Briggs v State of New South Wales - [2015] NSWDC 235 - NSWDC 2015 case summary — Zoe

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Briggs v State of New South Wales

[2015] NSWDC 235

District Court of NSW|2015-10-09

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At a glance

Source facts

Court

District Court of NSW

Decision date

2015-10-09

Catchwords

(1986) 160 CLR 301 Brisbane South Regional Health Authority v Taylor [1996] HCA 25
(1996) 186 CLR 541 Browne v Dunn (1894) 6 R 67 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Fox v Wood [1981] HCA 41
(1981) 148 CLR 438 Graham v Baker [1961] HCA 48
(1961) 106 CLR 340 ITEK Graphix Pty Ltd v Elliott [2002] NSWCA 104

Source

Original judgment source is linked above.

Catchwords

(1986) 160 CLR 301 Brisbane South Regional Health Authority v Taylor [1996] HCA 25(1996) 186 CLR 541 Browne v Dunn (1894) 6 R 67 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Fox v Wood [1981] HCA 41(1981) 148 CLR 438 Graham v Baker [1961] HCA 48(1961) 106 CLR 340 ITEK Graphix Pty Ltd v Elliott [2002] NSWCA 104(2002) 54 NSWLR 207 Koehler v Cerebos (Australia) Ltd [2005] HCA 15(2000) 205 CLR 254 Mt Isa Mines Ltd v Pusey [1970] HCA 60(1970) 125 CLR 383 Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42(2007) 234 CLR 330 S v State of NSW [2009] NSWCA 164 Smith v Grant [2006] NSWCA 244(2006) NSWLR 735 State of NSW v Fahy [2007] HCA 20(2007) 232 CLR 486 Vairy v Wyong Shire Council [2005] HCA 62(2005) 223 CLR 422 Wyong Shire Council v Shirt [1980] HCA 12

Judgment (82 paragraphs)

[1]

Table of Contents Plaintiff's claim [1] - [5] Plaintiff's application for leave to proceed [6] - [7] Defendant's position [8] - [13] Issues [14] - [17] Evidence overview [18] - [20] Credit [21] - [36] Facts [37] - [369] Plaintiff's background [38] - [49] Initial police career [50] - [55] Detective training [56] - [59] Sentinel events of 31 July 2003 [60] - [69] Promotion to detective senior constable [70] - [76] Transfer to Gang Squad [77] - [80] Promotion to sergeant [81] - [82] Transfer to Rose Bay [83] - [88] Leave for marriage and honeymoon [89] Return to work at Rose Bay [90] - [92] Decline in ability to cope [93] - [96] Extended leave [97] - [100] Wife's pregnancy with twins in 2011 [101] July 2011 request for change of duties [102] - [109] Plaintiff's emotional reaction to birth of twins [110] - [112] October 2011 - return to operational duties [113] - [122] Application for transfer: Exhibit "D" [123] - [141] Precipitating incident - 16 November 2011 [142] - [146] Sick leave [147] - [148] Medical and allied treatment [149] - [165] "Ten foot tall and bullet proof" [166] - [170] Defendant's construction of events [171] - [183] Plaintiff's expectation of a return to work [184] - [196] Return to work on restricted duties [197] - [202] Initial contact with Professional Standards Command [203] - [204] Target testing for drug use [205] - [219] Interview by Professional Standards Command [220] - [237] Alleged secondary employment [238] - [279] Termination of employment [280] - [283] Future work prospects [284] - [293] Chronology of medical and allied reviews [294] - [357] Resolution of conflicting medical opinions [358] - [359] Disabilities that remain [360] - [369] Relevant policing documents [370] - [407] Task Force Alpha Report - 1992 [371] - [382] Ombudsman's Report - 1999 [383] - [386] Rehabilitation (Return-to-Work) Policy [387] - [391] Restricted Duties Policy [392] - [397] Complaints Handling Guidelines [398] - [407] Issue 1 - Grant of leave to proceed : s 151D of WC Act [408] - [424] Issue 2 - Alleged negligence [425] - [511] Particulars of negligence [426] Principles for determining breach of duty of care [427] - [430] Foreseeability of psychological harm [431] - [437] SIDS incident as initiating factor [438] - [439] Employer's response to SIDS incident [440] - [448] Events between July 2003 and July 2011 [449] - [476] Disclosure of "struggling" in July 2011 [477] - [498] Events between August 2011 and October 2011 [499] - [501] Events between 19 October 2011 and 16 November 2011 [502] Events between November 2011 and January 2013 [503] - [510] Conclusions on breach of duty of care [511] Issue 3 - Causation [512] - [548] Principles for determining causation [513] - [516] SIDS incident on the foundation [517] - [524] July 2003 to July 2011 [525] - [527] Disclosure of "struggling" in July 2011 [528] - [535] August 2011 to 16 November 2011 [536] - [539] Events occurring after 16 November 2011 [540] - [546] Conclusions on causation [547] - [548] Issue 4 - Alleged contributory negligence [549] Issue 5 - Mitigation : s 151L of the WC Act [550] - [556] Issue 6 - Assessment of damages [557] - [602] Past economic loss [558] - [578] Fox v Wood [579] Future loss of earning capacity [580] - [599] Past loss of superannuation [600] Future loss of superannuation [601] Summary of damages assessment [602] Disposition [603] Costs [604] Orders [605]

[4]

Defendant's position

The defendant's resistance of the plaintiff's claim was largely founded upon an attack on the plaintiff's integrity and credit. The defendant also relied upon sceptical comments, based on speculation about aspects of the plaintiff's claim, made by two non-treating consultant psychiatrists who had been engaged on behalf of the defendant to conduct a file review of the plaintiff's claim, without having beforehand had the benefit of an examination of the plaintiff.
In defending the plaintiff's claim, the defendant obtained statements from a number of the plaintiff's superior officers. Those statements contained unsubstantiated hearsay and opinion evidence: Exhibit "2", Tab 5 par 31; Tab 6 par 13 and par 28.
Following objections, those statements were only admitted into evidence for the limited purpose of revealing the nature of the material that the consultant psychiatrists had been asked to consider. The makers of those statements, Superintendent Joyce, Inspector Greene and Sergeant Browning, were not called to give evidence.
In such circumstances, those comments must be seen to carry only limited evidentiary value that was outweighed by the unfair and prejudicial content which could not be tested as the defendant indicated the makers of those statements would not be called to give oral evidence. That limitation was noted as the condition of the tender of those statements: s 136 of the Evidence Act 1995: T248.24 - T249.8. As a result, and for the reasons set out in my credit findings, wherever the content of those statements conflict with the evidence of the plaintiff, I prefer and accept the evidence of the plaintiff.
Neither of the two psychiatrists who had undertaken a file review of the plaintiff's case had been given the opportunity of examining the plaintiff before they provided their comments. They had merely been asked to provide a commentary on aspects of the plaintiff's case based on their respective file reviews which involved them only considering materials and reports provided to them. Some of those materials, which apparently suggested credit issues on the plaintiff's part, were not in evidence. In such circumstances, the reports based on file reviews without an examination of the plaintiff carry very little probative value in a case of this kind.
In its filed defence, the defendant pleaded in the alternative that there was contributory negligence on the part of the plaintiff, and that the plaintiff had relevantly failed to mitigate his damages.

[7]

Credit

On behalf of the plaintiff, in essence, it was submitted that his evidence was credible and satisfactory in all material respects, and could be relied upon for the purposes of arriving at the required findings of fact.
In contrast, the defendant argued that the plaintiff was neither a credible nor a reliable witness on contentious matters of fact. The defendant made numerous, wide-ranging and overlapping submissions that sought to criticise the basis of the plaintiff's case: T263 - T285.
The defendant also submitted that the plaintiff's claim of incapacity for work should be viewed with a critical eye: T285.11. The defendant argued that on the crucial issue of why the plaintiff had left his work, the contemporaneous materials were more instructive than the evidence of the plaintiff. The defendant suggested that the plaintiff left his work due to dissatisfaction with his conditions of work rather than as a result of psychological illness: T263.19 - T263.30. Insofar as that submission was based on the statements tendered by the defendant where the makers of those statements were not called to give evidence, I do not take those statements to be a sound basis upon which to contradict the evidence of the plaintiff: Exhibit "2", Tabs 4, 5 and 6.
The defendant's submissions on credit also focussed on the plaintiff's domestic arrangements. The defendant submitted the plaintiff's evidence should not be accepted on its face on the matters he described regarding his domestic circumstances and as to the extent of his involvement in assisting his wife's business: T268.15 - T268.20; T273.19.
The defendant also submitted that the plaintiff had made a clear effort to play down and to mislead in his evidence as to his involvement in his wife's business: T273.15 - T273.20. That submission requires a close analysis of the evidence on the subject of the plaintiff's alleged secondary employment and the travel undertaken by the plaintiff in the course of assisting his wife's business when he was not working on police duties.
The implication of the submissions made on behalf of the defendant was that before it could be accepted, the plaintiff's evidence required corroboration on matters of contention.
The defendant sought to downplay the plaintiff's sense of distress from his psychological conditions by pointing to his involvement in playing football and doing some things to assist his wife's business whilst he was off work and on compensation, thereby suggesting an incongruity in the plaintiff's situation compared to his evidence of disability: T277.43 - T278.8. That submission flew in the face of, and ignored the uncontradicted medical opinion from the plaintiff's treating psychiatrist, to the effect that such activities were beneficial to the management of the plaintiff's psychological illness: Exhibit "F", pp 21 - 22.
Amongst the defendant's criticisms, contentiously, it was argued that the plaintiff had been "disingenuous" or "cute" in respect of his explanation of the events relating to his case: T171.49 - T172.8; T272.33. The defendant also submitted, contentiously, that the plaintiff had exaggerated his evidence concerning his inability to work, and therefore, it was suggested, he had exaggerated the extent of his claimed damages: T158.29; T159.8; T159.23 - T160.5; T207.13; T207.36; T263.16.
The defendant's submissions included an unsupported hyperbole to the effect that the plaintiff had been "self-medicating" with "Corona" rather than seeking out employment: T284.29 - T284.48. As that specific allegation was not put to the plaintiff in cross-examination for his response, that submission must be rejected: Browne v Dunn (1894) 6 R 67.
The defendant argued, on the basis of an assumed acceptance of the above series of contentious propositions it had advanced, all of which were refuted by the plaintiff, that the expert medical and allied evidence that supported the plaintiff's case should be disregarded in favour of a finding that there was insufficient evidence to support the conclusions expressed in the reports relied upon by the plaintiff. The defendant made that submission notwithstanding that none of the authors of the reports relied upon by the plaintiff, and whose opinions the defendant sought to avoid, were required for cross-examination.
The disputed matters of fact implicit in the defendant's submissions will be analysed and resolved in the context in which they arise in the course of arriving at findings of fact and in the course of resolving the issues calling for decision.
For present purposes, it is sufficient to state, in summary form, contrary to that which was put on behalf of the defendant, that I found the plaintiff to be an impressive, satisfactory and truthful witness, and that his evidence could be safely relied upon and accepted as it stood, without the need for supportive corroborative evidence, as was suggested by the defendant. I am fortified in that view because when he was cross-examined, the plaintiff was prepared, without hesitation, to make appropriate concessions when these were required, even where these could be seen to have been against his interests. Examples of this may be seen at T135.15 - T135.17; T136.3 - T136.6.
In my assessment, having regard to the evidence as a whole, the defendant's attack on the plaintiff's credit has not been sustained. Furthermore, aspects of that attack, which suggested the plaintiff was giving evidence that was untrue, were made without cogent supporting evidence: T158.28 - T158.31; T159.40 - T160.14.
Unfortunately for the plaintiff, and for the reasons that will be set out in the appropriate context in the course of this judgment, the factual circumstances created by the Professional Standards Command within the NSW Police Force, by which the plaintiff's probity was questioned in the course of an internal affairs inquiry whilst he was on sick leave, and where questions concerning the plaintiff's probity were allowed to perpetuate up until the trial, have had the untoward damaging effect of worsening the plaintiff's work-related psychological problems.
This was because the questions raised by the plaintiff's employer concerning the plaintiff's probity as a police officer were left dangling and unresolved for an extended period of time, and without due consideration being given to his psychological situation. Those circumstances have left the plaintiff feeling a sense of betrayal and abandonment by his former employer, thus effectively precluding the redeployment of his skills in the NSW Police Force in any capacity.
For the reasons that will be identified in the context of considering the specific attacks made on the plaintiff's credit, I find there is no sound basis for sustaining any of the suggested adverse credit findings to be made against the plaintiff, and I reject in their entirety, the defendant's submissions to the contrary.

[9]

Plaintiff's background

The plaintiff was born in 1977. In his teenage years he was inspired to join the police force because he was impressed by what he saw as the positive role models amongst police officers who were parents of his friends.
Until the age of 14 years, the plaintiff and his family lived in Blacktown. In 1992 he moved with his family to the Central Coast of NSW. He completed his Higher School Certificate at the age of 17 years.
On leaving school the plaintiff held the ambition of becoming a police officer, but at that stage he was too young to apply for entry to the police force. He considered it was advisable to first obtain some trade qualifications: T23.10. He therefore took the opportunity to pursue a 3 year TAFE course and an associated 4 year apprenticeship as a shopfitter. He completed the TAFE course but he discontinued the apprenticeship when he was accepted into the training programme for the police force: T23.35 - T23.48.
In January 1999, the plaintiff entered the Police Academy at Goulburn to train as a police officer in the first year of operation of that program: T24.4 - T24.8.
At that time, despite some earlier football injuries, the plaintiff was in good physical and mental health. In 1996 he had a rotator cuff repair to his right shoulder. In 1997 he had an operation to reconstruct his right knee, due to a torn cruciate ligament. In 1998 he underwent a chondroplasty of his left knee. Those pre-existing health-related conditions were disclosed at the time of the plaintiff's application to join the police force: T24.39 - T25.13. Since his school years the plaintiff was active in his pursuit of rugby league. He was also an avid surfer. Whilst in the police force he continued in those activities until recent years, ceasing after the advent of the claim under present consideration: T22.45.
In the context of this case, it is significant that the police medical officer had passed the plaintiff fit for duty without restrictions at the outset of his career: T25.20. Over the 14 years of his police career, there was no evidence of any change in the plaintiff's fitness for duty status until he developed the psychological illness which is the subject of this claim.
In 2009, the plaintiff received a further football injury to his right shoulder. This was classed as a work-related injury because he was playing for the police team when he was injured: T43.35. In December 2010, he had some further surgery to his left knee following which he returned to work in early 2011: T43.39; T137.39.
Before the plaintiff was diagnosed with PTSD and an associated depression, he regarded himself as a career police officer who had sought promotion with the aim of achieving a senior supervisory and mentoring role for other officers: T43.22. He was keen and pro-active in his work and he believed he was able to cope with stressful situations: T27.45 - T28.4; T39.50; T52.5.
When the plaintiff was attached to Gosford Detectives, he and the others in the team in which he worked, received a significant award of official recognition and appreciation for the duties they performed between Christmas 2002 and February 2003, in which time an extraordinary number of serious crimes were investigated, thereby attracting that police commendation: T35.42 - T36.6; Exhibit "B".
In his personal life, the plaintiff has been married twice. He first married in October 2001: T26.21. He and his first wife have a 12 year old son born in 2003 from that marriage, which ended in mid-2005: T37.28. He continues to have an amicable arrangement with his first wife regarding shared custody and support of their son. In 2007 he had personal debts which resulted in him becoming bankrupt. He was discharged from that bankruptcy after the statutory period. The historical fact of that bankruptcy has no other relevance to this case: T113.29 - T113.50.
The plaintiff married for a second time on 9 April 2010: T48.10. In addition to his wife's children aged 6 and 8 from her previous marriage (T48.18), the plaintiff also has twins presently aged 4 years from his second marriage. They were born in August 2011: T55.15.
The plaintiff's family situation will be revisited in the context of consideration of the defendant's submissions concerning the claimed reasons for the plaintiff's changed attitude to his work and the events leading to his retirement.

[10]

Initial police career

In early 1999, the plaintiff commenced and completed an initial 3 month academic programme at the Police Academy: T24.5. He then completed a further 3 months of field training followed by a final 3 months of further training at the Police Academy. After graduation he was sworn and attested as a probationary constable on 21 December 1999: T25.24. He described this as one of the proudest moments of his life: T25.36.
Thereafter, the plaintiff approached his police career with a great deal of enthusiasm and ambition: T25.49. This was reflected in his successive promotions from trainee to detective constable, and then sergeant, all by the age of 33 years: T43.42. Initially, he was fortunate to have been conveniently stationed at Brisbane Waters Local Area Command, which was near where he resided with his parents: T25.27; T26.2.
On 21 December 2000, after serving his first year as a probationary constable, the plaintiff was confirmed as a constable of police: T26.18. In November 2002, at the age of 25 years, and after completing 3 years of general duties as a police officer, he commenced training as a detective at Gosford: T26.25. Whilst deployed there in general duties, he enjoyed his work. He enjoyed being at work, and in fact he had accumulated excess leave which he was required to convert to money in lieu of taking that leave: T26.41. The context of that evidence indicated the plaintiff's enthusiasm and commitment to his work.
Whilst the plaintiff was assigned to general duties, he was on vehicle patrols, or "on the trucks" almost all of the time: T27.5. He was variously rostered to work at Woy Woy, Gosford and Terrigal: T27.17. In the course of his general duties he was called upon to deal with instances of domestic violence, assaults, traffic accidents, pub brawls, suicides, and non-suspicious deaths that were occurring at a frequency commensurate with an ageing population on the Central Coast: T27.34.
In a typical shift in that period, it was not uncommon for the plaintiff to be required to deal with 4 - 5 cases of domestic violence per night, as well as attending upon pub brawls that occurred on Friday and Saturday nights: T27.36 - T27.44. He approached that work with enthusiasm. He took pride in sorting out those situations of conflict and in looking after people: T27.49; T28.47.
In his traffic work, the plaintiff was required to assist in attending upon fatal accidents, including to assist in the removal of bodies trapped in vehicles, and in the course of those duties he saw some particularly gruesome sights. The impression gained from the evidence was that he approached that work with professional impersonal detachment, and took such matters in his stride without apparent difficulty: T28.35 - T28.45. The unchallenged expert evaluation of those various circumstances was that a large part of the plaintiff's coping mechanisms depended upon his enthusiasm for the job, the experience of camaraderie, and belonging within a mutually supportive group that provided a general level of encouragement in the job: Exhibit "F", p 123.

[12]

Sentinel events of 31 July 2003

On 31 July 2003, a sentinel traumatic event occurred in the plaintiff's career as a police officer. He was called to a domestic emergency in Erina at a location which was not far from his home. He arrived at the scene at about the same time as ambulance personnel. He observed an infant aged about 9 months in the process of undergoing resuscitation attempts by the mother, who initially resisted ambulance personnel taking over from her. He then observed ambulance personnel performing resuscitation compressions, administering oxygen, and then injecting adrenaline, but unfortunately, the infant was not revived: T32.29 - T33.4.
On that occasion, the plaintiff's duties involved him in dealing with the course of, and the aftermath of those events, including physical and other interaction with the parents of the deceased infant in fraught circumstances where the mother of the infant was understandably hysterical. He accompanied the mother and the deceased infant to hospital. He remained in the same room with them for several hours and had to take a statement from the distraught mother whilst she continued to hold her deceased child.
The plaintiff described this experience as being very tough from his perspective. This was in part due to the fact that his first son was born about 2 months beforehand: T33.6 - T33.37. In that context, his duties on that day had an emotional or sensitising effect on him, the extent of which he did not realise at the time. He was unprepared for the circumstances and found himself overwhelmed. Those circumstances will require further consideration later in these reasons.
The plaintiff was not feeling good at the end of that shift. When he arrived home he became very upset when he picked his infant son up out of his bed and sat with him, thinking how fortunate he was: T33.44 - T33.48; Exhibit "2", Tab 1, par 43.
Several days later, the plaintiff and other police officers, about half a dozen in all, were called to attend a debriefing session conducted by a counsellor appointed by the police Employees Assistance Program ["EAP"]. The session took place in a meal room in a group setting. The plaintiff described those events as follows: "Q. What's your recollection of what the counsellor said? A. It was pretty much, you know, just a brief description of the event and how's everyone feeling. That was pretty much it, and was anyone having problems. Q. Sorry? A. Or is anyone having problems. Q. Did anyone say they were? A. No. Q. Were you all together? A. We were all together. Q. Did you think at that stage you were having problems? A. No. Q. So did you say anything? A. No. Q. Anything at all? A. I said I had a I said I had a son the same age and how lucky I am. Q. For how long do you think the debriefing went? What's your best recollection? A. 15 minutes. 15/20 minutes tops. Q. That was in early August 2003; is that right? A. I believe so. HIS HONOUR Q. Did the debriefing include any discussion on what you might expect to experience in the coming days, weeks or months? A. No." [T34.26 - T35.8]
At the time of the above EAP session, the plaintiff's attitude to the traumatic circumstances that led to the counselling was that the underlying circumstances were of the type the police were necessarily and inevitably exposed to in the course of carrying out their duties: T36.45 - T37.3.
That EAP session took place in early August 2003. The plaintiff remained in the police force for a further 8 years. In that time he was never asked to attend another such debriefing or other assessment or psychological test aimed at revealing, ventilating or discussing his feelings arising from traumatic events he had encountered in the course of his work: T35.15 - T35.38. The statement of Inspector Joyce tends to confirm the plaintiff's evidence in that, debriefing by the duty officer or supervisor according to the procedure for managing police officers who have attended scenes of death, may not always occur: Exhibit "2", Tab 5, par 27. This is a matter of some significance in a police culture where it was a perceived requirement not to display any sign of weakness or to reveal feelings or vulnerabilities in the professional environment: Exhibit "F", p 124.
The injury notification form concerning the events of 31 July 2003 was dated 18 November 2011: Exhibit "F", pp 1 - 2. Although the report contains an inaccuracy describing the plaintiff's actions regarding CPR on the day in question, the error is not that of the plaintiff, and nothing turns on that error of description: T215.40. The delay in the plaintiff lodging that notification was because until that time, he had not realised he had a diagnosable psychological illness due to his work.
As part of the attack on the plaintiff's credit, without supporting evidence, and contrary to the views of the various psychiatric and psychological opinions that were in agreement that the SIDS incident had relevantly affected the plaintiff, the defendant formally challenged the plaintiff to the effect that no part of his work between 2003 and 2011 had contributed to him going off work in 2011. The plaintiff disagreed with that proposition: T135.28; T155.35.
I accept the plaintiff's hindsight rebuttal of that proposition even though in doing so he was expressing his personal opinion, no doubt aided by the opinions of the clinicians whom he has consulted about the underlying factual circumstances. The plaintiff was entitled to disagree with the proposition put to him in that regard as the question called for his opinion. Absent challenges to the underlying opinions of the treating and assessing practitioners, I accept the plaintiff's evidence on the subject of that challenge, and his opinion, on that account.

[13]

Promotion to detective senior constable

Shortly after the plaintiff's exposure to the SIDS episode in July 2003, he was promoted to the rank of detective constable and he continued to work in a plain clothes capacity. On 24 December 2004 he was promoted to the rank of senior constable, and by July 2005 he had completed his detective's training and became a detective senior constable: T37.7 - T37.25.
By that time, in his personal life, the plaintiff had separated from his first wife: T37.27. He described having drifted apart from his first wife because of the demands of police work. Elsewhere, this was stated to have been attributed to the effects or demands of his work: Exhibit "F", pp 14 and 122. He nevertheless maintained a good relationship with his first wife. He has continued to support, have contact with, and shares the custody of, his son by his first marriage: T40.20.
During the plaintiff's time as a detective at Gosford, his work involved him being exposed to some gruesome events, including horrific murders, an instance of self-mutilation by a mentally ill person who had self-amputated his penis, suicides, the need to attend autopsies, as well as dealing with assaults and armed robberies. The cumulative effect of those experiences had an effect on the plaintiff's work in that he recognised it as having had a toll on him. He stated that he started to feel a little dejected and "more numb" and less pro-active, and "just shut off to just the job, to my family, to friends": T40.13; T41.43. This was consistent with the description by Dr Peters of the plaintiff having anxiety based symptoms and accumulated stress over many years: Exhibit "F", p 4.
At the time of those events, the plaintiff kept those feelings to himself. He did not seek help to ventilate or to deal with those feelings and it seems he regarded such circumstances as being part of what police officers just had to accept as part of their role. Whilst in that role, as part of a team, the plaintiff received the significant commendation for his work as already identified: T37.30; Exhibit "B".
In that period, the plaintiff remained unaware that he had psychological problems that had their origins in his work as a police officer. He gained the insight to that effect at a much later stage, with the benefit of professional assistance from the practitioners who have provided reports for the purpose of these proceedings.
At around that time, the plaintiff sought a transfer to a position that involved less hands-on policing work and which was more commensurate with his detective training. This seems to have been a natural career progression at his age and stage of experience.
In that time, in his recreational activities, the plaintiff continued to play representative rugby league for the NSW Police Force. He also continued to be a keen surfer: T40.30 - T40.38. His earlier knee and shoulder injuries, and the surgery he had undergone for those injuries, seemed not to have interfered with his long-term physical fitness for work.

[16]

Transfer to Rose Bay

On 28 February 2010, in accordance with what had been intimated to him beforehand, the plaintiff was promoted to the rank of sergeant. He had looked around for what he thought was a suitable job in that role and he applied for a transfer to an available sergeant's position at Rose Bay Police Station. He had understood that position would be a quiet posting where he would work as a supervisor and station manager without the need to "go out on the trucks" as he understood that position involved administrative duties: T44.33 - T44.39.
Until he achieved the posting to Rose Bay, the plaintiff had not intimated to anyone any aspect of the negative feelings that had evolved concerning his work. Nor had he revealed anything of his changed reactions to people and how he dealt with them when he was out in the field in terms of loss of patience, temper, and altered disposition. Instead, he abided by what he described as the culture in the police force with regard to coping with work-related difficulties, and just "suck it up": T43.14; T55.6. However, after a while, he determined he should seek other duties that did not involve frontline policing: T41.22.
Ultimately, the plaintiff's understanding of the duties he would be performing at Rose Bay police station proved to be incorrect. It transpired that, unlike the position with sergeants who were rostered to work at Gosford, at Rose Bay there were positions for both internal and external supervisory duties, and he was allocated to the non-administrative external duties that required him to "work the trucks": T44.20 - T43.38.
The plaintiff's Rose Bay posting covered the areas of Rushcutters' Bay, Rose Bay, Point Piper, Double Bay, Watson's Bay, Paddington and parts of Bondi. Those areas included some busy hotels and the Gap, the latter being a location where it was known that at times some people would go for the purpose of attempting suicide: T44.49 - T46.36. Part of the plaintiff's duties involved him in attending at the Gap to seek to investigate and to dissuade such attempts, or to deal with the consequences where such attempts were successful.
The plaintiff found aspects of those duties stressful. He found he was attending at the Gap on average twice per week. He was also involved in searches and body retrievals on occasions: T46.38 - T47.1. Whilst stationed at Rose Bay, for the first 6 weeks of his time there, the plaintiff described himself as being on a learning curve concerning the duties he was required to carry out: T48.35. The plaintiff reported that within a reasonably short time after his transfer to Rose Bay, the plaintiff became aware of feeling irritable, resentful and unsympathetic towards the public, and particularly irritable with people who were difficult or critical of police: Exhibit "F", p 126.
By this time, the plaintiff had formed a new relationship. He was planning to re-marry and to take on new domestic responsibilities. He continued to reside on the Central Coast and he continued to commute to Rose Bay for shift work, and the travel was onerous. In its submissions, the defendant sought to make much of those circumstances as being a suggested reason why the plaintiff wanted to cease working. Those circumstances will be further considered in the context of such submissions.

[18]

Return to work at Rose Bay

When the plaintiff returned to sergeant's duties at Rose Bay following his honeymoon, he found his work duties had become more onerous than was previously the case because of staff shortages which had resulted in sergeants such as himself being rostered to work onto "truck" duties: T48.47.
It is clear that at that time the plaintiff did not want to continue carrying out general duties work on the trucks. He was unhappy about being rostered to carry out that work because he was feeling annoyed, dejected, and angry when dealing with people. He felt that police were being disrespected by sections of the community, and he was concerned that in such circumstances, in his professional reactions, he might "step across the line" when responding to situations when he was called upon to do so: T49.13.
That latter circumstance did not sit well with the plaintiff. At that time he found it difficult to control his anger and at times he found himself getting heavy-handed in the execution of his duties: T48.39 - T49.22. He explained the evolution of those attitudes and circumstances as follows: "… A. It seemed to be a gradual experience that just got worse. So it got to the point where those times that I was rostered on to work the truck, that I would pull myself off or I would actually change the roster for myself to go and work in the station. So I was technically operational and I would put one of the constables out on the road and I would work in the station to reduce my level of contact with the general public. ROBERTS Q. Even though you were able on occasions to roster yourself off, were there many occasions where you were unable to? A. Yeah. Q. So you did continue to work the trucks a lot of the time? A. Yes. Q. As well as I I overlooked asking you. As well as being involved in the recovery of the bodies of successful suicides, did you were you also regularly required to attend on persons who were apparently contemplating suicide? A. Yes. Q. How did you deal with those sort of people? Initially. A. Well initially my very first time I turned up at Rose Bay, I had a guy, he was on the other side of the fence. I jumped the fence and pulled him over. So I'd put myself in a position of harm but - HIS HONOUR Q. This is at The Gap is it? A. This is at The Gap, yeah. Ordinarily we're supposed to contact negotiators. ROBERTS Q. As time went by did you become less sympathetic in your approach to these people? A. I did, yes." [T49.26 - T50.10]

[22]

July 2011 request for change of duties

Before the birth of the twins, and before going on leave, the plaintiff stated that he had asked his senior officer, Inspector Sipos, for a change in his duties. In that discussion, he made a disclosure to the effect that he was struggling, that he wanted to "get off the truck" and needed a break, and that he was prepared to accept a lesser position as brief handling manager which was work at a level below that of a sergeant: T55.31 - T57.25. It is relevant to set out the plaintiff's description of that communication in full, which was in the following terms: "Q. Shortly prior to that had you made a request for some change in duties? A. I did. Q. To whom did you first make the request? A. To Inspector Sipos. Inspector Sipos. Q. What did you say to Inspector Sipos? A. Well I saw that they had advertised the position for a a brief handling manager and I said to him I asked him if it was okay if I could put in for that because I was struggling and I wanted to get off the truck and I needed a break. He said to me "It's not a sergeant's position but you know mate you can put in for it if you like and we'll see what happens" Q. All right, now can I just ask you then. You said you used the words "I'm struggling and I need a break"? A. Yes. Q. Were they the words you actually used? A. Something along those lines, yeah. Q. Did he ask you what it was that was causing you to be struggling? A. No. Q. So he said make an application and see how you go essentially? A. Pretty much, yeah. Q. Did you have some subsequent discussion, before going off on your parental leave or paternal leave, with some other senior officer? A. I did. I can't remember his name because he was very new at the time but he was a crime manager Q. A crime manager? What rank was he? A. Chief superintendant. Sorry, chief inspector. And because they'd received all of the expressions of interest and they'd discussed it at the crime manager's meeting Q. That is expressions of interest, what do you mean by that? A. Well expressions of interest for that position, so Q. Had you completed such an expression of interest? A. Yes. Q. In documentary form? A. Pretty certain I did because it was an advertised position so I'm pretty sure I had to. HIS HONOUR Q. Did that involve filling out a form or did it involve writing something that demonstrated your interest? A. Yes. Q. Which was it? A. A report. It's called an expression of interest so you're desiring to and it's almost like a mini job application. Q. Thank you. A. So it was discussed and I was in the supervisor's office one day. The crime manager came up and he said to me "I know that you've put in to do the crime the brief handling role. The crime coordinator's position is also available." Which was a sergeant's position, different role. Different sort of hours, different locations and they gave me the option. He said, "Would that suit you better? Would you prefer to do that or would you prefer to the brief handling?" and I felt at the time that the brief handling role suited me for what I wanted to do. And the last of the conversation was "Well no worries, when you get back from leave you'll be up there", and it became common knowledge. ROBERTS Q. Well don't worry about the common knowledge. A. Sorry. Q. Did that officer, the crime manager, say to you "Why do you want to go back to being why do you want to go the brief handling job, it's not even a sergeant's job?"? A. No. HIS HONOUR Q. Did the change in position involve a reduction in salary? A. No. Q. Or other entitlements? A. Yeah, I wouldn't have got shift allowances. I would have lost my shift allowances because it was just like a 9 to 5 type. Q. So what would that have meant by way of difference in money terms? A. Probably a couple of hundred dollars a week I suppose in shift penalties. I guess. Q. No one ever asked you why you were wanting to do this? A. No, not that first conversation I had with Andrew, I said I was just struggling, I just want to need a break and want to get off the truck. And there was never -…"
The defendant called Detective Inspector Sipos to give evidence. He was the duty officer in charge of "man management" at Rose Bay Local Area Command until September 2012: T233.7 - T233.15; T235.8. He only had a vague impression of his conversations with the plaintiff in that time. He thought the conversation he had with the plaintiff was about him wanting to have regular working hours, Monday to Friday: T229.19 - T229.30.
Although the plaintiff fairly conceded he was struggling with the commuting to and from work at that time, that was not the whole story behind his request for changed work duties. The evidence of Inspector Sipos throws no significant light on that matter because of his limited recollection and because he did not explore with the plaintiff the reasons for him "struggling". In that regard I accept the plaintiff's evidence that his struggle related to the much more fundamental issue of how he was reacting to situations in the course of his work, leading him to become intolerant, short-tempered, angry and to over-react to situations in an untoward manner. This was in the context of a progressive build-up of overwhelming feelings where he had tried to keep his emotions to himself, together with a realisation he had lost some of his professional capabilities: Exhibit "F", p 127.
In cross-examination Inspector Sipos agreed that the position the plaintiff wanted to be considered for, namely that of brief handling manager, was an important quality assurance position which was not a sergeant's position, but was instead, a senior constable's position: T229.48 - T230.37.
Inspector Sipos agreed that if the plaintiff's request had been acceded to, it would have been a theoretical demotion and it would have involved some loss of income from shift allowances: T232.23 - T232.38.
Inspector Sipos was asked whether it was unusual for a young sergeant to want to forgo income and take a lesser role: T233.21 - T233.22. His responses to that question, at T233.40 - T234.28, were as follows: "ROBERTS Q. Unusual, wasn't it? A. I don't know if it's unusual. In this organisation there are opportunities where you don't have to work nightshift necessarily. That's not unusual not to want to work nightshift. I didn't like nightshift either. Q. But you see you don't know whether his request had anything to do with nightshift; do you? A. I don't know what his request had to do with. Q. I beg your pardon? A. I don't know what his request had to do with. Q. Precisely. You see what he said to you was that he was having trouble, he was struggling and he wanted to get off the track and needed a break; do you remember that? A. I don't remember that exact conversation. Q. Would you deny that the issue of being transferred to the brief handling job arose in the context where he said he was struggling and wanted to get off the truck and needed a break and he wanted to apply for the brief handling manager's job? MORGAN: I object to that, your Honour. The witness has already indicated he can't remember. ROBERTS: I'm asking him whether he denies it. HIS HONOUR: I'll allow the question. WITNESS: I don't deny the I just don't recall the conversation. ROBERTS Q. If such a conversation took place then as a duty officer to whom such a request was passed you had an obligation to investigate what it was that he was struggling with; did you not? A. Yeah, that could be correct."
When the plaintiff took leave in relation to the forthcoming birth of his twins, based on his understanding of his conversation with Inspector Sipos, he was expecting that on his return from leave, he would be re-allocated to the non-operational role of brief handling manager: T56.45. He had hoped this would help to preserve his police career: Exhibit "F", p 127. I accept the plaintiff's account of the discussions with Inspector Sipos in that regard.
The defendant downplayed the disclosure the plaintiff made to Inspector Sipos that he was struggling, submitting that "we had no chance of knowing that he was struggling because he did not tell anyone": T266.26 - T266.44. I do not accept that submission. In the context of the plaintiff's disclosure that he was struggling, I find that disclosure ought to have operated as a signal or a cue to his superior officer that something may be amiss with the plaintiff, and that this needed to be investigated or explored by discussion with him, in accordance with the obligation conceded by Inspector Sipos: T234.28.

[24]

October 2011 - return to operational duties

The plaintiff returned to work on 19 October 2011 after about 10 weeks extended leave: T58.25 - T58.31. The plaintiff had expected to return to work in the administrative role as the brief handling manager and on his return to duties was shocked to find that the position had instead been allocated to a probationary constable: T58.33 - T58.39. The plaintiff felt his application for that role had been ignored: Exhibit "F", p 127.
On the basis of the evidence of Inspector Sipos to the effect that position was a very important quality control position normally fulfilled by a senior constable, the appointment of a probationary constable to the role was difficult to understand: T230.7 - T230.32. The plaintiff's shocked reaction to that appointment, and to his own non-appointment to that role, is therefore also understandable.
The other alternative administrative duties position that had also previously been discussed with the plaintiff, namely that of the crime manager, which was also a 9 to 5 position, and for which the plaintiff was also suited, had by the time of the plaintiff's return from leave, been allocated to one of the other sergeants: T58.46 - T59.2.
The plaintiff therefore returned to operational duties in October 2011. In that capacity he was involved in a number of road-rage incidents which caused him great concern: T59.21. He had also over-reacted and escalated his responses in his dealings with an intoxicated man who had been abusive: T59.43 - T60.18. He then came to the realisation that he could no longer be involved in operational duties: T59.41; T60.5.
The plaintiff's response to that realisation was to seek, but not always successfully, to roster himself "off the trucks": T60.21 - T60.26. At that time, he did not raise with a senior officer, either his concerns, or his actions in response to those concerns. On that basis, the defendant submitted that the plaintiff's supervisors had no way of knowing he was experiencing problems connected with his work: T266.27; T266.43. That submission will be revisited in the consideration of Issue 2.
At around that time, in November 2011, an industrial issue emerged in the police force which caused a great deal of unrest amongst police personnel. This was to do with the applicable award for police hurt-on-duty, and with regard to police death and disability benefits claims. At that time, those issues caused significant industrial unrest and protests amongst police ranks. Those matters were also of some concern to the plaintiff at the time.
The defendant suggested that following the plaintiff's return from his honeymoon, and having ascertained that there were proposed changes to the death and disability benefits, this and an argued "crescendo occurring in 2011 … in the plaintiff's domestic life", was the cause of the plaintiff's dissatisfaction: T267.5. It was further suggested the plaintiff was at that time having doubts about the occupation he had chosen for himself: T263.45 - T264.3. In my view, the defendant's "crescendo" argument, which seemed to have been based on Exhibit "D", should be recognised as being an exaggerated over-dramatisation of the plaintiff's situation.
The defendant argued that it was the industrial issue over death and disability benefits that had caused the plaintiff's disenchantment with his work, an assertion that was denied by the plaintiff: T217.8 - T217.14.
I accept that the plaintiff's evidence that his concern over the emergent industrial issues was to a degree that was no more than was the case amongst his colleagues. The plaintiff's concern was that if something happened to police officers, either physically or mentally, he, like others in his position, would not be protected from the adverse impact of any such circumstances: T60.32 - T61.5.
At that time, with the benefit of the hindsight view permitted in a causation analysis that will be revisited later in these reasons, it is clear that the plaintiff was already affected mentally in his work, as can be seen from his over-reactions and other responses to circumstances whilst he was on duty. Such over-reactions, and his concerns over his future and that of his family if he were to be injured, must be seen in the context of the plaintiff's PTSD condition, although the plaintiff did not realise he had that condition at the time. However, he described his situation as being one in which his distress had built up to the point where it could no longer be contained by him. He was also worrying about being bashed in the workplace in the discharge of his duties: Exhibit "F", p 126. Although the plaintiff did not have a PTSD diagnosis at that time, he had become concerned that he was emotionally disturbed: Exhibit "F", p 127.

[25]

Application for transfer: Exhibit "D"

Two weeks before the plaintiff went off work on 16 November 2011, he had lodged an application for a special circumstances transfer: T66.40 - T66.45; Exhibit "D".
The defendant focussed upon the structure and terms of that transfer application to argue that its content did not contain any details suggesting the plaintiff had psychological problems relating to his work. Instead, the application pointed to special circumstances consisting of his wife's health and situation, and her need for his assistance. Without reciting the content of the whole document, in essence, the application referred to the difficulties for the family that arose from his shift work, and his 18 hours a day absence on the 4 days per week he commutes to and from the Central Coast. The plaintiff also referred to his own sleeping and concentration issues which he attributed to his concern for his family. He expressed his desire to be more readily available to support his family by working closer to his home.
The defendant suggested the document provided a better indication than did the plaintiff's evidence for the plaintiff's change of attitude to working in Rose Bay and to commuting from the Central Coast.
The plaintiff explained the absence of any reference in that application of any of his psychological difficulties by saying that because when he had previously intimated to his senior officer that he was struggling and needed a break and allocation to different duties, he thought that "they", being his superiors, really did not care about the issues with which he had been having difficulty, and for which he wanted assistance: T67.15; T140.24.
The plaintiff drew that conclusion from the fact that after he had intimated to his superior officer that he was struggling, and this was why he wanted to be assigned to the brief handling role, he was nevertheless overlooked for that position when the brief handling position had been filled: T67.1 - T67.15. I accept that as a result, the plaintiff gained the impression his superiors had not looked favourably upon his earlier expressed reasons for reallocation to non-operational duties, so he focussed instead on advancing other reasons in his application.
I accept the evidence of the plaintiff on the explanation as to why he structured his application for transfer back to the Brisbane Waters Local Area Command in the hope he would be assigned to non-operational duties such as working on the police assistance line which was basically a call centre manned by both sergeants and constables. I do not accept the defendant's argument to the contrary which relies upon a construction of events favouring a literal reliance without more, on the content of Exhibit "D", and which cited family reasons for the requested transfer.
I accept that the plaintiff felt he was not getting any assistance from his employer in response to his intimation that he was struggling, and that as a result, he looked to other legitimate reasons that were available to him, as he set out in Exhibit "D", in order to justify seeking a transfer on compassionate grounds: T140.19 - T140.24. The fact that the plaintiff did not again invoke the issue of his own struggle and his personal psychological factors in completing Exhibit "D" does not render that document unreliable in its content, or render it untrue. The defendant's submission was based on an argued view of the objective content of Exhibit "D" alone, without a consideration of the plaintiff's explanation, which was also relevant. The defendant's approach was based on the premises that the plaintiff's evidence should not be accepted. I consider that approach to be unjustified and to involve an unduly narrow view of the evidence as a whole.
I accept that at the time, the plaintiff knew he had problems in dealing and engaging with people, and with controlling his temper, yet at the same time, he did not know what the psychological condition was that manifested itself in those ways: T140.30. I do not accept that the plaintiff was being deceptive in any material way in his dealings with his employer in that regard when he submitted his application for transfer comprising Exhibit "D". His non-disclosure of the detail of his own psychological issues, and his earlier disclosure of only the tip of the metaphorical iceberg by making reference to "struggling", was in keeping with what he described as his understanding of the police culture on such matters.
Although Exhibit "D" primarily focussed upon the need of the plaintiff's wife for his presence and assistance to manage the needs of the children, the plaintiff also touched lightly on his own difficulties in sleeping, concentration and commuting. None of the content of the document has been shown to be untrue. Its structure was aimed at obtaining the transfer he was seeking. I consider that the document was not aimed at misleading, but in the context of his earlier discussions with Inspector Sipos, was emphasising what he then considered to be the more persuasive arguments concerning family needs and not focussing on his own needs, which he felt had previously been overlooked or disregarded.
As an explanation for the plaintiff's application for a transfer, the defendant also sought to lay emphasis on the plaintiff's acknowledged upset and disquiet at that time over changes to the death and disability provisions for compensation to police officers whose ability to work was impaired by the nature and conditions of their work: T140.39 - T141.48.
The defendant's line of questioning and submissions concerning the plaintiff's disquiet on that industrial issue, was that it was the principal concern or the true reason for the plaintiff wanting a transfer on account of the fact that the plaintiff had "suffered a number of physical injuries in the course of [his] employment … [he was] … going to be thrown out on the scrap heap…": T141.41.
The plaintiff responded to that assertion in the following terms: "A. My concern was, like a say, I always saw myself as a career cop, so I mean if I had a physical injury I would have been able to work behind the desk but I was concerned that if I had an issue where I couldn't physically work then we wouldn't have been looked after." [T141-45 - T141.48]
In my view, the plaintiff's stated concern, as a frontline police officer, was a legitimate one that he was entitled to hold. To elevate, as the defendant seeks to do, that legitimate industrial concern to an argued causal motivation for seeking lesser duties, without due regard to the plaintiff's underlying psychological difficulties which were undoubtedly present, albeit not yet diagnosed or brought to his attention at that time, is an uncompelling step too far. The defendant's proposition is unsupported by cogent evidence. I am not prepared to draw the inference sought by the defendant.
The defendant also sought to inculpate the plaintiff's issues with driving long distances to and from work, and the associated tiredness from working long shifts as being causally influential on the plaintiff's request for a transfer, as stated in Exhibit "A" which set out a number of the plaintiff's emotional responses to his work after he had been assessed and seen by a psychologist: T143.1 - T143.9. In that regard, it was suggested that the combination of his travel for his wife's business, the need to care for 3 young children and the travelling from Bateau Bay to Rose Bay to work four 12 hour shifts, including night shifts, was influential in the plaintiff's decision to cease work: T264.5 - T264.12. In my view, the defendant's description of that combination of circumstances as a crescendo occurring in the plaintiff's domestic life (T267.4) is an over-dramatisation of the true position.
In my view, accepting that the plaintiff was having some difficulties with commuting, the inferences and conclusions sought to be drawn by the defendant are nevertheless far from compelling because that analysis avoids completely the uncontradicted nature, cause and influence of the plaintiff's psychological problems that related back to the SIDS incident in 2003, and resulting in a recrudescence of symptoms when his twins were born in August 2011.
Many people in the workforce have shared child care responsibilities, work long hours and must regularly commute long distances, including from the Central Coast, to get to and from their work. Such factors do not necessarily give rise to the conclusions now sought by the defendant. Those submitted conclusions entirely overlook the plaintiff's underlying psychological issues which he described, and the plaintiff's reaction to feeling that his concerns over "struggling", which I accept, had not been given due regard or attention by his employer. In my view, these latter matters persuade me that the defendant's submissions on this point are unconvincing.
In arriving at that conclusion I have not overlooked the defendant's assertion that the plaintiff has been involved in some travel for his wife's business. In my view, for reasons that will be made clear in the course of considering the issue of alleged secondary employment, I consider that aspect of the defendant's submissions to be an over-statement of the circumstances.
Nor have I overlooked the fact of the plaintiff's 12 hour shifts, and that these included some night shifts. The plaintiff explained, and I accept, that at times he had suitable accommodation available to him if he needed to sleep in Sydney rather than commute to the Central Coast: T130.26. On this point, it must be remembered that the plaintiff's wife was the principal carer of the children. The defendant's submission on this point is not compelling. Domestic life rarely proceeds according to a static timetable where the care and needs of children are involved, and where those responsible make the necessary adjustments to accommodate emergent needs. In coming to the conclusion that the defendant's submission should not be accepted, I have taken into account the content of Exhibit "D" that focussed on Mrs Brigg's difficulties in managing the newborn twins and the other children at that time. In that regard I do not regard Exhibit "D" to be exhaustively definitive of those matters as it was a document designed to persuade the plaintiff's employer to accede to his request for a transfer. This does not necessarily mean that the document contained statements that were untrue, or that the plaintiff's wife was unable either in the short or long term to manage a domestic regime that involved the plaintiff's onerous working and commuting hours.
It is noteworthy that the plaintiff's application for a transfer to Brisbane Waters had not yet been considered by the time the event on 16 November 2011 had occurred, which then triggered his prolonged absence from work on sick leave: T67.17 - T67.42.

[26]

Precipitating incident - 16 November 2011

Whilst rostered onto general duties at Rose Bay, the plaintiff was working 12 hour shifts 4 days per week: T61.20 - T61.24. This involved him occasionally spending some nights sleeping in Sydney when he felt he needed to do that, in an arrangement that suited him: T130.26. It was against that background, that a road rage incident occurred on a journey home to the Central Coast on 16 November 2011: T61.14 - T63.13. This incident also occurred against the background of the plaintiff feeling depressed and overwhelmed, and having been pervasively sad for some time. In the incident, he lost his composure completely, and was in a high state of arousal and anger. The event resulted in him feeling physically ill and unable to continue in his duties: Exhibit "F", p 127.
The full context of those events were described in the plaintiff's evidence, as follows: "Q. On 16 November 2011 had you been at work at Rose Bay? A. Yes. Q. Did you set off for home? A. Yes. Q. Was it after a full shift? A. Yes. Q. How long were the shifts, by the way? A. 12 hours. Q. You were driving from Rose Bay back to your home on the Central Coast? A. Correct. Q. Did something happen on the Expressway? A. Yeah, I had a little incident. I was heading north on just up near the Jolls Bridge. Q. Slow down. You were heading north just near Jolls Bridge? A. Yep, I was in the middle lane, it was afternoon traffic so it was quite quite thick and heavy. There was a guy that was coming up the right hand lane, you know, he was hammering down and he was trying to get in front of the cars but there was traffic so he couldn't and he's come back Q. Slow down? A. Sorry. He's come back, he's come across my lane behind me, he's come up the left lane next to me, traffic there, couldn't get through so he's come back behind me through my lane and back up next to me and all I've done is looked at him and he's looked at me and given me the finger. And I just lost it because I, well, you know, you're being the idiot. I've done nothing wrong. But I just lost it and, you know, I started being abusive and yelling at him and then he was being a smartarse and laughing and, you know, continuing to stick his finger up which only infuriated me more. And I, you know, so I chased off after him. I tried to run him off the road and then he actually physically ran off the road and he got away. I mean I was in a little Suzuki Swift and he was in a V8 Commodore. So I just - HIS HONOUR Q. Were you wearing a uniform? A. No, I was in half uniform. I had just a civilian T shirt on. And then, yeah, so just kept following. Pretty much we got to Gosford and I just ROBERTS Q. The Gosford turn off? A. The Gosford turn off. It was like a switch flicked and I just, what am I doing? I just, you know, like I just started I immediately felt sick. I think I can't do this anymore. This is just ridiculous, like you know, I'm putting myself at harm. I've got a wife and five kids to look after. And I just felt ill and I went home that night. Q. How were you when you got home? A. I was I was physical sick. I was vomiting. Q. Did you go to work the next day? A. I did. I went to work the next day, I put myself in the station at Paddington because I wasn't going back out on the road, and the same thing. I was physical ill, backwards and forwards to the bathroom. About lunchtime I pulled the pin. Q. What do you mean by that? A. I stopped work. I called the other supervisor and said, "I'm sick, I am going home." And I left. Q. At that stage, was it your hope that perhaps you'd only have one day off? A. Yeah, I was just going to calm down. Q. Is this your request for sick leave on that day? A. Yes. EXHIBIT #C REQUEST FOR SICK LEAVE FORM TENDERED, ADMITTED WITHOUT OBJECTION Q. In that document you've ticked the box against the question, "Do you have secondary employment? A. I didn't actually. It's not my form, I didn't tick it. I didn't even notice that. I didn't fill the form out. Q. You didn't fill the form out? A. I didn't fill the form out, no, Sergeant Browning filled the form out. Q. It refers to your suffering from diarrhoea and vomiting? A. Yes. Q. Was that what you were suffering from? A. Yes. Q. So did you tell Sergeant Browning that? A. Yes. Q. On the next day did you go to the doctor, Dr Galea? A. Yes. Q. You spoke to him about what? A. I just told him how I was feeling and what had been happening. Q. What did you tell him about what had been happening? A. I told him what had happened the day before and that how I'd been increasingly, you know, angry and, you know, just a wave of emotions, you know, angry and sad and not being able to sleep." [T61.14 - T63.13]
The defendant submitted that by the time of that incident in 2011, "the plaintiff has had enough" of his work, and that he was upset and concerned about safety issues, the implication being that he was more concerned about those matters, rather than being affected by an illness: T265.34 - T266.12.
The construction of the facts argued by the defendant was that the combination of the plaintiff feeling abandoned by the police force and by the Government because of changes to compensation arrangements, the onerous travel he was undertaking to get to work, his involvement in his wife's business, and the birth of his twins precipitated his decision to leave work: T268.33 - T268.41. Whilst the defendant's argument was a convenient one, I considered it to be unpersuasive on an evaluation of the evidence of the plaintiff, which I have accepted.
The defendant repeatedly referred to the construction of events that suggested it was the plaintiff's dissatisfaction with his working hours and conditions, and the submitted time demands of his involvement in his wife's business, and his domestic arrangements including the birth of twins, that led him to leave work rather than the constructions emerging from the medical and allied reports to the effect that the plaintiff was suffering from the effects of illness. By that submission the defendant called for the effect of the expert opinions supportive of the plaintiff's case to be side-stepped and not accepted. That course is not readily open in this case where the plaintiff's evidence is in broad conformity with the matters assumed by those experts when they prepared their respective reports, and, importantly, where the experts were not challenged as to their opinions: T273.30 - T275.25.

[28]

Medical and allied treatment

After leaving work on 16 November 2011, the plaintiff went to see his general practitioner Dr Galea the following day. Dr Galea referred him to Dr Peters for psychological assessment and treatment. The plaintiff saw Dr Peters on 18 November 2011: T63.4 - T64.20.
Before those referrals, the plaintiff could not recall hearing about PTSD and he had not attributed his anger to such a condition. Previously, he had never had any advice or instruction on what to lookout for as indications of psychological illness. He had never availed himself of peer support, which he termed a "touchy feely thing": T65.35 - T66.34. His attitude in that regard conformed to what he understood to be the police culture on such matters.
The plaintiff was also referred to a consultant psychiatrist, Dr Alexander Murray, who has continued to oversee the plaintiff's treatment, including the prescription of psychotropic medication.
There were no records or reports tendered by either party from Dr Galea. In final submissions, the defendant was critical of the absence of such reports: T264.47. It appears from the materials provided by Dr Murray, that the parties could have had access to the referral letter from Dr Galea dated 30 January 2012 if they thought that letter was relevant: Exhibit "F", p 75.
The defendant submitted that the plaintiff's account of his illness should be doubted because of the absence of any materials from his general practitioner, Dr Galea: T264.47.
The evidence discloses that Dr Galea had provided the plaintiff with an initial Workcover certificate for his absence from work: Exhibit "F", p 2. Thereafter, the plaintiff was under specialist care and management. Reports from those specialists were tendered. In those circumstances, I consider that nothing should turn on the absence from the fabric of the evidence of reports from the treating general practitioner, particularly as the plaintiff's ongoing Workcover certificates were not challenged.
In those circumstances, no adverse inferences arise from the absence of reports from Dr Galea, as was argued by the defendant. The evidence of the plaintiff in this case did not require corroboration by the tender of any materials from within the records of Dr Galea or by calling evidence from the plaintiff's wife.
The defendant also submitted the plaintiff's complaints were "in such florid terms" which were not matched by any evidence from his wife or his treating general practitioner. T265.19 - T265.29. I consider the labelling of the plaintiff's complaints as "florid" as amounting to no more than an advocate's flourish. There is no sound basis for requiring the plaintiff's evidence to be corroborated as claimed by the defendant.
The defendant submitted the intensity of the plaintiff's sessions with Dr Peters appeared "odd": T281.3. The defendant also submitted that Dr Peters had "played almost the role of an advocate in taking over Mr Briggs' management", and it was suggested that this extended to him advising the plaintiff on his rights and entitlements: T278.25 - T278.45.
As the defendant did not seek the opportunity to put such suggestions to Dr Peters so that he could in fairness address such assertions, having regard to the requirements of procedural fairness, I am disinclined to accept that submission. There is nothing inappropriate about a treating practitioner discussing compensation options with his patient. The relevance, need and reasons for doing so could arise at multiple levels of the clinical relationship whilst giving attention to the patient's presenting situation. The submission by the defendant involved unwarranted speculation.
The typed file notes that Dr Peters made in respect of 11 consultations he had with the plaintiff between 22 December 2011 and 19 August 2013 were tendered in evidence: Exhibit "E".
Those notes serve to confirm that at the various times involved, the plaintiff had discussed with Dr Peters the work-related problems that were the subject of this case, the plaintiff's reactions to events, the plaintiff's diagnosis, the plaintiff's progress, including Dr Murray's treatment, and the practicalities of getting back to work. Those latter discussions also included a discussion on compensation rights and options.
The fact that Dr Peters made notes about the discussions with the plaintiff concerning his compensation rights does not necessarily mean that Dr Peters assumed the role of giving the plaintiff legal advice. A fair reading of the context of those notes is required. Those notes were obviously a short form of record of the areas or the topics that were traversed during consultations. It would be wrong and unfair to seize on a particular word or phrase in that context, even where Dr Peters has used strong and judgmental words in his notes, to accuse Dr Peters of adopting the role of the plaintiff's advocate, as the defendant has submitted.
It is clear from his notes that Dr Peters had his patient's best interests at heart, including to the extent of counselling him regarding the effect of steps being taken by the defendant in defending his claim: Exhibit "E", p 10. The purpose of the consultations was for treatment and monitoring. Given that it was work-related events that led to the treatment, it was natural that the matter of compensation rights would have been broached, particularly as it was one of the plaintiff's concerns.
Dr Peters' notes also recorded his own impressions and conclusions intermixed with historical matters that would have come from the plaintiff in relation to what he was experiencing. It must be recognised that the notes were an aide memoire, not a transcript.
The notes and quotes made by Dr Peters concerning a telephone conversation he had with Mr Casey Rosman, from NSW Police, questioning the plaintiff's involvement in travelling to football reveals Dr Peters' view of the plaintiff's illness, which required that he advocate on behalf of his patient. Patient advocacy of the kind referred to in this context is very far removed from advocacy in the legal sense, which was the criticism directed by the defendant at the intervention of Dr Peters, unfairly in my view, especially as those matters were not the subject of cross-examination in the context where the defendant chose not to have Dr Peters required for cross-examination. Fairness required that step before such criticisms of Dr Peters could be legitimately aired.
I find that the defendant's submissions that were critical of Dr Peters are not sustained on the evidence. The defendant did not require Dr Peters for cross-examination. For the defendant to sustain or invite serious consideration of the criticism of Dr Peters as was argued, the defendant was obliged to put those matters to Dr Peters in conformity with the requirements of procedural fairness. The defendant did not do so. Accordingly, I reject the adverse criticisms the defendant sought to make of Dr Peters' involvement in the treatment of the plaintiff: Browne v Dunn (1894) 6 R 67.

[29]

"Ten foot tall and bullet proof"

As part of his programme of assessment and treatment, Dr Peters asked the plaintiff to prepare a narrative outlining his history of deployment in the NSW Police Force: Exhibit "F", p 4. In response, the plaintiff prepared a document that became Exhibit "A". The plaintiff gave that 8 page document the title: "Ten foot tall and bullet Proof".
That document traces the plaintiff's initially very high levels of pride, dedication and enthusiasm for his career in policing, through some of the events in the series of cumulative traumatic events that marked his career, to the end point of that career. That end point was characterised by a loss of motivation and self-confidence, and described the moment of clarity where the plaintiff recognised that his bursts of uncontrollable anger posed a danger to others, and to himself, and it described the embarrassment he felt over not coping with his situation.
That document appears to the reader to set out an array of raw stream of consciousness descriptions of the plaintiff's personal experiences and reactions to his exposure to stressful and traumatic events whilst he was serving in the NSW Police Force. It must be recognised that it was written at a time when he was suffering from and being treated for a mental illness, and that the document was written as part of the assessment and treatment of that condition. At times, the plaintiff employed base and unflattering language in that document to convey the strength and depth of his feelings on those matters. Those descriptions do not weigh against the plaintiff's credit. Instead, the document provides a useful insight into understanding the plaintiff's evidence as to how and to what extent his work had affected his emotional wellbeing.
The treating and assessing practitioners who have examined the plaintiff have commented upon the diagnostic significance of that document. I consider that the document contains a genuine expression of the plaintiff's thoughts, reactions and feelings that prevailed on relevant matters at the time it was prepared.
I do not accept the defendant's argument to the effect that the plaintiff's account, whether in Exhibit "A" or in his evidence, was either exaggerated or misleading.

[30]

Defendant's construction of events

In defending the plaintiff's claim, the defendant sought to thread together an explanation of the events leading to the plaintiff leaving his work, and sought to construct the "crescendo" argument as an alternative scenario for the plaintiff going on sick leave on 16 November 2011: T267.4.
That approach was predicated upon a series of propositions that involved attacking the plaintiff's credit and suggesting that there were other reasons for the plaintiff wanting to change his work arrangements.
First, in cross-examination, it was suggested that no aspect of his work between 2003 when he witnessed the SIDS incident, and events leading to 2011 had contributed to his state of mind that caused him to go off work: T155.28 - T155.35.
Whilst the plaintiff rejected that proposition, it must be recognised that the question asked on behalf of the defendant in those terms was an obligatory one, and one which was required to be put to the plaintiff on considerations of procedural fairness.
Nevertheless, the question called for an expression of opinion from the plaintiff. Whilst the question might have been more usefully put to the plaintiff's treating and consulting practitioners, in the plaintiff's circumstances, drawing upon the experiences he has described in his evidence, he was reasonably entitled to the opinion that caused him to disagree with the import of the question.
The plaintiff gave evidence of a series of psychological problems that have already been described and that covered the period which was the subject of the question. An acceptance of the defendant's proposition would require a rejection of material aspects of the plaintiff's account. I see no sound basis for rejecting the plaintiff's account of those events or for rejecting the interpretation of those events as provided by the reporting practitioners and experts who have examined the plaintiff.
Secondly, in furtherance of the defendant's position that the plaintiff's account should not be accepted, the defendant argued the plaintiff had exaggerated the effect the events had upon him. The defendant suggested to the plaintiff he had exaggerated to Dr Robinson his description of what it was that he could and could not do: T207.35. That proposition was denied by the plaintiff: T207.38.
To understand that challenge, it is necessary to refer to the report of Dr Robinson which describes the nature of the plaintiff's engagement in the community.
On reviewing Dr Robinson's report dated 26 July 2013 (Exhibit "F", pp 110 - 116) I see no sound basis for finding that the plaintiff had exaggerated the account he gave to Dr Robinson. Insofar as there may be a perceived inconsistency on the issue of the plaintiff's driving activities, Dr Robinson recorded the plaintiff drives locally, on 5 minute drives and avoids peak hour driving, whereas the plaintiff has given evidence of having driven longer distances to the North and South Coasts and to Queensland. It should be noted that the latter driving was shared with the plaintiff's wife, over the course of some 4 or 5 days: T168.22 - T168.38.
Dr Robinson also noted the plaintiff's history that travelling "is not so bad if someone else is driving": Exhibit "F", p 115. In my view, the challenges made to the plaintiff's evidence as to his driving did not explore in sufficient detail the question of whether it was the plaintiff alone who did the driving, or whether it was shared, or whether someone else drove, over what distances, in what conditions of traffic, and in what frequency. In those circumstances, I find the defendant's submission unpersuasive, and I decline to draw an adverse inference as was sought by the defendant.
Thirdly, the defendant positively suggested to the plaintiff that he did not go to the Skillion as he had claimed in his evidence, and further, that he had not contemplated taking his own life at that time in response to the circumstances of the plaintiff being required to provide a urine sample: T160.3 - T160.5. That matter will be revisited in context later in these reasons. In the interim it is sufficient to say that I considered the plaintiff's evidence on that subject, which was given with some embarrassment, to be truthful and compelling, and not glaringly improbable as a response to the feelings engendered in him by the underlying circumstances he described. I reject that component of the attack on the plaintiff's credit, especially as no contradicting factual evidence was called to support the premise of the question.
The premise of the defendant's question as cited above was contradicted by an earlier question asked on behalf of the defendant in which it was suggested to the plaintiff that in describing his contemplated suicide, the plaintiff was "attempting to attract or attach to it more significance than it actually had in your psyche": T159.40. I accept the plaintiff's evidence that he was simply describing how he felt at the time, and that in his evidence he was describing what happened to him at that time: T159.43.
Fourthly, the defendant argued that the plaintiff's travel arrangements, and his history of involvement in assisting his wife develop her business, should be seen as being inconsistent with his evidence. It was further argued that an acceptance of that proposition provided a sufficient basis for not accepting the medical opinions otherwise supportive of the plaintiff's case. It is difficult to see how that submission could be accepted where the alternative assumptions relied upon by the defendant have not been put to the authors of the reports the defendant seeks to ignore. I do not accept the proposition suggested by the defendant for a number of reasons that will appear in that portion of these reasons that deal with the subject of the plaintiff's alleged secondary employment and the nature of his activity in connection with his wife's business.

[31]

Plaintiff's expectation of a return to work

The focus on the plaintiff's psychological treatment centred around him returning to work at some stage: T68.19 - T68.28; T70.5; T72.37. The plaintiff's experience was that Dr Murray's treatment was assisting him: T69.39. Furthermore, after some 3 - 4 weeks the mood stabilising medications were assisting him to control his anger and temper issues: T64.41 - T70.1. The plaintiff co-operated with the insurer's representative Mr Rosman and his general practitioner in discussing a return to work plan at a relatively early stage of his period of sick leave: T70.18.
The plaintiff also co-operated with rehabilitation referrals: T68 - T72. There were no positive outcomes from those referrals: Exhibit "1", Tab 3; Exhibit "F", pp 56 - 58. The evidence does not suggest that this was as a result of any lack of effort on the plaintiff's part during the rehabilitation referral process.
The plaintiff's rehabilitation was set back when a representative from the employer's insurer, Mr Rosman, questioned the degree to which the plaintiff was affected by his illness. That questioning was by reference to the fact that the plaintiff was continuing to play rugby for the police rugby league team: T70.25 - T70.32.
At the time that Mr Rosman questioned those activities he had apparently been unaware that the practitioners who had been treating the plaintiff had been encouraging him to remain as physically fit as possible: T70.36; Exhibit "F", pp 21 - 22. On 4 June 2012, Dr Murray clarified that issue for Mr Rosman's benefit, explaining that physical activity and holidays were important aspects of recovery: T71.10 - T71.15; Exhibit "F", pp 21 - 22.
The plaintiff's treating practitioners, and the coach of the police rugby team, Superintendent Sheridan, all encouraged the plaintiff to continue playing rugby as this did not involve any wrongdoing on his part, it was not contra-indicated by his condition, and if anything, it was beneficial to him because it gave him a positive sense of enjoyment: T71.19 - T72.13.
Notwithstanding the force of that evidence, the defendant nevertheless made critical reference to the plaintiff's involvement in sporting activities. In light of the evidence summarised above, I do not accept those criticisms: T277.43 - T278.8.
In making that submission the defendant seems to have adopted a position which did not seek to reconcile the evidence of the plaintiff and Dr Murray, the effect of which is cited in the preceding paragraphs. In my assessment that submission should not be accepted because it does not adequately take into account the nature of the plaintiff's diagnosed psychological illness and the advice the plaintiff received to maintain his sporting activities and physical fitness as an incident of managing his psychological illness. Without expert evidence critically evaluating those matters, the defendant's submission on this point should not be accepted.
In June 2012 the plaintiff experienced a psychological set-back from the gains he was obtaining from his activities when he received a telephone call from Superintendent Sheridan passing on the effect of a call Superintendent Sheridan had taken from someone in the Professional Standards Command of the police force, questioning the permissibility of the plaintiff's involvement in playing rugby whilst on sick leave, the implication being that there might have been a suggestion of misconduct on the plaintiff's part: T72.39 - T73.8. If that was the import of the question, then on the evidence of Dr Murray, the assumption driving the question appears to involve an unenlightened view of how mental illness of the kind suffered by the plaintiff should be managed.
Be that as it may, the plaintiff's reaction to that call was that he felt "completely blown away" by the enquiry from the Professional Standards Command: T73.15. When he rang an inspector at the Professional Standards Command to try and find out why that part of the police force had become involved in his situation he was given a non-committal response: T73.18 - T73.41.
Consequently, the plaintiff had a negative psychological reaction to those circumstances. He had not had any prior involvement with the Professional Standards Command. He described his feelings on the matter as follows: "Q. How did you react to that psychologically? A. I was shocked. I you know anxiety just went through the roof. I didn't know what was going on. I felt, you know you know I didn't know what to do. Q. Did you have any understanding of police procedures where there was a possible allegation of misconduct, for example, as to what the subject would be entitled to proceed by way of procedural fairness? A. No. ROBERTS Q. Had you, the course of your police career, ever been the subject of a police standards committee, command or internal affairs complaint? A. No. Q. Had you ever been interviewed about a matter of police misconduct during your police service? A. No. Q. Did you discuss this with your doctors? A. Yes." [T73.45 - T74.15]
Whilst on 20 December 2012 Dr Murray considered that the plaintiff's ultimate need for retirement, or the acceptance of his need for retirement, had nothing to do with the Professional Standards Command inquiries that were underway as at 20 December 2012 (Exhibit "F", p 48), clearly, those inquiries "rattled" the plaintiff, even though he was confident there had been no wrongdoing on his part.
The context of that cited comment by Dr Murray was that it related to the plaintiff's reaction to him being target tested for use of anabolic steroids and of him being "rattled" at being required for an interview "on a number" of unspecified matters. The events of 24 December 2012 and following, had not yet occurred when Dr Murray made the cited remark. As was observed by Dr Murray, the plaintiff was already off work on sick leave when the Professional Standards Command were enquiring about his involvement with football: Exhibit "F", p 48.
Dr Murray's comments dated 20 December 2012 and the events of 24 December 2012 and following must be viewed against the context of the plaintiff's earlier return to work on restricted duties.

[32]

Return to work on restricted duties

In August / September 2012 Dr Murray supported a programme for the plaintiff to return to work. As a result, on 17 October 2012, the plaintiff returned to work at Gosford to carry out administrative duties with the restriction suggested by Dr Murray that he have no dealings with the public: T74.20 - T74.34.
At T75.7 - T75.24, the plaintiff described his return to work in the following terms: "Q. How did you react to your return to work? A. The first couple of shifts the particular first shift I was the way I'd best describe it was the adrenalin was sort of pumping, I sort of felt a little bit sick. You know, I just but I guess that was the anxiety, I didn't know. I mean I was put in the station there originally and it was just confronting again that you know people coming to report on bail and the station area and I wasn't supposed to be there. They then moved me to a office, still in the station area but just obviously without any direct visual contact of the front counter. But I could still hear everything that was going on. That first shift was very tough for me. The second shift I went in and they moved me to a muster room where I did some administrative duties there and that that was you know, easier and then each shift I started to I started to feel better. Q. Were you ever at ease on that return to work? A. The first couple of shifts, no. Towards the last couple I was becoming more at ease, I felt I could probably do a little bit more. I was still set off a couple of things jobs that I'd hear come over the radio that would sort of boost, you know gave me a little bit of anxiety but I was starting to feel a little bit better."
In that period of return to work the plaintiff was exposed to police radio messages broadcast within the police station. This triggered in the plaintiff symptoms of hyper-arousal, anxiety and feelings of dread: Exhibit "F", p 128.
In those events, the plaintiff was stressed and felt under scrutiny, having been allocated a specific desk, computer and telephone, in circumstances where he had reason to believe he was being monitored: Exhibit "F", p 129.
In that time the plaintiff continued taking his mood stabilising drugs and anti-depressants. As a consequence, he felt that he was coping with the duties he had been allocated, and under guidance from those treating him, he was hoping to increase his hours at work from one day per week to two days per week towards normal working hours although not the previous arrangements for 12 hour shifts, and hopefully at Brisbane Waters: T74.20 - T76.18.
As is apparent from the events that followed, those plans and the plaintiff's progress were thwarted as a consequence of the actions of the Professional Standards Command, and his reaction to those actions. The plaintiff's return to work was short-lived, and did not last beyond 20 December 2012.

[34]

Target testing for drug use

On 5 December 2012, whilst the plaintiff was rostered on duty at Terrigal Police Station he received an unannounced visit from a female police officer from the Health Lifestyles Branch of the police force who informed him that he was being specifically target tested, as distinct from randomly tested, for use of anabolic steroids, the use of which was obviously unlawful unless prescribed. This testing appears to have been arranged because of a comment by Dr Snowdon, who had not examined the plaintiff but had nevertheless suggested that because the plaintiff was heavily muscled and had experienced rage attacks, the role of steroids and testosterone should be excluded: Exhibit "F", p 103.
In those events, the plaintiff was required to accompany that female officer to the female toilets in order to produce a urine sample in her presence. He felt belittled and embarrassed by those events: T78.26 - T79.49; T80.19.
The circumstances of that test were quite humiliating for the plaintiff. That female police officer had beforehand set up a testing station in the female toilets. The area had been taped off: Exhibit "F", p 89. The plaintiff was then in effect paraded past other officers on duty at the station. There was no protection of his privacy in those circumstances. The circumstances were not discreet. He was required to produce a urine sample under direct observation.
As a result, the plaintiff felt outrage, distress, hopelessness, defeat, and was exasperated at how he had been treated: Exhibit "F", p 128. Elsewhere, the plaintiff had described the experience as demoralising, and that it was lucky he did not have his gun at that time: Exhibit "F", p 89.
After the female officer had left, having taken the plaintiff's urine sample, the plaintiff continued to feel angry and upset by those events. He felt he had been somehow betrayed without knowing why. He left work after about half an hour of having such thoughts, which he described as a rollercoaster. He drove to a place called the Skillion, a known suicide spot, where he walked half-way up the hill and "pondered things": T80.19 - T80.45. The implication of that evidence was that he was having nihilistic thoughts at that time.
Without providing any evidence to contradict the evidence of the plaintiff, the defendant positively suggested to the plaintiff that the events described in the preceding paragraph had not occurred, a proposition the plaintiff denied: T160.5.
In his evidence, the plaintiff became emotionally upset when describing those events, and when describing the telephone call he received from his wife on that occasion, in which he described the events of that day, and how he had been feeling: T80.46 - T81.10. I considered the plaintiff's account, including his spontaneous emotional reaction of upset when recounting those events, to be genuine and truthful.
Having spoken with his wife, after a while the plaintiff left the area of the Skillion and went home, but he felt waves of emotion ranging from upset to anger, and then disbelief: T81.25 - T81.30. In his evidence at T81.34 - T81.40, he described the focus of his anger and disbelief in the following terms: "Q. So what was the focus of your anger and disbelief? A. I believe that they were just trying to get rid of me. I thought that the cops, because I had went off on leave I believed it was all around this D and D that they believed that they would have had to have paid me out money under the, you know, under the old scheme even though I wasn't eligible for it and I believed that they were trying to target me and make an example and find some sort of reason to fire me before, you know, to get rid of me."
The reference by the plaintiff to "D and D" in that answer was a reference to the earlier controversy surrounding the death and disability scheme as it applied to police personnel: T81.49.
The plaintiff continued his attempts at restricted work duties in December 2012. He was not told of the result of the urine test until a month after the sample was taken. At that time he was told that the result was as he had expected, namely negative: T82.5; T86.48. There was no explanation as to why it had taken so long to let him know the test result was clear and showed that he had not taken anabolic steroids. This was in the context that the test had apparently been arranged to exclude the use of such drugs: Exhibit "F", p 103. In those circumstances the plaintiff deserved to be informed of the result in a timely manner. The resultant delay undoubtedly had the effect of increasing the plaintiff's anxiety over his involvement in an internal affairs inquiry by the Professional Standards Command.
On a later occasion, whilst at Terrigal Police Station on restricted duties, the plaintiff received a call from an Inspector at Rose Bay Police Station to inform him that he was to present himself for duties to Wyong Police Station because the Superintendent at Gosford had indicated the plaintiff was no longer welcome at Gosford Police Station because of an apparently negative effect he was having on the command at that location: T82.32 - T82.49. At that time, he was given no further details to support that assertion.
The plaintiff acceded to the instruction given to him and presented himself to Wyong Police Station. There he was initially allocated to administrative duties which exposed him to members of the public which was contrary to the medical advice concerning the conditions that should prevail surrounding his return to work. He did that work for several hours before being allocated to other duties.
On 20 December 2012, the plaintiff attended a scheduled appointment with Dr Murray. At that time he was still feeling angry, targeted, betrayed and uneasy, and he was at a loss to understand what was happening to him: T84.4 - T84.6.
At that time, which was not long after the plaintiff had been target tested for steroids, Dr Murray advised the plaintiff to cease working because of the levels of anger he was experiencing, and because Dr Murray was fearful that the plaintiff "might flip out": T84.46 - T85.7. This all occurred before the plaintiff was further contacted by the Professional Standards Command a few days later.
Thereafter, the plaintiff remained on full-time sick leave: T85.26.

[35]

Interview by Professional Standards Command

On 24 December 2012, whilst the plaintiff was on sick leave, he was contacted by a detective from the Professional Standards Command and advised he was required to submit to an internal affairs interview on a number of matters notwithstanding that he was still on sick leave: T85.36. The plaintiff had received half a dozen calls from PSC seeking to arrange that interview: Exhibit "F", p 89. In one such conversation, the plaintiff asked of the purpose for the interview. A professional policeman in the plaintiff's position was unable to refuse the direction that he submit to that interview. In his evidence at T86.1 - T86.25, the plaintiff explained the course of that conversation as follows: "Q. Firstly, did you ask him what he wanted to interview you about? A. I did. Q. Did you ask him whether it was a criminal matter or a departmental matter? A. I asked yeah, I did. I asked him that question, yeah. Q. What did he reply? A. He said both. He said, "We need to interview you criminally. However, if you don't wish to be interviewed criminally, you will be interviewed under direction departmentally". Q. Did you say something in relation to being interviewed criminally? A. I did. I said, "If you want to interview me criminally, I'm not saying anything". Q. After you said that, did he say something? What did he say? A. He did. He said, "Okay. Then we will proceed under direction and interview you departmentally". Q. When he used the words "under direction", what did you understand that to mean? A. That that I had to participate in an interview. Q. You understood that you were required to, you didn't have any choice? A. Yes."
At that time the plaintiff had not yet been informed of the result of the urine test aimed at detecting the alleged use of anabolic steroids: T86.44. He found himself not understanding what was happening. He could not understand why he was to be interviewed in respect of anything that might be considered to have had criminal implications concerning his own conduct: T87.5. The interest of the Professional Standards Command had apparently been as a result of incorrect information provided by some of the plaintiff's senior officers at his former workplace at Rose Bay: Exhibit "F", pp 138 - 139; Exhibit "2", Tab 5 and Tab 13. At T87.10 - T87.15, he described his feelings on that matter as follows: "Q. How did you feel as a result of this conversation? A. Again, I was just it was just that same feeling. Just uncertainty and I was a little bit fearful. I started to doubt myself. I'm thinking, "Have I done something wrong here?", like, in relation to the you know, something I shouldn't you know, information or do I know someone I shouldn't know or whatever. I started to question and doubt everything I've ever done."
It later transpired that the topics upon which the plaintiff was to be interviewed concerned an alleged inappropriate association, alleged unlawful access and disclosure of information, alleged use of anabolic steroids, and alleged unauthorised secondary employment: T86.40.
Having had that communication on Christmas Eve, the circumstances of the pending interview had an adverse effect on the plaintiff's relationship with his family over the ensuing Christmas break. In that period, he withdrew from the company of his family, he did not engage with them, and he was uncommunicative: T87.29 - T87.43.
On the appointed day for the interview, in early January 2013, the plaintiff attended the offices of the Professional Standards Command at Redfern as was required. On that day, he was questioned from about 9.00am until about 5.00pm with a break in the middle of the day. He was questioned on the four matters identified at paragraph [222] above: T87.45 - T88.17. The plaintiff was interviewed "as a person of interest": T165.11. He had no-one with him for support at that time.
The interview did not result in any disciplinary action being taken against the plaintiff. On the plaintiff's uncontradicted account of the matters raised at that interview, which I accept, it appears that the matters raised were without substance. Although the transcript of that interview is not in evidence, it is difficult to envisage how an interview on the identified topics, which involved typed questions and answers, should have taken so many hours to complete. However, it is not necessary to further consider that question.
At the end of the interview the Professional Standards Command officer told the plaintiff "we'll be in touch", but thereafter no-one ever contacted him to inform him of the result of the interview or the investigation that led to it: T91.46 - T92.13. There is little room for doubt that those circumstances added to the plaintiff's feelings of distress.
On that point, the evidence of Inspector Sipos was that the requirements of the complaints handling guidelines, the interests of good man management, and the need to observe procedural fairness, required that there should be timelines in such investigations, and that the subject of the investigation be kept informed as to the progress of the investigation provided the integrity of the investigation was not compromised: T236.3 - T236.42; Exhibit "N", p 58.
The circumstances which prevailed following that interview led the plaintiff to harbour quite negative feelings about the process, which he explained at T92.16 - T93.30 in the following terms: "Q. How do you feel about that over the course of time, and how did it make you feel? A. I was really angry, like I said, it made me feel betrayed, I felt that they'd, you know, I'd gone off, you know, I'd spent 14 years in the cops, I'd never done anything wrong, never had a complaint, I'd gone off for the psychological issues, and then all of a sudden, and it was round the time that was everybody was panicking because of the death and disability scheme, you know, that they're going to target me or try and, you know, discredit me I guess, or sack me. They're bringing all this, you know, coming up with this story, you know, to discredit me and I felt betrayed, I felt angry. Even though, and I still to this day I didn't do anything wrong, and this is one thing I said to them in the interview, you know, if I believed I've been an honest cop, if I believed that I had an improper association I would have declared that. I definitely didn't give out any information, and again I thought I did the right thing by speaking with my employer about the secondary employment, and it was never an issue. Q. You say that with imaginative A. Because they keep bringing it up, saying secondary employment. Q. I'm just saying this to record it on the transcript because someone reading this may think that what you've just said is a concession that you had secondary employment. ROBERTS: Whereas in fact you were holding two fingers on either hand making the metaphoric quotation marks. WITNESS: Yes. So I mean I'm still, you know, like I'm comfortable I'm confident, I mean we said as far as I'm aware, like, Fred himself he's not a criminal he doesn't have a criminal record, it didn't fall within my understanding of an improper association. He's not an associate that I associate with on a social level, I didn't believe I'd done anything wrong and so I was feeling wrongly accused. ROBERTS Q. How is the fact that you still haven't heard the result of this investigation affect you? A. I mean I know the outcome in myself but, you know, it annoys me and it frustrates me that they can't have the decency to say, you know, not sustained. HIS HONOUR Q. There are two issues here. You seem quite comfortable in your own mind that you've done nothing wrong, correct? A. Yes. Q. But the other issue is that obviously someone else in the police force, at least one, person may have thought otherwise of you A. That's right. Q. and that issue hasn't been resolved as communicated to you anyway? A. Yeah, it is. Q. How do you feel about that one? A. Well, yeah, very much annoyed. I mean I want to know, I want to I'd like to see, and I know I never will, which that's unfortunate, you know, that I'll never find out who made this ridiculous complaint, or whose put it in. Q. So on a day to day basis do you still think about this unresolved issue or not? A. I do, right now. Like every time I see a cop car I just think about it, I mean, and I've got friends in the cops still, but I see a cop car and I just feel angry. You know I feel angry because I was I felt like I was trying to come back and do the right thing, I wanted to go back to work, I had a wife and five kids to look after and I just feel that."
The plaintiff was left disillusioned following that interview. The circumstances had the effect of changing the plaintiff's attitude to working, or getting back to work in the police force. At T93.49 - T94.4, he explained his thoughts on that topic as follows: "Q. After that interview what happened to your earlier desire to get back to work in the police service? A. I was done with that then, like I said, it just I thought why do I want to come back to this organisation, you know, I did so much for it and just to be tossed aside like that, you know, like I just feel, as I said, betrayed and angry and I thought, no."
The plaintiff was critical in his description of the interview with the Professional Standards Command. Those criticisms were not met or contradicted by the defendant. It may reasonably be assumed that if there was evidence to contradict the plaintiff's account of those events on facts in issue, such evidence would have been called: cl 4(2) of Pt 2 of the Dictionary to the Evidence Act 1995.
The plaintiff was of the opinion that the interview in question had been conducted with little expertise. He considered that it lacked substance, and that in the end, it had been conducted in an apologetic tone: Exhibit "F", p 130. As a former police officer with the rank of sergeant, and having served 14 unblemished years in the police force, and absent evidence to the contrary, his opinion in that regard cannot be simply dismissed out of hand as coming from a disgruntled or interested party.
Essentially, the four topics explored at that interview were as summarised in the paragraphs that follow.
The first matter of inquiry, namely, an alleged improper association, related to a suggestion that a person who had been at the same school as the plaintiff, and who used to play on the same football team as the plaintiff in 2005/2006, lived in the plaintiff's street, was an associate of a motorcycle gang: T88.20 - T89. The suggestion was that the plaintiff had on a particular occasion been seen to have waved at that person as he went past him at a football fundraising event some 6 months earlier: T89.42. The plaintiff had acknowledged this had occurred. However, the allegation seemed to be somewhat remote, if not nebulous.
The second and third matters of inquiry were whether, whilst the plaintiff was in the Gang Squad, he had obtained unauthorised access to information, and had given unauthorised disclosure of that information, which was allegedly about another police officer, to a gang member, allegedly in return for the provision of anabolic steroids for his personal use: T89 - T91.13. When the plaintiff refuted those allegations, and demanded to know whether he had tested positive for the use of anabolic steroids, he was told he had not tested positive but at that time he was also told: "well that doesn't mean anything because you might have taken them before": T91.12. That latter response obviously involved unproven and unsubstantiated speculation.
The fourth matter, which the plaintiff estimated to have occupied the last 10 minutes of that 9 hour interview, related to alleged secondary employment on the plaintiff's part in connection with his wife's business. The plaintiff described that matter as having been raised jocularly, and when it was raised, the plaintiff gave the explanation that he had cleared the subject matter of the alleged secondary employment with his superiors: T91.15 - T91.36.
As the first, second and third subject matters of the interview topics were not sustained, it is not relevant to further canvas the details, especially since the plaintiff's account was not contradicted by other evidence.
As the fourth of the allegations concerning the alleged secondary employment of the plaintiff in his wife's business relate to a credit issue and also related to the question of the plaintiff's future loss of earning capacity, this topic or allegation will be further considered in the paragraphs that follow, even though the allegation was not sustained.

[36]

Alleged secondary employment

The context in which the secondary employment issue arose was that after his re-marriage, in 2011, the plaintiff's wife, who had a background in the hospitality industry, had started a business called East Coast Surfboards and Fashion Wear, a business in which the sales were conducted online: T50.24.
On an unstated date, presumably in early 2011, the plaintiff had discussed those matters with Inspector Sipos and Superintendent Joyce, his senior officers at Rose Bay, to see if he needed to apply for a secondary employment clearance in accordance with the applicable police regulations. The plaintiff stated that he was not an employee of his wife's company and he was not paid for the assistance he gave her from time to time. After looking at the departmental policy documents, the official view taken of the disclosure was that the matters disclosed were not deemed to amount to secondary employment: T50.26 - T50.44.
The plaintiff stated that as an avid surfer for his entire life, he would assist his wife by occasionally giving telephone advice when people rang concerning the most suitable models of boards for sale to suit requirements. This occasionally extended to enquiries from work colleagues who were also surfers. I accept the plaintiff received no monetary payment for that assistance to his wife: T50.40 - T51.21. The 2013 - 2014 profit and loss statement tendered by the defendant in respect of that business did not suggest the business was capable of providing the plaintiff with a significant salary in any event: Exhibit: "H".
The defendant's cross-examination of the plaintiff on credit issues relating to his wife's business and his involvement in it sought to insinuate that the plaintiff had been engaged in secondary employment, contrary to police employment rules. The defendant also suggested that the plaintiff had not been entirely frank or forthcoming in his evidence in chief about such matters. The plaintiff refuted those suggestions. In my view, his refutations were reasonable, and were acceptably justifiable on the evidence.
The defendant's submissions on the secondary employment issue were as follows.
The defendant submitted that the lack of detail about the plaintiff's travel for his wife's business since 2009 (sic) and before he left his work should be weighed against his credit as a witness: T271.36 - T272.24. The implication was that the plaintiff had not been frank in his description: T272.41.
In my view, the basis of the latter submission is flawed because of its reference to the 2009 year. The plaintiff's evidence was that his wife did not start her business until early 2011: T50.13. The cross-examiner introduced the notion that the "business was established, to the best of [the plaintiff's] knowledge, in 2009, or thereabouts". Whilst the plaintiff agreed to that proposition, but with the rider "thereabouts", I consider that evidence does not connote sufficient accuracy to be reliable: T184.31 - T184.33. The cross-examiner may have conflated the commencement date of the business with a trip which the plaintiff and his wife took to China in 2008 before they were married: T184.38. That may or may not have been pre-business activity, given the evidence that the business had been started in 2011.
Be that as it may, allowing for the possibility that the reference 2009 was an error in the form of a slip-of-the tongue of the cross-examiner, and should be read as a reference to 2011, I nevertheless consider the submission overstates the true position, and therefore should not be accepted. That conclusion arises from the following analysis.
First, the time frame of the plaintiff's involvement in the business from the perspective of disclosure was relatively short, from early 2011 until the plaintiff left work on sick leave on 17 November 2011, a period of some 11 months at best, but then continuing whilst he was off-work on sick leave.
The plaintiff described the business as selling surfboards imported from China online: T50.20. He estimated his involvement in assisting his wife in that business as being for 4 to 5 hours per week as an average estimate: T97.18. At that time, it is relevant to note that the plaintiff's wife was pregnant and he had taken a lot of leave, prior to the birth of their twins in August 2011, as already explained at paragraphs [98] and [101] above.
The background to the plaintiff's involvement in his wife's business was that he had been a lifelong avid surfer who was familiar with the different types of boards available and he would assist with telephone advice without payment: T50.48 - T51.7.
The plaintiff had recognised that he needed to clear that activity with senior officers. He did so by having discussions with Inspector Sipos and Superintendent Joyce at the time.
The defendant did not call any evidence from either Inspector Sipos, who was called in respect of other issues, or from Superintendent Joyce, to contradict the evidence of the plaintiff on those matters. The actual policy documents on secondary employment were not tendered in evidence so it is not possible in this case to consider whether the plaintiff's activities could, in the terms of the policy, be considered to amount to secondary employment.
At best, on the evidence, the plaintiff's activities amounted to unpaid activity aimed at assisting his wife's business. Although the plaintiff undoubtedly derived an indirect benefit from such activities, and from any success of his wife's business, I am not satisfied that there was any wrongdoing in that activity, or in respect of the extent of the plaintiff's disclosure to his senior officers of his involvement in his wife's business.
In coming to that conclusion I have not overlooked the difference in the level of detail provided by the plaintiff concerning that activity when his evidence in chief at T50 - T51 is compared to the additional details that emerged in cross-examination: T168 - T213. The defendant relied heavily on that difference in seeking to discredit the plaintiff's evidence.
In that regard, I consider that there was no intention on the plaintiff's part to mislead in his evidence in chief. I consider that the plaintiff answered the question that had been asked of him in chief with adequate responsive detail. The interchange was as follows: "Q. What did you do for your wife, in that year of 2011 what did you do for your wife's business? A. I'd talk to people. I mean I've been an avid surfer my entire life. People would, you know, there's a number of different models of boards for sale so they would inquire as to, you know, what would be the best suited, so I'd give advice and help out that way. Q. How would you do that, over the phone or? A. On the telephone, yeah. Q. Did you ever receive any payment for it? A. No." [T50.46 - T51.7]
The above question did not necessarily call for a disclosure of travel that the plaintiff had undertaken in the course of assisting his wife's business.
Senior Counsel for the plaintiff then proceeded to ask questions of the plaintiff on other matters, presumably because the issue of secondary employment was considered by him to be a peripheral one that had been adequately covered in chief at that point.
The matter of secondary employment and the detail of the plaintiff's involvement in his wife's business were only raised as a credit issue by the cross-examiner.
In response to questions asked of him in cross-examination, the plaintiff provided more details on that topic in response to the further questions that were then asked of him by the cross-examiner. When this point is viewed in that context, I do not accept that the plaintiff was not being frank or honest in his initial description of his level of assistance to his wife's business.
Further questions arise as to whether the plaintiff's evidence given in cross-examination, which provided more detail of his activities for his wife's business, should be seen as being contradictory of the plaintiff's earlier estimate of undertaking assistance activity for an average of 4 - 5 hours per week, and whether in fact his activities were likely to amount to secondary employment, and whether such matters tend to discredit the plaintiff's evidence in chief in any material way.
I consider that all such questions should be answered in the negative for the reasons that follow.
First, on the evidence, it is not possible to make a meaningful or quantitative comparison of the time spent. In round figures, an average of 4 - 5 hours per week is the equivalent of between 200 and 260 hours per annum. The business was in its infancy in early 2011, and no fair and reasonable judgment critical of the plaintiff could be made in that short time frame given the wide scope that existed for the plaintiff to provide the assistance he described. I therefore consider that no relevant contradiction arises.
Secondly, without some evidence of a policy definition of what the police force considers to constitute secondary employment, which may or may not include gainful employment, it is not permissible for me to speculate upon that matter. If it was truly an important issue, the defendant could have called evidence on the point, including from Inspector Sipos, to provide clarity on this point.
Thirdly, the matters relied upon by the defendant as being critical of the plaintiff in this context do not provide a satisfactory basis for an adverse credit finding against the plaintiff. This is so particularly since the evidence does not make a clear distinction between the level of the plaintiff's assistance to his wife's business during the 2011 year compared to his level of assistance after he had left work on 16 November 2011, and during the remainder of his time in the police force until he was medically discharged on 25 April 2013, a period of some 17 months.
In respect of that last point, there are a number of relevant considerations that arise. In that latter period of 17 months the plaintiff was on sick leave and workers' compensation payments for his PTSD and his depression. In that context, the plaintiff was encouraged by his treating doctor not to adopt the sick role and to pursue activity: Exhibit "F", p 21; T71.15. These activities were consistent with that advice.
Furthermore, the time the plaintiff spent travelling to assist his wife, whether within Australia or overseas, was not analysed either in terms of actual time spent advancing his wife's business as distinct from or including travelling time, and any holiday or recreational components, measured against the upper end of the average estimated at 260 hours per year: T284.10.
A consideration along those lines does not compellingly lead to a conclusion that the plaintiff's travel, and the time he spent in activity representing his wife's business constituted secondary employment, or that the plaintiff had understated his level of involvement in that business. The state of evidence does not permit a non-conjectural approach to an analysis along those lines. Fairness requires that adverse credit findings be supported by something more than mere conjecture.
It was submitted the plaintiff "has not been idle" and "seems to have more than a peripheral role in the operation" of his wife's business: T283.16. That submission was expressed in general terms and did not seek to differentiate between the periods before and after the plaintiff was retired on medical grounds. As a generality, that submission carries no weight, particularly as the plaintiff had been encouraged by Dr Murray to pursue other activities: Exhibit "F", pp 21 - 22. No relevant criticism of the plaintiff arises from that submission.
The defendant also submitted that the plaintiff's actions in his involvement in trying to establish a company with a view to buying and running a hotel, and his active interest in his wife's surfboard business, "doesn't sit comfortably" with the disability case he seeks to make: T282.9 - T282.16.
In my view that submission carries no weight and it should not be accepted. The formation of the company in question was for the purpose of buying and operating a hotel. It was an opportunity the plaintiff pursued with others in early 2013. On the chronology of events emerging from the evidence, this was after it became clear that he was no longer suited to operational police work. He was justified in considering the pursuit of an alternative approach to earning an income. The plan was to operate a hotel business in a syndicate with his friends who had experience in that industry. Apart from spending a few hundred dollars in order to register a company, the proposal went nowhere. Those events were not inconsistent with the plaintiff having disabilities, as was submitted.
The defendant sought to cast doubt on the profit and loss statement of the business run by the plaintiff's wife: T285.22, Exhibit "H". In my view no relevant credit issues arise from that profit and loss statement. That document did not relate to the plaintiff's business. He did not prepare the document and it does not suggest that the business was capable of supporting the plaintiff with an income, although the plaintiff held untested hopes that it might eventually do so: T206.24.
The defendant focussed on three aspects of the plaintiff's activities to seek to distance the plaintiff's circumstances from those assumed by the authors of the various medical reports relied upon by the plaintiff to support his case. Those areas were the plaintiff's driving, his travel, and his activities in assisting his wife's business.
The defendant's purpose in drawing attention to the plaintiff's driving over distances was to seek to show that the plaintiff's feelings of anger and his potential for road rage were overstated in his evidence. However, that approach ignores the plaintiff's evidence in which he acknowledged driving wherever he had to go, but avoided certain times and peak hours: T168.20.
The defendant elicited evidence from the plaintiff that he drove from his home on the Central Coast to Newcastle for medical appointments, and that in June 2013 he drove to north Queensland with his wife who shared the driving with him over a period of 4 - 5 days: T168.31 - T168.40. The plaintiff also acknowledged that he had travelled to both the north and south coasts to go surfing. It was not made clear as to whether those trips specifically involved him in driving: T169.36 - T169.41.
The defendant elicited evidence from the plaintiff the details of his overseas trips between 2008 and the present time. The plaintiff's evidence was that the frequency of his trips to China from 2008/2009 to date had been about 2 - 3 times per year "probably", and the frequency was about the same before and since he has been off work, the latest trip being in early 2015: T170.45 - T171.47; T178.34 - T178.40. It would appear that those trips were taken at times when the plaintiff was not rostered on police duties.
On a trip to China, whilst the plaintiff was still in the police force, he went to China to inspect a factory and assisted his wife with suggested sizes and shapes of surfboards: T185.11 - T185.20.
The plaintiff's first trip to China was in about 2008: T178.24; T184.38. His purpose in going was to visit factories where surfboards were made. Later, on unspecified dates, he used to check on boards that had been ordered by his wife to see whether they were satisfactory, the timing of the latter visit was not made clear. The plaintiff said he carried out this activity as the male "contact point" for his wife's business, ECS. Also, as he had some experience in board making (T174.25 - T174.45), he sometimes made up specifications for the boards, but not always: T172.32. He did this in order to help his wife's business: T180.17; T220.15.
The plaintiff has also travelled to Bali to go surfing and to meet up with friends, and to promote his wife's business: T170.33. He acknowledged that his wife was looking to sell her surfboards in Bali but as yet this had not occurred: T170.28. The cross-examiner left the dates of those trips unclarified.
The plaintiff had travelled to trade shows in the USA on two occasions, at which times he promoted his wife's boards in Florida, and holidayed in Los Angeles: T175.10 - T175.36; T179.20. Again, the cross-examiner left the dates of those trips unclarified.
The plaintiff had travelled to the Gold Coast in 2014 for a convention where his wife's surfboards were displayed: T180.50; T183. He has also occasionally picked up boards for her: T176.45. Sometimes, with 4 - 5 other family members, he assisted in unloading containers of shipped boards at his wife's rented warehouse: T177.50 - T178.1. As surfing is his hobby, he has been happy to assist his wife promoting her products: T192.47 - T192.50. The plaintiff also readily acknowledged that his travelling has benefitted his wife's company: T225.22.
In my view, on a consideration of the evidence as summarised above, the defendant has failed to make good the assertions that the plaintiff either had secondary employment, or that his involvement in his wife's business, his travel, and his activities, demonstrated inconsistency with his claimed disabilities. On the evidence, the defendant has not persuaded me that the plaintiff's level of assistance to his wife's business of an average of 4 - 5 hours per week, was either wrong or improbable.

[37]

Termination of employment

The plaintiff was medically discharged from the police force on Anzac Day, 25 April 2013: T94.16. He was resentful at not having been given a reference he could use to gain other employment: T94.45. The impression the plaintiff conveyed concerning his exit from the police force was that he had been treated poorly given his prior exemplary service. It was an opinion he was entitled to hold. The defendant did not seek to justify the process, or the subject matter or manner of conduct of the interview of the plaintiff by the Professionals Standards Command in January 2013.
No disciplinary proceedings had ever been taken against the plaintiff: T92.12. The plaintiff felt he had been wrongly accused: T92.48. The plaintiff has been left with a justifiable grievance as to how the investigation had been concluded, as appears from his evidence at T93.1 - T93.30: "Q. How is the fact that you still haven't heard the result of this investigation affect you? A. I mean I know the outcome in myself but, you know, it annoys me and it frustrates me that they can't have the decency to say, you know, not sustained. HIS HONOUR Q. There are two issues here. You seem quite comfortable in your own mind that you've done nothing wrong, correct? A. Yes. Q. But the other issue is that obviously someone else in the police force, at least one, person may have thought otherwise of you A. That's right. Q. and that issue hasn't been resolved as communicated to you anyway? A. Yeah, it is. Q. How do you feel about that one? A. Well, yeah, very much annoyed. I mean I want to know, I want to I'd like to see, and I know I never will, which that's unfortunate, you know, that I'll never find out who made this ridiculous complaint, or whose put it in. Q. So on a day to day basis do you still think about this unresolved issue or not? A. I do, right now. Like every time I see a cop car I just think about it, I mean, and I've got friends in the cops still, but I see a cop car and I just feel angry. You know I feel angry because I was I felt like I was trying to come back and do the right thing, I wanted to go back to work, I had a wife and five kids to look after and I just feel that."
Understandably, as a consequence of his negative feelings as to how he has been treated by his former employer, the plaintiff has lost his desire to continue in the police force in any capacity. He has been left with feelings of disillusionment, betrayal and anger at having been "tossed aside like that": T93.49 - T94.4.
When the plaintiff was medically discharged from the police force, he was provided with a short statement certifying the period of his service. To a prospective employer, a statement in those terms would have been uninformative of his earlier enthusiasm for his work, his career highlights and the earlier service commendation he had received. This has understandably left the plaintiff feeling disappointed: T94.16 - T94.48.

[38]

Future work prospects

The defendant submitted that the plaintiff has "demonstrated he could work in a sales representative job because he's done that sort of work": T284.29 - T284.33. In my assessment, that argued conclusion over-states the evidence concerning the level of assistance the plaintiff had provided to his wife's business, as already outlined in the consideration of the issue of alleged secondary employment. The submission also ignores the difficulty the plaintiff apprehends he might reasonably have in dealing with people. This subject will be revisited in the context of a consideration of the issue of mitigation of damages.
The defendant also submitted that the plaintiff has "made no effort to seek out employment": T284.34. Whilst the plaintiff conceded that he had not been seeking work since he had been retired on grounds of medical unfitness, I consider that position was a reasonable one having regard to the issues involved in this case, and the fact the case has been hanging over him for some time. Accordingly, I consider that submission should carry no weight.
Although the plaintiff gives the appearance of being fit for physical work, at present, his emotional state represents a barrier to gainful employment on the open labour market. He is fearful of becoming involved in conflict, and he is fearful of how he might react if a conversation in which he was involved were to become heated due to his shortness of temper: T95.40 - T96.13. He still gets angry when he sees a police car: T96.20.
Whilst he feels that overall, he has improved somewhat, in that he is not as explosive as he was, and is now more tolerant of the activities of his children, he still remains paranoid about their wellbeing: T96.24 - T96.36. He is aware of the "triggers" that set him off and he avoids exposing himself to them: T97.1 - T97.6.
Whilst the plaintiff's nightmares have lessened since he stopped work, and whilst he is now sleeping better most nights, he still experiences triggers, as is exemplified in his evidence at T97.41 - T98.11: "Q. You've described the appearance of a police car as a trigger to your emotions, is that the only trigger? A. Seeing particular clients. I wasn't very comfortable walking back in here a couple of days yesterday, seeing, remembering and seeing different people, that just takes me straight back. ROBERTS: I think he spent a fair bit of time in this Court house securing a conviction of one of the Ibrahim's, your Honour. A. Yes. Just different people, different locations. I tried to stay away from places that remind me of back then. HIS HONOUR Q. So when a random triggering event occurs, is there a predictable period of time over which you're able to regain control of yourself, and feel more at equilibrium? A. I've got to be very conscious of it. I can attend you know, just try and pull myself away and have deep breaths, try and calm myself. I couldn't put a time on it, but it's not doesn't drag on for days. Couple of hours, something like that."
The plaintiff lacks motivation and he now finds that he procrastinates: T98.42 - T99.15. In my view, the plaintiff's problems with motivation should be seen as being part of his PTSD condition, and not a lack of motivation in the sense of volition that requires offset from the claim for loss of earning capacity.
The plaintiff acknowledges that he needs to obtain work in order to support his family. There are some obvious categories of work within his skill set and training which he should not do, such work as a security guard or a corrective services guard: T100.32 - T100.45. At present he has not given much thought to what he can and cannot do because of the fact that these proceedings have remained unresolved: T101.1 - T101.48.
Given the adversarial nature of the issues canvassed in the proceedings, I consider that he was justified in his apprehension. The proceedings have been an understandable worry and preoccupation for him because of the unsettling nature of the issues involved, and because of the relationship between the subject matter of the litigation and the factors that serve to trigger his emotional responses.
The plaintiff is also aware that quite apart from his PTSD issues, he is limited in his capacity for physical work because of his previous knee and shoulder injuries. He is limited in his capacity for prolonged standing and walking, he has some restriction with prolonged sitting, and working with his hands up around shoulder height causes physical difficulty. He said that he is willing to try clerical work: T101.10 - T101.43. That position must also be assessed in the context of his emotional as well as his physical limitations. All of those matters should be seen as being detrimental to the plaintiff's employability on the labour market generally.
The plaintiff stated that he was hopeful that his wife's business would grow and that he was happy to assist her in the growth of the business in the hope that it could sustain them both: T206.16 - T206.24. However, the nature of the business and the extent of its profitability as disclosed by the profit and loss statement for the year 2013 - 2014 (Exhibit "H") suggests that there is a great deal of uncertainty in that regard.

[39]

Chronology of medical and allied reviews

As an aide to the consideration of the defendant's arguments on breach of duty of care and causation, and with regard to the plaintiff's damages claim, the chronology of the medical and allied reviews of the plaintiff, including medico-legal reviews, appears in the paragraphs that follow.
On 13 December 2011, Dr Peters wrote to the insurer handling the plaintiff's claim on behalf of the defendant. In that letter, Dr Peters communicated his diagnosis that the plaintiff was suffering from PTSD, along with a range of anxiety based symptoms in the form of accumulated stress over a number of years, which he referred to as having been described by experts in the field as "creeping trauma": Exhibit "F", pp 3 - 4.
In 2012, Dr Peters reached the conclusion that although the cognitive behavioural techniques he employed in treating the plaintiff were efficacious in reducing the onset of the plaintiff's experience of moments of explosive anger, he had serious concerns about the plaintiff's longevity of service as an operational police officer. He suggested the plaintiff attempt a supervised rehabilitation programme.
Dr Peters has continued to see the plaintiff for professional consultations on numerous occasions between 13 December 2011 and 13 April 2013, which was the date of his last report: Exhibit "F", pp 5 - 12. Dr Peters recorded that the plaintiff was suffering from problems of anger control and increasing anxiety. Dr Peters had advised Dr Galea that as the plaintiff was unfit for work, he would be recommending the plaintiff be re-deployed: Exhibit "F", p 5.
In 2012, concurrently with his sessions with Dr Peters, the plaintiff was also referred to Dr Murray for psychiatric assessment and treatment. On 20 February 2012, Dr Peters communicated to the defendant's case manager his view that it was premature to consider returning the plaintiff to work on a proposed rehabilitation plan until Dr Murray had concluded his treatment of the plaintiff: Exhibit "F", p 7. Dr Murray has continued to treat the plaintiff in a long therapeutic programme of contact, which has also included the prescription of mood stabilising medication.
Over the course of his treatment of the plaintiff, Dr Peters expressed his concern to the defendant's representatives about the prospect of the plaintiff returning to operational duties: Exhibit "F", p 9. Dr Peters encouraged the defendant's insurer to implement a supervised rehabilitation program, and for the plaintiff to attempt that program: Exhibit "F", p 10.
On 13 August 2013, Dr Peters expressed the view that it was important to understand the typical trajectory of the condition of PTSD. He identified this as one of management rather than cure, with varying rates of recovery. He said it should be recognised that police represent a unique population where PTSD results from the accumulation of exposure over many years, and in that sense, he considered the plaintiff's situation to be a good example of that process: Exhibit "F", p 11.
In that context, Dr Peters indicated that the risk of instability, and the potential for triggering relapses of the condition, made the plaintiff's future employment unlikely: Exhibit "F", p 12.
Dr Murray has provided extensive contemporaneous reports and assessments of his clinical contact with the plaintiff: Exhibit "F", pp 13 - 76; Exhibit "1", Tab 4, pp 20 - 25.
Dr Murray has seen the plaintiff in professional consultations on a total of 34 occasions between 15 February 2012 and 24 June 2014: Exhibit "1", Tab 4, p 23.
In essence, Dr Murray considered that the plaintiff's account of events he described in Exhibit "A" concerning his exposure to psychologically injurious events was sufficient to satisfy Criterion A for a diagnosis of PTSD: Exhibit "F", pp 13 and 15.
Dr Murray identified as a significant event in the evolution of the plaintiff's PTSD condition, the plaintiff's exposure to the aftermath of the SIDS death he had attended upon in 2003. Dr Murray related the plaintiff's subsequent problems, which comprised the full range of PTSD symptoms, particularly nightmares, broken sleep, irritability and rage attacks both on and off the job to that sensitising event, and to his subsequent on the job stressors and the ongoing need of the plaintiff "to be combat ready over the years of [his] service" in light of that significant underlying event in 2003: Exhibit "F", pp 14; 15.
Significantly, and without challenge, Dr Murray identified the emergence of the plaintiff's psychological problems as follows: "Although not at all a complete analysis of Ryan's presentation, it is immediately obvious that his story includes • psychological traumatisation out of personalisation of the job at hand ° in Ryan's case a prominent example is the SIDS death he encountered at a point where he had an infant son much the same age as the deceased • pathological combat-readiness As policing duties are currently defined, the first of these injuries is an essentially unpredictable occupational hazard, depending on essentially random correspondence between the Officer's personal world and the job at hand [footnote omitted]. The second (pathological combat-readiness) will occur more rapidly in settings where physical combat is more common and to officers who accept or are relegated champion status." [Exhibit "F", p 15]
In February 2012, Dr Murray certified the plaintiff to be unfit for any sort of work: Exhibit "F", p 15. He prescribed mood stabilising medication for the plaintiff in the form of Sodium Valproate and Agomelatine: Exhibit "F", p 17. He commenced treating the plaintiff with psychotherapy: Exhibit "F", p 18. At that time, Dr Murray indicated that the primary clinical focus should be on achieving symptom control rather than a focus on return to work: Exhibit "F", p 19.
On 4 June 2012, Dr Murray issued a report to the defendant's insurance case manager or injury management officer, Casey Rosman, who had rung him on 22 May 2012 to discuss, and it appears, question the plaintiff's involvement in playing representative football for the NSW Police Force in the circumstances of his illness and unfitness for work. In his ensuing report, Dr Murray noted that Ms Rosman had earlier raised a similar discussion with Dr Peters: Exhibit "F", p 21.
In response to Ms Rosman's query, among his other pertinent comments, Dr Murray advised the insurer it needed to be understood that recovery from psychological injury was to be facilitated by activity and recreation, and that adopting the sick role was thought to be counter-productive: Exhibit "F", pp 21 - 22.
On 7 June 2012, Dr Murray fielded a call from the plaintiff concerning the requirement that he attend the Professional Standards Command for an interview. Dr Murray questioned the appropriateness of that requirement. Dr Murray made the observation that the plaintiff had acquired his work-related psychological injury out of commitment to the job, and that he had remained so engaged long after he became symptomatic. He added: "I think Ryan could be forgiven for feeling hunted down or out". In context, I consider that was a reference to the perception of an apparently unsupportive aspect of police culture towards injured officers, which Dr Murray considered to have been inopportune with regard to the plaintiff's psychological recovery and regarding the potential for the plaintiff's return to work: Exhibit "F", p 23.
On 21 August 2012, Dr Murray provided written responses to a series of questions asked of him by a representative of the defendant's insurer with regard to the plaintiff's psychological problems that had kept him from work. As part of his written responses, Dr Murray annexed as Appendix H to his report, a copy of Exhibit "A", that had been prepared by the plaintiff.
In my assessment of his report dated 21 August 2012, Dr Murray considered that the plaintiff's account of his symptoms as set out in Exhibit "A" indicated to him that the plaintiff had become depleted by accumulated injury, and that he had lost resilience, patience and flexibility, interest and motivation, and that he did not have sufficient remaining reserves necessary to continue in his work: Exhibit "F", pp 26 - 27.
Annexed to Dr Murray's report dated 21 August 2012, in Appendices A, B, C and D, he set out a series of 17 questions he had asked the plaintiff to answer expansively, and he included the detail of those answers. The constellation of the matters so raised disclosed a history of the plaintiff having problems with irritability, impatience, anger, rage, intolerance, suspiciousness, impaired relationships due to his being distant, reduced contact with friends, reduced involvement in domestic and recreational activities, reduced attention to physical fitness, concern about returning to operational police duties for fear of losing control of his emotions thereby possibly causing others to be in physical danger, and the plaintiff's feelings of uncertainty about his future work: Exhibit "F", pp 30 - 35.
Dr Murray set out the applicable DSM criteria for the diagnosis of PTSD and he identified the components of his assessment that indicated to him the plaintiff's circumstances met the criteria for the diagnosis of the chronic form of that condition: Exhibit "F", pp 36 - 39.
On 30 September 2012, Dr Murray wrote a short report to a representative of the defendant's insurer indicating his opinion that the plaintiff was fit to perform some duties that he had apparently been asked to consider. The details of those duties were apparently made known to him by a facsimile from the insurer's representative on 27 September 2012. However, that opinion cannot be meaningfully interpreted because the details of those duties were not tendered in evidence: Exhibit "F", p 47.
On 26 October 2012, the plaintiff underwent a psychiatric evaluation by Dr Michael Jones on behalf of an entity known as Medicins Legale. That assessment was arranged at the request of the defendant's insurer. Dr Jones issued his report 9 weeks later, on 10 December 2012. Dr Jones had seen the plaintiff at a time when the plaintiff had returned to work for one day per week, under supervision, and in circumstances where this arrangement was to be kept under review: Exhibit "F", pp 77 - 87.
In summary, Dr Jones considered the plaintiff's history was consistent with him having developed PTSD and the co-morbid condition of depression. He considered that although these conditions were in partial remission at that time because of treatment, nevertheless the plaintiff still had disabling symptoms being reduced energy, motivation, strong feelings of anxiety and very low frustration tolerance. Dr Jones considered the plaintiff's prescribed mood stabilising medications were appropriate and should continue: Exhibit "F", pp 81 - 82.
In confirming the diagnosis of PTSD, Dr Jones identified the cause as being due to the cumulative experiences the plaintiff had in his work as a police officer. In expressing that view he distinguished this from common stress. He clarified this view by saying the plaintiff's employment was a substantial contributing factor to his diagnosed condition. In that context, Dr Jones expressed a guarded long-term prognosis: Exhibit "F", pp 82 - 83.
Dr Jones considered that the plaintiff's mindset, attitudes, and feelings of demoralisation and lack of motivation were all consistent with his clinical condition: Exhibit "F", p 84. He considered the treatment program that was current at that time to be reasonably necessary and he did not suggest any alternative treatments: Exhibit "F", p 86.
On 20 December 2012, Dr Murray certified that on account of the plaintiff's PTSD resulting from his cumulative exposure to psychologically injurious experiences over his years of police service, the plaintiff was permanently unfit to return to work with the NSW Police Force, either for operational or non-operational duties: Exhibit "F", pp 48 - 49.
Dr Murray considered that the plaintiff's need to accept his retirement was unrelated to the enquiries that had been commenced by the Professional Standards Command as the plaintiff had not learnt of those matters until he was already off work. That opinion is not necessarily definitive, and requires further consideration in connection with Issue 2.
On 13 January 2013 (and again on 30 October 2013) the plaintiff attended pre-arranged vocational counselling sessions at the Tuggerah offices of Axis Injury Management. This was at the referral of Dr Murray and with the approval of the defendant's insurer. The focus of the referral was for the provision of counselling concerning the plaintiff's possible return to work, including the identification of short term goals, and an overview of the possibilities in that regard: Exhibit "1", Tab 3.
The outcome of that process was inconclusive because of the plaintiff's continued feelings of anger, moodiness, distress, being on edge, his unrelated physical limitations due to previous sporting injuries to his knees and right shoulder, his need to continue with his medication regime, and the need for suggested further input to be obtained from Dr Murray after discussion: Exhibit "1", Tab 4, pp 17 - 19.
On 4 February 2013, at the request of the insurer for the defendant, Dr Peter Whetton, a consultant psychiatrist with Medicins Legale, undertook a file review of the plaintiff's case on behalf of the defendant without the benefit of an examination of the plaintiff: Exhibit "1", Tab 1. Dr Whetton did not appear to list or identify the complete list of the material he was given to consider. The defendant did not tender any list of those materials. Some of those materials appear to form part of Exhibit "1". Significantly, Dr Whetton made reference to a factual report that was sceptical of the claim made by the plaintiff. That report was not in evidence.
In my view, the report of Dr Whetton should be seen as having little if any probative value because it was not based upon a clinical examination. Furthermore, without sound reasons it purported to question the nature of the involvement of Dr Murray as the plaintiff's treating psychiatrist. Dr Whetton raised the possibility or suspicion of drug use or abuse by the plaintiff, and suggested testing for same, on the flimsiest of grounds.
Whilst Dr Whetton stated that the symptoms described by the plaintiff were in keeping with a diagnosis of PTSD, he went on to speculate about the fact of there being an investigation of the plaintiff as being a possible reason for his non-return to work. It is not clear as to what formed the basis of Dr Whetton's comment in that regard. Dr Whetton stated, without supporting reasons of the character demanded by UCPR r 31.23(1)(c) and UCPR Sch 7 cl 5(1)(c), that it was to be expected that at the time of his file review, the plaintiff should have been working: Exhibit "1", Tab 1, pp 2 - 5. Dr Whetton's commentary came from the perspective of doubt, without adequate reasons grounded in fact being identified for such a stance. An opinion of that character required cogent reasons before it could be seriously considered. Such reasons were absent. I therefore consider that commentary to be of little if any probative value.
On 7 February 2013, at the request of the defendant's insurer, Dr Peter Snowdon, a consultant psychiatrist, undertook a file review concerning the plaintiff, and issued a report to the insurer on the same date: Exhibit "F", pp 98 - 109. Dr Snowdon's file review took into account an investigation report relating to the plaintiff which was prepared by G4S Compliance Investigations Pty Ltd. A review of the evidence disclosed that report was not part of the evidence in these proceedings: Exhibit "F", p 100. This reduces the evidentiary utility and reliability of Dr Snowdon's commentary.
Dr Snowdon's report also contained a significant ambiguity. In one place in his report it was stated that his report was based on a file review: Exhibit "F", p 98. At another place in his report he gave the impression that he had seen the plaintiff in consultation and had explained his role as a medico-legal examiner: Exhibit "F", p 99. The ambiguity was clarified in a communication from the parties dated 15 September 2015 which confirmed that Dr Snowdon had not examined the plaintiff for the purposes of preparing his report: MFI "13".
Dr Snowdon agreed with the diagnosis of PTSD, noting that it appeared to have become chronic, with an associated depression. However, he disagreed that the severity of the depression warranted the diagnosis of major depression: Exhibit "F", pp 106 - 107. I do not accept that latter qualification as stated by Dr Snowdon because insofar as it sought to disagree with the diagnosis reached by the treating practitioners, it lacked reasons of the quality demanded by UCPR Sch 7, cl 5(1)(c), and it was not based upon a clinical examination which would seem to be a necessary pre-condition for reliability. It seemed to me that Dr Snowdon's qualifying diagnostic comment was based on a semantic stance that made no material difference to the overall analysis in practical terms.
Dr Snowdon questioned the reasonability of the plaintiff continuing to see both Dr Peters and Dr Murray: Exhibit "F", p 107. I consider that such questioning of the management plans of the treating practitioners should be given little weight where the commentator has not had the benefit of a consultation with the plaintiff and where he has not communicated his treatment regime queries to those whose regime he has questioned. I therefore prefer the opinions of the other practitioners on that matter as they were appropriately reasoned and based on clinical assessment and clinical contact with the plaintiff.
The representatives of the defendant asked Dr Snowdon to consider whether, at the time of his file review, the plaintiff's reason for not returning to work was because he was the subject of an internal investigation by the NSW Police Force: Exhibit "F", p 108.
It is difficult to see how Dr Snowden could be in a satisfactory position to offer a reasonable or an informed view on that matter without the benefit of a consultation with the plaintiff at which that issue could be canvassed, explored and analysed.
Dr Snowdon seems to have recognised that difficulty, and commented that on the balance of probabilities, the internal investigation was not the primary reason for the plaintiff not returning to work. He summarised his view to be that the plaintiff's condition, as referred to in the materials he reviewed, was more consistent with exposure to multiple potentially traumatising events leading to PTSD, rather than being mere work avoidance Exhibit "F", p 108.
Dr Snowdon ultimately acknowledged, from the limited perspective of the information available to him from his file review, that it was more likely than not, the plaintiff was unable to remain in the employ of the NSW Police Force Exhibit "F", p 109.
On 28 January 2013 Dr Murray took the opportunity of commenting upon the opinion of Dr Jones, as was requested of him by the insurer: Exhibit "F", p 50. In that context, he observed that when Dr Jones saw the plaintiff and made his comments on the plaintiff's prospects of a return to work, the plaintiff's attempt to return to work had run its course, and had failed, leading to his conclusion that a return to work in the NSW Police Force was no longer an option. Dr Murray commented that if and when Dr Jones saw the plaintiff again, he expected Dr Jones would agree with that observation: Exhibit "F", pp 51 - 55.
On 1 July, and later, on 10 July 2013, the plaintiff underwent a psychiatric evaluation by Dr Geoffrey Robinson, at the request of his own solicitors. Dr Robinson issued his report 2 weeks later, on 26 July 2013: Exhibit "F", pp 110 - 118.
Dr Robinson took a history of the plaintiff having continuing ruminations about the issues thrown up by his circumstances following cessation of his employment, and his feelings of anger and frustration, and of experience of tension on seeing police cars and police uniforms Exhibit "F", p 113. By then, the plaintiff had been medically discharged, on 25 April 2013.
Dr Robinson also arrived at a diagnosis of PTSD for which the plaintiff's employment in the NSW Police Force was seen to be a substantial contributing factor Exhibit "F", p 114. Dr Robinson concluded that at the time of his examination, the plaintiff was not employable: Exhibit "F", p 115.
On 17 September 2013, the plaintiff underwent a second psychiatric evaluation by Dr Michael Jones, again at the request of the defendant's insurer. Dr Jones issued his report 3 weeks later, on 4 October 2013. : Exhibit "F", pp 88 - 97. This may have been in response to Dr Murray's suggestion, as outlined at paragraph [335] above.
In his second report, Dr Jones again recorded a history of the plaintiff experiencing problems managing his feelings of anger, his continued rumination and lack of motivation, his frustration and concerns as to how he would react to conflict, and reference was made to an episode of suicidal ideation since the last examination by Dr Jones: Exhibit "F", p 91. Dr Jones recorded his impression that the plaintiff's condition had deteriorated since the previous examination a year earlier, on 26 October 2012, although the condition was stable: Exhibit "F", p 92.
Dr Jones considered the plaintiff's problems with low frustration tolerance, difficulties with anger management and difficulty interacting with others indicated he would be excluded from the labour market at that time: Exhibit "F", p 92. Dr Jones considered that taking into account the scope for fluctuations, it was unlikely that the plaintiff's condition would significantly alter in the ensuing 12 months: Exhibit "F", p 94.
Dr Jones concluded that the diagnoses of PTSD and co-morbid depression in partial remission remained appropriate as permanent impairments, and that the treatment program should continue: Exhibit "F", p 94. He identified the plaintiff's impairments in the areas of self-care and hygiene, social and recreational activities, driving and road rage, social functioning, with high levels of irritability, focus, frustration tolerance and an inability to work in the open labour market, and an inability to return to his previous employment: Exhibit "F", pp 95 - 96.
Dr Jones considered that his opinions were in accordance with the other opinions he had seen. The insurer's inclusion in the questions asked of Dr Jones a reference to a Dr Smith seems to have been a typographical or word processing error: Exhibit "F", p 97.
On 14 October 2013, Dr Murray responded to a facsimile request made of him on 27 September 2013 from a representative of the defendant's insurer asking him to address a series of 8 questions, which he replicated in his letter of reply.
In his responses, essentially, Dr Murray stated that the plaintiff had discussed his involvement in his wife's business, his involvement in playing representative football for the NSW Police Force, and allegations concerning alleged use of anabolic steroids, as well as an alleged improper association for a police officer. Dr Murray reported the plaintiff was still affected by PTSD symptoms, particularly with symptoms of irritability, anger variable levels of despondency and depressive symptoms. He considered that overall, the plaintiff's symptoms had stabilised. He supported continued therapeutic contact with Dr Peters: Exhibit "F", pp 56 - 57. This was at odds with the comments of Dr Snowdon summarised at paragraph [330] above. In that regard, I prefer the views of Dr Murray as he was the treating doctor who was in a better position than Dr Snowdon to make such judgments.
By that time Dr Murray had seen the plaintiff on a total of 27 occasions, and in that context I consider that he was in a sound position to express a reliable insight into that aspect of the plaintiff's ongoing management: Exhibit "F", p 59.
On 19 June 2014, the solicitor for the plaintiff requested that Dr Murray provide a commentary on the content of the police medical file relating to the plaintiff, and some relevant questions concerning the plaintiff's condition at that time. By that time, Dr Murray had seen the plaintiff on a total of 34 occasions between 2012 and 2014: Exhibit "F", p 64.
Dr Murray then proceeded to review a number of documents which he listed, some of which were not in evidence (Exhibit "F", p 63) and addressed the question asked of him by referring to his experience of police culture in respect psychological difficulties and the "harden up" and "suck it up" attitudes, the mechanism of psychologically avoidant behaviour in response to "brewing PTSD", and the common phenomenon, which also applied to the plaintiff, of not speaking about such things. Dr Murray identified the plaintiff's impairments relating to patience, endurance, and optimism, and difficulties with persistence, pace and reduced frustration tolerance, leaving him vulnerable to angry outbursts in the presence of triggers, thus limiting his employment prospects: Exhibit "F", pp 61 - 62.
On 20 June 2014, the plaintiff underwent a psychiatric evaluation by Dr Michael Diamond, at the request of his own solicitor. Dr Diamond issued his report 9 days later, on 29 June 2014. : Exhibit "F", pp 119 - 142.
In the course of his examination, Dr Diamond took a very detailed history of the plaintiff's background, including relevant events that occurred over the course of the plaintiff's policing career until that career had ended: Exhibit "F", pp 121 - 127. He also set out a detailed summary of the plaintiff's treatment and the subsequent circumstances of the plaintiff (Exhibit "F", pp 128 - 130) before setting out his findings arising from his examination of the plaintiff's mental state.
In that regard, Dr Diamond noted the plaintiff was articulate in his communications, with clear content, and his thought processes were rational and normal. Dr Diamond recorded that the plaintiff's interview was characterised by intensity and hyper-arousal on the plaintiff's part, and that the plaintiff displayed emotional distress and agitation. He also recorded his finding that the plaintiff's mood showed evidence of depression, flatness, irritability and frustration, at times to the point of exasperation. He found the plaintiff's cognitive state to have been affected by his affect and mood state, and that the plaintiff had reasonable insight into his predicament. He also noted that the history obtained at interview was consistent with the documentation he had read: Exhibit "F", p 131.
After recording his review of the documents he had been given (Exhibit "F", p 131) Dr Diamond went on to address a series of questions that had been asked of him: Exhibit "F", pp 134 - 139. The effect of those questions, and Dr Diamond's unchallenged responses, but with different enumeration to that appearing in the report as not all paragraphs in the report are relevant to this analysis, were as follows. 1. The diagnosis was that of chronic PTSD with the complicating feature of major depression, in partial remission: Exhibit "F", p 134; 2. The prognosis for the plaintiff's condition was guarded, because the condition was entrenched and longstanding, with significant recovery being unlikely: Exhibit "F", p 134; 3. On the question of the foreseeability of the plaintiff developing the identified condition, which is largely a matter for legal analysis, Dr Diamond commented that exposure to trauma can have deep personal significance to individuals, and often exposure to trauma affecting children causes police officers to become pathologically affected: Exhibit "F", p 134; 4. The question of when it would have become apparent to superior officers that the plaintiff should have received special attention in the form of debriefing, assessment or monitoring was a factual matter: Exhibit "F", p 135 - 136; 5. The plaintiff should have been psychologically assessed and then monitored by his employer when he returned to work after the absence from work, from 16 November 2011, due to his psychological illness: Exhibit "F", p 136; 6. The plaintiff was appropriately assessed by Dr Jones on 10 December 2012 and 4 October 2013 after returning to restricted duties: Exhibit "F", pp 136 - 137; 7. The allocation of the plaintiff to duties that involved him interacting with the public, contrary to the recommendation of the treating psychiatrist, had a relevant impact on the plaintiff's psychiatric injury, and such experiences had triggered further illness in the plaintiff, and had caused the existing illness to worsen: Exhibit "F", p 137; 8. The interaction of the Professional Standards Command with the plaintiff, initially in the presence of his work colleagues, and the circumstances of the plaintiff being required to undertake a urine drug test in the female toilets in the presence of a female officer caused the plaintiff to suffer worsening of his existing psychiatric condition because those matters constituted a lack of support and acknowledgement by the employer that the plaintiff was suffering a work-related illness. Those circumstances led to the plaintiff feeling betrayed, disbelieved, abandoned and devalued by his employer, thereby causing the plaintiff to suffer further harm in the form of an exacerbation, and an increased severity of his illness: Exhibit "F", pp 137 - 138; 9. The actions of the Professional Standards Command in undertaking an interview with the plaintiff of a duration of the order of 8 to 9 hours, knowing he was suffering from a work-related psychological injury with an ongoing incapacity for work, and when he was not fit to be at work, was inappropriate, and intimidatory, especially given that at the time, the plaintiff was in a powerless and vulnerable situation for such a prolonged period. Dr Diamond was of the view those circumstances had a negative impact on the plaintiff's long term prognosis: Exhibit "F", p 138; 10. Dr Diamond's view was that the actions of the Professional Standards Command in the circumstances of the plaintiff's vulnerability to suffer further harm, combined with the plaintiff's experiences that followed such actions, had the effect of rendering the plaintiff no longer capable of coping in his workplace where those actions had the effect of undermining his integrity and credibility: Exhibit "F", pp 138 - 139; 11. As the outcome of the Professional Standards Command investigation has never been communicated to the plaintiff, and as the plaintiff has not had the opportunity to face his accusers and state his innocence with certainty, and given the issues being considered, the experience has been detrimental to his wellbeing, and has adversely affected his recovery and prognosis both in the short and long term, leaving him undervalued and abandoned by his employers: Exhibit "F", p 139.
On 9 March 2015, a representative of the defendant's insurer asked Dr Murray to respond to some questions concerning the plaintiff. Dr Murray did so on 14 March 2015: Exhibit "1", Tab 4. Dr Murray confirmed his view that the plaintiff had engaged with Axis Rehabilitation and was participating in psychiatric and psychological treatment. Dr Murray noted that at the time of his report providing such clarifications, the plaintiff was quite unwell and was unfit for vocational rehabilitation: Exhibit "1", Tab 4, p 3.
Dr Murray's last sessions with the plaintiff were on 29 April and 4 June 2015, culminating in a total of 36 professional consultations with his treating psychiatrist. By that time, Dr Murray was in a sound position to review his own conclusions in the light of the opinions of other specialists who had examined the plaintiff for medico-legal purposes: Exhibit "F", p 74.
Dr Murray specifically agreed with the opinion of Dr Diamond that the plaintiff's diagnosis was one of chronic PTSD and a further condition of major depressive disorder, in partial remission: Exhibit "F", pp 67 - 68.
Dr Murray provided a different analysis to that of Dr Diamond concerning the foreseeability of the plaintiff developing a psychiatric illness as a result of the cumulative effects of his duties. Whereas Dr Diamond approached the analysis from the perspective of the average risk, Dr Murray considered the matter of risk assessment should be focussed on the assessment of the individual in terms of risk: Exhibit "F", pp 69 - 71. In view of the content of Exhibits "K" and "M", the differences are immaterial.
Dr Murray concluded his last report by identifying the medications the plaintiff was taking in order to address his problems with hyper-arousal, hyper-reactivity, irritability and anger issues. He considered the plaintiff was likely to have persistent difficulties with anger at many things, as well as sadness and intrusive images in response to specific triggers. He identified the plaintiff as having a persistently impaired capacity to work with an unfiltered public, or under instruction. This was in the context of a chronic PTSD condition that was vulnerable to both progression and relapse, where it was predicted the plaintiff would be likely to continue to suffer symptoms for the remainder of his life, and would have periods of acute illness over the course of time: Exhibit "F", pp 72 - 73.

[41]

Disabilities that remain

The defendant sought to downplay the plaintiff's sense of distress by pointing to his involvement in playing football and doing some things to assist his wife's business whilst he was off work and on compensation, thereby suggesting an incongruity in the plaintiff's situation: T277.43 - T278.8.
The defendant submitted the plaintiff's case on his incapacity for work should be viewed with a critical eye: T285.11. Having undertaken that exercise, I have accepted the evidence of the plaintiff and the opinions of those who have examined him.
Given my acceptance of the plaintiff's credit, and my acceptance of his evidence generally, I propose to treat the history of his disabilities and related diagnoses as summarised from the reports that I have reviewed as evidence of the plaintiff's difficulties, treatment and disabilities as has been described: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.
The evidence reveals that the plaintiff continues to suffer from the effects of PTSD with depression. Having been sensitised to the SIDS incident in 2003, the feelings that event engendered in the plaintiff underwent a recrudescence of symptoms in 2011 when the plaintiff's twins were born.
This resulted in the plaintiff becoming anxious, hyper-vigilant or paranoid about the welfare of his children. He became jaded in his work. His temperament changed. He became short-tempered and quick to anger, snappy and less tolerant of others and their behaviour. He over-reacted to situations, including in response to trivial situations. His sleep was disturbed with nightmares. He was no longer suited to operational duties.
I have found that those matters have all flowed from the plaintiff's PTSD. Dr Diamond, whose unchallenged and uncontradicted opinions I accept, not only considered the products of his clinical and mental state examination of the plaintiff but also the documented materials to which he referred, and he formed the view that the plaintiff's descriptions were consistent with that account. In doing so, he appropriately isolated and identified sound reasons for disregarding the unqualified comments from the insurer, the investigators, Superintendent Joyce and Inspector Greene.
I am fortified in my acceptance of the plaintiff's evidence by Dr Diamond's professional observations of the plaintiff's mental state in which Dr Diamond observed the plaintiff to have communicated intensely, with an intense affect, with hyper-arousal, and emotionality to the point of being agitated at times. He also observed that when distressed, the plaintiff became flushed. He observed the plaintiff had a depressed flattened mood and state, that the interview was at times disjointed, and that the plaintiff's cognitive functioning had been affected by his affect and his mood state: Exhibit "F", p 131.
In my view, those skilled observations by Dr Diamond undermined the submissions made on behalf of the defendant which suggested that the plaintiff had exaggerated his description of disability. Dr Diamond's evidence provided confirmation for the conclusion I had reached that those submissions of the defendant should be rejected. Instead, I accept the opinions of Dr Diamond, Dr Peters, Dr Murray and Dr Robinson to the effect the plaintiff suffers from PTSD and depression, and has the symptoms recorded in their respective reports. The condition has become entrenched, with a guarded prognosis: Exhibit "F", p 134. The condition is vulnerable to progression and relapses: Exhibit "F", p 73.
The plaintiff's prospect of redeployment in the police force seems to have been destroyed by the cumulative timing, nature and content of the Professional Standards Command investigations of November / December 2012 and January 2013 because of the impact that those matters had on his outlook. This seems to have been recognised by the police force in retiring the plaintiff on 25 April 2013.
The causation analysis concerning those events will be undertaken in the consideration of Issue 3. Before addressing the issues for determination, it is necessary to identify some relevant police policy and procedure provisions appearing in the documentary evidence concerning stress, injury rehabilitation, and complaints handling issues.

[43]

Task Force Alpha Report 1992 - Stress Risk

In 1992, Task Force Alpha of the NSW Police Service published its Report No. 5 entitled Physical Risks in Policing: Research Report: Exhibit "K".
The report identified staging in the symptoms of stress, these being an alarm reaction, resistance, and then exhaustion, the latter being where the individual's resources are depleted so that the person cannot maintain an adequate defence against the stressors: Exhibit "K", p 5. Literature was cited to support the observation that stress tolerance levels vary considerably between individuals and the combined factors operating from within their circumstances: Exhibit "K", p 14.
In the context of police work, features of stress that impairs work performance include over-reacting, or not being as understanding and responsive as might otherwise be the case during contact with citizens: Exhibit "K", p 30. The report observed that whilst major stressful experiences are relatively visible, minor experiences often are not, and the accumulation of minor experiences may have as much, if not more, impact than a major trauma: Exhibit "K", p 4.
The report cited research dating back to 1981 and 1983 which listed some 25 of the most stressful critical life events for police officers as defined by the perceptions of officers. One such event was being the subject of an internal affairs investigation: Exhibit "K", p 23, point number 23.
The report also cited 1992 research which examined the stress and coping mechanisms in young police in NSW, and it cited a rating of the "most traumatic" events. Included in that rating was the death of a child in particularly tragic circumstances, and an incident leading to strong emotional reaction: Exhibit "K", p 23.
The report identified the commonly understood fact that policing ranks amongst the more highly stressed than other occupational groups. Many factors were identified, including poor supervision, the constant threat of danger, being but a few: Exhibit "K", p 34.
The report identified job satisfaction as a positive feature of police work, but it also identified negative consequences that impaired work performance. These included low morale, emotional and personal problems with a variety of consequences: Exhibit "K", p 34. That portion of the report went on to state: "… Police officers may present a self-confident image, but they often find themselves unable to speak to fellow officers or to anyone else, and they tend to distance themselves from situations which they define as stressful. Stress control efforts such as these are introverted and unhealthy, and often increase rather than decrease stress. Whether or not police officers cope with the problems they face depends on factors such as knowing and being able to put into practice a range of stress management techniques, and gaining support from their social networks both within and outside the organisation." [Exhibit "K", pp 34 - 35]
Chapter Three of Exhibit "K" analysed the Police Organisational Management of Stress, which included the following statement: "Typical police organisation responses to officers whose work has deteriorated due to stress have been to ignore the officers, hide or transfer them, fire them, retire them on disability grounds, or rehabilitate them. All too often, organisational responses have been one of the first three, which does nothing to solve the problem. Where the fourth is employed (retirement on disability grounds), it often indicates that the problem has been allowed to exist for an extended period of time without doing anything about it. …" [Exhibit "K", p 62]
The report went on to observe that since police administrators can do little about stresses external to the organisation, it was suggested they should take a proactive role in managing stress which results from situations which are under their control, including such things as the system of deployment and distribution of personnel, shifts and shift assignments, to name a few: Exhibit "K", p 63.
The report identified a response strategy for stress reduction to be training and "stress inoculation" to reduce the propensity to stress: Exhibit "K", p 65.
Those risk management concepts and strategies were not put forward as a template for avoidance, but clearly formed part of the industrial landscape within which police officers such as the plaintiff worked and were supervised in terms of their psychological wellbeing where many risks existed that posed challenges to the maintenance of the psychological wellbeing of police officers.
The report recognised that job-related stress can be positive or negative. Whilst positive stresses assist in successfully achieving goals, negative stress, or distress, can be a harmful stimulus. Such stresses require adequate management and supervision: Exhibit "K", p 4.

[44]

Ombudsman's Report 1999 - Response to Stress

The plaintiff tendered a report of the NSW Ombudsman to the NSW Parliament dated June 1999 entitled Officers Under Stress: Exhibit "M". The report indicates a copy had been provided to the Minister for Police. The executive summary of the report referred to the need for police officers whose psychological wellbeing had been affected by stress to be identified so they could be supported: Exhibit "M", p 7. The report identified an urgent need, in 1999, to develop and implement a system for the support of officers who had been involved in critical incidents. By the terms of that summary, from 1999 onwards, the administrative structures of the NSW Police may be taken to have been aware of the following statements: "… Exposure to traumatic incidents affects the ability of some police officers to carry out their duties, yet many supervisors within the Police Service have no way of knowing that some of their officers are struggling to cope. This jeopardises the interests of the affected officers, the Police Service and the community. A failure to identify an officer who is not coping could result in the officer making an error of judgement that causes serious harm to the officer or a member of the public. … The Police Service's own research has also highlighted the need for improvements. Its survey of police personnel involved in critical incidents over a six-month period in 1998 found that: * For every five police officers involved in incidents, only three were offered professional support. * Of those who were offered support, 72 per cent were not offered further assistance after the initial intervention. * 18 per cent of those interviewed indicated a clinically significant reaction to the incident; only half of this 18 per cent had received assistance. * More experienced officers were significantly more likely to be affected. * A third of those surveyed were unaware of the Police Service's psychology and welfare services. As an organisation whose personnel are routinely exposed to stress and trauma, the Police Service needs adequate systems to enable managers to identify and respond to the needs of staff experiencing difficulties. For police managers to respond appropriately, they should have access to relevant information about the psychological well-being of their officers. It is neither fair nor safe to expect police officers whose work has affected their ability to cope, to continue to perform without proper support. … I am concerned that the Service's work to date has not addressed the need for police managers, in certain circumstances, to have access to appropriate professional advice about the psychological (sic) well-being of their officers, particularly those who have been subjected to traumatic incidents. This advice is needed to assist police managers in making informed decisions as to how best to support their officers and to protect the interests of the community. I appreciate that there are sensitive issues associated with police managers seeking professional assessments of their officers. But both police officers and the community will suffer if adequate guidelines are not developed to address this issue. It should be emphasised that police who are suffering stress may be placed in situations requiring them to make decisions with potential life and death consequences." [Exhibit "M", pp 7 - 8]
The report recommended the activation of a critical incident stress debriefing team in a number of circumstances, some mandatory and others, such as the death of children or the exposure to gruesome sights, where consideration should be given to activating such a team: Exhibit "M", pp 12 - 13.
It would seem the convening of the EAP session in August 2003, which included the plaintiff, was a response by the police force to the Ombudsman's recommendation as to what should occur in the way of debriefing of officers following the death of a child, which applied to the plaintiff's attendance on the SIDS incident.
The report noted that a failure to manage and support officers under stress could lead to legal liability of the police force to officers affected by that failure, which highlighted the need for the police force to keep proper records about the steps taken to address the welfare of officers.

[45]

Rehabilitation (Return-to-Work) Policy

In December 2003, NSW Police published the 2nd Edition of its Rehabilitation (Return-to-Work) Policy, an aim of which was to provide, amongst other things, for facilitation of the return-to-work process in cases involving work-related injuries: Exhibit "L".
The Policy Statement was in the following terms: "NSW Police is committed to the principles of workplace based rehabilitation and effective return-to-work planning involving consultation with all parties that are part of the process. The Service fully supports the initiative of injury management which facilitates the safe, timely and durable return to work of injured employees. The goal of workplace based rehabilitation is to make every effort to restore injured employees to their fullest physical, psychological, social, vocational and economic usefulness, consistent with their medical condition. This will be best achieved through timely intervention and proper planning and management of the employee's return-to-work plans." [Exhibit "L", p iii]
The injury management plan contemplated by the Return-to-Work Policy included the need to set objectives and goals consistent with the injured employee's medical condition in order to achieve a timely, safe and durable return to work: Exhibit "L", p 12.
Part 6 of the Policy dealt with suitable alternative employment for police with work-related injuries. In that context, the following statement appeared: "In cases where a return to pre injury employment is not reasonably practicable, NSW Police will endeavour to provide the injured employee with suitable employment within the Service. Where this option is not reasonably practicable, NSW Police will assist the employee to be vocationally redirected to suitable employment with another employer. Vocational redirection and if necessary the vocational retraining of injured employees will be consistent with the injury management program of the insurer." [Exhibit "L", p 14]
Suitable employment was stated to mean employment in work for which the worker is suited, having regard to the following: "… (i) the nature of the employee's incapacity and pre injury employment; (ii) the employee's age, education, skills and work experience; (iii) the employee's place of residence; (iv) the details given In the medical certificate supplied by the employee; (v) the provisions of the employee's workplace rehabilitation program and any rehabilitation assessment of, or rehabilitation plan for, the particular employee; (vi) any suitable employment for which the employee has received rehabilitation training; (vii) the length of time the employee has been seeking suitable employment; (viii) any other relevant circumstance. Suitable employment should not include employment that Is merely of a token nature or demeaning and does not involve useful work having regard to the Services primary functions and to the employee's other employment prospects. The provision of suitable employment is subject to the agreement of the injured employee. The requirements of the legislation pursuant to the provision of suitable employment will not apply if: (i) it Is not reasonably practicable to provide employment in accordance with the legislation; or (ii) the employee has voluntarily left the employment of the employer after the injury happened (whether before or after the commencement of incapacity for work);or (iii) the employer terminated the employee's employment after the injury happened other than for the reason that the employee was not fit for employment as a result of the injury." [Exhibit "L", pp 14 - 15]

[46]

Restricted Duties Policy

In April 2005, NSW Police had a Permanent Restricted Duties Policy which provided a broad policy framework to facilitate the placement of permanently restricted police into suitable positions, and hopefully, career paths: Exhibit "J", p 3.
The policy was stated to herald a new era of goodwill in the management of officers who were unfortunate enough to experience protracted periods of ill-health or injury: Exhibit "J", p 9.
The policy recognised that the police force could potentially offer only limited numbers of positions to officers with permanent medical conditions. Whilst the policy described and listed without being definitive, a wide range of duties in other positions, including where necessary, the provision of suitable training to equip those being considered, to perform those alternative roles: Exhibit "J", pp 4 - 5.
The policy envisaged that in each Local Area Command, the positions to be considered for such officers would include the following: "… Brief Managers Communications Crime Prevention Education Services Teachers Supervisors, etc Employee Management Branch Exhibits External Agencies Response Unit Forensic Services L.A.C. - SOCOs Workforce and Careers Health Services Intelligence Internal Witness Support Unit Legal Services Prosecutors Court Process Officers Brief Handlers, etc Licensing Maintenance Unit, Water Police P.A.L. Personnel Public Affairs Police Operations Centre STAR Training Youth Clubs and Youth Liaison roles" [Exhibit "J", p 5]
The obligation to identify possible suitable positions for redeployment was mutual to the employer and the employee, subject to the following rider: "However, it is the injured officer's responsibility to accept any reasonable offer made by the employer, which may include transfer to another location. A failure to accept a reasonable offer of a suitable position may jeopardize workers compensation entitlements and may result in medical discharge." [Exhibit "J", p 6]
The Permanent Restricted Duties Policy was not intended to in any way replace or reduce the commitment of the police force to the "civilisation" process: Exhibit "J", p 7.

[47]

Complaints Handling Guidelines

In 2008, the NSW Police Force published comprehensive Complaint Handling Guidelines in respect of the conduct of a NSW police officer: Exhibit "N".
The guidelines provided for officers the subject of a complaint to be dealt with in a swift, fair, impartial and equitable manner, including an entitlement to have the complaint handled discreetly: Exhibit "N", pp 18 and 58.
The guidelines recognised that at times it may be necessary for an officer investigating a complaint to speak with a police officer on sick report, consistent with the need to complete the investigation process in a timely and effective manner: Exhibit "N", p 18.
The set timeframe for the completion of the investigation of a complaint against a police officer was 90 days: s 145 of the Police Act 1990; Exhibit "N", p 46.
The guidelines stated that officers the subject of questioning did not have a specific right to seek legal advice, or to be accompanied by a friend or support person, but such provisions were required to be considered by investigators prior to conducting interviews: Exhibit "N", p 55.
The guidelines provide for a NSW police officer to be ordered to participate in an interview to answer questions. In carrying out that procedure, the guidelines also provide as follows: "… Investigating officers must consider the welfare of the subject officer prior to commencing any non criminal interview. Where appropriate make allowances for fatigue or other extenuating factors that may impact negatively on the officer being interviewed." [Exhibit "N", p 55]
There was provision in the guidelines for the officer the subject of the investigation to be provided with regular updates of the progress of the investigation, to be provided with regular information as an essential requirement to minimise officer anxiety, and the outcome of the investigation: Exhibit "N", p 58.
The guidelines provided that if the officer the subject of a criminal investigation produces a medical certificate, the investigation should seek advice from the Police Medical Officer: Exhibit "N", p 60. The interview was a criminal investigation as the plaintiff was told he was a person of interest.
There is no actual evidence as to whether the investigator knew the plaintiff was on sick leave pursuant to a current medical certificate, and if so, whether the investigator sought advice from the Police Medical Officer.
I now turn to the issues calling for determination.

[48]

Issue 1 - Grant of leave pursuant to s 151D of WC Act 1987

On 14 July 2015, the plaintiff filed a notice of motion pursuant to s 151D of the WC Act seeking leave for the proceedings to be continued and taken to a final hearing.
The leave sought by the plaintiff pursuant to s 151D(2) of the WC Act requires the exercise of discretion according to what is fair and just in the circumstances: ITEK Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207, at [87]. In support of the motion for leave, the plaintiff relied upon three affidavits. The first affidavit was that sworn by the plaintiff's solicitor on 14 July 2015, which was accompanied by a voluminous documentary exhibit comprising Exhibit "SG-1". The second affidavit was that sworn by the plaintiff on 14 July 2015. The third affidavit was that sworn by the plaintiff on 7 September 2015. The plaintiff was cross-examined on the content of his affidavits: T11 - T15.
Mr Gray's affidavit set out the chronology of the professional contact he had with the plaintiff between 14 September 2012 and 31 March 2015, the latter date being when the plaintiff's statement of claim was filed and served in order to initiate the present proceedings.
The delay in commencing proceedings can be seen to be due to several factors. First, the plaintiff was unaware that he may have had a right to bring this claim. Secondly, the plaintiff had work-related psychological problems that required specialist psychiatric opinion in order that the plaintiff's case could proceed. This involved time for gathering the initial treatment reports, analysing some, and then obtaining an expert medico-legal opinion which was ultimately obtained on 29 June 2014, which was when Dr Michael Diamond, a consultant psychiatrist, issued his report which supported the present case ultimately framed on the plaintiff's behalf.
From the chronology of events that occurred after the plaintiff's solicitor obtained Dr Diamond's opinion it is plain that further time was inevitably taken up with the plaintiff's solicitor seeking further documents from the NSW Police Force and dealing with a claim for privilege over the documents sought.
A further distracting delay occurred, between 25 August 2014 and 10 December 2014, when time was taken up with the plaintiff having to deal with proceedings brought against him by the defendant in the Local Court claiming alleged over-payment of salary whilst the plaintiff was absent from work due to the effects of the subject psychological problems and whilst he was in receipt of workers' compensation benefits. Those proceedings were ultimately resolved on 10 December 2014: Exhibit "SG-1".
Further time was also taken up with the parties complying with the rigorous procedural and regulatory requirements for pursuing a work injury damages claim. On 25 February 2015, a compulsory mediation of the plaintiff's claim proved unsuccessful.
This led to the plaintiff's statement of claim being filed on 12 March 2015. That statement of claim was served on the defendant on 31 March 2015.
The chronology of events within that period demonstrates, unremarkably, the inevitable delays that occur whilst information and evidence are gathered for the purpose of assessing the plaintiff's situation, and the provision of advice as to his legal rights to pursue compensation for his work-related psychological problems. In those events, the plaintiff's proceedings were filed a few months late.
In that time, the plaintiff was reliant on his solicitor's attempts to comply with the legal requirements that had to be fulfilled. There is no criticism of the plaintiff's solicitor concerning the time taken to document the claim, which required him to obtain the necessary documents, and to comply with the statutory requirements of the workers' compensation scheme.
On 16 November 2013, the plaintiff was advised by his solicitor that his condition had been assessed and that he had been assigned a 15 per cent impairment threshold which enabled his claim to proceed, subject to fulfilling some procedural requirements.
Prior to 16 November 2013, no-one had informed the plaintiff of the possibility he could commence proceedings against his employer. It was around that time that he became aware of the existence of a 3 year limitation period.
I accept the plaintiff's evidence given on the motion to the effect that prior to December 2013 he was unaware of a three year limitation to bring a claim against his former employer.
The proceedings were then formulated after the plaintiff's claim had been the subject of advice from counsel. The plaintiff complied with all requests his lawyers asked of him in that process.
The chronology within Mr Gray's affidavit and the accompanying Exhibit "SG-1", and the evidence of the plaintiff provide a sufficiently full and satisfactory explanation for the proceedings being commenced outside the 3 year limitation period. This was not due to dilatoriness on the part of his solicitor, and in my view the chronology of events contains a full and satisfactory explanation for the delay incurred: Smith v Grant [2006] NSWCA 244; (2006) NSWLR 735, at [60].
The defendant has not pointed to any actual or significant prejudice that it would incur other than the ordinary presumptive prejudice associated with litigation generally, if the plaintiff's case was the subject of a grant of leave to proceed pursuant to s 151D of the WC Act. I consider that in the circumstances of this case, any disadvantage accruing to the defendant from presumptive prejudice would be a far lesser evil when compared to the result of depriving the blameless plaintiff of his claimed right of action: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, p 555.
For the above reasons, on 7 September 2015, I considered that it was fair and just for leave to be granted to the plaintiff to continue the proceedings to a trial, which immediately then followed.

[50]

Particulars of negligence

The particulars relied upon by the plaintiff in respect of those alleged breaches, which were denied by the defendant, were as follows: 1. Failing to have the Claimant psychologically assessed and treated at any stage after his transfer to the Detectives at Gosford and General Duties at Rose Bay; 2. Failing to ensure that the Claimant's psychological health was regularly reviewed or monitored; 3. Failing to establish and maintain a safe system of work; 4. Failing to educate and warn the Claimant as to the signs of psychological injury; 5. Failing to reasonably respond to the Claimant's request for alternative duties whilst at Rose Bay in August 2011; 6. Allowing the Claimant to continue to attend suicides at the Gap; 7. Failing to arrange appropriate alternative duties for the Claimant after his emotional breakdown in November 2011; 8. Failing to establish and enforce an effective system for early detection and treatment for psychological injury caused by the Claimant's cumulative exposure to gruesome scenes of traumatic death; 9. Failing to provide a system of work whereby the Claimant was adequately monitored and reviewed and, if necessary, referred for treatment, provided with leave and/or transfer to alternative duties so that his psychological illness did not become chronic; 10. Failure to take any, or any appropriate steps to rehabilitate the Claimant back to duty; 11. Requiring the Claimant to perform duties for which he was certified unfit and thereby vulnerable to further injury; 12. Failing to provide "wellchecks" in accordance with its own policies; 13. Failing to provide any counselling or psychological support for the Claimant; 14. Failure to debrief the Claimant following his involvement in "critical" and otherwise traumatic incidents; 15. Requiring the plaintiff to be improperly investigated on unreasonable charges after his return to work on "alternate duties" and whilst on sick leave, including an 8 to 9 hour interview. 16. Failing to advise the Claimant as to the outcome of the investigation referred to in paragraph (o) above.

[51]

Principles for determining breach of duty of care

The provisions of the Civil Liability Act 2002 do not apply in this case: s 3B(1)(f) of the CL Act. Therefore, the question of whether or not the defendant was negligent as claimed is to be approached according to well-settled common law principles by applying a prospective analysis to the facts to determine whether, on balance, the plaintiff's employer had taken precautions that amounted to a reasonable response to a foreseeable risk of harm: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, at pp 47 - 48; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, at p 462, [128]; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2007) 234 CLR 330, at [65].
The present case is within a category where there can be no issue that the NSW Police Force, as the plaintiff's employer, owed the plaintiff a duty of care: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 per Gleeson CJ at [13].
The defendant did not contend that it did not owe the plaintiff a non-delegable duty of care, nor did the defendant contend that the scope of the employer's duty of care in this case did not extend to the need to consider the avoidance of psychological injury occurring in the course of the plaintiff's employment as a police officer: S v State of NSW [2009] NSWCA 164, at [59], following Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44; State of NSW v Fahy [2007] HCA 20; (2007) 232 CLR 486.
In individual cases of this category, it has been authoritatively stated that the question of whether or not an employer was in breach of the duty owed to an employee, is a factual matter to be determined in the particular circumstances of the case, and in that sense, it is unhelpful to seek to draw conclusive judgments from the comparison of general factual scenarios in other decided cases, as no two cases are truly comparable: Bankstown Foundry Pty Ltd v Brastina [1986] HCA 20; (1986) 160 CLR 301, at [11].

[52]

Foreseeability of psychological harm

The first question to be asked is whether a reasonable person in the position of the defendant would have foreseen that the circumstances in which the plaintiff was required to work involved him in being exposed to the risk of injury: Wyong Shire Council v Shirt, at [14].
Since at least the 1990's, if not beforehand, the defendant has had at its disposal the means by which to recognise the extent to which the duty it owed to operational police officers such as the plaintiff, extended to the risk of such officers incurring psychological injury in the course of discharging their assigned work tasks: Exhibits "K" and "M".
Relevant portions of those documents, which respectively comprised the Research Report of Task Force Alpha issued by the NSW Police Service in 1992 concerning Physical Risks in Policing (Exhibit "K"), and the 1999 special report to Parliament by the NSW Ombudsman under the title Officers Under, Stress (Exhibit "M"), have already been reviewed at paragraphs [373] to [386] above.
The documents comprising Exhibits "K" and "M", and the EAP process earlier described in the evidence of the plaintiff, amply demonstrate that the NSW Police Force recognised, well before 31 July 2003, that police officers could foreseeably incur psychological illness as a result of their exposure to traumatic events in the course of their work, and that illnesses of that kind could have lasting adverse consequences for the deployment or re-deployment of affected police officers.
The 30 September 1992 Report of Task Force Alpha cited research that suggested the death of a child in particularly tragic circumstances was ranked high amongst the "most traumatic" events in which police officers were likely to experience stress: Exhibit "K", p 23. Incidents involving violent injuries and the removal of human remains also featured high in that ranked list of traumatic events: Exhibit "K", p 24. This was in the context of a stated recognition that the work of policing ranks amongst the more highly stressed occupations, in which the negative stress reactions of affected officers often leads to them being unable to speak about their problems to fellow officers, a matter that was considered worthy of being addressed during training, and through the use of management techniques: Exhibit "K", pp 24 - 25.
The June 1999 report of the NSW Ombudsman into Police Officers Under Stress echoed those matters cited from Exhibit "K", and referred to the availability of critical incident teams, the function of which was to assist affected officers who had experienced the negative effects of stress after exposure to unusually stressful events in a variety of situations listed in those documents. From the context of that report, I do not take such lists to have been intended to be exhaustive of the types of stressful situations that merited the convening of a critical incident response aimed at providing police officers with psychological assistance and debriefing opportunities, or follow-up on such matters if required in the individual case.
It is relevant to observe that some of the events listed in those documents were of the type that the plaintiff had encountered over the course of his career as a police officer, including what he described without challenge or demur, as having involved some particularly gruesome sights: Exhibit "M", pp 12 - 13.

[54]

Employer's response to SIDS incident

The 2003 SIDS incident, involving as it did the death of a child in tragic circumstances, was on the evidence, properly characterised as a critical incident which justifiably engaged the EAP program aimed at providing psychological assistance and support to the police officers, including the plaintiff, who had to a significant degree participated in dealing with that incident and its aftermath.
The fact that the EAP counselling session was convened in early August 2003 following the SIDS incident leads to the conclusion that the plaintiff's employer, acting through its officers who had the duty of supervising the plaintiff, reasonably foresaw at the time, that the trauma of the exposure of the plaintiff and the other officers to the underlying SIDS incident represented a real, as distinct from a remote, potential source of significant harm to the plaintiff's psychological wellbeing, and that this source of potential harm arose from the plaintiff's work as a police officer.
I accept the plaintiff's evidence that, at the EAP counselling session which followed that sentinel SIDS incident, he and the other participating police officers were not particularly forthcoming by way of disclosure of any personal or emotional reactions to that SIDS incident.
In my view, nothing turns on the fact that the EAP session in question was conducted in a meal room in what appears to have been an atmosphere of relative informality.
In those circumstances, absent the plaintiff having made a significant disclosure, either at or following that counselling session, of him being emotionally affected by the SIDS incident, and absent a report from any interested or responsible observer, such as a work colleague or a supervisor of the plaintiff passing on information to police hierarchy to the effect that the plaintiff was so affected, there is no reasonable basis upon which to conclude that the plaintiff's employer had actual or imputed grounds to suspect that the plaintiff had at that time incurred an unaddressed work-related psychological injury.
Following that EAP session, neither the plaintiff, nor any other participant it appears, thought they had been adversely or lastingly affected by the SIDS incident at that time.
Accordingly, as at August 2003, I find that there is no sound basis for concluding that the plaintiff's employer had breached the duty of care that it owed to him in connection with his psychological wellbeing in relation to the trauma of the SIDS incident to which he had been exposed. I find that the plaintiff's employer had discharged its duty to him in the immediate aftermath of the SIDS incident by convening the EAP session and by ensuring the plaintiff's participation in that process. There is no evidence to suggest that any follow-up sessions, either individually or in a group, were indicated in the plaintiff's circumstances at that time.
That said, I accept the tenor of the medical and allied opinions to the effect that the plaintiff did have a psychological reaction to that sentinel SIDS incident, and that reaction remained embedded in his psychological functioning. He became pathologically affected: Exhibit "F", p 134. This then served to predispose him to develop further reactions or "recrudescences" of his emotional reactions in later occurring circumstances, as was conceded by the defendant: T122.15 - T122.25; T268.43; T269.49.
The subsequent traumas to which the plaintiff was exposed in the course of his policing career, and his subsequent work-related reactions, responses, attitudes and behaviours, must therefore be viewed against that background consideration.

[55]

Events between July 2003 and July 2011

On the evidence of the plaintiff, which I accept, from July 2003 onwards, until in July 2011 (which was when the plaintiff had the critical conversation with Inspector Sipos about seeking a change of duties), he was increasingly experiencing problems with his work. This concerned his attitude to his work, tolerance, snappiness, anger and in controlling his responses in dealing with "the clientele".
In the plaintiff's own words, and in accordance with what he understood of the prevailing culture in the police force concerning such matters, the plaintiff's response to recognising he was affected with those problems, was that he continued to "suck it up". He did not confide any such problematic feelings or attitudes to anybody in authority in the police force.
In those circumstances, I accept the submission made on behalf of the defendant to the effect that the plaintiff's employer did not have any actual notice, or a particular reason based on any specific disclosure from the plaintiff, to consider or suspect, that the plaintiff was experiencing psychological difficulties that were affecting him in his work as an operational police officer.
Consistent with that finding, I also accept that the psychological difficulties the plaintiff described he was experiencing in that period may not have been obviously evident to his supervisors from their interactions with him.
Absent such evidence of awareness, to a qualified extent, the plaintiff's responsible supervisors may have felt justified in not specifically questioning the plaintiff as to his wellbeing, or as to how he was coping with work-related stresses.
The qualification to that statement must be that, given the exposure of the plaintiff to traumatic and gruesome events in the course of his operational duties in the period 2003 to 2011, the omission of the plaintiff's managers and supervisors to make EAP and other protocol arrangements in response to the plaintiff's participation in those events, fell well short of the discharge of the duty of care owed to the plaintiff, having regard to the general descriptions given by the plaintiff as to his exposure to stressful events in that period. At the very least, the described circumstances mandated the convening of EAP sessions on multiple individual occasions in response to specific events occurring in that period.
The circumstances identified in the four immediately preceding paragraphs, and which continued to prevail in the course of the plaintiff's police work between August 2003, and July 2011, continued to adversely affect the plaintiff's psychological wellbeing in an incremental way.
In my view, the qualification that must be applied to the circumstances reviewed in the above paragraphs in relation to this period necessarily arises because over the course of the plaintiff's 8 years of service from the time of the SIDS incident until his attempt to transfer to non-operational duties in August 2011, he had attended many incidents which justified the convening of critical incident team responses, or at least the provision of EAP debriefing, if not the actual provision of psychological assistance.
Those events suggested that some sort of basic inquiries ought to have been made of the plaintiff as to how he was coping with his emotions following such events. In my view, the employer's duty of care in such circumstances was not discharged by the employer leaving such matters to the plaintiff, or expecting the plaintiff to make disclosures to the effect he was affected by the traumas to which he had been exposed, or was experiencing difficulty in that regard.
The employer's duty of care was not one which was delegable to the plaintiff for him to decide whether he needed to invoke EAP or critical incident processes aimed at providing psychological assistance to police officers. In my view, the described circumstances which prevailed in that period did not constitute a reasonable response of the kind that would be expected from an employer in the position of the police force by way of response to a foreseeable risk of the plaintiff suffering psychological harm if work stresses were not professionally addressed.
I accept the evidence of the plaintiff that he was not provided with any such debriefing or counselling services in that period of 8 years. The glib proposition was put to the plaintiff that if such services had been made available to him at such times, he would not have availed himself of "the touchy feely stuff": T132.30 - T1342.37. In my view, it was not enough for an employer to simply place posters on the walls of police stations referring to the availability of EAP services in a police culture where there was a recognised reticence on the part of police officers to volunteer to disclose such matters.
I accept the plaintiff's evidence that he would have been open to such interventions had they been offered to him: T132.37 - T132.42. There is no sound reason to assume otherwise. In that regard, there is a material difference between the police culture of not volunteering the existence of psychological issues and the need for an employer to provide facilitative arrangements for such matters to be identified and addressed in the proper discharge of the duty of care owed.
That view is reinforced by the fact that the plaintiff had attended the EAP debriefing session convened in response to the SIDS incident in 2003. At that time, on his own understanding, he did not seem to be greatly affected. There is no sound reason for assuming that the incremental effect of the subsequent exposures to trauma, of the kind referred to in the evidence of the plaintiff, would have had the result of him just continuing to "suck it up" and reject offered opportunities to ventilate his feelings and reactions to such events. In that context, it should be recognised that the plaintiff's "suck it up" attitude should be seen as having its origins from the non-convening of debriefing opportunities in that period, where his perception of the police culture was not to volunteer disclosure of such feelings.
Recognising that there was such a culture of non-disclosure, it was the responsibility of the plaintiff's employer to create suitable opportunities for such feelings to be ventilated so as to either counteract the effect of that culture, or to work around that culture in the proper discharge of the duty of care it owed to its police officers.
I consider that over time, if the plaintiff had been offered such psychological debriefing opportunities, it is more likely than not that he would have availed himself of them, just as he had done in relation to the SIDS incident in 2003. I therefore do not accept the defendant's submissions to the contrary.
In the circumstances of the plaintiff's periodic exposure to traumatic events, it was reasonably foreseeable that those events each posed a real, rather than a remote, prospect of injurious accumulation of incremental unresolved stresses and resultant psychological impairment in the plaintiff's ability to continue to function both in his private life and in his profession. Those circumstances were aptly described in the evidence as the "creeping trauma" that could accumulate over time, and which could lead to the development of PTSD, which in fact occurred as a consequence of the plaintiff's operational duties over the course of time since July 2003: Exhibit "F", p 3.
Over the period 2003 to 2011, at the various locations where the plaintiff was stationed, as a matter of course, his respective supervising officers would have more probably than not reviewed official summaries of his daily attendances at his assigned work duties. Together, those events incrementally constituted the potential for "creeping trauma" to occur, and for the plaintiff to suffer adverse impacts from such events.
The evidence discloses that in that time, the plaintiff's work would have been regularly supervised by officers more senior to him. It was a function of those officers that they review the products of his work. In the context of the various stresses that are known to arise in the ordinary course of operational policing, it is more probable than not that the plaintiff's factual descriptions of his attendances on operational duties of the kind referred to in Exhibit "A", as read by his supervisors, even if those matters were just recorded blandly without emotive content, ought to have revealed evidence of the plaintiff's exposure to instances of stressful events of the kind contemplated by Exhibits "K", "M", and by the EAP criteria.
In my view that conclusion reasonably flows from the fact that the products of the plaintiff's work were the subject of regular official review and supervision by superior officers. Those officers must be taken to have understood the nature and foreseeable effect of psychological harm from exposure to such work from the perspective of what occurs in the array of circumstances that are likely to arise and impact upon officers engaged in day-to-day frontline policing.
By reason of the managerial positions held by those supervisors in the police hierarchy, those persons were obviously tasked with the responsibility of discharging the employer's duty to the plaintiff against the background of their own understanding that incremental exposure to traumatic events could have the adverse effect of incurring what has been given the convenient label of "creeping trauma", or PTSD. I consider that in the period 2003 to 2011, at the very least, such knowledge came from what was embodied in Exhibits "K", "M", and the EAP criteria. In my view, those materials comprised part of the corporate knowledge of police officers in managerial and supervisory roles, including those who managed and supervised the plaintiff.
The questions which arise from those circumstances are first, what was required of a reasonable person in the position of the plaintiff's employer acting through delegates comprising the plaintiff's managers and supervisors, and secondly, were the required responses appropriately delivered in the reasonable discharge of the duty owed.
In my assessment, the fact that the plaintiff was exposed to the traumatic events he described in the period 2003 to 2011, together with the fact that apart from the SIDS incident, he had not been provided with any counselling or debriefing opportunities in respect of critical incidents in that period, bespeaks a series of breaches of the duty of care that was owed to him in that time. The incremental effects of such traumas on the plaintiff were, to use the label of the metaphor cited by Dr Peters, allowed to continue to creep, and to continue to adversely affect the plaintiff in an injurious way without interruption, and without being appropriately addressed.
In identifying the above circumstances, two explanatory matters need to be stated.
First, the above analysis is not one arrived at by using impermissible hindsight, although the analysis necessarily takes place in the context of hindsight. All of the relevant exposures occurred in the context of a background awareness on the part of the police management hierarchy that traumatic events, of the kind the plaintiff was exposed to in the course of his work between 2003 and 2011, constituted stress which in some instances warranted a supervisory consideration of ascertaining how the plaintiff was coping and reacting to those stressful circumstances. It is that background awareness which mandates that such individual events be given day-to-day managerial consideration, both in terms of the immediate significance of such events to the wellbeing of the officers concerned, and in relation to longer term implications for officer wellbeing: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. That is a prospective consideration, not one arrived at through hindsight.
In terms of good and prudent "man management", those supervising the plaintiff ought to have given timely contemporaneous consideration to the foreseeable effects of the traumatic events on the plaintiff as and when they occurred, whether or not critical incident teams were considered to have been unnecessary. In my view, a reasonable employer of police officers, acting reasonably in the discharge of its duty of care to those officers, would have given such contemporary consideration to the emotional wellbeing of its police officers who had been exposed to traumatic events, as was the plaintiff's situation. Such supervisors should have taken the well understood and available steps for harm avoidance by arranging debriefing and other protocol measures in order to address the potential for adverse impact on officer wellbeing following exposure to significant traumatic events.
Secondly, I consider it to be immaterial that the plaintiff's evidence did not chronologically catalogue or otherwise detail in terms of timing, numbers or characterisation, the specific events of the kind described above. It was not specifically suggested to the plaintiff that his general overall description of the stressful events of his work, or any parts of such description, was either unsatisfactory or incorrect. I accept the plaintiff's evidence in which he described the general nature of the traumatic and gruesome incidents he was called upon to deal with. The events were sufficiently identified in the plaintiff's evidence and in Exhibit "A".
If the plaintiff's evidence was truly wrong or exaggerated in those respects, as was suggested by the defendant, I infer from the resources available to the defendant, including supervisor access to the plaintiff's contemporaneous work notebooks, diaries, reports, files and other operational materials, that such materials would have been utilised by the defendant in an endeavour to contradict the plaintiff's evidence if that course had been available to the defendant. I consider this to be so especially given the nature, underlying purpose of those materials, and the content of the other attacks made on the plaintiff's credit. It was plain from the way the defendant conducted its case, that if it could have discredited the plaintiff or his case, it would have done by any reasonable means available, including the ones I have identified in this context.
The causation consequence of the above breaches requires an evaluation which will be taken up in more detail in the consideration of Issue 3.

[56]

Disclosure of "struggling" in July 2011

In July 2011, on the plaintiff's own understanding of his work situation, he was struggling. He was experiencing behavioural difficulties with regard to self-control of his anger, and he was aware that he was over-reacting to situations, both significant and trivial. On the plaintiff's own assessment, he was not functioning well as an operational police officer.
The plaintiff's response to that realisation was an intelligent one. He saw himself as a career police officer and he wanted to maintain his position as a police officer. He therefore sought supervisory duties which would take him out of the front-line policing duties. However, it was plain that at that time, he was reluctant to volunteer in further detail that he was experiencing psychological difficulties.
At that time, understandably in light of the plaintiff's perception of the police culture concerning how officers dealt with stress, there was an obvious reluctance on his part to disclose in detail the nature of the difficulties he was having in the discharge of his day-to-day operational policing duties. If he had made a full disclosure of such difficulties it would have undoubtedly been embarrassing, if not humiliating, for him to admit to such matters.
Against that background, in July 2011, the plaintiff applied to Inspector Sipos for allocation to other duties that would avoid the need for him to deal with the public, and thereby remove stressors that were adversely affecting him in the context of front-line policing.
That conversation with Inspector Sipos, who was the plaintiff's Rose Bay Police Station "man manager", was a pivotal one. In that conversation the plaintiff told Inspector Sipos that he was struggling in his work. He did so in the terms that have already been identified and considered at paragraphs [102] to [109] above.
For the reasons outlined in the preceding paragraphs, that conversation was obviously a difficult one for the plaintiff to have initiated with Inspector Sipos. From the plaintiff's description, which I accept, he intimated to Inspector Sipos that he was "struggling". I accept that the plaintiff was intimating that he was struggling with his duties, and he wanted to get "off the truck".
In my view, in the circumstances, that was a sufficiently direct statement to a supervising officer that could be viewed both literally and metaphorically, but either way, it was a sentinel communication which in my view required exploratory attention by the representatives of the employer in the context of a stressful working environment, especially where the employer's duty of care had to be addressed.
In my assessment, this was a moment when Inspector Sipos ought to have become aware, from the fact that the plaintiff was seeking lesser duties, with lesser remuneration, at a level of duty that was below his rank, training and experience, that this raised the question as to why the plaintiff was seeking to pursue such a course.
In my view, that conversation with Inspector Sipos ought to have raised a question in the mind of a reasonable employer whose duty it was to consider matters affecting the wellbeing of police officers, as to why the plaintiff was seeking such a change of duties to a lesser role. I consider that such a question ought to have arisen for consideration in the mind of Inspector Sipos as a result of that July 2011 conversation.
Furthermore, the question should have been followed-up in the plaintiff's situation because of the particular employment environment that he was in, and where it was a known aspect of the police culture that discussing or disclosing personal matters, or disclosing the effect work stresses were having on the individual, were subjects that were generally avoided as a matter of practice.
In my opinion, a reasonable "man manager" and delegate of the plaintiff's employer at that time would have taken stock of and considered the plaintiff's situation, and would have also looked at the plaintiff's rosters and considered why the plaintiff had been seeking to roster himself off operational duties. Instead, the plaintiff was not questioned as to why he wanted to get "off the truck" and take an effective demotion.
The follow-up questioning of the plaintiff's request for other duties did not necessarily require the convening of a formal meeting for that question to be explored in a managerial way. Simple questions aimed at eliciting the plaintiff's reasons would not have been difficult to initiate, starting, for example, with "Why?".
I consider that if such a course had been pursued, either by Inspector Sipos, or any other superior officer responsible for man management, if consulted by Inspector Sipos, it would more likely than not have led to the plaintiff revealing more of the tip of the metaphorical iceberg that represented the difficulties he was experiencing and which he was hinting at, and which had hitherto remained submerged from the view of others. At that point, those responsible for the task of discharging the employer's duty of care towards the plaintiff, should have explored the plaintiff's reasons for his request.
I find that if such questions had been asked, in the immediate short term, those responsible for man management of the plaintiff would have become progressively more involved in appropriately responding to what would have become recognised as a personnel and management crisis in the plaintiff's police career. The pursuit of such questions would not only have been in the interests of the plaintiff, but also in the interests of the police force generally, which was also a public interest.
In those circumstances, in the reasonable discharge of the employer's duty of care, existing police policies, procedures and resources would have been accessed to assist the plaintiff. The plaintiff would then more probably than not have received prompt professional assistance. In my view, based on a review of what occurred once the plaintiff was referred to Dr Peters and Dr Murray, he would have been promptly diagnosed as having PTSD and depression, as in fact later occurred when those consultations took place. However, the relevant difference regarding an earlier diagnosis was that the plaintiff would have received supportive treatment at a much earlier point in time.
In my opinion, those questions, and those responses would have arisen on a progressive and prospective contemporaneous review, and should not be dismissed as a convenient view arrived at with the benefit of hindsight: Vairy v Wyong Shire Council, at [124] - [129].
In coming to that view, I have not overlooked the fact that the cumulative stresses that led to the plaintiff's disclosure to Inspector Sipos that he was "struggling" had not all occurred whilst the plaintiff was stationed at Rose Bay.
It must be remembered that some of the plaintiff's attendances at the gruesome incidents he described, including for example the instance of a mentally ill man self-amputating his penis, and body recoveries from motor vehicle accidents on the Central Coast, had occurred whilst he was stationed elsewhere. In that sense, looking back at causation for a moment, those unexplored events were a relevant part of the plaintiff's PTSD history. As such they should have been addressed contemporaneously to the occurrence of those events.
During the plaintiff's time at Rose Bay, his attendances at the Gap for body recoveries in cases of suicide, and at instances of attempted or suspected attempts at suicide, would have been within the contemporaneous knowledge of his man managers and his supervising officers at Rose Bay at the time when the plaintiff disclosed to Inspector Sipos he was "struggling".
In my view, a reasonable supervising officer or "man manager" acting reasonably in the discharge of the duty of care that the police force owed to the plaintiff, at the times when it was known he had been exposed to such events, both at Rose Bay Police Station and beforehand, ought to have realised the plaintiff's need for intervention by initiating an inquiry of the plaintiff as to his wellbeing, and the gauging of his response.
At the very least, on an incident-by-incident consideration, there were a number of incidents in that period where the plaintiff's employer should have pro-actively, arranged counselling and EAP sessions, as had occurred on the occasion of the plaintiff's exposure to the SIDS incident on 31 July 2003.
In my assessment, the failure of the responsible officers of the defendant to proceed along those lines in the period July 2003 to July 2011, and beyond, resulted in relevant breaches of the duty of care owed to the plaintiff. The question of causation, whilst linked to the question of breach of duty, will be considered separately, along with the other causation questions that arise, in the consideration of Issue 3.

[59]

Events between November 2011 and January 2013

The events between 16 November 2011, when the plaintiff left work on sick leave, and January 2013, when he was interviewed by the Professional Standards Command have already been reviewed. Over that entire period, the plaintiff remained under the case of Dr Peters and Dr Murray, as outlined at paragraphs [294] to [357] above. In that time, the plaintiff's attempts at returning to work on restricted duties proved unsuccessful. This was because of the nature of his PTSD condition, the vulnerability of that condition to flare in the presence of an array of work-related triggers, and the impact of the actions of the plaintiff's employer, and the actions of those acting on the employer's behalf in their dealings both with the plaintiff and those treating him.
Whilst the plaintiff was on sick leave, given his diagnosed work-related psychological conditions, which had become well known to the defendant, it was insensitive of the employer to question the plaintiff's involvement in playing rugby for the police team. That said, no particular criticisms arise concerning any alleged breach of duty of care on the part of the defendant in respect of that inquiry.
When the plaintiff returned to work on restricted duties, the defendant knew from the communications issued by the plaintiff's treating practitioners, that he should not be exposed to further stresses which are defined. In those circumstances, the allocation of the plaintiff to duties at Gosford, as described in paragraphs [198] and [199] above, where he was allocated duties that exposed him to stressors of being confronted with members of the public, which was contraindicated according to the restrictions imposed by Dr Murray, was in my view a further breach of the duty of care owed to the plaintiff.
At that time, the defendant knew from communications with Dr Murray that allocating the plaintiff to such duties was ill-advised, and by inference, could be a source of further injurious stress for the plaintiff. The causation consequences of such further ill-advised exposure remains to be considered in connection with Issue 3.
The events of 5 December 2011, when the plaintiff was target tested for alleged use of anabolic steroids have already been described at paragraphs [205] to [219] above. The arrangements made for the plaintiff to be tested, and the conduct of that testing, were insensitively undertaken. That said, no particular or identifiable breaches of the duty of care owed by the defendant can be identified, although the stress of those events undoubtedly added to the plaintiff's existing levels of anxiety and distress at the time, as was evident from the Skillion incident he described.
The intervention of the Professional Standards Command on 24 December 2012 and in early January 2013, whilst the plaintiff was on sick leave was also insensitive as to its timing. On the plaintiff's description, which I accept, the interview was conducted ineptly. The fact that the plaintiff was left uninformed as to the progress and outcome of the investigation for a prolonged period of time, undoubtedly further harmed the plaintiff in a psychological sense because the continuing uncertainty of his position with regard to that investigation added to his distress.
That interview of the plaintiff did not appear to reflect any consideration of the plaintiff's welfare, as was required by Exhibit "N", p 55, as cited at paragraph [403] above. There is no evidence that the interview had been conducted after first seeking advice from the police medical officer, as was provided for by Exhibit "N", p 60, as cited at paragraph [405] above.
Absent more detailed evidence of those matters, it is not possible to form a concluded view as to whether the particular actions of the Professional Standards Command amounted to a breach of the duty of care owed to the plaintiff. However, the effect of those circumstances still requires evaluation from the perspective of causation of further psychological harm occasioned to the plaintiff as a result of those circumstances, and as to the impact such events on the assessment of damages.

[63]

SIDS incident as the foundation

As explained in paragraphs [438] to [439] above, the traumatic exposure of the plaintiff to the SIDS incident was an event that created a predisposition in him developing further psychological reactions in the face of other events, even where such other events may have been relatively commonplace, or seemingly innocuous. In the plaintiff's circumstances, the triggering event was the birth of his twins, 8 years later, in August 2011. The defendant accepted this combination of circumstances for the emergence of the plaintiff's psychological symptoms in 2011, which the defendant accepted as being a "recrudescence" that related back to the SIDS incident: T269.49.
In the resulting circumstances, the plaintiff was primed to react to relevant stressors, such as the birth of the twins, although he did not realise this beforehand. The birth of the twins precipitated the psychological symptoms that continued unaddressed, and which then accumulated over time in the presence of other stresses, and which resulted in the plaintiff being impaired for his work as a police officer.
This was a mechanism that was well described in the opinion of Dr Diamond, who stated that it was often the exposure to trauma involving children that causes individual police officers to become pathologically affected: Exhibit "F", p 134.
Dr Diamond identified that process as occurring against the backdrop of factors intrinsic to the individual including personality strengths and inherent vulnerabilities: Exhibit "F", p 134. I accept Dr Diamond's opinion that the plaintiff's exposure to traumatic incidents early in his career as a police officer, including exposure to the death of a child, as occurred in the SIDS incident, was the origin of the psychological illness which is the subject of this claim: Exhibit "F", p 135.
The predisposition of the plaintiff to developing a psychological illness due to exposure to such work-related circumstances was one which the defendant must accept as being a pre-existing vulnerability which was liable to be affected by further accumulated and unaddressed work-related stressors. The foreseeable consequence of those circumstances was the possibility of a psychological illness in the plaintiff, or an exacerbation of an already existing psychological illness: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406.
The priming of the plaintiff to react to his work stresses in the way he did when subjected to the further cumulative stressful events in the course of his work occurred in circumstances where, over an extended period of years, he had received no further EAP sessions, counselling, or other interventions aimed at addressing or ameliorating the impact of such accumulated stresses in the interests of avoiding the damaging effects of such stresses.
Dr Diamond was asked to consider the question of when the plaintiff ought to have come to the notice of his employer as being "at risk" so as to warrant arrangements being made for him to be debriefed, assessed, and/or monitored. His response was as follows: "… I cannot identify at what point Mr Briggs would have come to notice so as to require examination or formal debriefing in relation to his police work because for much of the time Mr Briggs was intent on hiding the extent of his distress. He was also intent on portraying an image of toughness and resilience so that his psychiatric illness was not obvious. It was only later in the course of his work that his ability to maintain his bravado was compromised. It is a question of identifying that period and examining whether Mr Briggs presented to superior officers in such a way that it would have been apparent to them that he needed to be debriefed and/or assessed and/or monitored." [Exhibit "F"", p 135]
The above analysis by Dr Diamond must be qualified by an important factual matter intrinsic to the plaintiff's situation. The reason it was not possible for Dr Diamond, or any other expert for that matter, to identify a relevant point in time when the plaintiff should have come under notice as needing debriefing, counselling, examination and the like, is because the plaintiff's employer had not complied with applicable protocols and procedures for dealing with police officers who had been exposed to traumatic events in the course of their work. This has already been described as a breach of the duty of care owed. Absent that compliance, the plaintiff's psychological problems which are later diagnosed as PTSD, continued "brewing": Exhibit "F", p 61.

[65]

Disclosure of "struggling" in July 2011

On reviewing the plaintiff's history, Dr Diamond's cited opinion on the causation issue, which I accept, was that by mid-2011, when the plaintiff raised the subject of a transfer to a different role with his supervisor, this was "an opportunity missed to address the long term problems that were causing Mr Briggs difficulties at work": Exhibit "F", p 136.
In July 2011, when the plaintiff intimated to Inspector Sipos that he was struggling, his disclosure in that regard was not explored or followed-up by either Inspector Sipos or anyone else to whom he would have had to report concerning that disclosure. The missed opportunity identified by Dr Diamond was therefore a significant one. In reality, there were two missed opportunities, the first being the opportunity to recognise the problems that were affecting the plaintiff, and secondly, the opportunity to make a causative difference to the outcome of the plaintiff's condition by the implementation of policies and early treatment: Exhibit "K", as already cited at paragraphs [321] - [382] above.
At that time, the NSW Police Force had policies and mechanisms in place and available that could readily have been applied to assist the plaintiff at any stage of the process of accumulation of psychological difficulties. In each instance, those mechanisms could have been employed to ameliorate the damaging effects of work-related stresses so as to significantly lessen the impact of those effects, if not avoid them: Exhibit "L" and Exhibit "J", as already cited at paragraphs [387] - [397] above.
I find that on the balance of probabilities, the timely application of early interventions of the kind contemplated by those policies, would most probably have had a beneficial effect on preserving the plaintiff's ability to either work in less operational policing as he was seeking to do, or to at least enable him to be transferred to work in alternative administrative positions within the police force in accordance with the police Restricted Duties Policy: Exhibit "J". I consider this to be so because once the underlying cause of the plaintiff's psychological symptoms were identified, in accordance with the employer's procedures, he would have received appropriate early treatment and support within the police return-to-work and rehabilitation guidelines: Exhibit "L" and "J".
Once recognised, the plaintiff's exposure to further damaging stressors in the course of his work in the period 2003 to 2011 could have been, and most probably would have been, addressed by his transfer to different duties, co-extensive with the provision of appropriate professional and workplace supports. All such measures would have been aimed at keeping the plaintiff usefully employed, if not in the police force, then elsewhere, in conformity with the aim of those cited policies.
In my assessment, had such early opportunities been recognised, appropriately assessed, and implemented, along with the provision of treatment and support, then a materially different outcome would most likely have prevailed in terms of the plaintiff's continued employment in the Police Force.
In that regard, instead of the plaintiff being further exposed to damaging situational stressors, his management and treatment in accordance with the cited policies and procedures would have seen him assessed, treated and employed in an environment where the negative and further damaging effects of stressors of operational policing were removed from his workplace.
In my view, this would have allowed him to continue working, most probably still in the police force, were it not for the events initiated by the Professional Standards Command. The plaintiff was an experienced and skilled police officer who, until that intervention, still had a lot to offer if he had been deployed in a non-operational policing role.

[66]

August 2011 to 16 November 2011

From July/August 2011, until 16 November 2011, instead of the plaintiff being removed from exposure to the stressors of operational policing, he continued to struggle with his work duties, including whilst allocated to duties "on the trucks". This occurred whilst he was in a depleted psychological state that remained unaddressed, and which was then allowed to continue unabated, so as to have an adverse impact upon his psychological wellbeing.
By the time the plaintiff experienced the pivotal road rage incident on 16 November 2011, the accumulated and unabated effects of his workplace stresses had further depleted him to the point where he materially lost control of his emotional reactions. This ultimately resulted in him recognising that he was unfit for work and needed help. In my view, that point of seeking help would have been reached by the plaintiff much sooner, most probably in mid-2011 when he spoke to Inspector Sipos, if there had been appropriate intervention and assessment, as already explained.
In coming to that view, I have not overlooked the plaintiff's exposure to the ordinary stresses of the plaintiff's day-to-day life outside of his work. This included managing family life, commuting and seeking to maintain a balance between attending to the requirements of family life and dealing with the stresses of his work.
In that regard, I consider that the critical determining factor in assigning the blame for the plaintiff's psychological illness to his work was that the plaintiff was not given the required professional support to assist him to manage the stresses of his work. In my view, that is what relevantly caused him to become depleted in his personal resources so that his PTSD became entrenched and more severe. In my view, that factor, and not the events of the plaintiff's daily life outside work, was what tipped the scales as the materially contributing factor that led to the plaintiff becoming unable to cope with his work.

[67]

Events occurring after 16 November 2011

Whilst the plaintiff was provided with appropriate treatment after the events of 16 November 2011, the beneficial effects of that treatment were to a material extent undermined by the plaintiff being subjected to further stressors that were insensitively initiated and applied on the employer's behalf, and which served to exacerbate and entrench the plaintiff's psychological illness.
Those matters comprised first, an attitude of scepticism on the part of the plaintiff's employer directed to the extent of his psychological disability, secondly, the insensitive management of the plaintiff's return to work, and thirdly, the damaging effect of the intervention of the Professional Standards Command in target testing the plaintiff for drug use, and then proceeding to interview the plaintiff whilst he was ill, psychologically vulnerable, and unfit.
As to the attitude of unhelpful and ill-informed scepticism on the part of the employer in the form of unsupported beliefs held by the plaintiff's supervisors that he was not ill but was instead pursuing other motivations that involved his wife's business and his attitude to commuting, these matters merely served to isolate the plaintiff and exacerbate his feelings of distress because he felt his integrity was being doubted. This was further exacerbated by the employer's sceptical questioning of the plaintiff's level of illness by reference to his involvement in playing rugby. Further exacerbation then occurred when the employer acted on the flimsy suspicions expressed by Dr Snowdon, a psychiatrist who had not even examined the plaintiff: Exhibit "F", p 103.
As to the insensitive management of the plaintiff's return to work, his exposure to work stresses that were medically contra-indicated, and then treating him like a pariah by telling him that his presence was having a negative effect on the command to which he had been assigned as part of his attempted rehabilitation, appears to have been more than just insensitive. Those matters significantly added to the plaintiff's distress and served to further entrench his PTSD and depression.
As to the circumstances of requiring the plaintiff to undergo a supervised urine test at work, this had the significantly demoralising effect that further damaged the plaintiff in the psychological sense in that he was made to feel humiliated and for a short time thought of taking his own life, in response to the way in which he was treated, including the challenge to his integrity.
Finally, the actions of the Professional Standards Command, in subjecting the plaintiff to an interview whilst he was unfit, in which unsubstantiated allegations were the subject of prolonged questioning, where he was unable to face his accuser and clear himself, had the effect of tipping the balance. The result was the plaintiff's anger levels had increased. He acquired a sense that he had been betrayed and abandoned by his employer. Those events had the effect of completely destroying any remaining goodwill and trust that he had for the police force as an employer. I accept Dr Diamond's opinion that these events caused the plaintiff to suffer further harm: Exhibit "F", p 137. Those events also made the plaintiff unemployable in the police force. This was later recognised in his discharge on medical grounds without a reference that reflected his good and unblemished service as a police officer.
In my view, these latter considerations have resulted in a significant loss of earning capacity on the plaintiff's part. In that regard, the plaintiff's circumstances changed from being on sick leave, and in receipt of workers compensation payments in circumstances where there was reason to hope that the police return-to-work and rehabilitation policies could be employed to assist the plaintiff in a return to work, to circumstances where instead, the police force felt it had no further use for his services, and had no place for him, despite its rehabilitation policies. In my view, this latter predicament would not have arisen but for the described intervention of the Professional Standards Command without due sensitivity to the plaintiff's illness, and apparently without regard to Police Complaint Handling Guidelines: Exhibit "N", pp 18, 46, 56 and 58.

[70]

Issue 5 - Mitigation

The defendant relied upon a defence pursuant to s 151L of the WC Act alleging that the plaintiff had failed to mitigate his damages. That section relevantly provided that in assessing damages, a court must consider the steps that have been taken, or could have been taken, by the plaintiff in mitigating damages: s 151L(1) of the WC Act.
The range of matters that must be considered by the court include first, whether the plaintiff has undergone appropriate medical treatment: s 151L(2)(a); secondly, whether the plaintiff has promptly sought suitable employment from the defendant, or suitable alternative employment: s 151L(2)(b); thirdly, whether the plaintiff has duly complied with his obligations under Chapter 3 of the Workplace Injury Management Act 1998: s 151L(2)(c) of the WC Act; and fourthly, whether the plaintiff has sought appropriate rehabilitation training: s 151L(2)(d) of the WC Act.
As to the s 151L(2)(a) considerations, it is plain that once the plaintiff became aware that he had problems controlling his anger, he sought appropriate medical advice and complied with the referrals to specialists, which he then followed. He has remained under specialist psychiatric treatment and continues to take the medication he has been prescribed.
As to the s 151L(2)(b) considerations, the plaintiff unsuccessfully sought alternative non-operational policing duties from his employer before eventually leaving work. He also complied with a suggested attempt to return to work programme which proved unsuccessful due to his psychological problems. He has subsequently been certified as remaining unfit for employment.
As to the s 151L(2)(c) considerations, there is no evidence that the plaintiff has failed to comply with the provisions of Chapter 3 of the Workplace Injury Management Act 1998.
As to the s 151L(2)(d) considerations, the evidence shows that as was requested of him, the plaintiff has attended Axis Injury Management for rehabilitation assessment. He has co-operated with the requirements of that organisation, which was ultimately unable to assist him in either a return to work or in finding suitable alternative work. There is no evidence of the plaintiff having breached his obligations pursuant to s 151L(2)(d) of the WC Act.
For the reasons outlined above, I therefore reject the defence of alleged failure to mitigate which the defendant relied upon pursuant to s 151L of the WC Act.

[73]

That revised calculation is as was set out at paragraph 10 of the plaintiff's further written submissions which were provided at the re-opening of the case on 9 October 2015: MFI "15".
At the resumed hearing on 9 October 2015, on behalf of the defendant, Mr Quillan, who was appearing as the defendant's solicitor in the absence of counsel, did not disagree with the correctness of the above calculations. Instead the defendant's position was to question whether the comparable rates relied upon by the plaintiff had correctly assumed that the plaintiff would have proceeded through to the rank of a 5th year sergeant by mid-2015.
The defendant's submissions on this point were, first, that the promotional considerations for that conclusion required more than just the static passage of years of service, but also required compliance with other criteria, and secondly, that the plaintiff's motivation to continue as a police officer would most likely have waned, and then ceased in favour of his more intensive involvement in his wife's business, which it was argued, would have been more likely to have occurred before he would have reached the rank of a 5th year sergeant.
As to the first of those propositions, the plaintiff tendered Exhibits "O" and "P", being extracts of the relevant award, namely the Crown Employees (Police Officers - 2009) Award, and the Crown Employees (Police Officers - 2014) Award. Those materials set out, at par 63, the competency requirements for incremental promotional progression through the police ranks.
The competency requirements do not appear to be unduly onerous or challenging for someone of the plaintiff's past history of promotion and motivation for advancement in the police force. Those requirements were set out in some detail at par 63.5 of the 2014 Award: Exhibit "P", and comprised: 1. Compliance with educational program requirements; 2. Competency in defensive tactics including firearms, CPR and first aid; 3. Physical fitness; 4. Maintaining driver status; 5. Literacy in the Computerised Operational Policing System (COPS); 6. Mandatory continuing police education; 7. Maintaining competency for the objective test of police knowledge; 8. Maintaining good performance of a police officer.
Having considered the details listed in the award requirements under each of those matters, on the evidence of the plaintiff's past police employment and advancement, and his abilities, there is little doubt that but for the illness which is the subject of these proceedings, the plaintiff would have maintained and progressed those competencies for promotion purposes. There was no evidence of any adverse comments or performance assessments in his 14 year history as a police officer. He was also well-regarded by Inspector Sipos. I consider that if there was a basis for the defendant to seek to undermine those inferences, specific evidence would have been called by the defendant for that purpose.
As to the second proposition in the matters submitted on behalf of the defendant on 9 October 2015, namely, that of a suggested reduced motivation on the part of the plaintiff to continue in the police force compared to the opportunities offered by his wife's business, for the reasons that follow, I consider that proposition should not be accepted.
I find that the plaintiff's problems with motivation to work in operational police duties became reduced and diminished as a result of the psychological symptoms which relate to his PTSD and related condition of depression. That condition is one which is amenable to management, but not cure. In that sense, the plaintiff's PTSD condition is chronic. It is a condition that I have found could, on the balance of probabilities, have been avoided if the plaintiff's employer had exercised reasonable care in the discharge of the obligations that an employer carries.
Furthermore, until the involvement of the Professional Standards Command in the plaintiff's situation, the plaintiff still had a motivation and capacity to continue as a police officer in some role. It is plain that the plaintiff's motivation and capacity to continue in a police career has been destroyed by the actions of the Professional Standards Command, as has already been described.
Until the advent of the plaintiff's PTSD diagnosis, his involvement in his wife's business was not ever inconsistent with his duties as a police officer. That involvement appears to have been after hours except for the odd conversation from colleagues, or on days when he was not rostered on police duties, or whilst he was on his entitled leave, in respect of which he was free to use his time as he wished, provided it was lawful activity, and provided it was permitted according to police guidelines on secondary employment. Those matters have already been analysed and determined in the plaintiff's favour.
One further aspect of the past economic loss calculations remains to be considered, namely the submission made by Mr Morgan, and later reiterated by Mr Quillan, on the question of whether the weekly economic loss claimed to have been incurred by the plaintiff after 27 August 2014 should be reduced to a calculation to reflect a partial loss of earning capacity based on assumed residual earning capacity, as was suggested by the defendant, and if so, by what amount.
In that regard, I consider that the defendant's submissions are based on arbitrary assumptions that are not sustained on the evidence. The preponderance of the medical and allied evidence does not support an argument that the plaintiff had a revived partial fitness for work from 27 August 2014. The submission seems to have been founded upon the proposition of the plaintiff's involvement in assisting his wife in her business whilst he remained certified as being unfit for policing duties. In my view, that submission is contrary to the effect of the findings I have made on my evaluation of the medical evidence, and it should be rejected.
The practitioners who have treated the plaintiff since he has ceased work have certified him as being unfit to work until the present time. Dr Galea has apparently provided the plaintiff with ongoing certificates in order to support the plaintiff receiving ongoing workers' compensation benefits: T137.13 - T137.26. Those certificates were not the subject of challenge.
Dr Peters first certified the plaintiff as unfit for work when he issued his report to the insurer dated 13 December 2011: Exhibit "F", p 3. On 14 December 2012, Dr Murray stated the plaintiff was unfit for work of any kind: Exhibit "F", p 15. That opinion from Dr Murray was progressively updated over time, up until he provided his last report dated 3 July 2015": Exhibit "F", pp 19, 48, 53 and 73.
Over that period, Dr Murray's opinion was also supported by Dr Robinson's opinion dated 26 July 2013, which was to the effect that the plaintiff was not employable: Exhibit "F", p 110. At that time, the plaintiff had already been retired from the police force on medical grounds on 25 April 2013: T94.16.
Dr Diamond noted that the plaintiff's attempts to return to work before his retirement on medical grounds triggered further illness and caused the plaintiff's existing illness to worsen: Exhibit "F", p 137.
None of the foregoing medical opinions were contradicted by other medical or allied evidence. The tentative opinions expressed by Dr Jones concerning a fitness to return to work on selected duties as at October 2012 (Exhibit "F", pp 84 - 85) and September 2013 (Exhibit "F", p 92) have been overtaken by events and by the other opinions that I have cited above. I accept the evidence tendered by the plaintiff that supported the proposition that he remained unfit to work. That view is supported by the plaintiff having continued to receive ongoing workers' compensation payments over the period in question.
The plaintiff's own view that he was unfit for operational duties due to his issues with emotional control was confirmed by those treating him, and also by his discharge from the police force. He has had continued problems with motivation and with regard to the stresses associated with his litigation. These matters must be seen in the context of the diagnosis of the plaintiff's PTSD with depression. The plaintiff's experience of difficulties in respect of those matters does not support the defendant's argument of a failure on the part of the plaintiff to mitigate past losses, particularly as attempts at rehabilitation have been unsuccessful.
In light of those findings, I accept without discount, the submitted calculation of $275,114 as representing the plaintiff's past net economic loss incurred to 9 October 2015, noting that from this component of the award, the plaintiff will have to repay the required sum of weekly payments he has received by way of workers' compensation.
I therefore assess the plaintiff's damages for past net economic loss in the sum of $275,114.

[75]

Future loss of earning capacity

The parties made disparate submissions as to how the plaintiff's damages for future loss of earning capacity should be assessed.
On behalf of the plaintiff, it was ultimately submitted that there should be an initial allowance of a full year of loss of earnings at the rate of $1487 per week net, followed by an assessment over his remaining working life based upon an assumed loss of earning capacity of 50 per cent thereafter, on the rounded-off sum of $744 per week net, applying the appropriate discounts.
On behalf of the defendant it was submitted that there should be an allowance of 50 per cent loss over the ensuing 3 years, appropriately discounted, to which a discretionary cushion of $100,000 should be added, leading to an assessment of future economic loss in the amount of $192,820.
I do not accept the defendant's future economic loss submission. The assumed loss of 50 per cent over the next three years has no reasonable foundation in either the lay or the medical evidence. Furthermore, the suggested cushion of $100,000 seems arbitrary and inadequate, against the weight of the medical evidence as to the impairment of the plaintiff's capacity to work, and it is without a rational basis in the evidence as a whole.
Instead, I consider that the submission made on behalf of the plaintiff is reasonable, conservative, and should be accepted, for the reasons that follow.
I am persuaded that the plaintiff's diagnosed PTSD condition, and the circumstances leading up to him leaving his work, including the effects of that PTSD in the form of the symptoms he has described in his evidence and in his descriptions to those who have examined him, and the aggravating circumstances involving the way he was treated by the Professional Standards Command, have rendered him unfit for work until the present time.
In that latter regard, I accept that until now, the issues in this litigation continue to hang over his head with uncertainty. Given the plaintiff's psychological illness, it is reasonable that he has not felt able to seek out alternative paid work until now. There has been no relevant failure on the plaintiff's part to mitigate his loss of earning capacity to date. The medical evidence does not derogate from that view.
I consider that it will take some time for the effects of this litigation, and the issues that underpin it, to recede from the plaintiff's thinking, and thus perhaps make his PTSD condition more manageable, given a cure is, on the medical and allied evidence, unlikely to occur. In those circumstances, I consider it reasonable that an initial allowance be made of a full year of loss of earning capacity at the net current full comparable rate without discount to recognise that process.
Thereafter, it must be recognised that the plaintiff will be more likely to have a greater degree of peace of mind and calmness than has hitherto been the case, and that this will be more conducive to enabling him to approach the tasks of seeking alternative employment. That said, the plaintiff is not fit for unrestricted employment on the open labour market and this is a significant factor that must be taken into account.
The medical and allied evidence indicates that the policing and similar duties for which he was trained, and which occupied his peak earning years, are now unsuitable pursuits for him to follow.
Furthermore, he is at a distinct disadvantage as a competitor for employment because of the physical limitations I have already identified at paragraph [E] above. Those matters will very likely affect his ability to gain and sustain employment. In that regard, this is a burden the defendant must bear: Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, per Windeyer J, at [18], p 406.
It must be recognised that with the condition of PTSD, the plaintiff will have ongoing issues or problems with anger control, depending on his exposure to triggers or exacerbating circumstances, and there is the potential for him to have difficulties with interpersonal relations in the commercial setting, should he need to have to deal with adversarial or confrontational discussions. That is a factor that is very likely to have an adverse effect upon his long-term employability.
It is reasonably clear on the evidence that the plaintiff's future employment prospects will be likely to be best pursued in circumstances where there would be a limited need for him to deal with people so as to avoid the risk of situational stress setting him off on an unhelpful reactive path not conducive to maintaining employment.
On the positive side, the plaintiff is hopeful of his wife's business developing into something which would also provide him with an income as a reward for effort. However, that proposition involves a great deal of uncertainty from which no firm projections can be reasonably or reliably made. The business generates a relatively modest income: Exhibit "H". Furthermore, the work appears to be seasonal, and requiring good public relations skills.
This leads me to consider the need to identify the most appropriate means by which the plaintiff should be compensated for this head of damage. I am satisfied the plaintiff continues to suffer a significant diminution in his earning capacity. I am satisfied from the medical evidence and the nature of his PTSD condition that such impairment will be life-long, and therefore productive of financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180 (1995) Aust Torts Reports 81-322; Graham v Baker [1961] HCA 48; (1961) 106 CLR 340.
In those circumstances, even though the impact of the loss may vary in its intensity from time to time, an economic cushion does not seem to be the appropriate method of compensation in those circumstances, particularly as the plaintiff had enjoyed a definite weekly salary beforehand and that is now closed to him.
I consider the concession made on behalf of the plaintiff of a 50 per cent residual earning capacity represents a fair and conservative basis upon which to proceed to assess the plaintiff's damages for future loss of earning capacity. I consider that the submissions made on behalf of the plaintiff on this head of damage provide a reasonable basis for assessment, and I propose to follow that approach.
The calculation of a loss of income of $1487 per week net for the initial ensuing year yields the amount of $77,324. There is no sound basis upon which a discount should be applied to that sum given that it involves such a relatively short period of time.
With regard to the remainder of the plaintiff's working life, the projection of the rounded sum of $744 per week at 5 per cent over 28 years (x 796.2) deferred for 1 year (x 0.952) less 15 per cent discount on account of potentially adverse vicissitudes, yields an amount of $479,348.
The aggregation of the amounts of $77,324 and $479,348 yields the sum of $556,672. I therefore assess the plaintiff's damages for future loss of earning capacity in the amount of $556,672.

Briggs v State of New South Wales

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