Bates v SAS Trustee Corporation

Industrial Relations Commission (NSW)|2004-04-16|Before: Schmidt J, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Bates v SAS Trustee Corporation [2004] NSWIRComm 93 KIM BATES Appellant PARTIES : SAS TRUSTEE CORPORATION Respondent FILE NUMBER: IRC 2526 of 2003 CORAM: Schmidt J CATCHWORDS : Police - superannuation appeal - diagnosis of post traumatic stress disorder - whether post traumatic stress disorder should have appeared on certificate of incapacity as opposed to adjustment disorder - competing medical views - onus met - post traumatic stress disorder established - certificate to be corrected - costs LEGISLATION CITED : Police Regulation (Superannuation) Act 1906 Superannuation Administration Act 1996 CASES CITED : John Murray v SAS Trustee Corporation [2001] NSWIRComm 307 HEARING DATES: 03/22/2004; 03/24/2004 DATE OF JUDGMENT: 04/16/2004

APPELLANT: Mr PJ O'Rourke of counsel SOLICITORS: Oates & Smith

LEGAL REPRESENTATIVES: RESPONDENT: Mr LJ Ellison of counsel and Mr J Patey of counsel SOLICITOR: Mr B Matthews SAS Trustee Corporation

JUDGMENT: - 34 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

KIM BATES v SAS TRUSTEE CORPORATION Application by Kim Bates to appeal against the decision of the SAS Trustee Corporation JUDGMENT

1 These proceedings were brought pursuant to s66 of the Superannuation Administration Act 1996 ('the Act'). The appellant appeals from a decision of the Police Superannuation Advisory Committee ('the PSAC') of 28 February 2002. The appellant had been issued with a certificate specifying medical incapacity due to post traumatic osteoarthrosis of the left knee and adjustment disorder.

2 On 7 March 2002, the respondent advised the appellant of that decision. The appellant disputed the decision. On 2 December 2002, the respondent advised that on 29 November, its Disputes Committee had determined the dispute between the appellant and the PSAC by confirming the PSAC's decision. The decision concerned the infirmities specified in a certificate of incapacity issued on 28 February 2002. The respondent also advised the appellant of his rights of appeal under s88 of the Act.

3 Sections 88 and 67 of the Act , there referred to, provide: 88 Appeals (1) A person aggrieved by a determination of STC under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission). (2) The appeal must be made within 6 months after the appellant is notified of the determination of STC or within such further period as the Commission allows. (3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC in making the determination the subject of the appeal. (4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant. (5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit. (6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC. 67 Determination of disputes (1) A dispute under this or any other Act concerning an STC scheme is to be determined by STC, except as otherwise provided by the regulations. (2) Regulations made for the purposes of subsection (1) may require that a dispute concerning the entitlements or obligations of an employee or beneficiary arising in respect of service by the employee with an employer that: (a) was responsible for the payment of benefits under an STC scheme of which the employee was a member or to which the employee was a contributor, and (b) has ceased to be responsible for the payment of benefits under that scheme but is responsible for the payment of benefits under a new superannuation scheme created in accordance with section 127, be determined, not by STC, but by the trustee of the new superannuation scheme. (3) In determining a dispute, STC or the relevant trustee may inform itself on any matter in such manner as it thinks fit and, in so doing, is not bound to observe rules of law relating to evidence. (4) A trustee acting in accordance with regulations referred to in subsection (2) has and may exercise the powers conferred on STC by sections 66 and 68.

4 The orders sought were that the appellant be issued with a certificate of incapacity specifying the additional infirmities of Post Traumatic Stress Disorder pursuant to the Police Regulation (Superannuation Act) 1906. At the hearing, orders replacing adjustment disorder with post traumatic stress disorder were pressed.

5 Consent orders were made by the Court in relation to the preparation of the matter for hearing, which required the appellant to file and serve documents relied upon by 1 August 2003 and the respondent to file its documents by 1 September. Neither party filed any documents.

6 At the hearing, evidence was called from the appellant and a number of medical reports were tendered, including those of the appellant's treating psychiatrist, Dr Timney, even though he was unavailable for cross examination. This is a matter which I have taken into account in my consideration of the competing cases advanced. Evidence was also called from Dr Klug and Dr Delaforce.

7 The evidence showed that the appellant had joined the Police Service as a Probationary Constable when he was sixteen years of age, in July 1975. He had been promoted over the years. He was a Sergeant when medically discharged in March 2002.

8 It was in August 1999 that the appellant took sick leave. He then saw his General Practitioner, Dr Poppa, who referred him to a psychologist, Dr Hughes and subsequently to a psychiatrist, Dr Timney. Both doctors treated him, having each diagnosed post traumatic stress disorder and depression. The appellant went on special sick leave after making an application for medical discharge in April 2001. He was referred to a variety of other medical practitioners before and after his discharge in March 2002.

9 The background to the appellant's undoubted illness began in November 1977. While stationed at Blacktown Police Station performing general duties, the appellant was working with another police officer, in a police paddy wagon. They were at Quakers Hill, looking for stolen and abandoned cars in the bushland there, when they observed two men at a white car. When they approached, one of the men, a Charlie Sewell, pulled a semi-automatic rifle from the vehicle and pointed it at the two approaching officers. Unknown to the officers, Sewell had escaped from custody. The two officers were stopped by the two men, relieved of their weapons and handcuffs, threatened in a variety of ways and handcuffed to a tree, where they were left. The rifle was pointed at them again, and they were further threatened, as the two assailants drove off in the car. Throughout the incident the appellant feared for his life and that of his companion. Luckily, they were released about ten minutes later, after they managed to attract the attention of some nearby Waterboard employees, who also flagged down a passing Highway Patrol car.

10 The appellant later had to travel to Queensland twice, where the two offenders had been arrested and charged with possession of their stolen weapons. He testified twice about these events. He also later had to testify at committal proceedings in this State, when the two men were charged with armed robbery.

11 The appellant gave evidence about the fear and humiliation which he had suffered during the incident and afterwards; how he had to relive these experiences, during his evidence and how these events had affected his life and work. The effects were plainly serious but, nevertheless, he recovered well from the trauma. Recurrent dreams and nightmares about the incident receded over time. He successfully pursued his career.

12 The appellant again became involved with Sewell, when he tried to arrest him in 1988. Sewell had again escaped from custody, which the appellant suspected when he stopped him while he was speeding. Sewell also escaped from the appellant and the other officers who tried to arrest him on this occasion. There was a high speed chase before he was arrested. The appellant described his fears and concerns during the incident, as well as the effects of this encounter, which resulted in a recurrence of his earlier bad dreams and nightmares. Again, he seemed to recover well from the episode and continued pursuing his career.

13 The appellant also, however, described how, between the two episodes, his ability to deal with members of the public had deteriorated; how he tried to avoid certain kinds of work and how he lost control over his ability to deal with his work, without outbursts of anger and feelings of frustration and irritability. He moved to the country to deal with this before the second involvement with Sewell. Afterwards, these problems led him to take a transfer to the Police Academy at Goulburn, where he had less to do with the public. He there successfully pursued an opportunity to become involved in weapons training. Over time, here too, his ability to deal with more senior management without outbursts of anger and frustration deteriorated. He moved to Sydney, where he became involved with training a new weapon acquired for the Police Service. Here, too, his career prospered, but he also he encountered difficulties.

14 In May 1999, after a serious outburst with his superior officer about a matter concerning how certain officers who reported to him had been dealt with in a disciplinary matter, the appellant came to the view he could not continue with his current duties. He sought a transfer to front line police duties. This resulted in a five-week transfer. He found that his ability to deal with the public was still unsatisfactory. He had difficulty dealing with issues without anger and there was a continuation of previous hyper-sensitised feelings of risk. This had manifested in the way in which he dealt with his weapons. The problem increased to the point where, contrary to standing instructions, he did not secure his weapons at home, when off duty. Instead, he carried them with him in a bum bag, so as to be prepared to deal with any situations which he might encounter when off duty. About this time his earlier dreams and nightmares resumed. He also began seeing people in public, who he initially mistook for Sewell.

15 Upon his return to his weapons training position in August 1999, the appellant came to the conclusion that he could not continue with police work. He took sick leave and sought medical help, which eventually led to his medical discharge.

16 The appellant was initially seen by Dr Hughes, who treated him on some eight occasions and involved him in a desensitizing visit to the scene of the 1977 events.

17 Dr Timney saw the appellant on three occasions in 1999. He, too, diagnosed 'Chronic Post Traumatic Stress Disorder', with 'a secondary depressive illness'. In a detailed report to the Police Service in November 1999, he noted that he had prescribed anti-depressants. Dr Timney concluded that the appellant was unfit for duties, either with the general public or in his work with weapons training. His prognosis for a full recovery and a return to fitness for work was 'rather guarded'.

18 In a detailed report to the Police Service in March 2000, Dr Hughes noted his diagnosis that the appellant was suffering from 'post-traumatic stress disorder with associated major depression'. Dr Hughes concluded that the appellant was not fit for police duties and a return to them would lead to chronic depression.

19 In May 2000, in a further detailed report to the appellant's solicitors, Dr Timney reiterated his earlier diagnosis and described some improvement in the appellant's depressive symptomalogy, with changed medication and continued psychotherapy. The prognosis for his depressive condition was regarded to be good, with continued treatment, but was likely to leave him vulnerable in later life to further depressive episodes, especially in periods of high stress or of loss. Dr Timney concluded that the events in 1998 were such 'as to cause permanent symptoms and disability from shock.' As to the 1977 incident, he was 'unable to provide as certain an opinion on the time of duration of the shock ... but it would be of at least shock lasting 6 to 13 weeks'.

20 Dr Canaris, a forensic psychiatrist also examined the appellant. He was supplied with Dr Timney's May 2000 report and other documents not in evidence. Dr Canaris noted in his June 2000 report to the appellant's solicitors, that his conclusion was that the 1977 incident 'brought in its train what I think would at the very least have warranted a diagnosis of an Acute Stress Disorder (but probably a Post Traumatic Stress Disorder), using the terminology of the DSM IV'. He noted a 'distinct deterioration in your client's mental state following the 1988 incident though he did not seek help until 1999'. The symptoms described were 'strongly suggestive of Post Traumatic Stress Disorder'. He also concluded that the appellant had suffered from nervous shock as a result of both incidents.

21 Dr Canaris provided a further report in February 2004, in which he was asked to comment on the reports of Doctors Lee, Hill and Delaforce. I will return to this below.

22 Dr Lee, a consultant psychiatrist, also provided a detailed report to the Police Service in June 2000, having read various documents not in evidence and the reports of Dr Timney and Dr Hughes of 1999. He also assessed the appellant. Dr Lee noted the treatment the appellant had received for post traumatic stress disorder, and that diagnosis, as well as the depressive symptoms the appellant had suffered from. While Dr Lee could understand that the appellant's involvement in the 1977 and 1988 incidents were frightening, he did not feel 'that the experience itself has caused him a clear Post Traumatic Stress Disorder', nor depression. Dr Lee concluded that the appellant was not unfit to return to duty, that his prognosis was good and that he should be able to work. I observe at this point, that no other doctor shared these views.

23 Dr Hill, a psychiatrist, provided a short report to Pillar Administration in December 2001. He had also seen various documents not in evidence, as well as reports from Dr Timney, Dr Hughes and Dr Lee. He interviewed the appellant in December 2001 and concluded that, 'Whatever were his symptoms in the past, there is presently little evidence of a Post Traumatic Stress Disorder and he is not displaying clinically significant symptoms of Depressive Mood Disorder'. He diagnosed an adjustment disorder, which had partially resolved. His view was that a return to police duties would intensify the appellant's residual symptoms and render him medically unfit.

24 In June 2002, Dr Christie, an occupational physician and medico legal consultant, gave another short report to the SAS Trustee Corporation. He considered reports of Dr Timney, Dr Hughes, Dr Canaris, Dr Lee and Dr Hill. He noted the competing views - that of Dr Timney, Dr Hughes and Dr Canaris that the appellant suffered from post traumatic stress disorder; that of Dr Lee that he suffered from no disorder or depression, but should continue seeing Dr Timney and that of Dr Hill, who in his view, 'really gives no opinion at all', as to whether the appellant was suffering from post traumatic stress disorder. On balance, Dr Christie concluded that the appellant should have the diagnosis post traumatic stress disorder added to his certificate.

25 Dr Delaforce, a forensic psychiatrist, provided a report to the SAS Trustee Corporation in September 2002, having earlier that month interviewed the appellant. He, too, had seen reports of Dr Timney, Dr Hughes, Dr Canaris, Dr Lee and Dr Hill. He referred to these reports and concluded that post traumatic stress disorder, major depressive disorder and any other specific depressive disorder could be excluded. Dr Delaforce applied the DSM IV criteria, finding that those doctors who had diagnosed post traumatic stress disorder, did not provide adequate or convincing information to justify that diagnosis.

26 Dr Delaforce felt that he was 'left with differentiating between Adjustment Disorder and no mental disorder and therefore whether to support Dr Hill or Dr Lee'. He excluded the latter, given the appellant's ongoing symptoms and treatment, particularly the most prominent symptom, irritability and anger. He concluded, 'On the balance of probabilities … he has an Adjustment Disorder, Chronic, with especially anxiety, irritability, and excessive concern about harm to himself related to his hypervigilance'. He noted the post trauma symptoms in 1977 and 1988. He observed that the appellant was unable to explain the onset of his excessive anger and irritability from 1992, but found his concerns for the victims of crime understandable, given his experiences in 1977 and 1988. Dr Delaforce also noted the appellant's passion for the work of training police officers in safety was also understandable, in that context. The appellant had problems adequately putting this into practice, given problems with police management and some trainees and could not perform general duties, without experiencing significant anger and irritability.

27 Dr Delaforce observed that, 'There are reasonable indications that by the time Mr Bates was interviewed by me he was presenting less details about symptoms and their duration than he had presented earlier to other healthcare professionals. It is more likely than not that the more accurate details of his symptoms was presented earlier'. I note that in cross examination, Dr Delaforce retreated somewhat from this view, observing that it was not always the case.

28 In his report, Dr Delaforce also considered adjustment disorder, noting that the only relevant stressor to consider was the appellant's police work and concluded that, 'on the balance of probabilities the Adjustment disorder is the result of his police work stress'. He also concluded that diagnostically, it could only be that, or post traumatic stress disorder, or neither, but not both disorders at once. He concluded that his prognosis was: He will probably permanently have fairly stable but somewhat permanently impaired mental health. He would be at considerable risk of deterioration in his mental health if he experienced too much stress. Hence there is benefit, but at a considerable cost, for him in his current restricted lifestyle.

29 In September 2002, Dr Christie provided a further report to the SAS Trustee Corporation, having considered Dr Delaforce's report. He noted the conclusion that the appellant suffered from adjustment disorder and thereupon altered his previous opinion. He concluded that the certificate issued stating adjustment disorder should stand.

30 Dr Timney gave a further report to the appellant's solicitors, in October 2003, after a further assessment of the appellant in September 2003. He had last seen the appellant in April 2001, when his move to northern New South Wales, made continued psychiatric treatment by him difficult. Dr Timney noted that the appellant had continued taking the prescribed anti-depressant, apart from a short period in 2002, when under the guidance of his General Practitioner he had ceased and later recommenced the medication.

31 Dr Timney noted a reduction in the appellant's symptoms of post traumatic stress disorder, with much less frequent feelings of anxiety and distress over the Sewell incidents. There had also been a significant reduction in depressive symptoms in the previous 12 months. Dr Timney concluded that the appellant no longer suffered from a depressive disorder, but had 'chronic residual symptoms of Post Traumatic Stress Disorder'. He did not believe it likely that these symptoms would ever fully resolve; that the appellant would require long term treatment with anti-depressants and that, 'individuals who suffer Chronic Post Traumatic Stress Disorder are vulnerable to periods of exacerbation particular at times of further trauma'. Dr Timney also provided answers to various questions. What the questions were was not in evidence.

32 In February 2004, Dr Klug, a forensic psychiatrist, provided a report to the appellant's solicitors. He considered the reports of Dr Canaris, Dr Timney and Dr Hughes. He had also seen the appellant in September and November 2003. Dr Klug diagnosed a recurrent anxiety disorder, which had waxed and waned over time and recurrent post traumatic stress disorder. He also believed that the appellant had had episodes of a superimposed major depressive disorder. Dr Klug had not been provided with the reports of Doctors Lee, Hill or Delaforce.

33 Dr Klug was later provided with reports of Dr Lee, Dr Hill, Dr Delaforce and also Dr Timney's October 2003 report. Dr Klug considered the reports, giving a further report in February 2004. His opinion remained unchanged, taking the view that the appellant's symptomalogy had waxed and waned over time, with the first symptoms evidenced after the 1977 incident, he being more symptomatic after the 1988 incident, with a point of decompensation reached in the later 1990s, when 'he may very well have developed a superimposed major depressive disorder which is not an uncommon comorbid diagnosis with a chronic post-traumatic stress disorder.' Dr Klug disagreed with the views of Dr Lee, Dr Hill and Dr Delaforce. In the latter case, he observed that Dr Delaforce appeared not to have considered that 'his provisional diagnosis of an adjustment disorder may be a chronic post traumatic stress disorder and/or a major depressive disorder in partial remission'.

34 Dr Delaforce too gave a further report in February, having been provided with Dr Timney's September 2003 report. He again interviewed the appellant in February. Dr Delaforce also adhered to his diagnosis of adjustment disorder, concluding that the appellant had improved, as a result of medication and a less stressful lifestyle. He found it difficult to come to a view as to whether the appellant had recovered or was in full remission, but concluded that he had, so long as his lifestyle and medication continued, a very common outcome for the post trauma types of mental disorders.

35 Dr Canaris noted in his February 2004 report his disagreement with the conclusions reached by Dr Lee and Dr Delaforce. He disagreed with Dr Delaforce's criticism that in his own first report he had not provided a list of symptoms to justify the diagnosis of post traumatic stress disorder. He also observed that he found Dr Delaforce's report self contradictory, given the conclusion that the anxiety disorder resulted from the stress of the appellant's police work. He noted that, 'Adjustment Disorders are supposed to dissipate within about six months or so of the precipitating stressor'.

36 Dr Delaforce provided a further lengthy report in March 2004, having been referred Dr Canaris' and Dr Klug's reports. He also again interviewed the appellant. He provided a detailed commentary upon the DSM IV diagnostic criteria for post traumatic stress disorder; major depressive episodes and adjustment disorder, in a defence of his diagnosis. He expressed the view that Dr Klug's diagnosis had been influenced by the reports of other doctors and that he had wrongly relied upon his view that the appellant was stoic, which showed the 'inadequate basis of Dr Klug's tentative and faltering conclusion'. He disagreed that the appellant was stoic and noted that on his current symptoms, a diagnosis of either post traumatic stress disorder, or major depressive disorder could not be made. Even if present at some stage, in his view, they were now in partial, or full remission, or the appellant was recovered.

37 Dr Delaforce also took issue with Dr Canaris' report and noted that the appellant's anxiety disorder was chronic, because it persisted beyond six months, 'in response to a chronic stressor or to a stressor that has enduring consequences. Dr Delaforce concluded that, 'The relevant stressors are the Mr Sewell incidents in 1977 and 1988. It is the consequences of those stressors that continue, including his sometimes distressing reexperiencing of the incident, his concern for the safety of police officers, hypervigilance, and especially anger and irritability. I expect I would have no argument from Dr Canaris about the consequences of those stressors continuing up to 2004'.

38 Dr Klug had the appellant's evidence put to him and took it into account in the evidence which he gave in these proceedings. Dr Klug described the applicant as 'guarded' when he interviewed him, which led him to the conclusion that he should see him a second time. He explained that he had described him in his report as being stoic, by which he meant 'putting up bravely and strongly with very adverse circumstances despite the way you feel'.

39 Dr Klug explained that in his diagnosis he had used the DSM IV criteria. He had also had regard to the detailed history contained in the reports of the treating doctors, which reflected a 'very clear history of quite severe, longstanding and fluctuating psychiatric symptoms which could justify the diagnosis for chronic post traumatic stress disorder as well as depressive disorder'.

40 Dr Klug explained that the DSM IV criteria were useful in clinical diagnosis and research because they standardised the approach to diagnosis, but noted the DSM itself warned against the use of the standards as in a 'cookbook' approach, because there are variants within each diagnostic category and people with the same diagnosis, do not necessarily present the same way. This was why clinical judgment was required in diagnosis. Dr Klug also explained how he came to the view that Criteria C of the DSM IV standards for post traumatic stress disorder were satisfied. He noted that the disorder was known for being a phasic condition, with prominent and florid symptoms at one point and people going into a state of numbness or emotional constriction, as a way of coping with them. He explained that this could make diagnosis difficult, because when in that state, unless enquiries were made about specific symptoms, they may not be elicited and so the correct diagnosis is not reached. This was problematic in forensic settings, because leading questions should not be asked. In avoiding such questions however, the correct diagnosis might be missed. Dr Klug disagreed that his diagnosis had ever been faltering or tentative.

41 As to adjustment disorder, Dr Klug explained that it could continue for longer than six months, in only limited circumstances. If symptoms persisted for longer than six months in the absence of a continuing stressor, another diagnosis needed to be considered. In the appellant's case, the persistence of symptoms after leaving the Police Service was inconsistent with adjustment disorder.

42 In cross examination, Dr Klug explained that he had diagnosed the appellant with recurrent post traumatic stress disorder, which meant that there could have been partial, substantial or even complete remission in the interim between episodes. There had been an initial traumatic incident in 1977 resulting in initial symptoms. The symptoms recurred after the traumatic incident in 1988. He explained that people who were normally good copers could employ coping mechanisms when symptoms presented themselves in a manifest way, even at an unconscious level, so that they could continue to cope. Then they went into another phase of the condition, but further episodes could occur. The symptoms could ebb and flow. Dr Klug agreed that what he saw as stoicism, could also be described as the absence of symptoms.

43 Dr Klug also explained that people could be grossly symptomatic, but having good coping skills, with avoidance impulses and even phobic anxiety, but could still force themselves to do things. This was consistent with the appellant's history. Dr Klug agreed that in classic post traumatic stress disorder, the sufferer would not go into the field at all, being profoundly unwell with his symptoms exceeding his capacity to cope. This, however, varied greatly from person to person, as to how well they coped. Good copers could tolerate even severe symptoms for a period of time.

44 In cross examination, Dr Klug denied that his diagnosis was based on what the appellant had not told him. He explained: 'Mr Bates was exposed to two very severe stresses by anybody's measure. The stress to which he was exposed in 1977 would rate as one of the highest stresses you can be exposed to. In 1988 he was placed in a situation unexpectedly where he was confronted with Sewell and it was a major confrontation; he didn't know whether Sewell was going back to the car to find a weapon. He had his gun drawn and the prospect of actually killing somebody is also a most traumatic stress. I would rate that as a high stressor too. Those type of stressors have a high association with chronic psychiatric illness in one form or another. It is well acknowledged PTSD is one of the most common psychiatric - one of the most common anxiety based disorders and common psychiatric disorders. It is common amongst people in the armed services and in the police service and in other areas whether people are exposed to trauma.

Mr Bates' overall history is a man who has suffered recurrent, and, I believe at times, moderately severe psychiatric symptoms and of somebody who has good coping mechanisms and continues to cope at times. I believe that by 1999 he developed a super exposed depressive disorder. At that time he decompensated and was no longer able to cope and that is a common process with recurrent anxiety based symptoms that super exposed depressive disorder leads to decompensation and ultimately to seek treatment.'

45 Dr Delaforce too took the appellant's evidence into account in the evidence which he gave in these proceedings, having read a transcript of that evidence. He had also heard the evidence given by Dr Klug and maintained that Dr Klug was making a 'desperate attempt to try and get to a diagnostic opinion'. In his view the appellant was neither stoic or anything like it. This conclusion was unavoidable, given the evidence of the appellant's anger and irritability. Someone who was stoic bottled such feelings up. In Dr Delaforce's view, it was this anger which was the major reason he could no longer work in the Police Service.

46 Dr Delaforce also explained that he was no longer certain that Criteria C1 of the DSM IV standards for post traumatic stress disorder was satisfied, given the evidence that the appellant used his experiences in his weapons training work at the Goulburn academy. People with such disorders avoided reminders of the original trauma.

47 Dr Delaforce also explained that for a diagnosis to be made, sufficient of the DSM IV criteria had to be present at a particular time, not just for days, but weeks, months and even years. It was impossible to use symptoms present in 1999, to diagnose the existence of the disorder in 1977 or 1988. It was also impossible for the disorder to have existed in 1999, but not before, because there was no stress of a particular type and severity then present. Work pressure was not adequate. While there was stress then, it was work stress, relating to problems within the bureaucracy and his obsession to ensure safety.

48 It was also relevant that the fear that the appellant spoke of in his evidence was a fear of losing control, not a fear of what would happen to him. To Mr Bates' credit, he was able to work through his original fear and used the very stressful incident to go further and to work to try and ensure that the Police Service trained its officers in better and safer procedures. He was concerned about what happened to him and did not want it to happen to others, but he feared his own loss of control. He carried his gun so that he could intervene on others' behalf, not because he feared getting shot. This was not consistent with post traumatic stress disorder.

49 Dr Delaforce explained in answer to the question, 'You indicated in your report you consider there to be a chronic adjustment disorder which has gone well beyond the six months from the stress disorder. What do you consider in your diagnosis to be the stressor?': 'The stressor for diagnosis of adjustment disorder was what happened to him in 1977 and '88, and how important that became to him in his police work to make sure that never happened to another officer. It became his pet project. His Passion. But unfortunately that was to the extent that he had a marked conflict with the police beaucracy in the late 90s when he transferred to Sydney and he could not step back, step down in his compassion for the importance of adequate training and that was because of what happened to him. He comments continually on the importance of you have to be suitably trained and equipped. He could not step back from that and accept the picture that took over. It was two things together. Work stress at the time and the importance of safety as a result of what happened to him and he therefore is found to be hyper-vigilant and although he appears to be doing well in his retirement, I would emphasise that the consequences of the stressor are still continuing and Dr Klug correctly referred to you cannot for the time he is supposed, you cannot have the symptom going well and going away, and he also said correctly according to the '89 period of time, the consequence of the stressor can continue and if they do live with the symptoms, you can have post traumatic stress disorder and you can have adjustment disorder. That is why I maintain he still does, because while in a sense he is only on medication and he had explicit control over the medication last year, he is almost in a sense something like therapeutic in terms of Bellingen. I have lived in Coffs Harbour. I have been there for 20 years. I know Bellingen well. It is almost an idyllic place. It is popular with the hippies. You have people there who like a natural lifestyle, natural therapies, including some doctors there that properly practise it, and I have no criticism of that. It is an exact place where the population can get away from the cars and the hassle and the bustle.

Coffs Harbour is a place of about 50,000 people. I have so many people I have seen in my 20 years up there who have left big cities, moved to my area but they invariably they don't settle in Coffs Harbour itself, which where I live. I live in town. They live in smaller towns 30, 10, 50 kilometres from Coffs Harbour. It is a therapeutic environment for them and if you take them, if you put Mr Bates back into Sydney, if he is put into his uniform again, and particularly if he was put back into Sydney and Dr Klug could see he would still have the same problems. The consequences of the stress are continuing. You did not see them earlier there. It is a case of Zoloft and Bellingen. He needs that, and that is why you did not see it so much. The consequences are there, no doubt.'

50 Dr Delaforce was cross examined as to the differences between the stressor he had identified and the appellant's ongoing symptoms, the latter being the consequence of the former. His explanation was: 'That is right, but they certainly go together in the sense if there was no consequences, no continuing consequences my comment is what are we doing here? If there is no continuing consequence the likelihood is there would be no continuing symptoms.'

51 Dr Delaforce also explained that in his view, there was a new ball game in 1999 when the appellant moved from Sydney, 'he did have some did have some depressive symptoms and some of them seem to be like post-traumatic stress disorder, but as my report indicated, he did not fear for what would happen to him, and that is the essence here of post-traumatic stress disorder. He was, and to his great credit, he was concerned about training officers and giving them a safe work environment.'

52 Dr Delaforce further explained that a consequence of the stressor was that the appellant had left his job and moved to a quiet therapeutic environment. He said: 'It is a consequence of stressors, it is. He moved out of his job and he moved there because of that. It is - and he moved to a place where it is renowned for being so stress free. There are just so many Vietnam veterans that have left Sydney, left the big city and moved to the mid North Coast and they settled around Coffs Harbour not in town. That he did that because - but obviously I don't mean he has post traumatic stress disorder - just in relating the - even if I was to accept that what you are putting to me is correct, it can't be chronic. I maintain the definition does not mean he has post traumatic stress disorder, it would mean there is no mental disorder present.'

53 The case advanced for the appellant by Mr O'Rourke of counsel was that the Court would conclude that the appellant suffered from post traumatic stress disorder and not adjustment disorder, preferring the views of the treating doctors at the time in question, supported by those of Dr Klug and others and rejecting the conclusions reached by Dr Delaforce.

54 The case advanced for the respondent by Mr Ellison of counsel was to the opposite effect. Dr Delaforce's opinions had to be preferred.

55 The contest between the parties was whether or not the diagnosis of post traumatic stress disorder was correct and hence should have appeared on the certificate in question. In coming to their competing views the parties relied on various medical opinions, which were in conflict with each other.

56 Appeals such as this not infrequently present such a contest. This led Glynn J to observe in John Murray v SAS Trustee Corporation [2001] NSWIRComm 307 at [115]: It seems to me that it would be proper to regard all five psychiatrists as having specialised knowledge. What does the Court do when such witnesses differ in their opinions? I find assistance in the decision in Holtman v Sampson ((1985) 2 Qd R 472 at 474) where it was said: … it is a primary tribunal's duty to find ultimate facts, and, so far as it is reasonably possible to do so, to look not merely to the expertise of the expert witness, but to examine the substance of the opinion expressed. But that is not to say that a tribunal may not accept the opinion of an expert witness. In cases where the experts differ, the lay tribunal will apply logic and commonsense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted. …

It was later said: … Commonly the acceptance of the evidence of an expert witness, particularly one who is a member of a profession, does not involve the same approach on questions of credit and credibility as that of an ordinary witness. But it would be wrong to say that questions of credit and credibility are not applicable in the evaluation of an expert's evidence. …

57 In this case it has been necessary to pay regard to these observations.

58 The appellant was diagnosed and treated for post traumatic stress disorder by Dr Timney and Dr Hughes in 1999, having then ceased work in the Police Service. The suggestion that he had adjustment disorder, which had partially resolved, did not emerge until Dr Hill's diagnosis in December 2001, some two years after the appellant had ceased performing police work. That diagnosis emerged in a three page report, without reference to the relevant DSM IV criteria. Dr Delaforce later made no criticism of this approach, when he came to consider the appellant's condition in September 2002. Rather, he considered whether those doctors who had diagnosed post traumatic stress disorder, had properly considered the DSM IV criteria for that disorder. Having concluded that they had not and that the appellant did not suffer from that disorder, Dr Delaforce turned to consider whether the appellant had no disorder at all, or whether he was suffering from adjustment disorder. Dr Delaforce also concluded that there was adjustment disorder, but without himself making any reference in his report to his consideration of the DSM IV criteria applicable to that disorder.

59 Given the vehement criticism which Dr Delaforce directed to those who had a different view to his own, this approach seemed to be a most curious one, as did what flowed from it, as I earlier described. It was common ground that the DSM IV criteria are not designed to be a 'cookbook' and that any diagnosis requires the application of a doctor's clinical skills. In that context, the approach adopted in the reports of those doctors who had diagnosed post traumatic stress disorder, seemed entirely unremarkable. Indeed, the approach of all the doctors seemed quite consistent in this regard, including that of Dr Delaforce in his initial report.

60 Be that as it may, the disagreement amongst the medical practitioners eventually led to the contest in these proceedings, where it became apparent that Dr Delaforce agreed that all six of the criteria for a diagnosis of post traumatic stress disorder were present in the appellant's case, save for Criteria C. This required: C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:

(1) efforts to avoid thoughts, feelings, or conversations associated with the trauma (2) efforts to avoid activities, places, or people that arouse recollections of the trauma (3) inability to recall an important aspect of the trauma (4) markedly diminished interest or participation in significant activities (5) feeling of detachment or estrangement from others (6) restricted range of affect (e.g., unable to have loving feelings (7) sense of a foreshortened future (e.g., does not expect to have career, marriage, children, or a normal life span

61 There is no doubt from the evidence of both Dr Delaforce and Dr Klug that the events of 1977 were of such a traumatic kind that they could have led to the development of post traumatic stress disorder. The appellant's evidence in these proceedings confirmed this conclusion. This is consistent with the DSM IV description of 'an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury'.

62 The evidence also explains why Dr Delaforce agreed that all of the other criteria for a diagnosis of post traumatic stress disorder were present. The defendant was involved in an incident where an offender armed with a semi automatic rifle robbed he and his partner of their weapons and handcuffs and fortunately, left them handcuffed to a tree. The appellant, then 21 years of age, feared for his life and that of his partner. The incident caused him to consider whether he should leave the Police Service. He did not. Having neither been offered any kind of counselling or assistance in coping with the experience, he decided to remain and appears to have coped extraordinarily well overall, even though the experience undoubtedly had serious, ongoing, long term consequences for him.

63 The evidence showed that the 1977 incident led to various traumatic consequences, not the least of them being ongoing dreams and nightmares, which, however, receded in frequency over time. That the appellant was also embarrassed and distressed by the publicity given the events at the time and later, when he had to give evidence about them, cannot take away from the other consequences, about which there can be no doubt. The appellant described his initial feelings of absolute hopelessness and loss of control. He was scared, believing that he was about to die and concerned not to endanger his partner's life, by any actions which he took to defend himself. He also described his subsequent anxiety when performing general police work, especially when pulling up cars. He also found himself hastily pulling out his gun, in situations where this reaction was entirely inappropriate.

64 In the face of this evidence, Dr Delaforce's view that the major consequence of the 1977 incident for the appellant was one of embarrassment, is not one which I am able to come to. Nor, I observe, was it consistent with Dr Delaforce's own first report, where, amongst other things he noted that since the 1977 incident the related dreams had never gone away and that those dreams had affected the appellant's sleep when he had them. He also noted that the appellant's later passion for adequate weapons training had grown out of his fear of death during the 1977 incident. These observations coincide with the appellant's evidence in these proceedings.

65 It is convenient to observe at this point, that apart from the ongoing treatment which the appellant received from Dr Timney and Dr Hughes in 1999 and thereafter, that he has been required to undergo numerous examinations by a variety of doctors involved in the determination of his condition and his entitlements under the relevant legislation. In those examinations he has given accounts of what happened to him and the consequences for him. He has also given evidence before this Court. There can be no doubt that the various accounts which he has given of what happened to him and how he reacted, have been quite consistent. Indeed, I found his evidence entirely credible. That some matters were more emphasised in one doctor's report than another, is unsurprising, no doubt reflective of the examination process, the style of the different doctors, the time at which various examinations have been conducted and the state of the appellant's health at various times.

66 The appellant's evidence, given at a time when it is common ground that he has much recovered from the severity of the symptoms which he was experiencing in 1999, was also very consistent with these earlier accounts. The appellant's evidence about his experiences was, of course, here given in response to questions asked by counsel, who were seeking to advance or to oppose the case which the appellant was pursuing, rather than in response to doctors seeking to undertake a diagnosis of his condition. Nevertheless, there is no reason for me to think that the appellant was seeking to give some different account in his evidence in these proceedings, to that which he had given the various doctors who had earlier examined him.

67 The appellant's evidence was that he felt much better after a holiday taken in 1977 and while he remained more suspicious than he had previously been, the dreams and nightmares which began soon after the 1977 incident died off over time. Thereafter, other consequences of the incident also receded over time. Nevertheless, in 1978 he was involuntarily transferred away from general police duties. In 1980, he successfully sought a transfer to the country. On his return to general duties there, he was still uncomfortable working alone, overcautious and more suspicious than other police officers, because he had lost trust in what he was seeing. Nevertheless, by then his dreams and nightmares were only occurring once every one or two months. In 1983, he gave evidence at the Sewell trial at Parramatta. He then felt anxious and embarrassed but internalised his response. Afterwards he seemed to recover significantly.

68 The events which occurred in 1988 were also undoubtedly traumatic, as Dr Klug and Dr Delaforce both accepted. Not only did they vividly revive the experience of 1977 for the appellant, they brought with them their own consequences. The appellant was then again confronted by Sewell, who he immediately appreciated must have again escaped from custody. He also feared that he might be armed. The appellant took steps to warn his partner of the danger he perceived and when Sewell escaped by car, warned the other police officers involved in the high speed chase which ensued, of the danger he perceived. Not only was the appellant then placed in a position where he might have had to shoot someone, he had a very understandable and real fear that Sewell was again armed and his own life and that of others would again be threatened.

69 The consequences of that experience were again real and serious for the appellant. Not only did it lead to a recurrence of the previous dreams and nightmares, a withdrawal from general duties involving contact with the public by becoming involved in education and training work resulted. There were also heightened feelings of anger and irritability, especially with younger people. The incident also led to a state of heightened vigilance and concern about safety.

70 In 1988, the appellant was offered counselling by the Police Service, which he did not pursue. Instead, he again coped and successfully pursued his career. While his symptoms improved again over time, he moved away from contact with the public, which he found he was unable to maintain, given his increasing feelings of anger and irritability. In 1993, the appellant went to the Police Academy at Goulburn. There, the appellant was able to use his experiences in his weapons training work, to illustrate that even routine work could lead to dangerous confrontations for police officers. As he explained, the situation suited the appellant, because he felt the environment was a very safe one.

71 There can be no doubt on the evidence that the appellant had good coping mechanisms, as was Dr Klug's evidence. While there was evidence of avoidance behaviour after the 1977 and 1988 incidents, with the appellant increasingly seeking to minimise his contact with the public over that time, the appellant undoubtedly managed to cope well with the two experiences. The result was that the symptoms he experienced receded. The dreams stopped in 1994 and he was promoted.

72 There can also be no doubt however, that the consequence of these experiences remained with the appellant and affected him, with various symptoms, including a hypervigilance which increased over time, as Dr Delaforce noted, finally to the point where he always carried a gun in public, even though this was contrary to the relevant standing instructions.

73 The appellant's control of his feelings of anger and irritability also decreased over time, as he became frustrated with his inability to ensure the safety of others, in ways he perceived necessary, without bureaucratic interference.

74 In 1997, he transferred to a supervisory position at the Goulburn Street Police Centre. He was the country co-ordinator for the introduction of the new Glock pistol. He remained in that position for 18 months. Despite enjoying his job, in 1999 there was a significant deterioration in his condition.

75 The appellant's anger increased; his dreams and nightmares began again; he began carrying his weapons during all his waking hours and he began mistaking people in public for Sewell. His level of frustration at work reached the point where he had a serious confrontation with his superior. The evidence showed that this was regarded as out of character for the appellant, who concluded that he could not continue. He found himself out of control, yelling, screaming and came close to turning the desk up on top of his superior officer. He found that he could not control his reactions. There had been similar incidents with junior staff earlier. As a result, he returned to general police work at Penrith for five weeks. He was afraid of what he would do, otherwise.

76 At Penrith the appellant still found his level of tolerance to be very low. He could not handle his authority being questioned and retreated to the station, a possibility, because his position was largely a supervisory one. When the five weeks expired, he felt unable to return to Goulburn Street and took sick leave to seek medical advice. By that stage he had a concern for the welfare of his workmates and the general public, as to what he might do if he became anxious or angry. His dreams continued, after he ceased work and medication was taken while he received treatment. Eventually the appellant felt a lot calmer, with dosage adjustments and a change of medication. The appellant also realised that his reactions to his family were not normal. He was withdrawn and his lack of communication placed a strain on his relationships. He moved to the North Coast when his partner found work there. He now has some part-time work, one or two days a week which he enjoys, but he does not seek more, because he then found an increase in his feelings of agitation and anxiety.

77 It was in that context that in 1999, those treating the appellant had to consider what disorder he was suffering from. On the evidence of all the doctors, there was no doubt that he was suffering from a disorder when he ceased police work in 1999 and sought treatment and that it had resulted from his police work. The issue which later emerged and which here arises for determination is the proper identification of that disorder.

78 As earlier noted, it was the evidence of both Dr Klug and Dr Delaforce that this exercise involved the application of clinical judgment by the treating doctors as well as the other doctors who examined the appellant. The diagnostic criteria they utilised is not a 'cookbook' which produces a result by way of rote application. These are matters which must plainly here be taken into account.

79 Dr Klug and Dr Delaforce agreed that all of DSM IV criteria for post traumatic stress disorder were present, apart from C1. This is a pertinent consideration, given Dr Delaforce's view in cross examination that the appellant's anger was why he was no longer doing police work. It must be noted that this is entirely consistent with the diagnosis of post traumatic stress disorder. Criteria D provides: D. Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following: (1) difficulty falling or staying asleep (2) irritability or outbursts of anger (3) difficulty concentrating (4) hypervigiliance (5) exaggerated startle response

80 I turn then to consider the question of Criteria C. The relevant point of time is 2002, when the certificate in question was issued.

81 By that time, the appellant had received ongoing treatment of his symptoms. from Dr Hughes and Dr Timney. He had not performed police work since 1999; he was taking medication which was still helping him control his feelings of anger and irritability and he had moved to a less stressful environment, which was also helping him cope with his symptoms.

82 On the evidence there can be no doubt that at that time he was still suffering symptoms of the disorder in question, though there had been some recovery. This was confirmed by the unsuccessful attempt to cease his medication. Medication was resumed when there was a deterioration in the symptoms suffered by the appellant. They were improved by a resumption of medication.

83 The question therefore was not whether the appellant was suffering from a disorder, or what his symptoms were, the question is what the nature of the disorder was. It is convenient to note at this point, Dr Delaforce's stance in cross examination, that the appellant either had no disorder at all, or an adjustment disorder. This was patently not the case and inconsistent with Dr Delaforce's own earlier diagnosis. It seems that Dr Delaforce was unable to entertain the possibility that his diagnosis was incorrect. This insistence involved a reversion to Dr Delaforce's approach to his initial assessment of the appellant in September 2002, when he rejected the existence of post traumatic stress disorder and considered two alternatives, no disorder at all or adjustment disorder.

84 Dr Delaforce in his own reports properly rejected the conclusion that the appellant was suffering from no disorder, given his continuing symptoms and ongoing treatment. In that context, I found that Dr Delaforce's answers to the questions posed in cross examination, were approached from a concern to defend his diagnosis, rather than what a more dispassionate consideration of whether there was evidence consistent with the existence of the criteria applicable to post traumatic stress disorder, might have produced. It must be observed that this approach made his evidence, as an expert, less helpful than it might otherwise have been.

85 Dr Delaforce's March 2004 report, prepared in response to a request from the respondent's legal advisers, explained that in his view only Criteria C1 was present. In his evidence at the hearing, Dr Delaforce's view was that even this criteria was not satisfied, given that the appellant had been able to use his experiences in 1977 and 1988 in his weapons training work. By way of contrast, Dr Klug explained his view was that various of the Criteria C1, were satisfied.

86 Having considered the competing views and all of the evidence, I am satisfied that at the relevant time, Criteria C1, 2, 4, 5 and perhaps 6 were present. I begin with the evidence that at this time, the appellant's problems were having a real impact upon his personal relationships and activities, the extent of which he did not himself appreciate, but which was drawn to his attention by his partner. In light of that evidence, I was simply unable to accept Dr Delaforce's view that Criteria C4 and 5 were not satisfied. There was no explanation for this view in his report and no real explanation in his evidence. The opinion seemed entirely inconsistent with the evidence.

87 As to the other criteria, it seems to me that it cannot be overlooked that all of the doctors were dealing with the appellant who had, from any point of view, coped remarkably well with the incidents of 1977 and 1988. The diagnosis of the doctors who had diagnosed post traumatic stress disorder was that the 1977 incident had led to that disorder, but there was some recovery. There was a deterioration after the 1988 incident and another recovery. It was in 1999, that the appellant became overwhelmed by his feelings and recurring experiences to the point where he felt he could no longer control himself and thus left the weapons training position which he had enjoyed, had performed well, where he was expecting the possibility of further promotion and an ongoing career and which his superiors did not wish him to leave, despite his outburst to his superior officer, which precipitated the move. Indeed, in October 1999, that superior officer attested to the uncharacteristic nature of the outburst, which led the appellant to request that he be moved out of his position. As a result he supported the appellant's claim to be classified as hurt on duty.

88 The appellant also then explored the possibility of a return to front line policing. He had been unable to continue with that work earlier and found that here too, he could not exercise sufficient control over himself and his feelings of anger and irritability, to continue. Given his evidence as to how he had responded to those who questioned his authority and how he dealt with some teenagers in that period, I found his self perspective commendable. The result was undoubtedly a difficult decision to leave the Police Service and to seek medical assistance - a decision he viewed as being taken at a personal cost, given the successful career he was abandoning. At this stage, the appellant was suffering from a recurrence of the dreams and nightmares from which he had suffered after the 1977 and 1988 incidents. He was also mistaking other people as Sewell in public places, at a time when his hypervigilance caused him to be armed at all times.

89 Contrary to the submissions of the respondent, this sequence of events seems to me entirely consistent with a conclusion that despite how well the appellant had coped up to 1999 with his experiences and their ongoing personal consequences, his ability to continue doing so failed him at that point. Dr Klug's view, consistent with that of the treating doctors, was that the appellant was then suffering from a depressive illness which resulted in the failure of his coping mechanisms.

90 The fact was that the appellant then took extreme steps to further avoid the stimuli associated with the trauma in question. He ceased working as a police officer, something he had considered in the past, but had rejected. This had the immediate benefit of completely removing him from the ongoing need to think about the trauma, or to deal with its consequences, including dealing with the public as a police officer; with police management in implementing weapons training; with any concern for the safety of police officers and others and furthermore, removing him entirely from access to the weapons themselves, which he at that point otherwise felt compelled to carry at all times. This seems entirely consistent with Criteria C1 and 2 being satisfied.

91 That the appellant appeared to have been concerned about the safety of others, as opposed to his own safety at this time, was a matter which on Dr Delaforce's approach also weighed heavily against a conclusion that he had ever suffered from post traumatic stress disorder. I was unable to accept this, given the emphasis in the DSM IV diagnostic features, on a threat to oneself, or to another person. The evidence made well clear that the 1977 incident involved a very great concern that anything the appellant might then do to deal with what he was confronted with, would not only put at risk his own life, but also the life of his partner. They were both being threatened. This concern stayed his hand. On the evidence, this undoubtedly subjected to the appellant to feelings of intense fear and helplessness, feelings which, as a police officer, he was then required to revisit during the various Sewell trials in which he later gave evidence. Those feelings were vividly revisited in 1988. They led him in the ensuing years to pull his weapon when it was unnecessary to do so. They led to his pursuit of his career at Goulburn and the position in weapons training in Sydney; to his frustration with any interference in what he perceived needed to be done in that regard to ensure safety. Undoubtedly, these were factors which influenced the conclusion that both Dr Klug and Dr Delaforce reached, that the other five criteria for a diagnosis of post traumatic stress disorder were present.

92 The diagnostic criteria also emphasise the traumatic events being experienced in various ways, including recurrent dreams in which the events are replayed or otherwise represented, as well as dissociative states such as flashbacks. There can be no doubt that in 1999 these were experiences which the appellant was having, as well as broken sleep, hyeprvigilance, and outbursts of anger and irritability. The resulting avoidance action taken in 1999 became of the most complete kind, a total negation of all of the appellant's earlier success in coping with the personal consequences of the earlier trauma in the months and years following the events themselves, which enabled him to successfully pursue his career.

93 It is difficult to see that a breakdown in this ability, is a reason for concluding that the diagnosis of post traumatic stress disorder was incorrect. It seems to me that there was ample evidence to support the conclusions which the treating doctors, as well as Dr Canaris and Dr Klug reached, factors which now cannot be ignored.

94 I have also tested this conclusion by considering the DSM IV criteria for adjustment disorder. In his March 2004 report, Dr Delaforce noted the criteria and explained his diagnosis as: 'In effect here, after my excluding a diagnosis of Posttraumatic Stress Disorder and the presence of Major Depressive Episode, and therefore a diagnosis of Major Depressive Disorder, it was relevant to consider if the symptoms that were present were sufficient for a diagnosis of an Adjustment Disorder. I did diagnose Adjustment Disorder with features of recurring distressing reexperiencing of the 1977 and 1988 work incidents, avoiding thinking and talking about the incidents, excessive anger and irritability that began in 1992, and hypervigiliance beginning in 1998-9. The Adjustment Disorder continued since onset in the late 1990s although, and as my report dated 16 February 2004 shows (second paragraph of Opinion section on page 3), it was difficult to decide if that disorder was still present because of his considerable improvement.'

95 The conclusions seem entirely consistent with a diagnosis of post traumatic stress disorder and contrary to a diagnosis of adjustment disorder. Dr Delaforce's view was that the adjustment disorder had continued since onset in the late 1990s, although some features began as early as 1977. This approach appears to be contrary to the diagnostic feature, that the symptoms must develop within three months of the onset of the stressor, which must resolve within six months of the termination of the stressor or its consequences, unless the symptoms occur in response to a chronic stressor, or to a stressor with enduring consequences.

96 In cross examination, Dr Delaforce had real difficulty in distinguishing between the symptoms and the consequences of the stressor he had identified as giving rise to the disorder. Dr Delaforce variously described the stressor he had identified in his reports and his evidence. They were all, however, connected with the appellant's police work. On the evidence it is difficult to see that the consequences of the appellant's police work were present, as Dr Delaforce viewed it, for longer than six months after the appellant ceased work in the Police Service. This occurred in 1999. Dr Delaforce first saw the appellant in 2002 some three years after he had ceased police work. While much improved, his symptoms still persisted. Indeed, the evidence was that while further improved, they still persist. I am satisfied that the evidence does not permit the conclusion that the consequences of the appellant's police work persisted in the way that Dr Delaforce viewed it. Nor am I able to agree that the police work was a chronic stressor, or one with enduring consequences, as Dr Delaforce viewed it. I prefer the views of Dr Klug and Dr Canaris about this disorder.

97 On the evidence, I am well satisfied that the appellant met the onus falling upon him to establish that he was suffering from post traumatic stress disorder and that he must have an order accordingly, correcting the certificate which has been issued. The words adjustment disorder appearing on the certificate must be replaced by the words post traumatic stress disorder.

Orders 98 For all of the reasons given, I order accordingly.

99 The usual order as to costs would be that the respondent bear the appellant's costs, as agreed or assessed. If the parties are unable to agree about this they have liberty to approach. That liberty should be exercised within 28 days. ------------------------

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