378 Simple human experience or common sense, the terms of regulation 32 of the Police Service Regulations, documents in Exhibit O and the opinion evidence from some of the senior police officers who gave evidence recognise a number of matters that are relevant to the issue of what reasonable care required in this case. Those matters include:-
A potential for retaliation against or victimisation of one police officer who lodges a complaint against another;
That persons against whom complaints are made are likely to resent the fact of the complaint, and are likely to retaliate;
That such retaliation or victimisation may be effected not only by the person the subject of complaint but by other members of the Police Force;
It is generally desirable that a complainant's identity be concealed as long as possible, inter alia to reduce the risk and magnitude of any retaliation (albeit there may be occasions and circumstances where concealment is not possible);
That retaliation or victimisation might well have serious detrimental consequences to a complainant, in terms of his employment and advancement in the Police Force, his happiness and satisfaction in his job and in terms of his physical and psychological health.
379 It is impossible to avoid the conclusion that the Defendant and those to whom the Plaintiff made reports concerning Constable Strong must at all relevant times have known of these matters.
380 Relevant also to the existence and extent of any duty owed by the Defendant to the Plaintiff is the recognition of the stressful nature of the occupation of a police officer, and its potential impact on some members of the Police Force, implicit in the existence of the Psychology Section and Welfare Unit. It is a matter of ordinary human experience or perhaps notorious that police officers as a group are exposed to stressors, situations and risks well outside those to which most members of the public are subject, that many people are vulnerable to being injured by such matters and that psychological or other counselling is calculated to reduce the impact on many individuals of such matters.
381 I have found that the Plaintiff was assured on 28 August that his complaint would be kept confidential. However, it is important to reflect on the limited operation that could be given to that statement if the matters complained of by the Plaintiff were to be investigated. Certainly, the statement extended to no express publication (except to any to whom Sergeant Morton and Inspector Shipp were obliged to report) of the Plaintiff as the source of the complaint and to the doing of whatever could reasonably be done to keep his involvement secret. However, the statement cannot be given an operation that precluded investigation with whatever flowed from an investigation.
382 It is appropriate to reflect also on at least some of the options available to Inspector Shipp or any other investigator after receiving information from the Plaintiff on 28 August. Although it appears that inquiries were made of Constable Blayden at least concerning the marijuana allegation, against the possibility that he was complicit in or at least neglectful of his duties in not himself raising or dealing with the matters complained of, Constable Blayden was not the most obvious person for Inspector Shipp or any other investigator to give the prime investigative task to.
383 However, the task given to Constable Blayden was limited, of itself not clearly indicative of any failing on his part, and I am unable to conclude that there was any breach of duty by the Defendant in the request to Constable Blayden. Nor does the evidence establish that in concluding that Constable Strong was not a marijuana user Constable Blayden was, in any presently relevant sense, at fault and to the extent to which Constable Blayden was not given the task of investigating, what were the options?
384 Any surreptitious investigation would be likely to have required any investigators to be in Menindee for some considerable time to meld into the community. Were any investigators to disclose, or make apparent, their role, it would be virtually certain that any confidentiality would be lost. One only has to consider the names and description of most of those mentioned in the Plaintiff's aide-memoire of 28 October to make that apparent.
385 It is also appropriate to reflect on what form any investigation should take. It is all very well to expect, as the Plaintiff said he contemplated, that Internal Affairs or someone would investigate the matters but short of making a canvass of Menindee residents, who were investigators to talk to concerning those matters where names were not supplied? No doubt a search of records would have revealed who Constable Strong had charged and these persons could then be interviewed to see if they had been verballed but it was not likely that he drove the police vehicle so often while under the influence that all, or even most, of the people in Menindee would be able to give evidence of the matter. Those with whom Constable Strong was said to smoke marijuana would not necessarily be disposed to admit the fact. Were investigators to interview all the owners of male dogs to see who had been threatened by Constable Strong?
386 It follows from my findings as to the meeting of 28 August that a number of the Plaintiff's complaints concerning that meeting are not made out. However it should have been obvious to the Plaintiff and, given their experience, more so to Sergeant Morton and Inspector Shipp that any significant investigation of the Plaintiff's complaints in a small town such as Menindee would inevitably come to the attention of Constable Strong and, given the Plaintiff's recent arrival, lead to the Plaintiff being, in the minds of Constable Strong and any other person who heard about an investigation, the probable origin of complaint. Such an inference would be even more likely in the case of anyone aware of the Plaintiff's dislike of Constable Strong as obviously Constable Blayden was and Mrs Papaleuca became or if any investigation extended to events that had involved both the Plaintiff and Constable Strong, such as the possibility of an assault on Mr Graham. It is not without significance in this connection that following receipt of an instruction to investigate Constable Strong's use of marijuana Constable Blayden suspected the Plaintiff to have been the source of complaint. Inspector Allen's evidence that by October it would probably have been common knowledge that the Plaintiff had complained about Constable Strong argues in the same direction.
387 It follows that in practical terms, the promise of confidentiality should not have been made. It was calculated to give the Plaintiff a sense of comfort that, if any significant investigation were conducted, was bound to be dashed.
388 It is impossible to believe that Constable Strong would not have resented the Plaintiff's complaint. The size of the police presence in Menindee meant that the officers there would inevitably have to work closely together at times and the tension and lack of trust that human experience indicates as a very likely, if not inevitable, consequence of the Plaintiff's complaint once that complaint became known to Constable Strong leads to the result that they could not reasonably be expected to continue to work together. Once the Plaintiff made the complaint he did on 28 August, and it was considered worth more than the most cursory of investigations, it was inevitable that either the Plaintiff or Constable Strong would have to be moved albeit, depending on how soon and with what intensity any investigation developed and what leave periods the police officers had, the move might be able to be postponed for a time.
389 In that the Plaintiff's complaint and his election to make that complaint to police at Broken Hill amounted to an implicit criticism of Constable Blayden and indicated an unwillingness to rely on the latter, Constable Blayden also had cause to resent the Plaintiff's complaint. It would not be surprising if this resulted in a break down in relations between the Plaintiff and Constable Blayden although I would not infer this to be necessarily so likely or so serious that one could, in August 1991, make the same prediction as that involving the Plaintiff and Constable Strong.
390 It further seems to me that the inevitability of a move of the Plaintiff or Constable Strong was so obvious that all three, the Plaintiff, Sergeant Morton and Inspector Shipp should have been aware of it and, against the possibility that the Plaintiff was not, Sergeant Morton, Inspector Shipp or Inspector Allen should, on or after 28 August, but in any event before there was a chance that the Plaintiff would be victimised, have warned him of the fact. While of course such a warning might itself be construed as victimisation or punishment for the Plaintiff's complaint, it would have the advantage of reducing the risk that any move of the Plaintiff later would itself be regarded as victimisation and the advantage of dealing with the matter at a time when, if emotion concerning the matter was ever to enter into the Plaintiff's mind, that emotion was likely to be least.
391 One complaint that was made on the Plaintiff's behalf was that one or more of Sergeant Morton, Inspector Shipp and Inspector Allen conducted their own investigations in lieu of passing the Plaintiff's complaint on to Internal Affairs for it to be investigated by them. The submission does not recognise that the fact that Sergeant Borrows' report bore an Internal Affairs stamp indicates that the complaint was passed on although the fact that he was conducting preliminary enquires when he was suggests that the complaint was not passed on promptly as regulation 31 of the police Service Regulations required. However, none of the evidence persuades me that the officers mentioned were not entitled to conduct at least some investigations of their own, particularly in circumstances where there were grounds for being sceptical of the Plaintiff's complaints. In any event, any such investigation of itself breached no obligation any of these officers, or the Defendant, owed to the Plaintiff. And although I find it odd that Sergeant Burrows spoke to Constable Strong in the course of "preliminary investigations", it was not suggested to Inspector Allen or Sergeant Burrows that this was done by way of victimisation of the Plaintiff or in retaliation for him complaining.
392 The Plaintiff also made complaint as to the quality or extent of the investigation of his complaints. Although as I have indicated the evidence in this regard was not comprehensive or definitive, when regard is had to the content of Sergeant Burrows' report, and the apparent extent of the investigation of Inspector Glasheen and Constable Arender, it is difficult to avoid the conclusion that no attempt was made to investigate most of the Plaintiff's specific complaints.
393 Nevertheless I am satisfied that in the conduct of, or any inadequacy in, the investigation of the Plaintiff's complaint the Defendant breached no obligation it owed to the Plaintiff. Indeed, probably more accurately, when regard is had to the functions of the police force and the potential for competing considerations to arise in connection with any actual or possible investigation, I am not satisfied that the Defendant owed a duty to the Plaintiff as to whether it investigated his complaint or as to the way any such investigation was conducted. The mere fact that the Defendant may have had a duty to investigate complaints against police officers does not mean that that duty was owed to individual members of the public or any other officer who made the complaint. After all the Defendant's duty to take reasonable care for the safety of, or to avoid unnecessary risks of injury to, other officers could be fulfilled in ways that did not impact on any investigation-related decision. Regulation 32 of the Police Service Regulations forbad victimisation and that protection, however inadequate it might on occasions be, argues against taking an investigation pursuant to a complaint by a police officer outside the usual rule that no duty of care is owed by public officials conducting an investigation as part of their duties - see Cran v State of New South Wales [2004] NSWCA 92.
394 It is of course apparent that Sergeant Burrows' actions on 24 October were calculated to make Constable Strong aware that complaint had been made about him. Indeed there is much to be said for the inference - which I draw - that they were designed to do so. Furthermore, both for the reasons I have advanced above and because of the events of 30 October to 1 November, I would infer that no later than 24 October Constable Strong believed that the Plaintiff was responsible for complaints against him.
395 I have already indicated that I regard the complaints against the Plaintiff made on or about 1 November as harassment (or victimisation) flowing in consequence of the Plaintiff's complaint against Constable Strong. Certainly they would have appeared this way to the Plaintiff. This last observation may also be made in respect of the investigation of those complaints by Inspector Glasheem and Constable Arender on 28 and 29 November. No doubt in the Plaintiff's mind adding insult to injury in this connection was the speed with which complaints against him, about events of 5, 6 and 23 October, were investigated compared with what seemed to have been the situation concerning the complaints he made. I reject Sergeant Morton's explanation for the difference.
396 I may add, though in light of earlier comments it is not necessary that I do so that there is no evidence indicating how quickly investigations of matters such as those the subject of the Plaintiff's complaint on 28 August are generally made or what factors may have led to Sergeant Burrows' enquiries occurring on 24 October rather than earlier and though such information would be within the knowledge of the Defendant, given the enquires that were made, I am not persuaded that in not pursuing its investigations further or faster, the Defendant breached any duty to the Plaintiff during this period. A fortiori is this so when regard is had to the desirability for the least possible loss of confidentiality.
397 From 28 November things deteriorated. The Plaintiff suffered the knowledge of complaints having been made against him and that his own complaints were likely to be dismissed. Relations among the police at Menindee became very strained. The Plaintiff (and Constable Strong) suffered the indignity of being required to be psychologically assessed. The Plaintiff was judged by Kate Wikner to have made false allegations. He again had to deal with, in his eyes, unreasonable conduct by fellow police and the posting to Menindee that he had welcomed was to be terminated.
398 One of the things the Plaintiff said the Defendant should have done was to ensure he was removed from Menindee so as to avoid him having further contact with Constable Strong. No time is specified as to when this should have occurred and of course the Plaintiff was removed soon after 31 December.
399 I see no reason why the Plaintiff should have been removed as early as his complaint on 28 August but it seems to me that the Defendant should, in addition to pointing out to the Plaintiff that he or Constable Strong would have to be moved once significant investigation started, expressly given the Plaintiff the option of being moved as soon as he wished. While the Defendant could not reasonably have been expected to move Constable Strong until investigations were well advanced and conclusions adverse to Constable Strong reached, reasonable care towards the Plaintiff meant that he should not have been exposed to any, certainly any significant, victimisation or harassment. A fortiori is this so when regard is had to his vulnerability to which I have referred.
400 Of course, any such victimisation or harassment could have been avoided by moving the Plaintiff without him being given any option but such a course itself would be calculated to operate as a punishment if he, or any other complainant, wanted to stay where they were and giving the option was thus a more reasonable course.
401 In concluding that reasonable care involved giving the Plaintiff an option to move from Menindee, I have taken into account the fact that victimisation or harassment for "dobbing" is liable to take a form of individual actions, some in themselves minor although in totality significant carried out in circumstances where they are not readily provable and any investigation is likely to involve more "dobbing" or at least the stress of whether to again complain or not, and word against word.
402 In reaching the conclusion that the Plaintiff should have been given this option, I do not ignore an argument that such an approach might or would interfere with the organisation of the police force and the allocation of personnel wherever the Commissioner wished, and effectively enable any officer to avoid remaining at a posting he or she did not like. I accept that there is at least a theoretical possibility of an unattractive posting being brought to an end this way but the consequences to an officer's career of making, in order to secure a transfer, an unjustified complaint, having it investigated, and probably dismissed lead me to the view that the likelihood of such complaints having a significant impact on the Police Force organisation is so low that the argument should not be allowed to govern the conclusion.
403 Other complaints pursued in counsel's submissions as indicating a want of care were:
(i) Rostering the Plaintiff with Constable Strong on 31 December 1991;
(ii) Humiliating the Plaintiff by removing his appointments and cutting off his telephone;
(iii) Sending him to Liverpool Police Station (where the Scott Yule incident occurred) and then Macquarie Fields next door; and
(iv) Failing to prevent the Plaintiff's reaction when exposed to careless court attendance requirement taken by the Plaintiff to be an affront to his professionalism and performance (of which the Defendant had been warned by Dr Spragg in his report of 18 February 1992);
(v) Subjecting the Plaintiff to unreasonable arrest and excessive force and treatment on 12 February 1992;
(vi) Failing to take special precautions or steps to protect the Plaintiff with specially supervised duties;
(vii) The Defendant did not provide and ensure that the Plaintiff received proactive medical and psychological treatment in Broken Hill and then in Sydney (merely) making available at the Plaintiff's option access to Sydney based services where the Plaintiff was not liked and which were apparently diagnostic only;
(viii) In August 1992, "washing its hands of" the Plaintiff as unfit for rehabilitation;
(ix) In November 1992 discharging the Plaintiff as medically unfit on grounds which did not recognise his psychiatric condition (notwithstanding Dr Spragg's diagnoses of 18 February and August 1992;
404 I have already said that I am not persuaded that the Plaintiff's roster was changed so as to place him on duty with Constable Strong on 31 December 1991.
405 I see nothing for which the Defendant should be criticised in the removal of the Plaintiff's appointments. Once Constable Blayden was informed that the Plaintiff was too stressed to be able to work, common sense demanded the removal of the Plaintiff's revolver for which, if not working he had no legitimate need. The latter proposition no doubt applied to other or the appointments and the evidence leads to the conclusion that the removal of the appointments was standard practice. The fact that removal may not have occurred on prior occasions when the Plaintiff was on leave or sick does not lead to the conclusion that removal in December 1991 was unreasonable.
406 There having been no evidence to explain or justify these matters, the cutting off of the Plaintiff's telephone, without notice or explanation, the prohibition on the Plaintiff using the Menindee station computer, and then the requirement that his use be supervised by Constable Strong, and Constable Strong's mocking of the Plaintiff were also in my judgment unreasonable. Indeed, in light of the absence of evidence to which I have referred I regard them as unjustified harassment.
407 In light of the police psychology section's note indicating that the Plaintiff a year afterwards was still greatly troubled by memories of the Scott Yuill traumatic incident, it was unreasonable of the Defendant to decide to send the Plaintiff to Liverpool Police Station and to inform the Plaintiff that was the place to which he was being transferred.
408 There is, I think, no direct evidence as to when it was that the Plaintiff was informed his transfer would be to Macquarie Fields Police Station instead although Dr Spragg's report indicates that it was before he saw the Plaintiff on 8 January. The speed with which this change occurred suggests that there was no particular reason for selecting Liverpool in the first place and in the circumstances I regard the informing of the Plaintiff that he was to be transferred to Liverpool as a breach of the Defendant's duty to him. There is no evidence that persuades me that the breach was deliberate and intended as harassment.
409 I see no grounds for upholding the complaint referred to in sub-paragraph (iv). There is no evidence that the Defendant had any knowledge of the terms of the 12 February communication to the effect that the Plaintiff was "written out" of the case or opportunity before the Plaintiff's arrest to prevent the Plaintiff's reaction or anything to warn the Defendant that the Plaintiff's reaction might be as it was. Nor is there any evidence that the Defendant had cause to think that the Plaintiff attached any particular significance to involvement in the case against Mr Botswain.
410 So far as sub-paragraph (v) is concerned, there was not in the actions of Constables Dimatteo or Fredericks a breach of any duty of care that the Defendant owed to the Plaintiff. Certainly the Defendant is vicariously liable for any assault that these persons committed but it was under no duty to tell all police officers in New South Wales of the Plaintiff's situation or of a need to be especially careful in their dealings with him or to arm them with a photograph of the Plaintiff in case they came across him. I am not persuaded that the actions of Constable Dimatteo and Fredericks were inspired by any prior knowledge of the Plaintiff or of his complaints against Constable Strong.
411 The considerations that inspired the decisions in Sullivan v Moody (2001) 207 CLR 567, Cran v State of New South Wales [2004] NSWCA 92 and State of New South Wales v Klein [2006] NSWCA 295 also lead to the conclusion that no duty of care or right of action arises because of the terms of the Commissioner's Instructions 37.01 and 155.2.04, or regulation 9(8) and 9(9) of the Police Service Regulation and that there is no duty to a person being arrested to exercise reasonable care, skill and competence in that exercise. Of course if the arrest is not authorised, the liability for wrongful imprisonment and/or for assault is likely to exist as may the latter if the force used clearly goes beyond that reasonably required.
412 I do not uphold the complaint in sub-paragraph (vi). Assistant Commissioner Peate had offered the Plaintiff a special form of duty and the Plaintiff had declined it. Neither Dr Sprod or Dr Spragg suggested that the Plaintiff should be allocated specially supervised duties and, although Dr Milton recommended transfer to a one-man station for a time, there is no evidence that at any relevant time so far as this complaint is concerned, such a posting was available.
413 The Plaintiff also declined the possibility of a non-operational position when Dr McGinty raised the topic.
414 No doubt it can be argued that there were a number of matters that should have alerted the Defendant or the Plaintiff's superiors to the need for the treatment of the nature of that referred to in the complaint in sub-paragraph (vii), including:-
The indications in the notes on the Psychology Section file indicating the Plaintiff was in a somewhat vulnerable state at the time he went to Menindee;
The stress apparent from the note of 6 September in that file;
The dismissal of his complaints against Constable Strong,
The terms of Constable Blayden's report of 1 December, including the statement that the Plaintiff had some form of mental disorder;
The fact of the Plaintiff being sent to Sydney for psychological testing;
The termination of the Plaintiff's service in Menindee; and
The remarks of Superintendent Allen when informing the Plaintiff of that termination, remarks that were calculated to depress and damage significantly the self esteem of anyone to whom they were addressed.
415 On the other hand, in none of the medical reports between 1 December 1991 and 12 February 1992 is it suggested that the Plaintiff should have any of the treatment referred to in sub-paragraph (vii). Dr Milton in his report of 18 December was rather positive about the Plaintiff's mental state.
416 Dr Sprod's certificate of 31 December, when corrected, informed the Defendant that the Plaintiff was unfit for work for 1 month, that the Plaintiff was suffering from stress, and in the sections for specification of "Further action required" and "Specialised rehabilitation required" said no more than "should be allowed to travel and relax during time off". Thus this certificate did not suggest any further medical or psychological treatment was required, notwithstanding the form of certificate invited comment of such a nature. The third report in this period was that of Dr Spragg and he also did not suggest that the Plaintiff needed any such treatment. In these circumstances, I reject also so much of the complaint in sub-paragraph (vii) as relates to Broken Hill. I should add that there was no evidence of the practicability of providing treatment in Broken Hill of the nature of that claimed.
417 The Sydney component of the complaint in paragraph (vii) is affected by similar considerations as relate of sub-paragraph (viii) although it might also be noted that there was no evidence that the Sydney based services were diagnostic only.
418 In support of sub-paragraphs (viii) and (ix), counsel for the Plaintiff drew attention to a number of documents prepared by officers of the Defendant including that of 5 August from the Senior Rehabilitation Officer, and that of 27 February signed by Mr Doak and to the fact that it was Dr McGinty who initiated the Plaintiff's discharge. However, there also has to be taken into account in relation to these complaints that from early January until mid July 1992, the Plaintiff was being seen regularly by Dr Spragg, who never suggested that rehabilitation within the Police Service was a viable option, who wrote to Dr McGinty in July saying that he saw little hope of rehabilitation of the Plaintiff in the Service and who in August told Dr McGinty that the Plaintiff's condition had deteriorated and advised his discharge.
419 Dr McGinty's own observations of the Plaintiff, recorded in notes to which I have referred are also relevant. There is no evidence to support any thought that they are not accurate or that, in light of them and the other information that the Defendant had, it was unreasonable or breached any duty of care, in leaving the Plaintiff's treatment to Dr Spragg or in not taking the initiative in deciding what care, treatment or rehabilitation the Plaintiff should have. I would not so conclude in the absence of such evidence. The complaints contained in so much of sub-paragraph (vii) as related to Sydney and in sub-paragraph (viii) are not made out.
420 It is not clear what is meant by sub-paragraph (ix). The Plaintiff was discharged on the ground he was unfit for service having been so certified by a certificate issued by the Police Superannuation Advisory Committee on the ground that he suffered a "severe personality disorder with latent or chronic schizophrenia", a conclusion that echoed the then recently expressed opinions of Dr Harley and Dr Bell. Dr Spragg's diagnoses of February and August 1992 were that the Plaintiff was honest, conscientious and obsessional, that he had been let down by the Police Service that was supporting persons who had been guilty of misconduct and this amounted to, or was perceived by the Plaintiff to be, such a loss of control as to lead to a catastrophic reaction - one that could only be cured by a change to the Police Service ethos.
421 As between the Plaintiff and the Defendant, the decision of Judge Geraghty means that Drs Harley and Bell were wrong but in the circumstances prevailing at the time of the Plaintiff's discharge, it is impossible to say that there was some breach of duty or misconduct by the Defendant in following the opinions expressed in their reports.
422 This conclusion makes it unnecessary to pursue the fact that in December 1992, after the Plaintiff's discharge, Dr Spragg expressed a view as to the Plaintiff's condition, different at least in emphasis, from that expressed in February and August and also what would have been required of the Defendant to give effect or weight to Dr Spragg's views so far as they had been expressed at the time of the Plaintiff's discharge.
423 Complaint was also made that the Plaintiff was interviewed by the Internal Affairs Officers in Menindee - a location calculated to bring to the attention of other police the fact of the Plaintiff having complained. I agree that the interviewing of the Plaintiff at Menindee was likely to have this effect but so did so many other events, such as Sergeant Burrows' enquiries and interviews with Mr and Mrs Papalouca, that I am confident the choice of location for the interview had no operative effect so far as Constables Blayden and Strong were concerned. On the other hand, it does seem likely that the fact the interview occurred in Menindee strengthened the Plaintiff's view that the Police Force had broken its obligations to him by way of confidentiality, absence of victimisation and (favourable) recognition.
424 In the above discussion, I have not sought to deal with the various allegations of breach of the Defendant's duty of care or failures seriatim. What I have said is however sufficient to indicate that I have considered them. Summarising the above, many of the Plaintiff's complaints concerning breach of the Defendant's duty of care are not made out although I am satisfied that some are, viz. -
Not warning the Plaintiff that he or Constable Strong would have to be moved;
Not giving the Plaintiff the option of moving when he wished;
In effect informing Constable Strong on 24 October of the complaints against him (prior to any significant investigation of those complaints);
Victimisation or harassment of the Plaintiff -
In the making of the complaints on and around 1 November 1991 (and the inevitable even if appropriate investigation of them);
In cutting off of the Plaintiff's telephone connection without warning or prior explanation;
In prohibiting the Plaintiff using the Menindee station computer, and then requiring that his use be supervised by Constable Strong;
Constable Strong's mocking of the Plaintiff when the latter's appointments were returned to him.
Deciding to transfer the Plaintiff to Liverpool Police Station and on or about 30 December 1991 informing him to that effect.
425 There is another facet of events that also bears comment. In August and October the Plaintiff had made complaint about Constable Strong. At each time the Plaintiff was assured of confidentiality. This did not occur and the Plaintiff was transferred away in circumstances where it must have appeared to him both that no substantial investigation of his complaints had occurred and he was suffering because he had made complaint. Particularly, but not exclusively, because of his vulnerability of which the Defendant was aware, it seems to me that the Defendant also breached its duty of care by not taking far more steps than it did to minimise the possibility of a severe adverse psychological reaction to events. The risk was clearly foreseeable, by no means insignificant, and one that required no great expense, difficulty or inconvenience to minimise.
426 Actions that could have been taken include giving the Plaintiff the warning or option I have mentioned and transferring the Plaintiff to another station, possibly in the country, calculated to minimise in the eyes of the Plaintiff the appearance that he was being victimised.
427 Complaint was also made that Inspector Allen's remarks to the Plaintiff on 30 December did not fairly reflect, and were indeed contrary to, Dr Milton's assessment made some 2 weeks earlier. The complaint is clearly made out.
428 There is a deal to be said for the view that other remarks to the effect that the people of Menindee did not like the Plaintiff and he did not fit in were unfair. They did not fairly reflect what persons who spoke to Sergeant Burrow said and of which Inspector Allen must have been aware. They did not reflect what Mr Poulos told Constable Arender and of which it is likely Inspector Allen was also aware. The reports or references that the Plaintiff had from persons at Tallimba also indicate that some of Inspector Allen's remarks, in their generality, were unjustified.
429 Of course Inspector Allen had other information. He had Constable Blayden's report of 1 December. He had discussed the position of the Plaintiff with Assistant Commissioner Peate who said that he had spoken to aboriginal elders in Menindee and they had reported that they were not happy with the Plaintiff. (This evidence was not adduced as evidence of the truth of its contents.) There is nothing to suggest that Inspector Allen was aware of the Tallimba references.
430 It was not suggested to Inspector Allen that he had deliberately distorted the information that he had available to him and in these circumstances, I would not be justified in finding that Inspector Allen's actions or words on 30 December amounted to victimisation or harassment of the Plaintiff. However, his remarks were clearly calculated to greatly hurt and damage the Plaintiff's self-esteem and, in light of the information Inspector Allen had, somewhat unfair.
431 Clearly Inspector Allen was entitled to tell the Plaintiff he was being transferred. Did his remarks otherwise amount to a breach of duty towards the Plaintiff? Certainly the Plaintiff's vulnerability, known to the Defendant, together with the positive parts of the reports of Dr Milton and Sergeant Burrows, argues for the view that Inspector Allen should have been less demoralising than he was in his remarks. However, it is going a long way to hold that the duty an employer owes an employee is breached by the making of remarks, justified or unjustified, calculated to damage an employee's self-esteem and, but for the extreme circumstances that prevailed in the Plaintiff's case, I would be prepared to take that step.
432 However, the circumstances here were extreme. The Plaintiff had, and the Defendant was on notice that the Plaintiff had, the vulnerability to which I have referred. He had taken the notoriously difficult step of informing on a colleague. His complaint had been met with counter-complaints. There was conflict with the other police at Menindee. The Plaintiff was being removed from a position he had sought. To denigrate him in the way Inspector Allen did in the face of the reports of Dr Milton and that part of Sergeant Burrows' report as indicated (to the extent that public opinion was sought), that the public had no concerns about the Plaintiff was a failure to avoid unnecessary risk of injury to the Plaintiff quite separate from Inspector Allen's statement that the Plaintiff was to be transferred to Liverpool, and was also a breach of the Defendant's duty of care towards the Plaintiff. In the circumstances, the fact that Constable Blayden may have held, and expressed to Inspector Allen, a different view, provides no justification for Inspector Allen saying what he did.
433 Detailed and thorough explanation and counselling rather than the demoralising remarks of Inspector Allen was other action that the Defendant could have taken to minimise the possibility of the Plaintiff suffering a severe adverse psychological reaction to events.
434 All of these breaches are encompassed within the fairly general allegations in the Amended Statement of Claim.
435 Of course the issue arises whether, if the Defendant had not been guilty of some of all of the breaches that I have identified, the Plaintiff would not have suffered the psychological or psychiatric condition he did. Clearly this is very much a matter of impression but when regard is had to the fact that the evidence, other than that of Constable Blayden, tends to indicate that the major deterioration in the Plaintiff seems to have firstly occurred after the 30 December meeting with Inspector Allen, the probabilities favour the Plaintiff.
436 The Plaintiff also claimed in contract although in practical terms this adds nothing to his claim in tort with which I have dealt.
Plaintiff's Mental Condition
437 It was submitted on behalf of the Defendant that
(i) The Plaintiff did not give evidence supportive of the injuries and disabilities asserted in the Amended Statement of Claim and, absent such direct evidence, the Court should not find that the Plaintiff suffers from them;
(ii) The Court should find that the Plaintiff suffers from Temporal Lobe Epilepsy and that this pre-dated any service in the Police Force at Menindee; and
(iii) The Court should find in accordance with the opinions of Dr Bell and Mr Gubbay.
438 These submissions should be rejected. So far as the third is concerned, counsel for the Plaintiff submitted that the Defendant was estopped by the decision of Judge Geraghty from relying on the opinion of these persons. The issue before his Honour, who delivered his decision in September 1998 was whether the Plaintiff's condition of being "unfit for police service due to an adjustment disorder with depressed and anxious moods" was the result of his police service. His Honour found that it was. The condition had been found by the Disputes Committee of the State Authorities Superannuation Board to exist and, although not in issue before his Honour, was a fundamental and common assumption in the proceedings before him.
439 As has been said, Mr Gubbay's opinion, expressed in January 2003, was that the Plaintiff had largely if not completely feigned psychological disturbance, that he exhibited no evidence of disturbance of reasoning or judgment and his aberrant behaviour was functional.
440 Dr Bell's opinion is somewhat more convoluted. Having in 1992 diagnosed the Plaintiff as suffering from a severe personality disorder and possibly chronic schizophrenia in consequence of genetic and early environmental factors, in 2006 he changed his mind concerning the topic of schizophrenia, adding that if "an adjustment disorder with depressed and anxious mood" be the agreed label for the Plaintiff, he still suffered from it, that the Plaintiff was disturbed to an extraordinary degree for a person with just a personality disorder, and behaved in the way he did to manipulate others rather than because he was psychotic.
441 Clearly this last part of Dr Bell's opinion and Mr Gubbay's views are inconsistent with the assumption in the proceedings before Judge Geraghty. There is no suggestion that there has been any relevant change to the Plaintiff's condition between September 1998 and 2006. Is the Defendant estopped by Judge Geraghty's decision from relying on these parts of the evidence of these two experts?
442 In my view it is not. The proceedings before Judge Geraghty were an appeal under s21(1)(b) of the Police Regulation (Superannuation) Act. There is nothing in that section, and no other provision to which I was taken, that allowed the Commissioner to challenge in those proceedings the earlier decision of the Disputes Committee of the State Superannuation Board. Hence, an assumption upon which Judge Geraghty proceeded but not something he decided cannot found an estoppel - Vitosh v Brisbane City Council (1955) 93 CLR 622 at 629.
443 Furthermore, nothing was put before me to indicate that the Disputes Committee of the State Superannuation Board was the type of tribunal whose decision can found an estoppel - see Pastas v Commonwealth (1966) 9 FLR 152.
444 But even though the Defendant is not estopped in this area, I would not accept the conclusions of these two experts. In my judgment, the Plaintiff's conduct is not feigned but a product of a psychiatric or psychological condition. The vast majority of doctors' opinions indicate the Plaintiff suffers from a severe psychological, psychiatric or mental condition. The evidence of his conduct over the years leads to the same conclusion and so does my own impression of him. To my mind, it is clear that the Plaintiff is angry, possibly the most bitter person I have come across, irrational in many, possibly most, of his judgments and sees almost every event that is not as he wishes it to be as someone else's fault. It is probable that these feelings are due in part to the loss of the Plaintiff's police career that I accept he valued very highly.
445 The Plaintiff's contention that the Defendant is estopped from contending that the Plaintiff suffers from temporal lobe epilepsy and, though hardly pressed, that the Plaintiff's condition is schizophrenia should also be rejected. But again in any event I am persuaded by the vast majority of the medical opinions that the Plaintiff does not suffer from either of these conditions.
446 The rejection of these arguments of the Defendant means that the precise label that is put on the Plaintiff's severe psychiatric, psychological or mental condition is unimportant. It is clear from a consideration of the various reports that, for present purposes, there is not a great deal to choose between many of the descriptions given to the Plaintiff's condition. The Campbelltown Hospital report of February 1992 signed Dr Jenkins and Dr Yeoh recorded a diagnosis of "Adjustment disorder with depressed mood". Dr Spragg is of the view the Plaintiff suffers from an "adjustment disorder with depressed and anxious moods". Dr Canaris prefers "post traumatic stress disorder" although he accepts that Dr Spragg's diagnosis fits reasonably well provided it is recognised that the condition is "severe, chronic and disabling". Dr Barclay thinks the Plaintiff suffers from "a reactive anxiety depression, complicated by dissociative states. Dr Cole favours "post traumatic stress disorder" though thinks the difference between him and Dr Spragg might be mainly semantics.
447 Dr Harley favours a severe personality disorder and latent, schizophrenia. Dr Petroff thinks the Plaintiff to be suffering from "a chronic adjustment disorder with depressed, anxious and angry moods." Dr Bell accepts that the Plaintiff suffers from a severe personality disorder though behaves the way he does to manipulate rather than because he is psychotic.
448 Forced to choose, "an adjustment disorder with depressed and anxious moods" is by far the most supported description - and the one I find.
449 Counsel for the Plaintiff provided a detailed schedule of injuries and disabilities said to have been suffered by the Plaintiff, together with reference to the various reports where these matters were mentioned. The non-physical injuries so identified were:-
(i) Shock
(ii) Psychological injury
(iii) Psychiatric Injury
(iv) Nervous and/or anxiety state or condition
(v) Severe post traumatic stress disorder;
(vi) Reactive anxiety depression and dissociative states;
(vI) Adjustment disorder with depressed and anxious moods
450 I have held that the Plaintiff does not suffer from the conditions referred to in sub-paragraphs (v) and (vi). Medical reports indicated that he suffered shock. It follows from the findings I have made that I am satisfied that his injuries fall within the descriptions in sub-paragraphs (ii) to (iv).