went round to the house and we found him in the bath, he was in a – in like a spa bath and he’d cut his wrists and just sat in a warm bath.”

J. Attempted hanging in police cells

29. Highway patrol police had arrested a drunken man. He was “screaming and yelling and carrying on” in his cell for some time but suddenly he became silent. The Plaintiff thought that was unusual so he went to the cell and found the man hanging in his cell. He screamed out for assistance, entered the cell and held the man up until another constable was able to cut the man down. The Plaintiff performed CPR on the man and he started to breathe. An ambulance was called. The man survived. The Plaintiff said that he was “emotionally shaken” from performing the CPR. This event was followed by an Internal Affairs (“IA”) investigation, as one might expect, but there was no suggestion that any wrongdoing was alleged against the Plaintiff.

K. Attempt to resuscitate a heart attack victim

30. The Plaintiff gave this evidence of this event:

“The only other incident I can remember at Blacktown one night on night shift an Asian gentleman had a, had a heart attack in front of the, the police station. When I got to the scene I said to the other constables, ‘What are you doing,’ and they, and they said, ‘Oh, no, we’ve called an ambulance,’ so I got down and started performing CPR and then another senior constable turned up and he started doing obviously CPR until the ambulance turned up. I remember as I was giving him CPR, in particular the cardiac compressions, I could feel the ribs breaking underneath my hands.

When the ambos turned up they just said, ‘Keep going, keep going, don’t stop,’ and then they started to ventilate him. They ventilated him and then they could see it was struggling from doing the cardiac compressions and then they, they said, ‘It’s okay, we’ll take over,’ so then they started taking over the cardiac compressions until another ambulance turned up and they could get him on board to take him to Blacktown.”

L. Hanging at Quakers Hill

31. After further prompting by Counsel, the Plaintiff recalled this event:

“A. There was a hanging at, at Quakers Hill. Father had, had hung himself in the garage. What distresses me the most about that was when I went to cut him down, considering I did one at Botany, I wasn’t going to let – I remember putting on a raincoat to make sure that he didn’t defecate on them. The other constable, sergeant actually, cut down and then as we got him down we turned around and his two kids were standing at the front of the garage.

Q. What, watching?

A. Watching us. I don’t know where they came from. They certainly weren’t in the house at the time when we spoke to the wife. They must’ve been out somewhere and then returned.”

M. Suicide of Cons SB

32. In answer to a leading question, the Plaintiff then gave evidence concerning the suicide of Cons SB. The Plaintiff had worked with this officer and knew where he lived at Greystanes. The Plaintiff, it seems to me, heard a call on police radio identifying the address. Police from Merrylands had responded prior to the Plaintiff’s arrival there. They had tried to talk the officer out of committing suicide, but he used his service revolver to shoot himself dead.

N. Industrial accident

33. In answer to another leading question, the Plaintiff gave this evidence of this event:

“A. Yeah. There was a gentleman that was drilling into a brick wall, into a concrete wall and he had one of those – it was about 1 and a half inches in diameter and when he was drilling into the wall it kicked back on him and went into his stomach and we were the first car on the scene and I remember ripping my shirt off and holding his guts together, with the drill.

Q. Did that have an effect on you?

A. Yes. I remember having blood on my hands and after that I, I, I washed my hands and every time I looked at my hands I, I could still see the blood. No matter how many times I washed them, I could still see the blood. I could smell it, smell the copper smell.

Q. Did you speak to anybody about that?

A. No, I didn’t.”

O. Incident at Crows Nest

34. For this even the Plaintiff received a Commissioner’s Commendation for Bravery. The Plaintiff described it thus:

“A. I had gone to a friend’s place for dinner. On my way home, I got to the Five Ways at Crows Nest. I saw two police officers in the distance opposite the fire station and they were stepped out of the car, they had their revolvers out pointing at a car. While I was sitting at the lights, I could see another Asian man coming up the road and walk – going to walk around the corner. He had a rifle in his hand. I flew across the road. I informed the fire station officers to call emergent duty to us as I obviously didn’t know what the Asian man was going to do.

I identified myself to the other two police officers. One was a young constable that had only been in the job a couple of months. The other one was – had been in the job 18 months. I took control of the situation. I asked the other young constable that was shaking to give me his revolver, which he did. I stepped from behind the car – I know this sounds very police-y but this is what happened. I walked up to the Asian man. I had – I was behind cover. I told him to put the rifle down. He got on his knees, put the rifle down. I approached him, came out from cover, approached him, he picked up the gun and pulled the trigger, and it didn’t go off. And to this day I have no idea why I didn’t shoot him. That sticks with me.”

The Plaintiff thought that this occurred in 1992, when he was stationed at Blacktown.

Attendances on Police Psychology Unit – 1991

35. During the evidence concerning events A to N, Counsel sought to introduce evidence to the Plaintiff’s attending on police psychologists in what Mr Morris SC and Mr O’Neill considered to be a chronological order but I am not persuaded about that, as they appeared to believe that the Plaintiff commenced at Blacktown general duties earlier than I accept he actually did, on 18 February 1990. Whilst I did not record that finding at [14] above, there is really no evidence to the contrary such as e.g. the Plaintiff’s telling me of only a very short appointment at Blacktown PCYC or of his being urgently seconded to Blacktown general duties because of some crisis or unexpected shortage of staff.

36. The Plaintiff first attended the Police Psychology Unit on 9 July 1991 i.e. some 16 months after his transfer to Blacktown general duties. He saw Dr Jan Westerink. (There are many different misspellings of her surname in the transcript) The Plaintiff saw her on 6 occasions in 1991, the last being on 17 October 1991. The notes made I set out below.

9 July 1991

37. Referred by District Commander [Superintendent Bill Galvin/ Inspector Bennett]

Steve handed in his gun – feared he may suicide.

Being counselled today and overnight by Det. Sgt Gary Raymond [PSO and Salvation Army Officer]

Married. Difficulties for some time. Steve worked 3 jobs – wife 2 – have a young son now 18 months. Arguing++.

Met Tanya through Youth Club. Has known her socially about 2 years – She has children and is separated from her husband.

Left wife and moved into a house with Tanya 5 [or 8] weeks [ago]. Trouble since then. [She is] manipulative,? pathological jealousy, threats etc. She has said she will “get him” – will use IA, ombudsman or anything.

Steve described her vindictive behaviour re her husband.

Steve attempted to make this relationship work and spoke to her father about it. He advised him to leave her – saying that she was nasty and twisted.

Steve angry with himself and with her. His wife says “She is still there for him.” Overnight accommodation arranged by Det Sgt Gary Raymond. Police friends helping him move his gear. Will ring to see me 10 July.

10 July 1991

38. Steve came in again. Calmer but still angry with Tanya and trying to understand her motives and behaviour. Spent time with Vicki last night. Has 2 children (18 month boy and 13 year girl from a first marriage at age 17).

To begin to look to future and manage practicalities (money etc). Further appointment made 1 week.

16 July 1991

39. Steve much improved. Headaches gone. Sleeping better. Concentrating on practicalities. Appeared more relaxed and cheerful. He had some contact with Tanya by phone. Discussed differences. Tanya claimed he got it wrong. He couldn’t bring himself to fully sever relationship – thought it kinder to let it slowly die. We discussed 1. reality of her changing her personality, 2. how she has sought things from him – self centred (this hurt him) 3. Vicki was concerned for him, 4. the kindness of breaking relationship and letting Tanya get on with her life.

[Plan] Later to discuss “secretive” – lying to loved ones. He will ring for an appointment when he knows his rosters.

23 July 1991

40. Still thinking about Tanya. Seems to be trying to decide whether to go back. Vicki said he should talk about:

1. parents helped him for 3 years when he was 21 when he separated from his first wife. Found wife in bed with a male.

2. went into police and parents did not come to passing out parade.

3. mother and father used to always tell him that he was “never good for anything.” He recognises he looks for approval ever since, Brother Philip was favourite “Why can’t you be like Philip.”

- Pointed out parents younger/busy etc then. Long term counselling can’t come from here [Psychology Unit of NSWP]

- Discussed different need with relationships [Diagram]

Is Tanya a child and he an adult.

- Also did Gestaltt [therapy] – “Wife Steve” standing behind chair talking to “disobedient Steve”: “Wise Steve” told him to end the relationship with Tanya.

See in 2 weeks.

8 August 1991

41. Tanya is seeing a psychiatrist (Dr Smith) and seems to have changed a lot – she tried to get them back together. Steve feels a bit guilty about not giving her a chance – but thinks it is ended.

Vicki (wife) is still around and may want to get back with him. Spending more time with her

Mother interested in coming in – to find out more about policing. Steve has decided he needs some “space” – agreed to take time before he decides about Vicki.

17 October 1991

42. Steve phoned Tanya has taken out charges against him

- served [with] papers yesterday and he is to appear in Penrith Court this morning re threats to her on 9 July 1991. Anxious re outcome – needed reassurance. Later – Steve rang. Solicitors and parties agreed to a pre-hearing agreement so case was not heard. He has agreed to stay away from Tanya.

Evidence of Vicki Ann Wilson

43. Before turning to the argument about that evidence, the evidence of the Plaintiff’s former wife, Vicki, and of Mr Gary Raymond, needs to be considered. When Vicki first met the Plaintiff he was engaged in undercover surveillance duties i.e. prior to 31 May 1987. She thought that they met in 1984 or 1985, when she was in her late 20s. They married probably a year later (1985 or 1986). Vicki said that she noticed a change in the Plaintiff “after he went to Blacktown general duties” (T145.26). She also said this, commencing at T150.33:

“he was happy before he went to Blacktown. We had a really great relationship and intimate and before I had Matthew of course… and no indication whatsoever that there was…. [any] problems and we were happy.”

When she first met the Plaintiff he was a “happy, sporty, lovely man”. She said that the Plaintiff changed “over a period of months” after he started general duties at Blacktown: “His demeanour changed. He…. wasn’t his happy self… he came home angry, he came home unhappy, he came home sad, he came home upset”. She went on to say this:

“A... I don’t remember the exact dates but I remember that he went to Blacktown general duties and that’s when he started to change. When he was working at the Police Boys Club and the – when he was working undercover he was fine, like he’s – that’s the dates. But when he went to Blacktown, after he was at Blacktown for a little while that’s when things started to change in our relationship, and his demeanour towards me, towards everything, that I can remember.

MORRIS

Q. And you said that he got angry. Can you just explain what that change was like? What happened?

A. Well he’d come home not happy, and I would ask him what was wrong. You know like you know normal general questions, how his day, and he, he, he didn’t, he wasn’t happy to answer and he was angry. I – there was one, only one occasion, another occasion that I can remember that he got easily aggravated, you know. I can remember distinctly, this I can remember distinctly, driving along a main road and he got – and I think I put this in my statement, I know I put this in my statement ‘cause I can remember it.

We were driving along the highway and normally he wouldn’t be, it wouldn’t be a problem. But somebody cut off, cut us off and he got angry and it wasn’t like him to get angry like that, and then he was going to chase the guy, like try and go and get him, and I said ‘Stop’, you know, like ‘Wake up’. Anyway he just got his number plate. I said ‘Get his number plate and report him you know, yeah. But don’t do anything’, you know. But it – and that wasn’t like him. He would never have done that before.”

44. Initially Vicki thought that it was her fault that the Plaintiff was changing but she had no idea why. A little later she gave this evidence:

“Q. Did you start having problems in your relationship at some point?

A. Well I didn’t think, well I didn’t think we had any problem in our relationship. Only that he was changing. You know like his, everything, his demeanour towards to me was changing, he was working a lot more than I thought maybe he should, but I didn’t know what sort of hours of what shifts or anything, because I knew nothing about really what his work was, especially when he was in undercover, I wasn’t allowed to know anything. So I never asked a lot of questions. But he was away a lot. He was – he wasn’t affectionate to me, he wasn’t – it was if he was distancing himself from me. He was moving away from me. That’s what I felt. And I felt a little bit that it could have been my fault, but I really don’t think that it was my fault.”

Mr Ower, for the Defendant, did not cross-examine this witness. I have no reason whatever to doubt her veracity. She has remained loyal to her former husband. She bore his second son, conceived after their separation, when the Plaintiff was visiting Vicki and Matthew, evidence of her continued loyalty to the Plaintiff. They had remained good friends, despite the Plaintiff’s subsequent relationships.

Evidence of Mr Gary Raymond

45. Mr Gary Ernest Raymond was called in the Plaintiff’s case. Before joining NSWP he had been trained as a paramedic by NSW Ambulance Service, He was attested as a probationary constable on 27 March 1972. He retired from the NSWP on 13 December 2005, having served as a police officer for over 33 years. In addition, he became a Salvation Army Officer in 1980. Since his retirement from the NSWP he was made a chaplain of his Police Post-trauma Support Group in 2007 and in 2008 was made a chaplain of NSW Ambulance Paramedics. In NSWP he was also a Peer Support Officer (“PSO”), and by the time he commenced working at Blacktown Police Station he was a Senior PSO. He gave this evidence about the role of a PSO:

“Q. Could you just tell us what your role was as a peer support officer?

A. Yes. It was known that the first contact of a traumatised or depressed officer was their peers because we had day-to-day contact, so our training included just the recognition of officers having difficulties and then referring them.

Q. Did you undertake any diagnostic activity in that role?

A. No diagnostic activity. Just simply recognising the recognition of officers that you knew and worked with was the key to peer support and then referring them on. They taught us basic mental health and – but not certainly as clinicians or counsellors. We simply were to recognise and refer.

Q. I think Mr Morris wants to know, what were you taught to recognise in a fellow officer?

A. Yes. Things like depression, anxiety, antisocial behaviour, detachment. Things of that nature where you noticed that the officer had changed in their behaviour. Had changed in the way they were interacting with their peers or their superiors. How they reacted at the scenes of critical incidents, particularly in recognition of the sensory stimuli. The sight, sound, smells and touches. We were taught to recognise suicidal ideation and so they were the main..(not transcribable).. taught to recognise and to enquire.”

46. Mr Raymond served at Blacktown between 1983 and 1993. He reached the rank of sergeant and the position of detective in 1991. He gave this evidence of his interaction with the Plaintiff:

“Q. When did you come to first meet Steve Wilson?

A. It was around 1991.

Q. Was that professionally or was it socially that you came to meet him?

A. Just around the station environment and out on police calls and crime scenes or emergency scenes.

Q. When you first met Mr Wilson, what was your observation of him in terms of the way he communicated and performed his roles?

A. He was a good solid character and personality, eh wasn’t introverted or extroverted. He was quite normal, a good listener and a good talker, took instructions from me and other senior police quite readily and quite effectively, and effectively, he was a very good police officer.

Q. Over the time that you had dealings with him, did you notice any change in his demeanour or personality?

A. Yes, I remember clearly, he’s becoming very quiet and very I suppose you could term reserved, and he wasn’t communicating as readily. He was getting crankier – I wouldn’t describe it as angry, but he was just not tolerant and, and I noticed too that he was increasingly becoming depressed and what, what I call detached. That is, just not with it sometimes.

Q. Did you make those observations at the Blacktown Police Station?

A. Yes, I did, and out on calls as well. He became a little less responsive to directions and sometimes we’d have to reinforce a direction.

Q. Did you notice any issues with focus and concentration?

A. Yes, I did. I, I distinctly remember walking into the meal room, and he was sort of in a, I suppose describe it as a daydream and, and just looking sort of outwards and occasionally downwards and I had to say – I said to him, you know, words like, ‘Steve, you all right?’ and he sort of – he got startled and looked around and said, ‘I don’t know’ and so I noticed that he was becoming more isolated from the team as in normally the meal room’s not occupied during the day unless meal times because they’re – people are investigating and out on patrol and doing other functions, and then they – so, Steve – I wondered why he gravitated to the meal room outside of meal times.

Q. Do you recall any specific conversations you had with him at this time?

OWER: I’d ask my learned friend to isolate the time, if he can?

MORRIS: Okay.

Q. At the time that you observed a change in demeanour, do you recall any specific conversations you had with him?

A. Yes, I do. I would enquire one – on, on one occasion, I enquired, I said, ‘How’s things in your life, Steve?’ and he sort of said, ‘Okay’, and I said, ‘Is everything okay at home?’ and I remember distinctly him saying, ‘Not really.’ He said his wife was – didn’t understand the things he was going through, didn’t understand the things he was going through, didn’t understand he was emotionally and said he couldn’t open up to her and talk to her at all, and I remember saying to him, ‘Well, do you think you can go to your GP with your wife?’ and he wasn’t sure. Because in those days, there was no help by the police force in families. It was only serving officers or unsworn officers so you couldn’t refer the family members to police psychologists, only serving police and so the GP was the only referral pathway that we could really do that.

Q. After that conversation, did something happen that caused you to do something in terms of referral, and could you just tell his Honour about that?

A. At one time, I said to him – I said, ‘You look depressed, you know, you’re down’, and he, he said, ‘Yes’ and I said, ‘Are you suicidal?’ and he welled up with tears in his eyes and he said, ‘Yes, Gary, I am.’ And so then I said to him, ‘Well you know, mate, you’ll have to, you know, give me your gun and – because I don’t want you using that to take our own life’, and I recall either he handed it to me and I took it down and double locked it downstairs, put a normal padlock on and then a red padlock on top of that one. So – and then referred him to the police psychologist, Dr Westerink and – yeah.

So that was – and other times, I just noticed he was quite in a depressive mood or melancholy, a sadness and, and he was reluctant to do a lot of duties although in those days, the culture was, you know, if you don’t cope with the heat, get out of the kitchen or if you don’t want to work here, we’ll put you into an office somewhere doing exhibits or things like that.”

After that referral to Dr Westerink, Mr Raymond occasionally saw the Plaintiff “around the station environment” but in late 1993 was transferred elsewhere to work on the Gyles Royal Commission in the Building Industry Task Force. In cross-examination, Mr Raymond said that he first started to notice the change in the Plaintiff in 1991 (T168.41).

47. I have no reason at all to doubt either the honesty or accuracy or reliability of Mr Raymond’s evidence.

Significance of the Plaintiff’s seeing psychologist in 1991

48. One could be forgiven for thinking that the need for the Plaintiff to attend upon Dr Westerink in 1991 was because of the breakdown of his marriage with Vicki and his attempt to commence a new relationship with Tanya, which proved not only unsuccessful but also disastrous. Dr Michael Diamond was called in the Plaintiff’s case. Mr Ower, for the Defendant, commenced his cross-examination of the Doctor in this way:

“Q. Marriages can break down in the absence of any underlying post-traumatic stress disorder by either party, can’t they?

A. Of course.

Q. And marriage breakdowns are themselves intrinsically capable of causing emotional upset, correct?

A. Yes.

Q. And indeed when you add to the mix infidelity in the relationship, that can cause great upset can’t it?

A. Yes.”

49. However, the Plaintiff’s case is that his relationship with Vicki broke down because of his suffering the symptoms of PTSD. In chief, Dr Diamond gave this evidence:

“Q. The second question I have is if an officer is experiencing such symptoms and is continuing to be exposed to traumata, is their ability to engage in ordinary domestic relationships impaired, usually?

A. We’ve got – and a strong association between the global performance of the injured police officer, including their engagement in domestic responsibilities and relationships, that come from the expense of trauma-related illness, such as post-traumatic stress disorder, because it goes to the direct issue of emotional shutdown, the pursuit of emotional numbing, behaviours that are designed to distance that person from engagement and emotional experience of all... (not transcribable).. including domestic interactions.

The, the clinical picture is often one where spouses will complain that their partner doesn’t relate to the family, is distant from family, is reluctant to engage in family activities, is not interested in the physical relationship; there’s a whole host of symptoms that arise as a result of the trauma-related illness that is often observed, and often leads to breakdown of relationships or marital problems, and a whole series of other complications such as self-treatment with alcohol, being one example.”

In cross-examination the Doctor said this:

“Q. But if you leave aside the history you received from Mr Wilson and you just looked at the bare record of the five consultations and the two telephone calls with Jan Westerink in 1991, that emotional upset leading to suicide can be equally explained in terms of domestic upheaval, can’t it?

A. It could be explained by domestic upheaval, but in the rawest context looking at the longitudinal history, I wouldn’t support that view because what it really does do is it signals the outset and then it is confirmed subsequently by a whole lot of further information from Mr Wilson himself but also as it turns out in the transcript of the evidence from others that he was suffering significant psychiatric symptoms linked with post traumatic stress disorder in the subsequent years.

So, to simply put the question that in 1991 it could’ve meant he was just responding to marital crisis, I’ll agree that he could’ve been but looking at the whole picture, I think that’s a less likely interpretation in the, in the context of the longitudinal history.

Q. Isn’t that looking at 1991 and the records through the prism of what happens later?

A. Well, what else can we do? I mean, I wasn’t there in 1991. I mean, it’s always fair to be through the prism of the retrospect, but there is evidence of what did occur, and one can map the presence and the worsening of those symptoms as they deter themselves.

Q. In November 1996--

HIS HONOUR: Excuse me, Mr Ower. Before we leave 1991, I just want to ask the doctor a question about this because it intrigues me.

Q. You say that one of the effects of PTSD is that it causes emotional numbing, and that emotional numbing can cause essentially an estrangement between husband and wife in the breakdown of a relationship. Correct?

A. Yes, your Honour.

Q. If one reads the notes taken on 9 July 1991 by Ms Westerink, why if he is emotionally numb does he start having an affair with another woman causing him to leave his wife?

A. Your Honour, the emotional numbing is to numb against the unpleasant traumatic distressing feelings and finding comfort in the arms of another woman is the antidote to those feelings. So, it’s a pursuit of distraction, numbing behaviour, anything to distance from the distress. Numbing doesn’t mean simply global numbing. It’s, it’s to do with numbing against the distressing underlying emotions and it’s not uncommon at all for distressed injured traumatised individuals to distract themselves with other relationships or sexual activities or gambling or other very engaging activities but that nevertheless cause an emotional numbing.”

Essentially Dr Diamond’s opinion was that Dr Westerink was only dealing with the crisis at hand, rather than its underlying cause which, with the benefit of hindsight could only have been PTSD.

50. Having carefully examined the evidence of Vicki Wilson and Mr Raymond, I am persuaded that Dr Diamond’s opinion ought be accepted. The Plaintiff appears to have left Vicki and moved in with Tanya in early June 1991 or mid May 1991, having been working at Blacktown in general duties for either 15 or 14 months. Vicki noticed the change after “a little while”, “over a period of months” from 18 February 1990. I accept therefore, that when the Plaintiff first presented to Dr Westerink he was suffering from a then undiagnosed PTSD precipitated by traumatic events to which he was exposed in Blacktown after 18 February 1990.

Attendances on Police Psychology Unit in 1993

51. In 1993, the Plaintiff attended the Psychology Unit twice. On the second occasion he saw Dr Westerink, but whom he saw on the first occasion is unknown to me. The coversheet for these notes tells me that the Plaintiff referred himself to the Unit because of an IA enquiry. I now set out these notes:

24 November 1993

52. Several sources of current stress:
    - exams (now over)
    - IA enquiry re sexual assault at Blacktown re statement – charge of misconduct laid.
    - moved house last week.
    - ex wife Vicki – 4 year old and 4 month old boys – misses them, sense of loss… family/kids
    - number of SIDS incidents recently.
    - poor relationship with parents

Positives

exercising

talks to friends or a PSO

support from boss

Action

counselling; issues “fairness”; loss and grief away from family. Will re contract if needed.

Case closed.

22 December 1993

53. can’t sleep, wakes around 3.00am and can’t sleep, wakes with headache

believes his hands are not as steady

becomes angry very easily.

Blood pressure up 145/80

Irritable most of the time (frustration) re work

Misconduct charges

Many critical incidents in few years

doesn't feel like going to work – feels tired most of the time, overeating a lot, sometimes feels like crying, appetite up weight up

Considering leaving Force – been in since 1982

1. will reapply for management course and

2. will take a wait and see attitude to jobs.

3. Continue working on settling down with Vicki/stability

4. Start eating properly.

5. To gently blow his own trumpet about his successes.

Significance of the Plaintiff’s seeing psychologists in 1993

54. As to “exams”, it is to be noted that the Plaintiff was studying externally and completed a number of courses between 1993 and 2000. He completed a number of courses thereafter, but these are not currently relevant. The relevant courses were:

1993   Certificate of Management                                            Blacktown TAFE

1998   Master of Commerce, Workplace Relations                  University of Western Sydney

1999   Certificate SAP/R3 Integrated Business Symptoms      University of Western Sydney

2000   Statement of Attainment Workplace Training                 University of Technology

2001   Master of Business Administration                                 Charles Sturt University

55. As to the “IA enquiry”, I raised this issue at [27] above in reference to event G, murder of a sexual assault victim. In his oral evidence, the Plaintiff only mentioned one specific sexual assault, event G. A briefer description of this incident is recorded by Dr Jeff Bertucen, Consultant Psychologist in his report of 31 October 2019, p. 3, and a description of it was also recorded by Dr. Michael Diamond in his report of 30 August 2021, in the second and third paragraphs of p10. Neither doctor, however, linked the event to an IA investigation. However, Dr Diamond does record a history of another allegation of sexual assault linked to an IA Investigation. On p8 of his report, the following is recorded:

“He went on to tell me about the incident involving the Internal Affairs investigation of him. He was investigated for allegedly telling an untruth and influencing the outcome of an investigation of an allegation of sexual abuse by a civilian worker within the police environment. There was no basis to these allegations but they held up his promotion for a period of over three years. The outcome was delayed to the extent that it caused him added trauma over and above the effects of many other traumas that he had experienced in the course of his duties. The experience significantly undermined his ability to trust his employer and especially his senior officers.

Mr Wilson then spoke about being approached by a senior officer, Christine Nixon (who went on to become a Deputy Commissioner in NSW and subsequently Commissioner of Police in Victoria) who contacted him about the wrongful charge and that he was in a position where he could have sued the employer. Her approach was to support him in gaining additional tertiary qualifications. She said she would place him in a specialist environment and support him in pursuing tertiary qualifications in human resources studies.”

On p 9 he recorded this:

“During these years in about 1990, Mr Wilson was subjected to the Internal Affairs inquiry. He described how this occurred. He was working at Blacktown where it was alleged that a police officer had sexually assaulted a civilian worker who was an employee. This was said to have occurred at a party. Mr Wilson said he was asked for information about the woman who had made the allegations. He had described her as being ’a bit loose’. He was then charged with telling a lie. The case was dismissed by the Judge but there was no ultimate resolution for about three to four years. The significance of this experience was explained by Mr Wilson. It left him feeling insecure and unsafe within the police environment. There was no overt support of him and no acknowledgement that he was subjected to the prolonged stress of the unresolved investigation. It did however result in support from Ms Nixon who assisted him with an alternate career pathway at that time.”

Under Evidence Act 1995 s 60, those histories are some evidence of the facts recorded in them. No objection was taken on behalf of the Defendant as to the admissibility of any parts of Dr Diamond’s report, nor was any qualification of their use sought. I have reached the conclusion that the better view is that the histories recorded by the Dr Diamond relating to the IA Investigation should be accepted, rather than linking that investigation to event G.

56. The complaints recorded by the police psychologists in 1993 are consistent with the Plaintiff’s continuing to be exposed to psychic traumata (“number of SIDS incidents recently”, “many critical incidents in few years”) and suffering symptoms consistent with PTSD.

Attendances on Police Psychology Unit in 1996 and 1997

57. The Plaintiff attended upon a third police psychologist in late 1996 and early 1997. I now set out the notes made then:

7 November 1996

58. Steve Wilson approached me in a disturbed state at the PSO Conference [held at the Police Academy, Goulburn]. In 1995 he had been handling a sexual assault complaint and had been arranging an AVO for the victim. The offender had made threats to the victim. Steve had sent her home after doing the paperwork, but hadn’t told the Shift Supervisor of the threats. That night the offender murdered the victim by disembowelling her. The offender was apprehended and placed on trial in November 1996. Steve had no apparent reaction to the incident until a month before the trial date, at which he expected to give evidence. In the event, the offender pleaded guilty and was convicted on 6 November 96 without Steve having to appear. Steve reported that for the last month he had been having recurring, intrusive thoughts about the murder. He vividly sees the victim sitting before him and shaking as she relives the circumstances of the sexual assault and her fear of her life. He also continues to see the photos of her disembowelled body. He has migraines about the killing and wakes with an anxiety response and is unable to return to sleep. He feels that he could have done more to protect her and perhaps that would have saved her. He didn’t tell his Shift Supervisor of the threat and feels that if he had, then perhaps random patrols past the girls’ home may have warned off the killer before he could harm her. He has also recently been suffering from study pressures and exam anxiety,

Encouraged him to ventilate/tell his story, with validation where appropriate. Reassured him that he was not going mad and advised him about PTSD symptoms. Challenged the “if only” self talk. Educated him in stress/anxiety techniques, response management, relaxation/breathing techniques and sleep techniques. Will follow up in 3 weeks

8 January 1997

59. Contacted Steve by phone. He has only had one dream since I last saw him and that was a mild one. He no longer has problems with recurrent thoughts of the murder. No further action.

Significance of Plaintiff’s seeing psychologist in 1996/97

60. The first thing to note is what I discussed at [27] and [55] above. If I be correct in my conclusion at [55] then the history recorded by the psychologist on 7 November 1996 conflates two different events. My difficulty in fact-finding has been compounded by the Plaintiff’s agreeing to almost all of what was recorded on 7 November 1996 and 8 January 1997 at T37.17 to T39.31. Despite that concern, I find it completely understandable that the psychologist recorded on the coversheet for those notes merely “PTSD”.

Transfer to Kings Cross

61. The cover sheet which I just mentioned records, erroneously, that the Plaintiff was working in the Prospect Patrol of the North West Region, indicating some confusion on the part of the psychologist or his administrative assistant. On 3 February 1996 the Plaintiff had been promoted to the rank of sergeant and was posted to Kings Cross as a general duties shift supervisor. At some stage whilst the Plaintiff was stationed at Kings Cross, he was seconded to Police Headquarters to do some work for Assistant Commissioner Christine Nixon in “human resources” in connection with the Wood Royal Commission. That is referred to by Dr Diamond in the histories I set out at [55] above. For how long that secondment lasted is unclear. In a curriculum vitae current in 2009 the Plaintiff recorded this:

“NSW Police Force

Human Resources Planning @ Policy Project Manager

January – December 1997.”

However, he was performing General Duties on 30 December 1997.

Knee injury 30 December 1997

62. On Tuesday 30 December 1997, the Plaintiff again injured his left knee in the course of his duty. His claim for hurt on duty benefits dated 30 December 1997 describes the event thus:

“Chasing an offender after a break enter and steal. Whilst patrolling Darlinghurst road offender [redacted] ran into Victoria Street and then up the stairs in the Capitol Hotel Mall as I got to the top of the stairs. I fell heavily onto my left knee causing sever[e] pain. I got up and continued the foot pursuit and then assisting Cons. Blanchard with the arrest of one offender. Upon returning to Kings Cross Police Station the pain became worse and I attended Sydney Hospital and was treated by Dr Virgona who advised that I attend my local doctor.”

63. His local doctor remained Dr Michael Johnston (see [16] and [17] above). He again referred the Plaintiff to Dr Michael Johnson. The further treatment afforded to the Plaintiff by Dr Johnson is summarised thus in his report of 25 May 2000:

“He was next referred back to see me on the 22 January 1998 by the same referring doctor. He was then aged 38. He had a fall in the course of his duties at work on the 30 December 1997 landing directly on his left knee. It was very painful, swollen and bruised in front of the patella. His General Practitioner arranged physiotherapy. He improved by 60% only. He was still working at light duties only when he was referred complaining then of pain and increasing since the injury, worse on steps, clicking with associated sharp pain. Clinical examination of the left knee then revealed marked patella-femoral crepitus in a swollen knee with a markedly positive Osmond Clark test.

An arthroscopy and lateral release of his knee was carried out on the 24 February 1998. At this arthroscopy he had marked chondral damage to the lateral facet of the patella and lateral patella subluxation and compression. These areas were dealt with arthroscopically along with a lateral release.

Post-operatively he continued with physiotherapy and was reviewed in March, May and June 1998. His symptoms had plateaued. They were not then further improving. A bone scan showed moderately active patella-femoral arthropathy with a synovitis in the rest of his knee. Anti-inflammatories and physiotherapy continued. During this period he remained unfit for work and continued unfit for work until he had a further arthroscopy in November 1998 which showed increasing degenerative change on the medial side of his patella and the medial femoral condyle, This pathology developed since his injury and since the last arthroscopy. Video print outs on both occasions are in the patient’s possession. Appropriate arthroscopic debridement was carried out. Further physiotherapy then continued.

In view of the femoral condylar damage and his lack of progress during 1999 he came to an arthroscopy and mosiacplasty in June 1999 with transfer of normal bone cartilage to fill the defect in the medial femoral condyle. Video print outs of that procedure and pathology are also in the patient’s possession. Post-operatively he developed a DVT which had to be treated.

He continued to see me through the rest of 1999 in the months of July, August, September and October. He continued physiotherapy. His symptoms are gradually decreasing though they would fluctuate. Muscle wasting took a long time while to improve and also the effusion in his joint took a long while to settle down. An MRI of his knee in October 1999 sowed that the mosiacplasty graft was taking well. He still had some cartilage loss of the retro-patellar surface.”

Dr Johnson further treated the Plaintiff in 2000 i.e. after his medical discharge from NSWP. That treatment will be discussed later.

64. After the operative treatment on 24 February 1998, attempts were made to have the Plaintiff return to restricted duties. The Plaintiff came under the overview of Ms Beverly Ryan, a Rehabilitation Officer of the Rehabilitation Section of NSWP’s Health Services. On 7 July 1998, Ms Françoise Cleret, Manager of Kings Cross LAC advised Ms Ryan that her LAC could provide to the Plaintiff a “long term non-operational position” to the Plaintiff:

“The position will involve the collection, recording, storage and culling of briefs of evidence for the… LAC. This position will not involve custodial duties, will provide the opportunity for Sergeant Wilson to sit or stand as decided and will not involve first response work

In addition we have been able to provide a parking-spot for Sergeant Wilson during his rehabilitation period.”

65. On 17 September 1998, Ms Ryan told Dr Johnston, GP, about this restricted work. Dr Johnston wrote this reply on 2 October 1998:

“Thank you for your letter dated 17 September regarding this patient. Steven is concerned about the lack of future prospects and development with regards to the position offered, and feels the duties are demeaning. For an officer with over nineteen years operational experience, who has a masters Degree and is a university graduate who has been involved in teaching etc. As you know, the physical, and mental wellbeing of the patient are equally important, and I feel we need to do as much as possible to maintain Stevens self esteem, confidence & enthusiasm. He also gave me permission to document that he requires further arthroscopic surgery on his left knee next month, and is unlikely to return to operational duties due to limitations with regards to walking & stairs etc. We are therefore looking at a long term position(s) within the force involving non operational duties, hopefully one that’s able to extend him mentally, and make use of his varied skills and experience. He mentioned a co-ordinators position within the OH&S Section which sounded like a more suitable position given his skills and experience, and I would appreciate your thought in Stevens situation.”

The Plaintiff was cross-examined about this job offer and agreed with Dr Johnston that this position was infra dignitatem suam (T83). NSWP appears to have accepted that and he remained in the police payroll.

Attendance on Police Psychology Unit from 1998

66. On 21 January 1998, whilst off duty on account of his knee injury the Plaintiff was visited at home by police psychologist Ms Wendy McCartney. The coversheet for her notes has this synopsis: “Domestic Relationship Issues”. In 1995, the Plaintiff appears to have commenced a relationship with a lady named Jayne. That relationship persisted until 2018. She had four children from an earlier relationship. The Plaintiff became their “step father”. There was some tension in the relationship between the Plaintiff and Jayne and between the Plaintiff and her children at times. The psychologist recommended counselling therapy. There are some other undated notes about the same issues. They shed no particular light on the subject of PTSD, other than speculation as to whether any symptoms of that condition may have affected the relationship.

Medical Discharge

67. On 27 October 1999 the Plaintiff made an application to NSWP for secondary employment. That application succinctly sums up what occurred after 30 December 1997. After describing the Plaintiff’s left knee injury on that day, the application continues thus:

“As a result of the injury it was discovered that I had dislocated my knee and required surgery to repair cartilage and ligament damage to the knee. This occurred on the 24 February 1998, rehabilitation commenced shortly thereafter. In November 1998 my treating surgeon stated that further major surgery to the knee was necessary to correct a fault within the knee this required the cutting of a major tendon within the knee and further surgery on cartilage this occurred on the 13 November 1998. Unfortunately due to continuing problems with the knee a third major operation was necessary to graft bone and cartilage in an attempt to repair the injury. As a result of this operation I developed complications in the form of a deep vascular thrombosis (blood clot) which required a lengthy stay in hospital and constant medication and monitoring by way of blood test every second day. These tests continued for three months and at present I am still required to attend for regular checkups by my local G.P Doctor Johnstone.

During this process I had constant contact with the Beverley Ryan of the rehabilitation unit informing her of the progress of my surgery and treatment. On the 19 June 1998 I attended the Police Medical Officer Doctor Sharp for a review of the progress. As a result of this consultation I was advised that due to the extensive damage to the knee and that further surgery maybe necessary, it was suggested that I find a non operation position suitable to my experience and qualifications (Masters Degree in Commerce). If a position were unavailable he would recommend a medical discharge hurt on duty. This was noted on my medical file. I then had a further consultation with Doctor Sharp on the 2 March 1999 where he noted the problems associated with the knee and stated that I would not be returning to operational duties. This has also been stated and recorded by my local GP Doctor Michael Johnstone, my Orthopaedic Surgeon Doctor Johnson and an independent Orthopaedic Surgeon Doctor James Sullivan.

1. Before the application to a workers compensation commissioner was determined, the function of hearing such appeals was transferred to the Compensation Court, established under the Compensation Court Act 1984 (NSW), although the particular functions under the Police Regulation Act were not transferred until 1992. The matter was disposed of by the Compensation Court on 25 June 1993, by affirming the decision of the Commissioner of Police.

2. In the meantime, Mr Pascoe had commenced a challenge to the finding of the Board, on the basis that the specified infirmity was unduly restricted. Evidence had been placed before the Board which suggested a more serious psychiatric condition, namely post-traumatic stress disorder, and various orthopaedic injuries. The letter from the Board of 3 September 1990 had advised Mr Pascoe that he had a right of appeal from its determination under s 27 of the Superannuation Administration Act, such appeal being required to be made to the Industrial Commission, within six months after the date of the determination of the Board, ‘or within such further period as the Industrial Commission may allow’. That function of the Industrial Commission was performed by the Industrial Court.

3. In fact, Mr Pascoe filed a notice of appeal with the Industrial Commission of New South Wales on 20 February 1991, comfortably within the six-month limitation period. That application was discontinued on 22 June 1993, that is three days before the determination of the Compensation Court.

4. In the ordinary course of events, that would have been an end to Mr Pascoe’s claim for a superannuation allowance under the Police Regulation Act. However, some 30 years after the initial decisions were made, in 2020, he filed a summons in the District Court seeking review of the decision of the Board, pursuant to s 21 of the Police Regulation Act. The respondent submitted that the claim was indeed years out of time. Mr Pascoe’s response was that time had not commenced to run.

5. The summons in the District Court was heard in March 2022, with judgment being delivered at the completion of the hearing on 15 March 2022. The judge, Robison DCJ, dismissed the application, primarily on the basis that he had no jurisdiction to consider it, but, in the alternative, if he were wrong in relation to lack of jurisdiction, on the ground that the Board’s decision that Mr Pascoe’s incapacity was due to a ‘generalised anxiety disorder’ should be confirmed.

6. The appeal to this Court challenged both the finding as to lack of jurisdiction and the contingent findings as to the merits of the application. The question of jurisdiction must be addressed first and, only if jurisdiction be established, will it be necessary to deal with the contingent findings made by the primary judge as to the merits of the claim.”

   194. Since Mr J M Morris SC appeared for the present Plaintiff and for Mr Pascoe in the Court of Appeal, and Messrs Cardillo Gray act for both the present Plaintiff and for Mr Pascoe, I do not need to rehearse the reasons of the Court of Appeal in Pascoe at any length. The Court held that section 21(1) of the Act required the notification of the decision of PSAC/the Respondent, not the appeal rights with respect to that decision. It should not be inferred from the legislation that the purpose of the notification is frustrated where actual notification is accompanied by factually incorrect advice as to the availability of review. The letter of 3 September 1990 provided sufficient notice of the decision that had been made: per Kirk JA at [10]; per Basten AJA at [62], [79]-[80]. The Court also held that the Appellant could not rely on the decision in Rossetti [2018] NSWCA 68 that overturned the previous understanding of the law on which he had relied. The former understanding as to the right of review did not preclude the Appellant from undertaking an appeal to the Industrial Court from a decision of PSAC/the Respondent. The Appellant was unable to show that he would have been prejudiced if his appeal were dealt with by the Industrial Court rather than the Compensation Court. The Court also held that it would be contrary to the interests of justice to allow the Appellant to reagitate medical question some 30 years after the expiring of the time limitations: per Basten AJA at [63], [70], [72]-[74]. Likewise per Kirk JA at [16]-[19].

   195. Finally, I ought address [138] of the Plaintiff’s written submissions, MFI 4. It is this:

“The Defendant sought and received the employment file and the medical file [relating to the Plaintiff held and kept by NSWP] but not the [Police Psychology Unit] file. It is notorious that police officers are likely to be exposed to trauma and they be referred to the police psychologist. The Defendant failed to seek out this material or insist on its production” [My emphasis].

It is entirely understandable that the Defendant would seek access to the Plaintiff’s employment file: it would advise his date of birth, date of attestation, postings, duties and promotions: a skeleton of his employment history. When a member was to be discharged for a medical condition, it is understandable that the Defendant would be assisted by having access to his medical file to show dates of injury, periods of incapacity accepted as HOD or treated only as sick leave. The Plaintiff was to be discharged because of the condition or his left knee. He knew that. He signed the form concerning his application for discharge on that ground. He could have added to it other conditions or another condition but he did not. It is not notorious that every member of NSWP has a file kept by the Police Psychology Unit and that it shows evidence of exposure to psychic traumata. If one have access to such a file, one will often find reference to personal matters unrelated to police work. Here one can find in the Psychology Unit file more references to domestic problems than to work traumata. Unless a member was to be medically discharged for an infirmity of mind, i.e. a psychiatric or psychological grounds, it would be a gross invasion of privacy, of which many a member might complain, to seek access to the Police Psychology Unit file. Such access, unauthorised by the member, could lead to industrial disputation. I am unpersuaded by that submission.

Appropriate relief

196. Mr Ower, for the Defendant asked me to dismiss matter no. 171/2020. However, such relief would not be consistent with s21(4) of the Act. It appears to me that the appropriate relief is to confirm the decision of the Defendant made on 4 December 2019. The Plaintiff appears, to me, to have acceded to the correctness of the Defendant’s decision of 3 December 2019.

PLAINTIFF’S FIRST APPLICATION

197. On 21 February 2019, PSAC, acting as delegate of the Defendant, determined to increase the Plaintiff’s basic pension of 72.25% to 77.11% of the attributed salary of his office, with effect from 27 March 2017, the date of the receipt by the Defendant of the completed application made by the Plaintiff. That represents a finding of 36% incapacity for work outside NSWP. The matter must be determined in accordance with Lembcke v SAS Trustee Corporation [2003] NSWCA 136; (2003) 56 NSWLR 736; (2003) 25 NSWCCR 464. I shall make this inquiry looking at the data available prior to 21 February 2019. In my view, it would be inappropriate to take into account circumstances that occurred after PSAC made its decision: Lenihan v SAS Trustee Corporation [2020] NSWDC 815; (2020) 34 DCLR (NSW) 259.

What would the Plaintiff be earning if uninjured?

198. The first question which arises is what would the Plaintiff have been earning outside NSWP if he had not suffered his left knee injury? I can only take into account on this issue the certified infirmity not, for example, the supervening PTSD: Miles v SAS Trustee Corporation [2016] NSWDC 56; (2016) 22 DCLR (NSW) 223; SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 92 ALJR 1064. One evidentiary guide to this issue is what the Plaintiff would have been earning in the NSWP but for that injury. From what I set out in [150] above, I know the Plaintiff’s annual salary of his office in each of the financial years ending 30 June 2017, 2018 and 2019. Reduced to weekly amounts that gives me this data (rounding to whole dollar):

Financial Year   Annual Salary    Weekly Salary

1. $86,770             $1,669

2. $88,402             $1,700

3. $96,479             $1,855

In numerous judgments over a number of years I have pointed out that police officers who have any lengthy period of service can earn outside the police force a greater salary The reasons for this include:

1. the Crown is a reliable payer of salaries, it is unlikely to fail financially and the work of a police officer is essential to the administration of the State, in short, a more reliable source of income than most others;

2. the personal integrity and self discipline of police officers who have a considerable period of service are highly regarded by employers of the general workforce;

3. there are some perquisites of office available to police officers e.g. the provision of uniforms to general duties officers and, more importantly in recent times, a shift structure which allows for periods of longer than two days between periods of shifts, which enables some officers to take secondary employment and others to spend longer times with their families than workers in the general workforce.

199. One of the jobs discussed by Prof. James Bright in his Job March Report of 30 October 2017 is that if a security consultant whose market pay rate for full time work was $2,307.00 p.w. He summarised this job in this way:

“A Security Consultant advises clients on security requirements, and recommends and designs security specifications. A Security Consultant is included in the job category of Security Officers and Guards. For this occupation some of the tasks performed may include:

carries out threat assessments on properties or companies;

audits existing security systems;

makes recommendations to rectify and improve security; conducts surveillance;

designs specifications to meet security requirements;

monitors security installations to ensure compliance;

may carry out electronic debugging or information security operations;

may carry out internal audits or other security functions;

may evaluate security system tenders.”

200. The Furzer Crestani Forensic Tables, commonly used in assessing damages in personal injury cases, provide statistics drawn from the Australian Bureau of Statistics. They show these average total earnings of NSW male adults working full time for the periods ending:

2017

May             $1,733.80

November   $1,768.20

2018

May             $1,790.40

November   $1,807.80

2019

May             $1,861.30

November   $1,876.70

They are all higher than the figures I set out in [198] above.

201. Doing the best that I can, and based on the data above and my knowledge of the wages and salaries paid by NSW employers, I accept that at the end of 2017, and beginning of 2018 the Plaintiff could have earned, uninjured, in the general workforce $2,300 p.w.

What could the Plaintiff earn in his injured state?

202. Again, I can only take into account the incapacity caused by the certified infirmity: Dr Robin Mitchell, Occupational Physician, in his report of 23 August 2017 expressed this view of the Plaintiff’s then capacity for work:

“Mr Wilson has, in my opinion, a current capacity for suitable work that would avoid any aggravation of the reported symptoms and, providing the following precautions were available, he should be able to manage such work for 40 hours each week:

Prolonged walking, particularly over uneven sloping ground services should be avoided, as should running, frequent step climbing, kneeling and crouching actions.

Static standing should be avoided by ensuring regular movement.”

Dr Mitchell expresses a similar view in his report of 23 October 2018, but in that report Dr Mitchell took into account the Plaintiff’s “non-HOD low back” condition.

203. The Defendant has also qualified Associate Professor Paul Miniter, an orthopaedic surgeon. The Associate Professor’s opinion is not succinctly expressed. His report of 28 October 2020, following upon an examination on 21 September 2020, contains these opinions:

“There is a definite interference by Mr Wilson’s medical condition with his activities of daily living. For instance, he uses a cart to play golf and finds it difficult to walk any significant distances in keeping with significant osteoarthritic change.

……..

His capacity for work is not affected, as far as I could determine, by this condition, noting that he is currently working as a ward clerk. Working as a ward clerk, there should be no restrictions placed upon his ability to work as caused by his left knee.

……...

The prognosis is poor. He will continued to deteriorate and eventually will need total knee replacement.”

The Associate Professor’s comment about the Plaintiff’s capacity to work is clearly related to his current work rather than to his original work as general duty sergeant of police or work in the general workforce, or open labour market.

204. The Plaintiff advanced no evidence of a surgical nature on the present issue. I accept the restrictions placed upon the Plaintiff by Dr Mitchell that I have quoted above. The Plaintiff believes now that he could not work full time as a ward clerk but there is no medical evidence to that effect. His actions as a ward clerk permit him to sit, to stand when he wishes, to walk corridors of the hospital, and hospitals have lifts to take trolley-bound patients between floors and, for example, staff to push trolleys containing food and hospital supplies to various parts of the hospital. There is, in my view, no surgical reason why the Plaintiff could not now be working full time as a ward clerk.

205. How ought I value the Plaintiff’s ability to earn? Firstly, I do not accept that the Plaintiff has ever been physically fit to perform the job of a security consultant, identified by Prof. James Bright – see [199] above. That job requires some physical agility which is impaired by the condition of the Plaintiff’s left knee. For example inspecting properties including factories, warehouses are other business premises to check for security threats or weaknesses might involve climbing flights of stairs (fire exits), climbing ladders to inspect roof cavities or cavities between the ceiling of one floor of a building and the floor of the level above it and perhaps moving about in such spaces, involving crawling through air conditioning ducts. External security features e.g. fencing and the like might involve walking over rough and/or uneven ground or climbing eminences or descending lower levels e.g. to see if access could be gained through a culvert or sewer. Debugging premises could also include such activities, activities which were akin to some of the Plaintiff’s activities (“bugging”) in his early police career.

206. Secondly, the employment that the Plaintiff found at Life Without Barriers (see [135] above) is work which he could, in my assessment do, were it still available to him. A salary of $110,000 per annum plus 9% superannuation represents a weekly gross income of $2305.77. That was employment between 4 July 2013 and 14 March 2014. If that work were available to the Plaintiff in 2017/2018 one would expect the Plaintiff to be able to earn much more than $2,300 p.w. However, there is no evidence that such work has been available since 14 March 2014, up until 2020. Recent disquiet about payments being made under NDIS might cause such work to become available but there is no evidence of its being available at the relevant time. The Plaintiff’s disclosed earnings in self-employment are not, in my view, a true reflection of his ability to earn. Professor Bright’s Jobmate Report of 30 October 2017 provides me with this data:

Personal Trainer - $1,113 pw gross

Fitness Centre Manager - $1,485 pw gross

Weight Loss Consultant - $756 pw gross

Training and Development Professional - $1557 pw gross

The average of those wages is $1,228 pw gross.

207. I do know that the Plaintiff has been working as a ward clerk since about mid April 2017 (see [146]-[149] above). In the financial year under 30 June 2018 his gross wages were $20,616 or $396.46 per week on average. However, that was only part-time work, some 20 hrs per week. If he were working full-time each week I believe and accept that he could have earned about $800 per week gross. However, the work the Plaintiff did in self-employment extended into the financial year ending 30 June 2019. In the financial year ending 30 June 2018, the Plaintiff’s Gross Trading Income was $21,108 from that source. Doing the best that I can, I accept that at the end of 2017 and beginning of 2018 the Plaintiff was able to earn in some suitable employment $1000 pw.

208. In Lembcke (see [197] above). Santow JA, with whom RP Meagher and Ipp JJA agreed, pointed out at [48]:

“In determining incapacity, one may draw upon well-established principle that a worker’s actual earnings are likely to be the measure of incapacity for work outside the police force, unless it is established that the workers actual earnings are not a proper test: see Pira Pty Ltd v Tucker (1996) 14 NSWCCR 26 at 31-32 applying the reasoning in Atkin v Goodyear Tyre & Rubber Co (Australia) Ltd (1945) 46 SR (NSW) 20.”

Whilst I do not accept in this case that the Plaintiff’s actual earnings as a ward clerk are determinative of the issue, they provide some guidance in making the proper finding.

209. If my mathematics be correct, (2300-1000) ÷ 2300 indicates that the Plaintiff’s percentage diminution of capacity is 56.52% which entitles him (with rounding) to 6.92% of the 12.25 available under s10(1A)(b) of the Act such that his superannuation allowance ought to have been increased to (72.75% + 6.92%) 79.67% rather than the 77.11% determined by the Defendant.

Backdating

210. In his application to the Defendant for an increase in his hurt on duty pension, the Plaintiff answered Q28, “Are you seeking to have the pension increase commence from a date that is earlier than the date of application?” by providing the answer “Yes” and the date 6 April 2000, but gave no reason for seeking that earlier date. The copy of the application that is in evidence does not bear a date but it was received by the Defendant on 27 March 2017. The Defendant commenced the pension increase from 27 March 2017 and advised the Plaintiff of that decision in its letter of 22 February 2019. The Statement of Claim in matter no. RJ258 of 2019 does not seek that the increase sought from the Court be backdated to some earlier time. The Plaintiff’s written submissions on this application, MFI 3, do not make any claim for backdating beyond 27 March 2017 nor any submission thereon.

Orders

Matter No RJ 258 of 2019

211. I set aside the decision of the Defendant made on 21 February 2019 by PSAC under delegation by the Defendant. I replace that decision with a determination that the Plaintiff’s pension be increased to 79.67% of attributed salary of office at the date of medical discharge. The determination takes effect on 27 March 2017.

212. I order the Defendant to pay the Plaintiff’s costs of this application. For the purposes of costs assessment, I decide that:

1. if this were the only application before the Court the hearing would only have lasted two days; and

2. the retention of Senior Counsel was not justified.

Matter No RJ 171 of 2020

213. I confirm the decision of the Defendant made on 4 December 2019. Each party shall pay his or its own costs of this application.

Associate’s note

The hearing of this matter was conducted by AVL during a COVID-19 lockdown period. If two copies of each exhibit were provided then, unfortunately, one of each of those copies has been lost or misplaced. His Honour used the only copies available as his working copies. Necessarily, his Honour discarded duplicate documents or irrelevant documents and rearranged documents: e.g. all medical records have been arranged in chronological order in one book (book 2) and most of the non-medical documentary evidence was placed in another book (book 1). Book 3 contains the Wyong Family Practice Notes and Exhibit 6, the records of Ms Gaye Colwell, Psychologist, but rearranged in chronological order. The index to Exhibit 6 is still available. Exhibit E (economic records of the Plaintiff) is intact in a lever-arch binder. The records available show the Exhibits and MFI’s to be these, and an appropriate comment is recorded:

Exhibit	Description	Comment
A	Plaintiff’s Non-Medical Bundle	Index on File marked “A”
B	Plaintiff’s Medical Bundle	Index on File marked “B”
C	Plaintiff’s Supplemented Non-Medical Bundle	Index on File marked “C”
D	Plaintiff’s Supplemented Medical Bundle	Index on File marked “D”
E	Economic Evidence	Intact marked “E”
F	Letter NSWP to Plaintiff 9 June 2021	Intact marked “F”
G	Records of Gaye Colwell Psychologist	Intact but rearranged with original index marked “G”
Exhibit	Description	Comment
1	Defendant’s Non-Medical Evidence	Index on file marked 1
2	Defendant’s Medical Evidence	Index on file marked 2
3	Plaintiff’s Service Summary	Intact - marked 3
4	Reports of Dr M. Allan 7 October 2021 and 18 October 2021	Intact in Book 2, marked 4
MFI	Description	Comment
1	Plaintiff’s Chronology	Intact – marked 1
2	Defendant’s Written Submissions	Intact - marked 2
3	Plaintiff’s Written Submissions (Pension Increase)	Intact - marked 3
4	Plaintiff’s Written Submissions (PTSD)	Intact - marked 4
5	Plaintiff’s Supplemental Submissions	Intact – marked 5

Book 3 contains, in addition to Exhibit G, a copy of the records of the Wyong Family Practice, which are item 9 of Exhibit 2.

Should the matter go further it may be necessary for the parties to resubmit some of the exhibits which are identified by their Indices only. Books 1, 2 and 3 will be kept in Chambers for 6 weeks after delivery of judgment but will be discarded if the Court is not served with a Notice of Appeal in that six-week period.

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Conrad Nicholls

Decision last updated: 29 June 2023