Caller v State of New South Wales (No 2) [2025] NSWDC 468 | Case summary | Zoe

NSWNSWDC

Caller v State of New South Wales (No 2)

[2025] NSWDC 468

District Court of NSW|2025-11-14|Before: Newlinds SC DCJ

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

District Court of NSW

Decision date

2025-11-14

Before

Newlinds SC DCJ

Catchwords

WORKERS COMPENSATION — s 151D Workers Compensation Act 1987 (NSW)
— Extension of time — Undesirability of application for leave being
heard at the same time as final hearing —
Such an approach to be

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Catchwords

WORKERS COMPENSATION — s 151D Workers Compensation Act 1987 (NSW)— Extension of time — Undesirability of application for leave beingheard at the same time as final hearing —Such an approach to bediscouraged NEGLIGENCE — Duty of care — Vicariousliability — Employment health and safety — Claim by former NSWPoliceofficer against NSW Police Force for psychiatric injury being PTSD causedby repeated exposure to traumatic incidents — Scopeand context of duty ofcare — One breach established — Finding that breach did not causeinjury

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Caller v State of New South Wales (No 2) [2025] NSWDC 468

Hearing dates: Hearing 31 March 2025 – 7 April 2025, 9 April 2025 – 10 April 2025
Directions 5 September 2025
Written submissions considered in chambers 22 September 2025, further evidence admitted Final written submissions 30 October 2025 Judgment reserved 30 October 2025

In recent decades, it has become more and more apparent to the scientific and medical community that a significant proportion of people, if exposed to repeated traumatic events, will ultimately succumb to the recognised psychiatric disorder known as post-traumatic stress disorder (“PTSD”).
It follows that those most susceptible to PTSD are people who are regularly exposed to witnessing, or being involved in, traumatic events over an extended period of time. Thankfully in 21st century Australia, most of us are exposed to very few serious traumatic events throughout the course of our lives. However, those involved in front-line emergency services, including the Police Force, Ambulance, Fire Brigade, and the like are not so fortunate.
As part and parcel of their duties, these “first responders” will be exposed to serious traumatic incidents on many occasions. The very nature of their duties makes this inevitable. Their job includes to try and rescue and assist people in dire predicaments. Thus, they are inherently at risk, by virtue of their duties, of suffering PTSD, which is a recognised psychiatric injury. The wider community is now well aware of this.
As a society, it is essential that people involved in these front-line occupations exist and carry out their duty. When any one of us is in need of urgent help, we expect them to come. Yet we know it is inevitable that some of them will suffer psychiatric injury as a result. Who then ought bear the economic cost of that injury?
The law is settled; notwithstanding the likely consequences, without more, there are no common law remedies available to first responders if they succumb to PTSD just because of exposure to traumatic events. Rather, that situation is dealt with by whatever pension arrangements are put in place by the Government, the Worker’s Compensation Regime determined by Parliament, together with whatever insurance a particular officer may have in place from time to time.
There will be a claim, compensable by common law damages, available in negligence against the employer of a first responder, if it can be shown that reasonable care was not taken to protect a particular officer by failing to take reasonable steps to identify the particular officer was at risk, over and above what might be ordinarily expected. The circumstance may include knowledge that the officer is suffering, psychiatric or psychological harm, or showing signs that they are, or might, succumb to PTSD, and then failing to take reasonable steps to ensure that officer receives appropriate treatment and support to alleviate or lessen the effect of his or her injury, or potential injury.
In such a claim, legal and factual questions going to breach of duty, causation, and damages are notoriously difficult and interrelated. This case is an example of some of those complexities.
The Plaintiff, who is still a young man, served as a New South Wales Police officer from 2001 to 2019. There is no doubt he suffers from PTSD as a direct consequence of his work, which condition has had a profoundly adverse impact in his and his family’s life.
The issues in this case boil down to whether it has been proved that injury is a consequence of breach of duty of care by the New South Wales Police Force (“Police Force”), if there was such a breach, did it caused the injury, and, if so, what damages have resulted from that injury. Each issue involves complex legal and factual analysis.
I consider the Plaintiff to be a thoroughly honest and decent person who served the people of NSW for many years as a frontline police officer out of a sense of duty. Generally, I accept his evidence. As far as dates and order of events are concerned, his memory is slightly unreliable for perfectly understandable reasons. There are many contemporaneous records which allow the chronology of events to be identified with some precision, and I prefer that type of evidence over the Plaintiff's recollection as to date and order of events. I also found the Plaintiff’s wife, Mrs Caller, to be an extremely impressive witness, and other than dates and order of events, accept her evidence unreservedly.
I have a great deal of sympathy for the Plaintiff and his family. He has undoubtedly suffered a devastating psychiatric injury at a young age which has, for all intents and purposes, significantly, if not entirely, destroyed his ability to earn an income so as to support himself and his family. Prior to his injury, he was a hard worker who no doubt would have continued to have been motivated to contribute to society in any way that he could. Our society needs people to be prepared to serve as front line emergency workers, notwithstanding that it is clearly understood that, in doing so, they put themselves at considerable risk of psychiatric injury. In a perfect world, every one of them that suffers such an injury would be compensated, but the world is not perfect and the law in this area is calibrated as it must be.
Notwithstanding the sympathy I have for the Plaintiff, my duty is to apply the law to the facts as I find them. For reasons I will now explain, I have determined that the Plaintiff's claim must be dismissed.

The Plaintiff filed a Motion seeking such leave on 12 February 2024, he having filed these proceedings on 12 October 2023.
On 9 May 2024, the court ordered that Motion be determined by the trial judge at the hearing of the matter.
The apparent practice within this Court of such applications not being dealt with well prior to a final hearing of the matter is to be discouraged.
So much was made clear by Abadee DCJ in Skinner v The State of New South Wales (No 2) [2021] NSWDC 49 (“Skinner No 2”) at [5]-[11].
The short, and I would have thought obvious, point is that by the time the matter comes on for final hearing, the parties will have been put to the considerable expense of preparing the matter upon the basis of a final hearing. True it is that some cases are simple and the extra added cost, over and above the hearing of a notice of motion for leave to proceed with the hearing at all, might be minimal. Such cases will be rare, and this case was never one of those cases. It was set down with an estimate of 7 to 9 days’ hearing time.
As Dicker SC DCJ explained it recently in SM v State of New South Wales [2025] NSWDC 295 at [12]-[14], when endorsing what Abadee DCJ had said in Skinner No 2, as a general rule, these applications ought be heard prior to the final hearing. An exception may be if a plaintiff with alleged psychiatric injuries is to be cross-examined on the application, thus exposing him or her to adverse medical consequences of being cross-examined on two occasions. Such cases will be rare, and this was not one of those cases. Indeed, in my experience it is very unusual for a plaintiff to be cross-examined at all on applications to extend time, and if they are, the topics would almost always be very limited. It is very hard to imagine a circumstance where cross examination going directly to liability or damages would be allowed on an extension of time application.
Parties should never ask for such applications to be deferred until final hearing unless the circumstances are very unusual. If this approach is suggested by the Court for administrative reasons, it should be resisted for reasons which I consider are axiomatic.
That is not to say that I am suggesting some sort of inflexible rule. Both Abadee DCJ and Dicker SC DCJ rejected such a notion. The matter needs to be decided by sensible and practical case management. Each case must be considered on its own facts. The point is that I consider it ought only be in very rare, exceptional cases where the application is dealt with at the final hearing.
I took evidence and heard submissions on the leave application on the first day of the hearing, being 31 March 2025. At the conclusion of those submissions, I made an order under s 151D granting the Plaintiff leave retrospectively to bring the proceedings and indicated that I would deliver my reasons at the same time as my final judgment.
These are my reasons for that order.

Because of the way the Plaintiff's case is framed, and the type of case it is, there is a question here as to “when the injury was received" for the purpose of s 151D(2).
This is because the Plaintiff's case is that the psychiatric injury about which he complained is the cumulative consequence of a series of events which occurred over the period from 2002 through to 2019, which was the Plaintiff's last day of work.
The Plaintiff does not plead and the Plaintiff's expert, Dr Diamond, cannot say at what precise time the Plaintiff suffered a diagnosable clinical state of PTSD.
It is that disorder, which is the injury, the subject of the claim, not each individual event wherein the Plaintiff was exposed to trauma. Indeed, the breach of duty of care relied on by the Plaintiff is not exposure to the traumatic events themselves, rather it is the alleged failure of the Defendant to identify that the consequence of repeated exposure would be that he was liable to develop PTSD, and the Defendant either knew or ought to have known that and yet failed to take appropriate steps to minimise that prospect.
The Plaintiff's counsel, Mr Morris SC and Mr Hammond, submit that the relevant dates for calculation of time to start and stop running pursuant to s 151DA(1)(b) are January 2019 (being the Plaintiff's last day of work) and 7 June 2023, when the Plaintiff served the relevant pre-filing statement for the purpose of s 151DA(1)(b).
The Defendant takes issue with this analysis and Mr Stanton, who appeared with Mr Hogan for the Defendant, submits that, on the state of the Plaintiff's pleading and evidence, it is not possible to identify when the particular injury occurred, but it must have been well prior to 4 January 2019.
Both counsel agreed that the debate was somewhat arid because it was only on 10 February 2021 that the parties agreed, following an assessment by the Workers Compensation Commission, that the Plaintiff was assessed as having a 17% whole person impairment (“WPI”) due to psychiatric injury.
In Masic v Western Sydney Local Health District (trading as) Westmead Hospital [2023] NSWDC 239, I tried, without success, to resolve the apparent tension between s 280(a) of the WCA, which stands as a complete bar to a person making a claim for a workplace injury under s 151H unless at the time a claim is made for permanent impairment compensation under s 66(g) of the WCA there is an accepted impairment of at least 15%, the injured person is not capable, as a matter of law, of serving a pre-filing statement and the limitation period created by s 151D (as was explained in Gower v State of New South Wales [2018] NSWCA 132 (“Gower”) at [229] and [233]).
On the Plaintiff's case, the three-year time period commenced on 4 January 2019 and yet the Plaintiff was unable to commence any claim at all until 10 February 2021. On the Defendant's case the time starts running sometime long before 2019, which, if correct, means the limitation period came and went before the Plaintiff had a cause of action that he was legally entitled to commence (being 7 June 2023).
It continues to strike me as more than anomalous that Parliament intended there to be a statute of limitation running for a period of time prior to the person with a claim, the subject of that limitation, being entitled to bring that very claim.
In light of the fact that the claim by the Plaintiff is for economic loss only, I consider the better starting point for the three-year limitation period to run to be 4 January 2019, which is when the Plaintiff actually started to incur economic loss. However, if I am wrong in that regard, I do not think it really matters because when I come to consider a reasonable explanation for any delay, it would be illogical to suggest that there was in fact any delay in bringing the proceedings until reasonable steps had been taken to work out and obtain consent as to a more than 15% WPI due to psychiatric injury.

Mr Stanton has conceded that there is, on the face of the material be, a reasonable cause of action available to the Plaintiff.
As to explanation for delay, Mr Stanton focuses on a 12-month period, which he characterises as unreasonable delay, being the approximate one year prior to 11 April 2023, when Dr Diamond's report was obtained.
The explanation for that report taking so long from when it was requested, was the fact that Dr Diamond could not allocate a date for a consultation without a wait of a little more than a year.
Ms Watt, solicitor for the Plaintiff, gave evidence that she made the decision to wait for Dr Diamond's availability, because she considered Dr Diamond to be the most appropriate expert to give an opinion as to the question of liability that she was aware of.
Mr Stanton has submitted that there is no evidence that there were not other appropriately qualified people available who could have provided an opinion. I am prepared to infer that there were choices open to Ms Watt. However, the question before me is whether the explanation for the time lost in waiting for Dr Diamond is a reasonable explanation. I do not think posing the question of whether other lawyers in the same position might have formed a different opinion than Ms Watt answers that question. In my opinion, Ms Watt’s decision to retain Dr Diamond in a medico-legal capacity was reasonable and so the explanation for the period of delay identified by Mr Stanton is in my opinion reasonable.
I turn then to the final question, being whether the delay is such as to make it is to make the chances of a fair trial unlikely.
To determine that question, It is first necessary to connect the delay in commencing the proceedings with the chances of a fair trial being unlikely.
Mr Stanton relied on the Court of Appeal's decision in State of New South Wales v Donnelley [2004] NSWCA 133 (“Donnelley”), which case does bear a remarkable similarity factually to the case before me.
Mr Stanton, despite his team having prepared the matter fully for the final hearing, chose not to put any evidence or submissions of particular prejudice to his client before me.
Rather, he relied on what is often referred to as ‘presumed’ or ‘inferred’ prejudice, as explained in cases such as Taylor, per McHugh J.
He relies on the fact that over the period the Plaintiff served as a police officer, he had very many, probably counted in the scores, of other officers supervising him, whose conduct is brought into question by the way the Plaintiff frames his case. This is because the Plaintiff asserts that, whilst it should have been clear to those supervising him following the various traumatic incidents and as they commenced to accumulate, that he needed support and referral to some form of early intervention treatment, which would have prevented the development of the PTSD, effectively, nothing was done. The submission is that I ought infer that the delay has made it more difficult than it would have otherwise been to locate those witnesses and, even on them being spoken to, their memory would have faded.
Mr Stanton’s submission, based on the Court of Appeal’s analysis in Donnelley, is that the Plaintiff has not proved that the delay has not made the chances of a fair trial to be less likely than they would have been if the matter was bought in time. This raises squarely a question of onus.
In my opinion, again referring to what McHugh J said in Taylor at [87] regarding the discretion conferred by s 151D(2) of the WCA, the fundamental question that has to be asked is what is fair and what is just. So much is made clear from the way Basten JA describes this question in Gower.
Moreover, it needs to be born steadily in mind that a fair trial does not equate with a perfect trial.
In my opinion, whenever the relevant three-year period commenced to run, the Defendant was always going to encounter difficulties in obtaining direct evidence from people involved in the supervision of the Plaintiff at relevant times in the past. The fact that the Defendant would inevitably have encountered such problems would have made it more difficult for it to defend the matter than if it did not have such problems, but that does not mean that any trial will be unfair. True it is that the longer the period of delay, those difficulties become more pronounced, but I do not think the circumstances are such that the chances of a fair trial are unlikely, and therefore, by reference to cases such as Rundle, do not see the level of prejudice requisite to make out relevant prejudice for the purpose of s 151D.
Whilst the Court of Appeal in Donnelley was critical of the trial judge for assuming there was no presumptive prejudice because the claimant had all the opponent’s personnel records and other records “pertaining to" the opponent. This was said to be inadequate reasoning. The Court concluded at [52]:

There is no dispute that the Police Force owed to the Plaintiff a duty to take reasonable care to avoid foreseeable risks of injury arising from the Plaintiff's service as a police officer. Yet, to pose the duty at such a high level of abstraction is, in my opinion, not useful, as it masks real complexity.
As was explained by Gleeson CJ in New South Wales v Fahy (2007) 232 CLR 486 (“Fahy”), it is unwarranted to single out any occupation and treat it as intrinsically dangerous. However, the nature of any occupation must be considered when defining the duty of care owed by any employer to an employee. It is because of the very nature of the duties of a general duties police officer and the nature of PTSD, that concepts of risk and safety require close analysis. Police officers commonly are exposed to danger and extremely stressful situations and individuals' ability to cope with those situations vary widely.
Gummow and Hayne JJ in the same case, pointed out at [27] that, because what police officers regularly are exposed to is traumatic, systems ought to be devised to try and deal with the consequences of that trauma which systems ought not detract from the application of the statutory powers and functions of police. If I may say so, this is easy to say but is a very difficult balance to achieve in practice.
What is clear is that the mere exposure of police officers to traumatic events on a repeated basis will not, on its own, amount to a breach of duty of care, notwithstanding that the risk of developing PTSD from such exposure exists and is well understood and is foreseeable. To impose such a duty would be unreasonable or unrealistic and would mean police could not perform their important role in society.
Since State of New South Wales v Briggs [2016] 95 NSWLR 467 (“Briggs”), it has been established that the content of the duty of care owed by the Police Force to a serving officer must:
Accommodate the relevant statutory context including provisions of the Police Act 1990 (NSW) and the special nature of service rendered by police officers to the Crown; and
Take into account some of the incidents of the usual employer – employee relationship (adjusted to take into account the fact that the relationship is between the State and a serving police officer).
As formulated prospectively in Sills v State of New South Wales [2019] NSWCA 4 (“Sills”) at [9] and State of New South Wales v Skinner [2022] NSWCA 9 (“Skinner on Appeal”), the duty of care in the context of this sort of case requires the Police Force to take reasonable steps to:

Reasonable foreseeability of physical harm and, for the purpose of this case, “economic loss," is generally enough to impose a duty of care on a person who knows or ought to reasonably foresee that harm is a likely result of his or her conduct. Liability will arise when the duty is breached and where there is a causal relationship between the breach and the harm: D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 37 [101] per McHugh J; Hill v Van Erp (1997) 188 CLR 159; Perre v Apand Pty Ltd (1999) 198 CLR 180.
In Fahy at [60], the High Court recognised as long ago as 2007 that the risk of a police officer suffering recognisable psychiatric injury through encountering traumatic events is foreseeable in the legal sense.
Since then, the level of discussion in academic literature, the community generally, and many decided cases in relation to the risk of front-line emergency service workers and military personnel being susceptible to recognisable psychiatric injury, and in particular PTSD, has become even more pronounced.
It is of course foreseeable that a serving police officer will almost inevitably be exposed to and involved in traumatic and distressing events. This is, not just foreseeable, it is to be expected. However, that is part of the job for which there is no legal recourse for the very reason that exposure to such events, and the risk of adverse medical consequences, such as acquiring PTSD, is so notorious and so obviously part and parcel of the role of a serving police officer.
The Plaintiff is not claiming damages for being exposed to those events per se, albeit the first step in his argument is that the psychiatric injury – PTSD, and the consequent economic loss – that he seeks to be compensated for is a direct consequence of that exposure.
Rather, he is seeking compensation because he claims that the Defendant failed to educate him properly, failed to take reasonable steps to identify that he was a person who was exhibiting signs that he was at particular risk of suffering, or indeed was suffering, an onset of PTSD, and failed to take reasonable steps to ensure that he received appropriate treatment and support to alleviate or lessen the effect of that state of affairs.
Not only is the risk of a police officer suffering recognisable psychiatric injury through encountering traumatic events foreseeable, it is also foreseeable that, if a police officer is exposed to repeated traumatic events, the likelihood of that police officer suffering a recognisable psychiatric injury being exacerbated with each exposure is foreseeable in circumstances where the Police Force fails to take reasonable steps to identify that the particular officer is showing signs of being at elevated risk of developing a psychiatric injury and then fails to take reasonable steps to ensure that the Plaintiff receives appropriate treatment, et cetera.
I am satisfied that the risk of harm, against which the relevant duty of care is to be judged, was foreseeable in the legal sense.

This is a threshold and necessary finding for the Plaintiff but is by no means determinative of liability.
There is a vast body of evidence, including a large amount from various treating doctors and doctors retained for medico-legal purposes. I do not propose to summarise all of that material. That evidence starts with a report of Dr Gabb, the Plaintiff's treating general practitioner in 2011, for the purpose of a worker’s compensation claim, arising out of what I will describe as the “PolAir episode,” where Dr Gabb recorded that, as at 14 July 2011, he had seen the Plaintiff who had described a history of “issues at work, anxiety, depression, and loss of motivation.” On 1 December 2011, Dr Nazir Sumar, another general practitioner at Woy Woy, expressed the opinion that the Plaintiff was “on permanently restricted duties due to work-related adjustment issues" and in February 2012, Dr Gabb recorded his opinion that the Plaintiff showed “symptoms of anxiety and depression, demotivation, and loss of interest in leisure time activities.” There is also comprehensive reports of Mr Russell Gibbs, psychologist, and Dr Parsonage, a psychiatrist. They all are consistent with a diagnosis that the Plaintiff is now suffering from PTSD as a consequence of his police work.
The medical evidence concludes with two medico-legal reports of Dr Michael Diamond prepared for the case. He is a highly qualified and very experienced consultant psychiatrist retained by the Plaintiff. His first report is dated April 2023 and the second December 2023. Dr Diamond diagnoses the Plaintiff with PTSD, combined with major depressive disorder, which he considered to be directly related to various traumatic incidents the Plaintiff encountered during his time as a police officer, which have manifested into a psychiatric illness – PTSD – and that this occurred progressively as a result of the cumulative effects of exposure to trauma as he encountered that trauma in the course of his police career.
Not only is the medical evidence consistent, Dr Diamond's evidence on this point was not challenged or contradicted. I have no doubt that the Plaintiff is suffering from PTSD directly caused by him being exposed to a series of incidents at his work. All but one of those incidents involved exposure to horrible and obviously traumatic events involving violent death or injury to members of the public. The exception is what I am calling the PolAir episode.

I have no doubt the Plaintiff was exposed to many other less dramatic traumatic incidents that he cannot recall. Dr Diamond did not record all of the specific events about which the Plaintiff gave evidence before me. The specific traumatic incidents that I accept the Plaintiff was exposed to are, in roughly chronological order:
An incident in between 2001 and 2004, whilst the Plaintiff was stationed at Walgett, involving the discovery of a dead body in a car which had been there for a number of days during the heat of summer;
A public suicide of a male whilst the Plaintiff was stationed at Walgett, again between 2001 and 2004;
A motor vehicle accident involving a deceased child between 2004 and 2010 whilst the Plaintiff was stationed at Kempsey;
A horrific car crash following a police pursuit, whilst the Plaintiff was stationed at Kempsey/Port Macquarie;
A helicopter crash, including witnessing the helicopter burst into flames with a male victim jumping from the wreckage, when stationed at PolAir between 2010 and 2012;
Attending a particularly distressing suicide of a 13-year-old girl, and trying unsuccessfully to save her life by administering CPR in the presence of her parents, whilst stationed at Hornsby Police Station sometime between 2012 and 2015;
Whilst at Hornsby, being exposed to a fatal motorcycle accident; and
Being involved in the delivery of many “death messages."
In September 2010, the Plaintiff transferred to PolAir, and it was while stationed there between 2011 and 2014 that he alleges he suffered bullying and harassment. In 2014, he spent a period of about six months off work on worker’s compensation, having been diagnosed with an acute adjustment disorder with mixed anxiety and depressed mood. He reported symptoms of stress, anxiety, and depression at the time. He then made an application to transfer out of PolAir but became embroiled in a battle with the Police Force as to that transfer application. Ultimately, having been cleared as fit for work by a number of medical practitioners, including his general practitioner, a psychologist, and the Police Medical Officer, he resumed general duties. None of those practitioners identified him as being at any greater risk than might be expected of PTSD. The symptoms were taken as signs of a transient adjustment disorder caused by the PolAir episode, which was expected to resolve and was considered to have resolved once the PolAir episode passed.
Between 2015 and January 2019, the Plaintiff was stationed at Taree Police Station in the Manning Great Lakes Regional Command. The traumatic events he witnessed and was involved in during that period included:
On 21 April 2016, he was exposed to a serious motor vehicle accident involving seriously injured children;
Between 2015 and 2019, he was exposed to children who had been rescued from a child abuse imprisonment situation, having been locked in shipping containers and mistreated;
A hanging suicide of a male; and
Finally, on 27 December 2018, the identification and recovery of a mutilated and burnt body of a murder victim discovered in the bush near Taree.
That final incident, which I can only describe as beyond horrible, triggered what appears to have been a complete psychiatric breakdown and the Plaintiff has not returned to work as a police officer, or at all, since.
I will not in this judgment set out in detail the horrifying and gruesome details of some of the incidents the Plaintiff was exposed to, Dr Diamond’s descriptions are enough for present purposes. Suffice to say at least three or four of them appear to me to be at the highest end of any scale one could imagine when imagining traumatic incidents.
I find each and every one of them and more occurred and that the Plaintiff was exposed to them and others and that the cumulative effect of that exposure is the root cause of the Plaintiff's PTSD.

The Plaintiff believes his probation period was extended, not because he was considered lazy, but because his supervisor unfairly and wrongly considered his response to the directive to provide a statement as to the Harbour Bridge incident was not full and frank and/or was dissatisfied with his refusal to change his statement.
As a direct result of the entire episode, the Plaintiff had six months off work suffering from what was diagnosed at the time as stress, anxiety, and mood disorder. All of this was known to the Police Force. His claim for worker’s compensation initially failed because there was a finding that the conduct of the Police Force, albeit not reasonable, was not compensable under the WCA. Ultimately, it was successful for the reasons I have set out above. The final stage of the episode was a prolonged, antagonistic, but ultimately successful, application by the Plaintiff for transfer back to the North Coast.
The PolAir episode falls into its own category. It is probably wrong to categorise it as a traumatic incident at all, rather, it was a very stressful episode. Dr Diamond describes it as traumatic and a triggering event. Like any employee, it is a necessary component of a job to have a relationship with an employer and, from time to time in the course of that relationship, uncomfortable things might be said or done. For example, an employee who was told that they are not doing their job up to an expected standard will find it very difficult to successfully brand such conduct as bullying or harassment or give it some other label which might be a breach of duty of care. This is so, notwithstanding the fact that often being told such things will cause anxiety and distress.
There is no doubt that, wherever the rights or wrongs of the entire PolAir episode may lie, the experience was extremely stressful for the Plaintiff. He appears to have become close to obsessed with a crusade to get hold of the alleged emails containing suggestions that he was lazy. All of the medical opinions at the time were to the effect that the episode caused an adjustment disorder in the Plaintiff, and he was not fit for work because of that for six months. The symptoms of that adjustment disorder were described by the Plaintiff to Dr Diamond for the purpose of this case as “anxiety symptoms” and “depression symptoms.” That is also how he described them to various practitioners at the time. It is those contemporaneous opinions, the time he spent off work, and the fact his superiors and the Police Medical Officer knew about his symptoms and diagnosis that forms an important component of the way the Plaintiff puts his case.
Dr Diamond treats the PolAir episode as a traumatic event and includes it as part of the relevant history. He considers the diagnosis of adjustment disorder, and the symptoms reported at the time, to be a “red flag,” or a sign, for what he considers to be the fact that the Plaintiff was at particular risk of developing PTSD. He considers the Police Force should have recognised those signs and taken steps to protect the Plaintiff. Mr Morris adopts this opinion as an important plank of the case. The submission is the Police Force failed to react appropriately to this “red flag” and such failure amounted to a breach of duty of care.
To sum up my findings as to the PolAir episode:
On or about 2010, the Plaintiff was, as part of his training, on a helicopter ride with two pilots heading east up Sydney Harbour, when the helicopter passed over the south pylon of the Sydney Harbour Bridge.
There was a suggestion by someone that the helicopter had hovered within 15m of the Harbour Bridge and the crew had waved to people on the Bridge. Self-evidently, to hover a helicopter within 15m of the Sydney Harbour Bridge, let alone within 15m of people climbing the Sydney Harbour Bridge, is dangerous.
An investigation into what happened occurred, and on 4 March 2011, a directive was given to the Plaintiff to provide his version of events.
The Plaintiff's response by email was as follows:

Shortly after that response, the Plaintiff was called into a meeting with Inspector Calman, who was the then head of PolAir and another senior officer. It was clearly put to the Plaintiff that at least Inspector Calman did not think he was being full and frank in his response, because it was inconsistent with other evidence available to Inspector Calman, including from members of the public and staff on a “Bridge climb,” which suggested the helicopter was flying too close to the Harbour Bridge.
Inspector Calman pointed out to the Plaintiff that questions of trust and honesty are considered absolutely essential in the Police Force generally, but in particular for police working in dangerous team situations in helicopters. He was told that disciplinary action might be considered, but in the meantime, invited the Plaintiff to change his statement.
The Plaintiff was extremely offended and annoyed at this suggestion. To this day, he denies that his statement was anything other than the truth and that the suggestion that he change it was the product of some sort of serious wrongdoing by those above him in the Police Force. Suffice to say he refused to change his statement.
Shortly thereafter, the Plaintiff's three-month probation period with PolAir expired. He was told nothing about what his status was at the end of that period and chased up his superiors, who about six weeks later convened a meeting where the Plaintiff was told that his probation period was being extended because there was a perception that he was not a hard worker and in particular that a number of emails (perhaps up to 6) existed where colleagues had branded the Plaintiff as “lazy."
The Plaintiff denied that allegation and became extremely upset and anxious about it, which ultimately caused him to take time off work and make a claim for worker’s compensation, in which claim he expressly stated that the unfair way he considered he had been treated had caused him significant anxiety and stress. He became convinced that the suggestion he was lazy was false and the real reason his probation was extended was because his superiors thought he was lying in his response about the Harbour Bridge incident. He does not believe there were ever any emails saying he was lazy and has done everything possible to try and prove they do not exist.
The Plaintiff was cross-examined about all this. It was put to him that, in his response to the directive that he provide a statement in relation to the incident involving flying too close to the Harbour Bridge, that he was arrogant, insubordinate, and importantly that his response was, in part, incomplete, in that he left out any reference to the helicopter hovering at all in circumstances where he accepts that the helicopter did hover but at a distance of about 50m from the Bridge and to the extent that he asserted that the helicopter was not 15m from the Bridge, that he had deliberately lied.
Inspector Calman, who was the then head of PolAir, gave evidence as to his perspective of the incident, to the effect that, having considered all the material available to him, he formed the view that the response to the directive by the Plaintiff had not been full and frank. He accepts that at a meeting with the Plaintiff he put that to the Plaintiff and effectively did invite him to change his statement.
Thereafter, Inspector Calman was involved in a meeting with the Plaintiff where various complaints that had been received from other members of PolAir, to the effect that the Plaintiff was either “lazy" or “not pulling his weight" around the station were considered and a decision was made to extend his probation period.
On behalf of the Plaintiff, it was put to Inspector Calman that the real reason for the extension of the probation period was because of the perceived dishonesty in the Plaintiff's response to the directive memorandum. Inspector Calman denied this.

I am not sure that the resolution of this case within the case takes the resolution of the real issues in dispute anywhere. What is important to understand is that the Plaintiff’s subjective belief was, and is, that he was dealt with very unfairly. He considers he was bullied or harassed.
As to whether he was lazy or not, on balance I have concluded, on the evidence before me, that Inspector Calman and others senior to the Plaintiff within PolAir, honestly believed that there was an issue with the Plaintiff's attitude in that he was considered to be “not pulling his weight," especially in relation to work required on the ground and that some people considered him lazy. I do not know whether that belief was correct or not, however, I am satisfied that it was honestly held, although I am sceptical as to whether there were ever any emails. I do not consider it necessary to resolve the question of whether the Plaintiff was lazy during his time at PolAir for the purpose of determining this case. Nor do I find it necessary to consider if the findings by the Worker’s Compensation Commission, that the process lacked transparency, et cetera, are accurate. The same can be said for the question of whether the Plaintiff was honest in his statement. I do not think that matters. What does matter is that I accept that Inspector Calman honestly had concerns and that the Plaintiff honestly considered those concerns wholly unjustified.
I accept that the Plaintiff honestly believes now, and believed at the time, that the decision to extend his probation period and the subsequent refusal for a time to consent to a transfer out of PolAir were all the consequence of what he considers, and considered at the time, to be the wrongheaded opinion of Inspector Calman and others, to the effect that he was not telling the truth in his statement concerning what happened over the Harbour Bridge. Again, there is not sufficient evidence, nor do I consider it necessary to resolve that question. I am satisfied that Inspector Calman honestly believed that the Plaintiff's response was not full and frank. I also accept the Plaintiff believes to the contrary. I do not accept that the decision to extend the Plaintiff's probation period, and any subsequent decisions concerning transfers, was in any way infected or influenced by that state of mind. However, again I accept that the Plaintiff genuinely believes to the contrary.
What I am satisfied about is that all of this caused the Plaintiff to be greatly anxious and stressed at the time. This anxiety and stress manifested in an adjustment disorder, which was diagnosed as such, causing the Plaintiff to not be able to work for 6 months. He was ultimately compensated for that time off in the way I have described.

There is a large body of evidence, albeit it is confusing, to the effect that at various times from 1990 when a document entitled “Operational and Training Guide… Critical Incident Stress Debriefing Team" was created, to 2006, when a document entitled “Standard Operating Procedures at the Lake Macquarie Area Command” was published, to 2007, when a “Standard Operating Procedure – Critical Traumatic Incident” document was published, to 2015, when an “Incident and Support Database User Guide for Workforce Safety Command” document was published, and early 2008, when the then Commissioner appears to have also produced a pamphlet entitled “Traumatic Incidents in the Workplace” and then published it in the Police Force newsletter, that the Police Force was acutely conscious of the risk to officers of contracting PTSD as a result of being exposed to traumatic (and/or critical) incidents.
From at least 2006, the Police Force had obviously decided that, in order to alleviate the risk of officers developing PTSD, procedures should be developed and put in place which at the very least would provide for comprehensive records to be kept and be easily accessible, in relation to particular officers, identifying how many traumatic events that officer had been exposed to and a description of those events
The suggested guidelines for monitoring staff following such incidents included debriefing sessions, the availability of various counselling services, and the following up of officers so exposed a few days after the event and then again at a later date to pick up late onset symptoms.
The various counselling type services were put in place, although on the Plaintiff's evidence, there appears to have been a marked absence of any proactive contact by those services to officers exposed to traumatic incidents. Rather, it seems to have been left to individual officers to self-identify that they may need help and contact those services. The Plaintiff, perhaps because of his character, perhaps because of a culture within the Police Force that I accept was very critical of officers acknowledging that they may need help in these sort of situations, did not avail himself of such services.
I am comfortably satisfied that, despite the best efforts of those within the Police Force who created and wrote the various instructions and manuals for systems to be put in place to try and identify and monitor officers at risk of PTSD and, notwithstanding the fact that significant effort was put into publicising those systems, they were in fact never fully implemented. In other words, the Police Force’s efforts to put in place what it considered appropriate systems for monitoring the risk of officers developing PTSD over a nearly 20-year period largely started and finished with documenting what those systems should be, publicly proclaiming that they were to be implemented, but then not actually taking the important step of fully implementing those very systems. In Skinner on Appeal a similar failure was held to be a breach of the relevant duty.

These two topics are of course interrelated. The monitoring system and the likelihood of any individual officer seeking out help from counselling services et cetera, will self-evidently be impacted by what education that officer has received as to potential psychiatric injuries and an understanding by the officer, gained from that educative process or otherwise, as to symptoms that they may be experiencing, which may themselves be a marker of such an injury, thus making it more likely for the officer to bring to the attention of someone in authority, or a medical practitioner, those symptoms.
Dealing first with the allegation as to failure to educate.
Mr Stanton took a pleading point to the effect that the only failure to educate or train alleged in the pleading as a relevant component of the duty of care was a failure to train officers other than the Plaintiff, so as to allow those officers to identify, in the Plaintiff and others like him, symptoms that might be warning signs of PTSD.
However, as Mr Morris points out, albeit not in the section of the pleading dedicated to identification of the duty of care, at [94] of the Statement of Claim, where the breach of duty is alleged, there is a tolerably clear pleading identifying, as part of the Plaintiff's case, a failure to properly train the Plaintiff so as to allow the Plaintiff to self-identify symptoms and thus, so the argument goes, be more likely to have disclosed relevant symptoms to the various medical practitioners he saw. Far from a model for good pleading practice, I consider the issue to have been identified from that and also the evidence in the Plaintiff’s case sufficiently so as to not be unfair to the Defendant.
As was pointed out by Keane J, in the Queensland Court of Appeal in Hegarty v Queensland Ambulance Service [2007] Aust Torts Reports 81-919; [2007] QCA 366 at [51], a failure to train case in the context of emergency workers at risk of PTSD will always be extremely complex and difficult. Such a case will invite attention to the nature of the training said to be required for superior officers, so as to allow them to make better decisions as to intervention, the likelihood that the Plaintiff would have accepted and acted upon the suggestion, and the likelihood that, at the time when he could reasonably have been expected to be advised to seek assessment and treatment by the supervisor’s intervention, what treatment would have been available et cetera.
The same can be said of a case based on a failure to train the injured plaintiff him or herself. Again, one needs to identify with some precision what training was actually received, what different or additional training should have been provided, and why that different or extra training ought be considered reasonable and why it would have reduced the risk to the Plaintiff of suffering PTSD by causing him to seek help earlier, having self-identified some symptoms.
Such an analysis only demonstrates how difficult a failure to educate case in the present context will always be.
I am satisfied that the Plaintiff, albeit that he did not receive very much formal education relevant to his risk of PTSD, did receive some training at the academy and thereafter receive training as part of his time at the Operations Support Group (“OSG”) squad.
Quite what that training was is not the subject of any direct evidence, but I think it reasonable to infer that he was told from time to time that, as he was inevitably going to be exposed to traumatic incidents, that, consequently, he was at risk of PTSD and that the various symptoms that might indicate he was either suffering PTSD or at risk would have been identified, such as nightmares, flashbacks, anxiety depression, and the various other matters identified in DSM-5.
Having said that, I do not think it matters whether the Plaintiff was told he was at risk of PTSD as result of traumatic exposure or what the symptoms were, because I am satisfied that, from very early on in his police career, he was well aware of that. He also knew that, if he was suffering the types of symptoms I have described, that is, anxiety, depression, inability to sleep etc, they may as well be signs of PTSD and that he ought get help and that help was available. He did just that after the PolAir episode.
I am also satisfied that the Plaintiff was a person who was not afraid to seek medical help when he felt he needed it. This is very clear from his time at PolAir, when he saw multiple medical practitioners and gave each and every one of them a reasonably detailed history and description of his symptoms, including that he was having trouble sleeping, was suffering stress from work, was feeling depressed, and was having some difficulties at home with his wife and children. He himself connected those symptoms to work-related stress.
I am conscious that Inspector Calman, when he was asked about the relevant training he had received during his 37-year career at the Police Force, gave evidence which to my mind made it pretty clear that such training was minimal. Nonetheless, he was conscious of PTSD as a risk to officers under his command and took the view that it was necessary for him to keep a good eye on all of his officers to monitor for symptoms. He was aware, in general terms, what those symptoms might be.
I am not satisfied that the Defendant breached its duty of care to the Plaintiff by failing to take reasonable steps to educate the Plaintiff and other officers in the Police Force, so as to alert them to the risks and signs and symptoms of PTSD. There was training and it appears to have been sufficient so as to impart to the Plaintiff what he needed to know.
If I am wrong as to that finding, I am comfortably satisfied that, even if there was a breach of such a duty, it did not cause any injury to the Plaintiff. He was well aware of the risk of PTSD and of the signs and symptoms. He was also well aware that if he started having such symptoms he ought seek help and he knew such help was available to him by various services made available by the Police Force.
Turning then to the failure to have in place proper systems so as to monitor the Plaintiff’s actual exposure to trauma and have in place appropriate counselling services.
I am satisfied that the Defendant failed to take reasonable steps to put in place and implement the very systems that it itself designed and announced with some considerable fanfare. In particular, there was a marked failure of keeping accurate and complete records of each and every exposure to traumatic incidents that each individual officer encounters, so as to allow those superior in command to monitor closely those with more exposure than others. The Police Force did have in place appropriate counselling services. It had, and has, a selection of such services available to officers. However, it failed to implement its own published system so as to allow senior officers to know how often and to what extent individual officers were being exposed to traumatic events.
For reasons I shall shortly explain in the “Causation” section of these reasons, I do not consider this breach of duty of care is in any way the cause of the Plaintiff's psychiatric injury and the economic loss for which he seeks damages.

By the time of his return to work after the PolAir episode, Mr Stanton has emphasised that the Plaintiff had told his wife, at least four medical practitioners, and his superiors, that he was suffering work-related stress and anxiety and as a consequence had six months off work but was now felt able to and was keen to return.
The Police Force knew about this and did not allow him to return to work until they had obtained and reviewed positive reports of Dr Ng, Rebecca Guest, Dr Kirby, and a Police Force psychologist who performed psychometric testing. Each of those medical practitioners certified the Plaintiff as being fit to return to work at that time. It seems to me therefore that the Police Force did recognise the episode as a “red flag” that the Plaintiff might be at greater than normal risk of suffering psychiatric injuries.
Dr Ng did suggest a psychiatric assessment might be helpful but, nonetheless, was satisfied that the Plaintiff was fit to return to full duties.
Dr Diamond's opinion is that those medical practitioners failed to ask the right questions and failed to appreciate that there is a real overlap between the symptoms for an adjustment disorder manifesting as stress and anxiety and PTSD in an officer who has been the subject of repeated exposure to trauma. I consider there is a fundamental flawed assumption in this hypothesis. Even when questioned by Dr Diamond himself as to his symptoms at the time, the Plaintiff, who is now well aware of the risk he was at because, with the benefit of hindsight, he knows he ultimately developed PTSD, described no more than “anxiety symptoms” and “depression symptoms.” He reported to practitioners those same symptoms at the time.
Whilst embracing Dr Diamond's opinion and relying on it, Mr Morris also expands on it. He submits that, if the Plaintiff had been properly educated or trained as he contends he was not and/or if the various systems that the Police Force announced were to be in place had in fact been implemented, then the Plaintiff would have been armed with better insight as to the particular risk he was at and would have in some way emphasised his symptoms in a different way and/or the various practitioners would had a more detailed understanding of what he had been exposed to and that would have led at least one of the medical practitioners to come to a different medical opinion than they did.
I do not accept Dr Diamond's suppressed premise that the various medical practitioners that I have referred to did not do their job adequately. There is a significant amount of material in the form of notes of each of the practitioners, which quite clearly indicate that they each were conscious to ask many questions directed to what symptoms the Plaintiff might have, so as to identify some sort of ongoing psychological or psychiatric disorder. They all got answers from the Plaintiff in the negative. In my view, this is not because the Plaintiff was being dishonest or exaggerating, although all of the consultations were in the context of him seeking to promote his prospects of him successfully being allocated back on general duties and/or transferring to the area command of his choice. Rather, I consider the negative answers as to symptoms is because the Plaintiff, as at 2014, was actually not suffering any symptoms that might be a sign of underlying PTSD. I also infer that all of the medical practitioners would have assumed that the Plaintiff had been exposed to repeated traumatic events as they all knew he had been a serving police officer on general duties for many years, and thus the lack of previous records of those events made no difference to the opinions they expressed.
As to the PolAir episode as a standalone matter being some sort of “red flag”. I consider that it was, but I am not satisfied that the Police Force did anything other than exercise reasonable care by doing everything realistically and reasonably available to it to ensure that the Plaintiff was medically fit to return to full duties as a front-line police officer following his time off for mood disorder, before allowing him to do so. In other words, I am satisfied the Police Force recognised the “sign” or “red flag” and then took reasonable steps to respond. Taking those steps discharged the duty of care.
I am not satisfied the Plaintiff was exhibiting any symptoms consistent only with PTSD. True it is that the symptoms of PTSD and a transient adjustment disorder overlap in part, but I do not consider that the diagnoses of each of the medical practitioners at the time, that he had suffered a transient adjustment disorder as a result of his conflict at PolAir, which had resolved, and that he was no longer at any greater risk than any other person serving as a general duties police officer, were anything other than correct.
In any event, I do not accept Dr diamond's thesis that the PolAir episode itself amounted to a “red flag" that the Plaintiff was actually suffering from PTSD or likely to suffer it in the future. Looked at on its own, it was a significant dispute between an employer and employee, which made the employee extremely anxious and stressed, because he felt he was being treated unfairly. It directly brought on an adjustment disorder. When the stressful situation passed, those symptoms resolved. I am not satisfied that the fact that the Plaintiff spent time off work as a result of that type of stress and anxiety was some sort of “red flag,” or sign, so as to require him to either to be examined by even more medical practitioners than he was before he was allowed to return to general duties, or if he had been examined by any further medical practitioners, that they would have come to any different conclusion than those who did examine him and express opinions in 2014. Nor do I think that, if the Plaintiff had been examined by a psychiatrist, that could be expected to produce a different diagnosis. Dr Diamond’s opinion to the contrary is the be respected, but it is given with the full benefit of hindsight knowing that the Plaintiff thereafter developed PTSD. I do not accept Dr Diamond would have predicted that at the time and concluded that the Plaintiff was at greater than the expected risk without the benefit of knowing what happened next.
For those reasons, I am not satisfied that the decision by the Police Force to permit the Plaintiff to return to active general duties in early 2014 constituted a breach of its duty of care to the Plaintiff.
Dealing with the period after the PolAir episode, I do not accept that there was any failure to monitor the Plaintiff between 2014 and 2019. This is because I do not accept the submission, or the evidence of Dr Diamond, to the effect that the transient disorder of itself, having passed and therefore proved itself to be transient, should have been seen as a “red flag,” nor am I able to identify precisely what monitoring, over and above what occurred in any event, it is suggested the Police Force should have undertaken so as to discharge the duty in the calibrated way described in the cases. It is not irrelevant that, while stationed at Kempsey after the PolAir episode, the Plaintiff was, when dealing with at least one, if not two, traumatic events, contacted by one of the support organisations and they were told by him that he was not in need of any help.
Finally, I deal with Mr Morris's fundamental submission that it is the combination of the various breaches he has identified, which has caused the Plaintiff's injury.
In light of my findings that there was no breach in relation to failure to educate, no breach in allowing the Plaintiff to return to work to return to general duties after the PolAir episode. That leaves only the breach I have accepted in relation to having appropriate systems in place, that now needs to be dealt with on its own for the purpose of causation.

I now turn to the separate and distinct question of causation.
The legal test, as I understand it, is as articulated in Tabet v Gett (2010) 240 CLR 537 (“Tabet”) at paragraphs [46]-[47] per Gummow ACJ, and [68]-[69] per Hayne and Bell JJ.
The law is that it is not enough for damages in this type of case to be characterised as the loss of a chance of a better medical outcome.
Rather, a respondent can only be held liable where what is said to have been lost was the probability, as opposed to the possibility, that the damage suffered would have been less severe than it was.
On that basis, the question for me is would the Plaintiff probably have suffered PTSD at all or, if he did, was its severity probably materially contributed to by the Defendant’s breach of duty?
Mr Morris submitted that the failure of the Defendant to properly have systems in place to monitor the Plaintiff, combined with the failure to properly educate the Plaintiff, caused the medical opinions that were obtained after the PolAir episode to misfire.
He then submits that I ought be satisfied that, if those systems had been in place (and if the Plaintiff had been properly educated and understood the type of symptoms that might be a marker for PTSD), the Plaintiff would have told those medical practitioners the following:
He was stressed as a consequence of work;
He could not “move past" the various incidents of trauma that he had witnessed;
He was having troubles in his marriage, and his wife was accusing him of reacting disproportionately to situations; and
He was having difficulty sleeping, which he put down to working shift work.
On top of that information in the “counterfactual”, the medical practitioners would have had precise knowledge of the amount of, and timing of, traumatic incidents to which the Plaintiff had been exposed. This is because full records of those events would have been available to them.
Mr Morris asked me to infer that, armed with those pieces of information, the opinion of the various doctors would have been that the Plaintiff was not fit to return to general duties. He would have instead been diverted from exposure to further traumatic events, undergone treatment, and that he probably either would not now have PTSD, or its severity would have been materially less than it is now.
Even if I accept the three breaches of duty of care identified, which I do not, and as attractive as that submission is, I am afraid to say that I think I consider it involves too many steps, many of which involve too much speculation to support a finding to the requisite standard of probability.
First of all, I have no way of knowing precisely what each of the relevant doctors was told by the Plaintiff in the various consultations. It may have been limited to the information that they wrote down in their contemporaneous notes or they may have learned more from the Plaintiff. He gave no evidence as to what he did or did not tell them.
Secondly, I am not at all persuaded that, even if they were not told of all those matters, that if they had been, they would have come to any different conclusion. All of that information would have been assessed by practitioners at the time through the prism of their understanding of the PolAir episode itself, which had been diagnosed as an adjustment disorder. All those practitioners had been told that the Plaintiff’s symptoms had resolved, in part no doubt because the Plaintiff in fact told everyone that he was no longer suffering any particular symptoms. He told them this because he was not suffering any particular symptoms and was keen himself to get back to work and to obtain the transfer he was seeking.
Thirdly, even for the purpose of obtaining a medical opinion for this case, the Plaintiff told Dr Diamond only of “depression and anxiety symptoms.” Dr Diamond, presumably, asked what he considered were appropriate questions and yet this is all he got. I do not think any different system of record keeping or education would have changed what the Plaintiff told medical practitioners at the time.
Fourthly, as far as the counselling services are concerned, they were available. The Plaintiff knew they were available. The Plaintiff knew of the risk of PTSD, he knew what the symptoms were, yet chose not to speak to counsellors. I do not consider that more education or the keeping of better records by the Police Force would have changed any of that.
Fifthly, the failure to have before the various medical practitioners a full and detailed record of the Plaintiff’s traumatic history would have, in my view, made no difference to their opinions. After all, they knew he had been a general duties police officer for many years and therefore would have assumed exposure to repeated trauma.
That then leaves the question of the period after the Plaintiff returns to general duties up until he ceases work in 2019. A period of five years. As I have already recorded, during that period he was exposed to a series of further traumatic events. I am satisfied that there was a breach of duty of care during that period in that proper systems were not put in place and that the Police Force failed to keep records of those incidents and therefore failed to take proactive steps to monitor the Plaintiff's health and well-being in that regard. I accept that during that period he started having nightmares and becoming hypervigilant, both of which are signs of PTSD. I am not satisfied that anything the Police Force did or did not do during this period caused the Plaintiff’s current state or made any difference to the ultimate conclusion of the Plaintiff's career. This is because I do not consider he was at any greater risk of PTSD than any officer performing general duties over a long period of time.
To sum up my findings on causation, even if I were to accept that there was a breach of duty of care in relation to a failure to educate the Plaintiff and if I consider that there was a failure by the Police Force to have the Plaintiff examined by a psychiatrist at the conclusion of the PolAir episode, both of which propositions I do not accept, I consider the process of reasoning involved in the Plaintiff’s submission as to causation to be fundamentally flawed as it involved much speculation and assumptions not supported by evidence. As I understand it, the process of reasoning is as follows:
If the Plaintiff had been properly educated, he would have provided a more detailed explanation as to his symptoms to medical practitioners in 2014 and/or positively sought out help for PTSD thereafter.
If the Police Force had in place proper systems for recording the actual specific exposure of the Plaintiff to traumatic events, then the doctors examining him in 2014 would have asked more, or better, questions of the Plaintiff, which would have provoked a different diagnosis and he would not have been allowed to return to general duties but instead would have been medically treated in some way or that he would have been identified as being at risk after he left PolAir and returned to general duties.
If the Plaintiff had been examined by a psychiatrist – for example Dr Diamond – in 2014, he would have diagnosed the Plaintiff as being, either already suffering from PTSD, or being at an elevated level of risk to so suffering because Dr Diamond or another psychiatrist would have elicited a different history.
Upon that diagnosis, the Plaintiff would have been diverted from a return to general duties, which would have prevented him from developing PTSD.
In the five years following the PolAir episode, if the Police Force had kept proper records of the traumatic events the Plaintiff was exposed to, things would have been different.
Of course, in that counterfactual, it is possible that, in 2014 or thereafter, the Police Force would have recognised signs in the Plaintiff that he was potentially going to become incapacitated as a result of PTSD. However, I do not consider it is probable that anything different than actually occurred would have happened, even if the Police Force had acted differently in some or all of the various ways suggested by the Plaintiff. To the contrary, I think the outcome would have been the same.

Obviously enough, those facts took the Defendant by surprise, which was acknowledged by Mr Morris. It was agreed that the only fair basis upon which the case then proceeded was that I would hear all evidence and submissions to conclusion, then adjourn to allow the Plaintiff to be examined by a consultant neurologist, so that some judgment could be made as to the impact of this medical condition, at least for the purpose of future economic loss. If necessary, further evidence and submissions could then be received on the topics of seizures, the Plaintiff’s drivers’ licence, and the impact these matters might have on his earning capacity. On that basis, I heard all the available evidence and submissions and then adjourned the matter.
Following that adjournment, the Plaintiff was medically examined, and following a further directions hearing on 5 September 2025, I received written submissions from both parties, together with proposed further medical and lay evidence. On the question of the admissibility of that further evidence I considered the parties’ written submissions in chambers and delivered judgment on 23 September 2025 (Caller v State of New South Wales (No 1) [2025] NSWDC 379), wherein I gave leave to the parties to both rely on further evidence. I will not repeat what I said in that judgment.
Thereafter, I made further directions for written submissions and have now considered the further evidence and those written submissions as to the impact of the evidence concerning the Plaintiff’s second “seizure.”
The Plaintiff's submission as to the second seizure evidence is that it is “a red herring" and ought make no difference to the outcome as to damages.
The Defendant takes a very different approach, contending that the consequence of the evidence of the second seizure is that the Plaintiff would have been unable to work as a police officer at all for a period of 12 months from November 2024 and that, as far as the future is concerned, in combination with the other comorbidities suffered by the Plaintiff, in particular the physical injuries and disabilities he suffered as a consequence of the physically demanding nature of his police job, he would have been totally incapacitated from work regardless of the psychiatric injuries the subject of these proceedings. In other words, the Defendant submits that the conclusion should be no economic loss proved from November 2024.
I will not reiterate in detail the competing submissions by the parties but have marked for identification their written submissions, respectively, the Plaintiff’s filed 10 October 2005 will be MFI-19, the Defendant’s filed 23 October 2025 will be MFI-20, and the Plaintiff’s in reply filed 30 October 2025 will be MFI-21. All of those documents will remain with the papers.
I have concluded that the evidence of the second seizure ought reduce the Plaintiff's past economic loss component by 12 months because I consider, on the balance of probabilities, the second seizure would have occurred even if the Plaintiff was not suffering from PTSD. This is because the episode was brought on (as was the first) by a weekend away at a music camp, which involved significant consumption of alcohol and not much sleep at all.
The Plaintiff, on his own evidence, was a heavy drinker during the whole of his police career and he most certainly enjoyed the weekends away, not just because of their therapeutic effect, but because they were fun. I, therefore, think it is more likely than not that he would have from time to time engaged in heavy bouts of drinking over weekends, which would have reduced his sleep, which all the medical evidence is in agreement is the cause of the seizures.
As to the future however, I do not accept the evidence of Dr Milder that the Plaintiff would have been, from November 2024 for the “foreseeable future," unable to work as an operational police officer, unless “foreseeable future” is limited to a 12-month period from November 2024, which is Dr Reddell’s opinion.
My reasons are that, firstly, Dr Milder does not in any way explain what is assumed to be the requirements of an operational police officer and, secondly, and in any event, Dr Milder seems to assume that there is a requirement for an operational police officer to be able to drive a “commercial vehicle."
Dr Reddell, on the other hand, who is the Plaintiff's treating neurologist, concludes that the Plaintiff would have been able to return to operational police work, albeit after a period when he would not have been able to work at all. I consider 12 months to be the probable period the Plaintiff would have been off work in any event.
This is consistent with what occurred after the 2016 seizure, where after a period of not being able to perform operational police work, the Plaintiff returned to, albeit restricted, operational work.
As to the lay evidence, it is to the effect that, without being able to work night shifts (which neither doctor recommends), there would have been no work available for an officer with a history of the Plaintiff and an inability to work night shifts, at least in the operational commands near where he lives.
I do not accept that evidence and I think, having regard to the successful efforts the Police Force made to get the Plaintiff working again after his various episodes of both physical and mental problems, that it is more likely than not that the Police Force would have found him some work to do and, in any event, if there really was not work available in the operational commands near where he lives, there was always the prospect of him moving to another area, which is more likely to have occurred now that his children have grown up. It should not be overlooked that the Plaintiff had an extremely good work ethic, and, in any event, Inspector Calman’s evidence was very different to the new lay evidence. He said that redeployed police officers are commonplace and continue to have fulfilling careers in the Police Force.
It is for those reasons that I have determined that the second seizure, which I do not consider was related to the Plaintiff's psychiatric injury, would have prevented him from working for a period of 12 months from November 2024, but after 12 months would not have affected his earning capacity.
I, therefore, propose to reduce his past and future economic loss, so as to take out any component for that 12-month period.
I set out below the Defendant's Schedule of Damages which was marked MFI-11 in the hearing. It is agreed that, as a theoretical exercise, it is the appropriate way to consider damages.

The next point made by the Defendant, based on cases like DC v State of New South Wales [2016] NSWCA 198, is that I have to take into account prior non-tortious exposure to trauma and the trauma involved in the PolAir episode, which I do not think of itself amounts to any wrongdoing by the Defendant, and then the Plaintiff's current physical restrictions.
As to those, I think if the matter is looked at from the Plaintiff's perspective and liability is found, it is likely that finding would not involve any criticism of the Defendant for any exposure to trauma by the Plaintiff prior to the PolAir episode. Nor do I think the Defendant is responsible for any causative effect of the PolAir episode itself. What level of contribution that exposure has to his ultimate condition can of course never be known.
However, those exposures are some of the cumulative matters which are the cause of his injury, for which the Defendant cannot be held liable.
Dr Diamond also considers that the PolAir episode itself was a traumatic incident that needs to be factored in as one of the cumulative factors. I am not satisfied that it was tortious, and this should be taken into account for the purpose of assessing damages.
Next, there is a considerable body of medical evidence to the effect that the Plaintiff has significant physical injuries which would, at least by now, have probably caused him to not be able to work as an active police officer and, if he had left the Police Force, would be a considerable impediment and restriction on his earning capacity. The Police Force is not liable for this loss of capacity to earn.
Finally, the seizures are themselves not the consequence of any wrongdoing by the Defendant but seem to have caused the Plaintiff to lose his driver’s licence which self-evidently would have hampered his career as a police officer.
As to the seizures, I have dealt with them by reducing the economic loss claim by 52 weeks. There is no need to adjust vicissitudes over and above that finding.
Taking into account the other non-tortious injuries and disabilities the Plaintiff is dealing with. I consider it appropriate for damages to be calculated as follows. This is not scientific and is difficult to explain over and above I am doing my best to evaluate all of the relevant factors:
Past economic loss should be based on a figure of $1,000 per week, as opposed to his uninjured capacity of $1,726 per week.
Past economic loss ought be calculated by $1,000 x 280 weeks to take into account the 52 weeks following the second seizure.
Future economic loss again should be awarded upon the basis of $1,000 per week for the period identified in the Defendant’s Schedule.
Instead of the usual 15% reduction for vicissitudes, I consider there should be a 20% reduction to take into account the other matters I have identified as various non-tortious contributors to the Plaintiff's claim.
From that figure there should then be deducted 20% to take into account my finding as to contributory negligence.
I will leave the “Fox v Wood component” and any worker’s compensation payback to be agreed by the parties.
I will leave it to the parties to perform the appropriate calculations to arrive at a total figure.

Caller v State of New South Wales (No 2)

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English brief of this case

Catchwords

Judgment

JUDGMENT

Overview

Introduction

The application for leave

The statutory context

When was the injury received?

Relevant discretionary factors

Consideration

Resolution of leave application

The real issues in dispute

Duty of care

Foreseeability

Breach of duty

Does the Plaintiff have PTSD as a result of his being exposed to trauma in the course of his duties?

Findings as to traumatic incidents

The PolAir episode

The relevance of the PolAir episode findings

The Plaintiff’s return to work following the PolAir episode

The Plaintiff’s case as to breach

Failure to educate

Failure to implement systems

Resolution as to lack of education and failure to implement systems

PolAir

Resolution as to PolAir episode

Resolution as to breach of duty of care

Causation

Conclusion as to liability

Damages

Adjournment, further evidence, and written submissions

The second seizure

Contributory negligence

Other causes

Conclusion/Orders

Parties

Legislation Cited (4)

Cases Cited (7)