Carangelo v State of New South Wales

Supreme Court of NSW|2015-05-25|Before: Adamson J, McCabes Lawyers P

Introduction

Benjamin Carangelo seeks damages against the State of New South Wales for psychiatric injury said to have been sustained as a consequence of breaches of the duty owed to him by the Commissioner of Police, for which the defendant, the State of New South Wales, is vicariously liable.

The Facts

The plaintiff was born in Italy in 1950. He migrated to Australia with his parents when he was ten. He left school after attaining the Intermediate Certificate. He married in 1972. His daughter, Belinda, was born the following year. In 1974 he commenced his training at the Police Academy in Redfern.
The Police Force is relevantly divided into two groups: officers who wear uniform, who are known as "General Duties"; and those who wear plain clothes, who are known as "Plain Clothes" or "Detectives". The principal distinction is that the Detectives are engaged primarily in investigation rather than enforcement. They are paid an additional salary, by way of a clothing allowance, to compensate them for the cost of the plain clothes they wear on duty. In about 2000, the difference in salary was in the order of $5,000 per year.
The plaintiff started as a Probationary Constable in General Duties at the Newtown Police Station. On one occasion he was called out with a Senior Constable to a Marshall Batteries outlet at Newtown, where they were confronted by a man with a rifle who threatened to kill them. The Senior Constable shot the man in the throat. The plaintiff performed first aid on the man, who survived, until an ambulance arrived.
The plaintiff was confirmed as a Constable in 1975. His second child, Melissa, was born in 1976. On 18 January 1977 he attended the Granville train disaster. He helped to rescue survivors and also carried out corpses from the wreckage. He heard the cries of victims who were trapped. Some died before they could be freed. The plaintiff assisted the last victim to be released alive. He was shaken by these events and suffered claustrophobia and insomnia as a result, particularly in the ensuing months. He continued to suffer distress on the anniversary of the event and whenever he caught trains.
For the seven years commencing 1978, the plaintiff worked as a Plain Clothes Constable performing Criminal Investigations duties in various locations including Newtown, Balmain, Glebe and Annandale. In the course of his duties he investigated murders, domestic assaults, sexual assaults and other violent crimes, as well as accidents and suicides.
The plaintiff's third child, Shaun, was born in 1979. In about 1981 he and his wife separated. On 3 March 1982 the plaintiff obtained a medical certificate from Dr Cringali, a general practitioner, who certified that he was suffering from "nervous depression" and was unfit for work from 2 March 1982 until 8 March 1982. The plaintiff did not recall the consultation but accepted that he was having personal problems at the time because of the separation from his wife. On 8 March 1982 he consulted Dr Vance at the New South Wales Police Medical Branch who recorded that he was "depressed over a personal matter re wife and children" and that he would be "FD [fit for duty] on 11 March 1982". The plaintiff and his wife were divorced in 1983.
Although the plaintiff would, at times, be disturbed by what he saw and investigated at work, he felt no need to take time off, seek psychological support or even mention his distress to others, including medical practitioners whom he was consulting for other problems. He explained the distinction he drew between "marriage problems" on the one hand and mental stress arising from his work on the other in the following exchange in cross-examination: Q. So you didn't think ‑ you thought it was perfectly acceptable for your employer to be told that you were suffering from a mental illness, in this case depression [from marital problems], provided it had nothing to do with work, is that what you are saying? A. No, I am just saying that I didn't feel like ‑ from my ‑ from where I come from in the police department, you just didn't ‑ didn't show weakness by telling them that you couldn't cope with work and you were suffering from any depression because you'd be soon transferred out of detectives and elsewhere, okay. But marriage problems, that wouldn't affect you in that way.
In 1983 the plaintiff was promoted to the rank of Senior Constable. In 1985 he was transferred to the Internal Affairs Branch of the Police Force where he remained until 1986. In this role, he was responsible for investigating the conduct of police officers.

Campsie/ Bankstown LAC: 1986 to 1994

In 1986 the plaintiff was transferred to Campsie/ Bankstown Local Area Command (LAC) as a Detective. He remained there until November 1994. In 1986 he married his second wife, Penny.
At about the time the plaintiff started at Campsie he met Charles Khalifeh, a police officer in General Duties. Mr Khalifeh observed the plaintiff to be a relaxed, calm, methodical, knowledgeable Detective, who was held in high regard. When Mr Khalifeh became a Detective in 1988 they worked more closely together. Mr Khalifeh's first detective job with the plaintiff involved the investigation of a murder of a 16-year old boy who had been shot by armed robbers. The boy was part of a close-knit Greek family. Mr Khalifeh noticed that the plaintiff was more subdued during the investigation.
During their time together at Campsie, the plaintiff complained to Mr Khalifeh about headaches and being generally run-down. He told Mr Khalifeh that they were under pressure to get results but that staffing levels were down. He would say that he was "feeling like shit". Mr Khalifeh said of the atmosphere among police at Campsie at that time: "We all did the best we could and the general feeling was that nobody wanted to let anyone else down."
The plaintiff also met Detective Sergeant David Wood, who was transferred to Campsie in 1987. Detective Sergeant Wood, who was about nine years younger than the plaintiff, regarded him as having "the usual mood variations as anybody else in the detectives". Detective Sergeant Wood explained that sometimes the mood variations of the "older blokes" in the detectives included being "very quiet if not sullen" and "not level all the time".
In 1990 the plaintiff was promoted to the rank of Sergeant. Over the following four years, he investigated several serious crimes. He particularly recalled conducting raids involving local gangs, the members of which were frequently armed.
During this period the plaintiff was called to a location where a 16-year old mother, who had concealed her pregnancy, was attempting to kill her newborn child by bashing his head on the side of a bath and then flushing him down the toilet. When the plaintiff arrived, the baby was wrapped in a towel. He understood that the relatives, who were Muslim, were about to bury the child in order to conceal the birth from the mother's brother, whom they feared would kill the child's mother. The plaintiff intervened and called an ambulance. The baby survived for two days in hospital. After the child died, the plaintiff realised that the family expected him to arrange the child's funeral and burial. The plaintiff found the process of having to persuade the deceased's family to bury the child disturbing. The whole investigation and autopsy greatly distressed him; he could not stop himself from thinking about it. He explained in evidence that harm to babies affected him more than harm to adults because a baby is "an innocent human being" and also because he was a father himself and could not but help thinking of his own children.
Detective Sergeant Wood noticed that the case involving the baby upset the plaintiff "more than usual". The plaintiff would smoke more and was quieter for longer periods. From time to time the plaintiff would recount to Mr Khalifeh jobs he had done that affected him. He often mentioned the death of the baby. Mr Khalifeh observed the plaintiff to be "quite emotional" when telling him of these jobs.
In July 1993 the plaintiff was asked to investigate the drive-by murder of Radwan Rima and the malicious wounding of Paul Eguiabor which occurred when a group fired shots from a moving vehicle into a large crowd of teenagers who were leaving a dance party. The plaintiff attended the scene and discussed matters with Crime Scene and scientific staff. He arranged for police officers to interview witnesses, many of whom were minors and needed to have their parents present when they were interviewed. As many of the parents did not speak English, the plaintiff also had to arrange interpreters. He also communicated with the victims' families and kept them informed of the progress of the investigation. I have made some allowance for the fact that the plaintiff's description of his role in this investigation (which is the basis for the facts set out above) was contained in the application for promotion to the rank of Inspector which he made in 1998 and which is referred to below.
The plaintiff said in evidence that the investigation caused him stress because he had to conduct raids and was concerned that he could be shot at or otherwise attacked. Although the investigation was concluded without any violent incident involving police he felt considerable anxiety in the course of it. Nonetheless he neither sought, nor perceived the need for, psychological assistance.
At the time of these incidents, the plaintiff was not aware of any protocol for welfare checks to be conducted on police officers who were involved in so-called "critical incidents". The term "critical incidents" was used to refer to incidents such as murder, armed robbery, drive-by shootings, fatal motor vehicle accidents that required police investigation and other major crimes. Nor did the plaintiff recall anyone checking on his welfare. Later, when he was promoted to the rank of Senior Constable, he was responsible for checking on the welfare of officers under his command and informing them that the services of the welfare branch were available if they needed help.

Flemington LAC: 1994-1999

Towards the end of 1994 the plaintiff was transferred to Flemington Police Station. He came in contact with Detective Budge, who worked at Campsie, a nearby police station. Detective Budge regarded the plaintiff as an "honest and dependable" police officer. This assessment was based on his experience of working with the plaintiff, as occurred sometimes when the plaintiff was "on loan" to Campsie Police Station.
The plaintiff's duties as a Detective at Flemington Police Station included investigating serious crimes. Silverwater Gaol was within the local area. He was called to the gaol to deal with six inmates who had hung themselves in their cells. He had to cut down two of the six, as the protocol required that a police officer, rather than a prison officer, perform this duty. The plaintiff found these scenes to be particularly distressing, in part because he felt that the deaths could have been prevented. He was dismayed when he learned that, on some occasions, prison officers, who were only minutes away, would take half an hour before they went to the cell where an alarm button had been pressed. The plaintiff was also called to the gaol to investigate attempted suicides.
The plaintiff was troubled by the apparent conflicts between prison officers and prisoners. As neither group was prepared to co-operate, either with each other or with police, it was difficult, if not impossible, to ascertain what had actually happened. The area set aside for interviewing inmates was open and could be viewed by other inmates. Police officers, including the plaintiff, were apprehensive that those they interviewed might suffer reprisals from other inmates. The absence of prison officers on sick leave would also hamper the preparation of a brief to the coroner. As time passed, the plaintiff dreaded going to the gaol.
The plaintiff kept in touch both socially and professionally with Mr Khalifeh, who remained at Campsie until his transfer to Bankstown. The plaintiff worked with Detective Sergeant Wood again at Flemington. Detective Sergeant Wood noticed a change in him in that he was "crankier at times and more moody". Detective Sergeant Wood described the environment at Silverwater Gaol as "terrible" and the scenes of suicide "very confronting". He recalled: "Ben [the plaintiff] would regularly bring up in conversation the incidents involving the baby in the toilet, the armed robbery shooting and some suicides. When discussing these matters he always seemed very quiet and withdrawn. Often he would go off and have a cigarette and return some time later."
While he was at Flemington the plaintiff was involved in the investigation into the murder of a young woman whose mother had reported her missing. When the deceased's body was found, having been dumped in bushland off Wakehurst Parkway, the plaintiff was called to the scene. He saw what he initially thought were bullet holes in her body but later realised were marks made by bush rats that had fed on her flesh. The plaintiff was overcome with feelings of helplessness and sadness for the victim. He became short-tempered and angry both at work and at home. Many of the officers who assisted the plaintiff in the investigation were inexperienced, which meant that he needed to be more involved and to bear a greater responsibility. The memory of the investigation continued to haunt him in the years to come.
In July 1997 Mr Khalifeh was transferred to Flemington where he again worked closely with the plaintiff, who was then the investigation manager. Mr Khalifeh noticed that his level of frustration was high and his demeanour had deteriorated since they had worked together at Campsie.
By 1997 the plaintiff was relieving Chief of Detectives at Flemington. At one time there had been a staff of 28 detectives. Over the years the numbers diminished, which increased the pressure on those who remained. The plaintiff complained to Detective Inspector Lorenzutta, who was in charge of the Major Crime Squad as well as the detectives at Flemington, who instructed him to stop some of the investigations. The plaintiff found it difficult to comply with the instruction as he regarded all of the matters he was investigating as serious. He felt guilty because some matters could not be properly investigated.
I accept the following evidence of Mr Lagopodis, a police officer who subsequently worked with the plaintiff, as to the effect of staff shortages on the health and morale of police officers: "Well, just based on my own experiences working as a detective for over the course of 22 years and also based on what Mr Carangelo had told me, it wasn't a fact that he was complaining to me or anyone else in relation to staff shortages, when you're dealing with major investigations, either it be homicide, or you're on the strike force, you need staff to do your work. You've got certain time restraints and in relation you've got an obligation not only to the New South Wales Police, you've also got an obligation to victims of crime and witnesses. When you've got the DPP knocking at your door saying they want a brief and you've only got yourself and you've got 30 other people to interview and you've got no‑one there to help you, it's putting an enormous strain and pressure on you. When they're taking staff off you to put them ‑ who are doing ‑ they're taking staff off you, from the detectives' office to do other major crime, it puts an enormous strain on you as an investigator, as a supervisor. You're going to the boss and you're complaining that, "I've got no‑one to do these investigations, junior staff are suffering, I am suffering" and it's falling on deaf ears, and that puts an enormous strain not only on yourself, victims of crime, you've got people ringing you up constantly, "What's happening with my investigation?" You're talking about people who have been traumatised by horror, homicide victims, where they're not budging. The Police Department does not budge, they do not care. You as an investigator though, when you've got your time restraints, you do care ‑ or the majority of us do anyway."
On 13 April 1998 the plaintiff submitted an expression of interest for assessment for the position of Operational Supervisor/ Investigative Supervisor, which was at the rank of Inspector. His then Local Area Commander Treharne supported his application, describing the plaintiff's integrity as "excellent". He wrote, on 15 April 1998: "The applicant has considerable experience in the field of Crime Management. He understands the process and achieves consistently good results."
In order to be considered for such a promotion, the plaintiff had to be assessed at the Assessment Centre. Such centres were established in December 1996 to assess the competence and behaviour of candidates in certain roles. Meeting the standard was a prerequisite to applying for commissioned officer ranks, including, relevantly, the rank of Inspector. The assessment was conducted by Superintendents and an independent assessor over the course of a day. Candidates were assessed at least twice in the following areas: teamwork/ collaboration; maximising performance; individual leadership/ influencing; decision-making; planning and organising work management and communication (oral and written). They had to perform written "in-tray exercises", role plays or group exercises and were also required to make individual presentations. The assessment was not designed to test the candidate's capacity for the duties he or she was then performing.
The plaintiff met the "minimum satisfactory" standard in teamwork and collaboration but was assessed as having "much need for development" in the remaining categories of: decision-making; individual leadership/ influencing; planning organisation/ work management; maximising performance and technical/ professional knowledge. He was adjudged not to meet a satisfactory level of effectiveness in any area. As a consequence, he was ineligible to be considered for a position at the rank of Inspector.
Some time later the plaintiff spoke to Detective Inspector Lorenzutta again about the stress of the work, his distress occasioned by the hangings at the gaol and his inability to cope. He told him, "I just can't take it anymore, if the staff numbers fall below 20, I'm out of here." Detective Inspector Lorenzutta initially told him not to worry and that he would be all right. The plaintiff also informed Detective Inspector Lorenzutta of his view that the investigation of serious crime was being compromised as a result of the lack of experienced staff. He instanced an occasion on which he was given the task of investigating a number of armed robberies in the Blue Mountains which had been committed when the perpetrators locked up old people in toilets and took their wallets. The plaintiff identified as a suspect an escapee from Queensland who was enlisting the help of locals to commit these crimes. The plaintiff sought more staff from Detective Inspector Lorenzutta on the basis that it might be possible to charge the suspect with about a dozen offences. Detective Inspector Lorenzutta told him to proceed with the one charge that could be established and not proceed with the balance. The plaintiff, conscious of his duty to the victims, became depressed and demoralised by this response.
The plaintiff's complaints to Detective Inspector Lorenzutta were a significant departure from his former practice of not revealing any difficulties relating to trauma to his superior officer, a practice which he described in the following terms: ". . . earlier on in the career you just didn't disclose that you were suffering from stress because there'd be consequences. You'd be isolated, you'd be transferred; as soon as they heard the word stress they would hold that against you. So we would just debrief by going to the pub and with the closer mates we used to just have a drink and talk about things that happened during the day, and that's how we used to de‑stress things and that's the way we handle things."
Detective Sergeant Wood and Mr Khalifeh were among the "closer mates" with whom the plaintiff felt free to share his experiences. They had both heard many times about old investigations that disturbed him and caused his sleep to be interrupted, including the investigation into the death of the young woman found in bushland and the death of the baby. They had also been privy to the plaintiff's concern about staffing levels. Mr Khalifeh noticed that the plaintiff was drinking more, his previous enthusiasm for the job had gone and he was looking for a transfer. Mr Khalifeh said that at Flemington he "was clearly not the easy-going person he used to be" and that he was "just generally down, flat".
In 1999, when matters did not improve, the plaintiff applied for a transfer to General Duties at Kogarah. He divulged to Detective Inspector Lorenzutta that he was not coping, as appears from the following evidence. "Q. Do you recall, as best you can, what you said to him about your ability to cope generally? A. I said to him that I've had enough, I can't cope, I can't cope with what, you know, this sort of work anymore. I said I'm sick of the gaol, and I just want to have a ‑ I just want to transfer to general duties to have perhaps a quieter time."
Detective Inspector Lorenzutta advised him to put in a form in which he expressed the reason for the transfer as being to work closer to home so as not to "create waves". In his evidence the plaintiff explained that he regarded Detectives as having greater status than General Duties officers but considered the loss of status to be worthwhile because he expected that, at his rank, General Duties would largely involve supervisory duties at the Police Station rather than work in the field. The reason the plaintiff gave at the time in his Transfer Application signed on 9 August 1999, which was: "I have been performing duties in the criminal investigation field for the past 22 years. I now wish to transfer to general duty. I seek the transfer not only to improve my skills in main stream policing but also to use my investigative skills in assisting junior members in becoming better investigators. This would give me more job satisfaction. During my service I have never asked for a transfer and hope some consideration be given in transferring me to the requested locations which are closer to home."
Although Dr Selwyn Smith, the plaintiff's treating psychiatrist since 2006, later recorded a history which suggested that the request for transfer was associated with the workload and the shortage of staff, I accept the plaintiff's evidence that the true reason for his application to be transferred to General Duties was that he was not coping with the trauma of what he was exposed to as a detective. He had revealed as much to his close associates, including Mr Lagopodis who is referred to below.

St George LAC: September 1999 - August 2007

On 19 September 1999 the plaintiff started on General Duties at St George LAC at Kogarah. At that time Superintendent Carey was in charge. The plaintiff was a Team Leader and supervised several officers directly. He was generally not required to attend critical incidents or carry out investigations into homicide or fatal accidents. Nonetheless, a supervisor was obliged to attend when someone had died to form a judgment about whether there was something suspicious or unnatural about the death, and the plaintiff was called on to perform that duty more frequently than others because of his experience as a detective.
Detective Sergeant Wood kept in touch with the plaintiff by talking on the phone to him once a month and having a meal with him every 6 to 12 months. He observed the plaintiff to be an angrier person and that he had put on more weight. The plaintiff told Detective Sergeant Wood that he was drinking more. Mr Khalifeh also remained in contact with the plaintiff. They saw each other monthly and also spoke on the phone. Mr Khalifeh's impression was: "I know that Ben expected his move to be an improvement but, to my observation, although his work was different, his demeanour remained much the same."
Sergeant John Lonard was the shift supervisor at St George LAC when the plaintiff started there in 1999. As such, he was required to organise, control and command the shift. He formed a very positive view of the plaintiff's capacity. His evidence, which formed part of the defendant's case, was as follows: "Ben was a very efficient and effective Police Officer who had a great deal of plainclothes experience. He was a person who was very much in control. I never saw him stressed out, anxious or upset. Even when matters were complicated he completed the task correctly. Ben was a very likeable and easy going person who was popular and respected by other staff. I did not see any personal problems impacting on Ben's work and he appeared happy."
Mr Lonard remembered the plaintiff talking about the Granville train disaster when they were, as Mr Lonard put it, "telling 'war stories'". Mr Lonard did not socialise with the plaintiff outside work and had no knowledge of his drinking habits.
At some stage in 1999 the plaintiff satisfactorily completed a course entitled "Responding to High Risk Incidents".
On 24 October 2000 the plaintiff attended the scene of an explosion in Brighton-Le-Sands. When he arrived with Constables Green, Mirarchi and Porter, he was informed that people were trapped inside the building. They broke into the rear of the building to rescue anyone inside. There were flames and heavy smoke throughout. The plaintiff, who was overcome by smoke fumes, left the building for some fresh air. Just before he went back inside, the two Constables emerged to inform him that all of the occupants had already left the building. The plaintiff recorded the incident as critical but was not approached by the Employment Assistance Program (EAP) or by anyone else about his welfare following the incident.
As Constable Mirarchi's Team Supervisor, the plaintiff and Constable Mirarchi saw each other on most shifts. Constable Mirarchi described the plaintiff as "a largish man, who enjoyed his family, food and fishing". He also said: "Ben had been a police officer for a long time and knew what he was doing. I could always speak to Ben for advice about jobs. He completed his work, with no issues. Every now and then he might have shown some angst after a major accident or seeing a deceased person…"
In 2001, while he was at St George, the plaintiff again applied for promotion to the rank of Inspector and was accordingly required to undergo another assessment at the Assessment Centre, which took place on 16 January 2001. Although the plaintiff's results in individual categories were better than those he had achieved in 1998, he still did not meet the standard.
Notwithstanding his actual results, the plaintiff was informed, by email dated 6 February 2001, that he had passed. He was relieved and pleased that he was finally entitled to apply for positions as an Inspector. He was later told that a mistake had been made and he had in fact failed. He received a letter dated 3 April 2001 in which he was informed of his true results and that he could not, accordingly, be considered for any promotion to the rank of Inspector. The plaintiff was devastated. At that time he decided that he would no longer accept any offers to act as an Inspector on the grounds that: ". . . if I couldn't be a real inspector I wasn't going to be a pretend one"
When the plaintiff examined the relevant Assessment Centre file and found no record of his complaint about having been told the wrong result, he lost faith in the promotion system and remained unable to accept that a genuine mistake had been made. As a result of this event and his experience of how the system worked from his time in the Internal Affairs Section, the plaintiff came to believe that he and those of his "vintage" were unlikely to be promoted because their age meant that they may have been implicated in the matters that were the subject of investigation in the Wood Royal Commission. When asked in cross-examination to elaborate on what had occurred in the Internal Affairs Section to make him believe that the system was corrupt, he referred to situations in which positions which had been advertised were not in fact available because they had already been earmarked for people who worked in Internal Affairs. Even when Mr Menzies QC, who appeared with Ms Avenell on behalf of the defendant, took the plaintiff through the records of his assessment in 2001 and his results on each task in cross-examination, the plaintiff refused to accept that his being told, incorrectly, that he had passed when he had in fact failed, was a mistake rather than a corrupt conspiracy.
In 2001, when he undertook the assessment, the plaintiff knew that the Police Force was generally concerned about the effects of trauma on police officers as a result of what they were exposed to in the course of their duties. In his position as Team Leader the plaintiff would speak to those under his command who had attended scenes which might affect their mental health to see whether they were all right, However, he considered that had he disclosed his own distress at such scenes he would not only be an outcast from the group, but that his disclosure would not be kept confidential because such things "seemed to have a habit of getting out".
On 18 September 2001 the plaintiff recommended to the Commissioner that favourable consideration be given to recognising the actions of Constables Mirarchi, Green and Porter on 24 October 2000 when they attended the explosion at Brighton-Le-Sands. In his submission to the Commissioner the plaintiff wrote: "Constables Mirarchi, Porter and Green acted with a high level of courage in entering the building looking for persons trapped. The dense smoke and heat made breathing very difficult and there was a real and high risk to personal safety due to the leaking gas and buckled floor which could have collapsed at any time. Constable Mirarchi and Porter both received minor cuts to their hands and were treated at the scene by ambulance."
As a result of the plaintiff's recommendation each of the Constables was awarded a Commissioner's Certificate of Merit, which was presented on 6 July 2005. The plaintiff was similarly recognised for his role in the incident.
Notwithstanding what had occurred in 2001, the plaintiff applied again for promotion to the rank of Inspector and underwent another assessment at the Assessment Centre on 10 June 2003. Once again he failed to meet the standard. He did not reapply because he did not think he would ever be successful.
In about 2003 Sergeant Lonard was adjudged by the NSW Assessment Centre to be eligible for promotion to Inspector. From that time until about May 2006 he acted as an Inspector in the role of Duty Officer. He often worked on the same shifts as the plaintiff, with the plaintiff as the Shift Supervisor and Sergeant Lonard as Duty Officer.
On 27 March 2003 the plaintiff satisfactorily completed a course entitled "Stress Management and Employee Support" as part of the Mandatory Police Education Scheme. The relevant material is considered further below in the context of the defendant's knowledge of the stress suffered by its police officers.
In about 2004 the plaintiff was asked to investigate a police officer who was in his team and was accused of molesting female officers in the work place. The plaintiff was loath to conduct the investigation as he considered that his role as Team Leader gave rise to a conflict of interest. He was also concerned that, as a Sergeant, he was too junior to conduct the investigation which he thought ought be conducted by an Inspector. As a result of the plaintiff's investigation, the officer concerned was dismissed. The plaintiff felt guilty. He also sensed that he was being shunned by his peers for the part he had played. He disliked the feeling that he was back in Internal Affairs.
In about 2004 Mr Lagopodis started working with the plaintiff at St George LAC. He was about 12 years younger than the plaintiff, who was by that time one of the most senior officers in the LAC. They had a good working relationship. Mr Lagopodis found the plaintiff to be well respected by his peers and subordinates, to have good communications skills and to have an "approachable, easy-going nature".
Inspector Lonard recalled the plaintiff mentioning that he had separated from his wife in about 2004 or 2005, although Inspector Lonard could not say what effect this had on him. This was the only disclosure of a personal nature that the plaintiff ever made to Inspector Lonard.
In October 2004 Sergeant Graham Baird worked on the same team as the plaintiff at Kogarah Police Station. Sergeant Baird said that he completed his job satisfactorily although he "could get a bit grumpy, as anyone does."
In early 2005 the plaintiff confided in Mr Lagopodis as to the reasons he left the Detectives for General Duties. He identified the lack of experienced staff and the work load. He also described the traumatic situations to which he had been exposed as a Detective. The plaintiff told Mr Lagopodis: "I needed to get out of Plain Clothes [Detectives] before it killed me, even though it meant a pay cut in salary and transfer away from the duties that I loved. My health was suffering. I thought that coming back to general duties after so many years would be a break from hell, plus I was going back as a Supervisor so I didn't have to attend every single deceased and murder. Back when I started in the job, it was difficult and very hard as a young bloke and I wanted to get into Plain Clothes and be a Detective."
On 27 July 2005 the plaintiff completed a course in Occupational Health and Safety as part of his mandatory continuing education. Although the course emphasised the responsibility for providing a safe system of work, it was not suggested that it dealt in any detail with managing stress.
On 1 September 2005 the plaintiff fell while he was fishing under Tom Ugly's Bridge in Sylvania and fractured two ribs. He was off work from the date of the accident until 4 October 2005 and put in a claim in respect of this absence. He saw Dr Taluja throughout this period but did not report any symptoms associated with distressing events that had occurred in the course of his police duties. I accept that, at the time, he was suffering from depression and insomnia and was having difficulty coping. His failure to report his symptoms was consistent with his usual approach of concealing such matters from everyone apart from his closest associates in the police force.

The PIC inquiry: September 2005 - June 2007

In September 2005 Andrew Baxter, who had just been appointed as an investigator with PIC, was required to conduct an investigation into an allegation against the plaintiff. I am satisfied that, at some time prior to 7 September 2005, Mr Baxter informed Superintendent Mark Murdoch (the plaintiff's then Commander) that PIC was investigating the plaintiff's conduct, although he did not inform him of the subject matter of the investigation, which remained confidential. Mr Baxter agreed that there was nothing about the investigation into the plaintiff which prevented his disclosure of the fact of the investigation to the plaintiff's Commander. Mr Baxter informed the Commander before notices were issued to ensure that the officer was given appropriate support, it being no part of the duties of a PIC investigator to monitor and consider the officer's welfare. Mr Baxter also considered it to be important for the Commander to be aware of the investigation so that, if the officer had to be absent from work by reason of the PIC investigation, the Commander would already know and understand the reason for the officer's absence.
On 7 September 2005 Mr Baxter served the plaintiff with a notice pursuant to s 26 of the Police Integrity Commission Act 1996 (NSW) (PIC Act) which required production of documents from 1 July 2000 to that date. The notice set out various matters for the information of the recipient, including the following: "OFFENCES Disclosure of information It is an offence to disclose information about the Notice that is likely to prejudice the investigation to which it relates, except where provided for under the Act (see above). The maximum penalty for this office is 50 penalty units ($5,500) or imprisonment for 12 months, or both. To ensure that this provision is not breached, unless the proposed disclosure is to a person specified above (see under the heading, "Your Notice - What it Will Say"), you should not make any disclosures about having received the notice or its contents without first seeking permission from the Commission. Enquiries should be directed to the Commission officer named on the Notice."
Mr Baxter also informed the plaintiff of the Legal Representation Office (LRO), which provided legal advice free of charge to officers the subject of investigation. The plaintiff obtained legal advice from Mr Robert McIlwane, who represented him throughout the PIC inquiry.
Later that month, on 23 September 2005, Mr Baxter served a s 26 notice on the plaintiff's wife and, on 26 September 2005, conducted a recorded interview with her at the home in Blakehurst where, although they were separated, she was living with the plaintiff.
On 17 October 2005 Peter McErlain was appointed Acting Commander of St George LAC. At this time the plaintiff was one of three General Duties Team Leaders, each of whom led about 13 police officers who worked in shifts. Superintendent McErlain considered the plaintiff to be both senior and experienced and to be performing his duties satisfactorily. His impression was of a quiet man who did not display any overt psychological symptoms in the course of their time together.
Superintendent McErlain was subsequently confirmed in the position in around February 2006 and replaced Superintendent Murdoch. Although Sergeant Murdoch conducted a detailed handover he omitted to inform his successor that the plaintiff was being investigated by PIC. Had Superintendent McErlain been aware of the PIC inquiry into the plaintiff he would have taken steps to provide some support for him as he appreciated that such an inquiry would be a stressful experience and could give rise to feelings of helplessness, anger and isolation in the officer the subject of investigation.
On 23 November 2005 Mr Baxter spoke with the plaintiff about the summonses he proposed to serve on his parents, who were then elderly and in poor health. The plaintiff was hostile towards Mr Baxter and accused him of engaging in a fishing expedition. He refused to be present when his parents were served or otherwise to assist. The plaintiff's parents were served with notices on 25 November 2005.
In early 2006 two officers from PIC came to the plaintiff's home with a summons that required him to produce his financial records. He was surprised and upset. The PIC inquiry was causing him substantial stress which he did not disclose because of the confidentiality requirements to which he was subject. Despite these events, the plaintiff continued to perform his duties as a police officer without taking any leave.
In May 2006 Mr Lagopodis went off on sick report. His initial complaint was workplace bullying and harassment. His general practitioner referred him to Dr Smith to obtain psychiatric treatment, as a result of which he made a Hurt on Duty (HOD) claim arising from exposure to trauma in the course of his police work.
On 18 May 2006 Superintendent McErlain filled in a Risk Assessment Form, without consulting the plaintiff, in which he assessed the plaintiff's risk as "low". Superintendent McErlain was still not aware that the plaintiff was then the subject of a PIC inquiry. Had he known, he would not have assessed the plaintiff's risk as "low" because of the inevitable stress and anxiety suffered by police officers the subject of such inquiries.
On 17 August 2006 Mr Baxter served on the plaintiff a summons to appear and give evidence. A document entitled "INFORMATION FOR WITNESSES" was attached to the summons. It contained the following passages: "Your summons will state whether information may or may not be disclosed about the summons (sub-section 54(2)). If your summons says that you may not disclose any information about it, this includes information about the existence or nature of the summons or of the investigation to which it relates. It also means that you may not disclose any information to a person from which the person could reasonably be expected to infer the existence or the nature of the summons or of the investigation to which it relates. With several exceptions, it is an offence to disclose information in contravention of an order that information not be disclosed. Even if the summons does contain a statement that information about the summons is not be disclosed, you may disclose information about the summons in the following circumstances: (a) the disclosure is made to an employee, agent or other person in order to obtain information to comply with the Summons and the employee, agent or other person is directed by you not to inform the person to whom the information relates about the matter, or (b) the disclosure is made to obtain legal advice or representation in relation to the Summons, or (c) the disclosure is made for the purposes of, or in the course of, legal proceedings, or (d) the disclosure is made in accordance with guidelines issues by the Commission or in accordance with the regulations (sub-section 54(3))." . . . PROCEDURES AT HEARING . . . You should be aware that the fact that you have given evidence and been released from your summons does not preclude you from being re-called to give further evidence at such time as the Commission may determine. A further summons will be served upon you should that circumstance arise."
The plaintiff gave evidence in a closed PIC inquiry on 29 and 30 August 2006. He was represented by Mr McIlwane. After the first day's examination had concluded, Mr Baxter accompanied the plaintiff, with his consent, to his home at Blakehurst to search his bedroom for an item that he had referred to in evidence.
The plaintiff found the experience of being questioned for a day and a half, in what he regarded as an aggressive way, very stressful. He was so upset by the experience that he was unable to return to work. The plaintiff described how he felt in cross-examination: "I was sick. When I got out of there I felt like I'd been shot, you know, my stomach wasn't there anymore and I just made it to a doctor. I was really ill after leaving PIC because that's how much it affected me. But it wasn't the only reason why I went off sick because of PIC, it was because of other things that had happened before that and it all accumulated."
He went on sick report from 31 August 2006. Superintendent McErlain said of the plaintiff's absence that it was "sudden, and no specific work related event appeared to trigger his leave". The plaintiff submitted a certificate from Dr Taluja, who certified on 31 August 2006 that he was suffering from hypertension and stress and would be unfit for work up to and including 4 September 2006. Her clinical notes recorded in part: "Stressed, some time ago met few people and it confidential. All story is very stressful so relaxation therapy done."
The plaintiff saw Dr Taluja five times in September 2006 for stress arising from the PIC inquiry. She recorded on 2 September 2006: "Does not feel any better. He is very annoyed that after doing the loyal job that he has been in the Police for 32 yrs and now being questioned the integrity for the last 3-4 days ago [sic]."
Dr Taluja recorded on 15 September 2006: "BP 130/90. Still c/o Headaches and anxiety still there and stressed when he thinks about that and he is more stressed if he has to go to work. MED CERT AGAIN 1 WK. He is coming back again and again of the questions that he had in the Court and that makes him angry that he was asked that he is living beyond his means for $4000, and was asked the trip for Italy where was living with Uncle and parents were there and was asked why spent only $3000 and all these things are now bothering him and brings the Memories which were unpleasant in the Police force. THERE IS BIG COUNSELLING"
At some time in September 2006 Mr Lagopodis rang Kogarah Police Station and asked to speak to the plaintiff. The unidentified female officer who answered the phone told him that the plaintiff was off sick and that it was hard to say when he would be back. When Mr Lagopodis pressed her she told him that it would be better if he did not contact the plaintiff because he was being investigated. Mr Lagopodis rang the plaintiff on his mobile, which was switched off at the time. Eventually he made contact and arranged to visit the plaintiff at home. Mr Lagopodis, who had not seen the plaintiff since he himself had gone off on sick report in May 2006, was shocked when he saw the plaintiff, who was unshaven and had put on a lot of weight. The plaintiff explained that he was being investigated by PIC and that his parents had been drawn into the investigation.
The plaintiff recounted to Mr Lagopodis that his wife and parents had also been served with summonses and that he had been cleared after having given oral evidence for a day and a half. When he had finished talking about the PIC inquiry, he showed Mr Lagopodis the email dated 6 February 2001 in which he had been informed that he had passed the assessment but later told that he had failed. The plaintiff told Mr Lagopodis that he could not accept that it had been a mistake. The plaintiff also said to Mr Lagopodis: "You're the only person that has come to see me Bill. Do you believe that nobody from St George has even bothered to call me or come over and see me to conduct a welfare check, even though I've been off sick for so long. I contacted the station Manager, Rudy Kolkman, about my sick leave and paying my doctor's bills and they refused."
Mr Lagopodis was very concerned about the plaintiff, whom he had found to be very agitated, angry and anxious. Mr Lagopodis knew from his own experiences that the plaintiff was suffering, which is why he suggested that he go and see Dr Smith at St John of God Medical Centre in Burwood. Mr Lagopodis, who saw Dr Smith himself, knew that other police officers were treated by him.
On 11 September 2006 Inspector Ajaka contacted the plaintiff to ask about his welfare. The plaintiff told him that he was suffering from stress and anxiety but that he was seeing his own doctor and did not require assistance. This was the first of several occasions on which welfare checks were conducted by police officers on the plaintiff. I am satisfied that on each such occasion assistance was offered to the plaintiff but he declined it, at least in part on the basis that he was seeing his own doctor for treatment.
On 4 October 2006 Ms Brodie, Senior Injury Management Advisor at the Welfare Branch, visited the plaintiff at his home. The plaintiff told her that he was suffering anxiety, depression and high blood pressure as a result of stress and that he had been referred to a psychiatrist or psychologist the following Friday. Ms Brodie told him that there was nothing she could do to help him until the PIC inquiry was over. She recorded that he was not expecting to be able to return to work in the short term due to decreased sleep and concentration. She posted the relevant claim forms to him following the visit.
On 12 October 2006 Inspector Lonard made a welfare check on the plaintiff by telephoning him to follow up on some HOD forms. On 26 October 2006 Superintendent McErlain asked Inspector Lonard to visit the plaintiff to make a welfare check. When he visited, Inspector Lonard found the plaintiff to have changed. He said of the plaintiff: "He appeared to be anxious and nervous and stressed out. Ben was the sort of fellow that was always very welcoming, and he'd say with smile on his face, "How you going, Lonnie?" But this time he said ‑ well, I'm not really sure he said the words along the lines of "What are you doing here?" but he seemed wary of my presence there."
Inspector Lonard's impression was that the plaintiff viewed his visit with suspicion. The plaintiff revealed that he had been visited by investigators but said that he could not say where they were from or what it was about. Inspector Lonard drew his own conclusion that the plaintiff was being investigated by PIC. He told Inspector Lonard that he was getting psychiatric treatment.
The plaintiff subsequently filled in an Accident/ Incident Notification form which was faxed to the Police on 27 October 2006, in which he described the incident which had caused him to stop work as follows: "I am suffering from stress, depression, hypertension as a result of an inquiry which has been ongoing since early September 2005. I have been off on sick report since 31 August 2006. As this inquiry is still ongoing I am not prepared to disclose any further details at this stage. But I believe it's being conducted in a harassing and discriminating manner against myself and my family."
The plaintiff reported in the form that he had seen Dr Taluja who had prescribed medication for blood pressure and cholesterol. Mr Kolkman, the Local Area Manager at St George LAC, answered the question on the form: "What action has been/ can be taken to prevent a recurrence?: Insufficient info provided by injured officer. Injury Management Advisor engaged to intervene." When he saw this form Superintendent McErlain became aware for the first time that there was an inquiry into the plaintiff.
On or before 1 November 2006 the plaintiff signed a Claim for HOD Benefits. He indicated that he had not made any other compensation claims. The injury identified was "stress, depression and hypertension". When asked how the injury or illness occurred, he answered: "As a result of injury which is still current and not prepared to disclose anything further at this stage except it's being conducted in a harassing and discriminating manner."
Superintendent McErlain indicated on the form that he was not satisfied that the injury or illness occurred in the manner reported and wrote: "I have no knowledge of the inquiry the claimant refers to in the claim details."
On 7 November 2006 Inspector Lonard rang the plaintiff to check on his welfare. The plaintiff was disappointed that he had not yet received a HOD claim number. This was the last time they spoke at any length. When Inspector Lonard next contacted him, while off duty, to see how he was going, the plaintiff told him that he was with his mother and would call back but he did not.
On 21 November 2006 Superintendent McErlain rang the plaintiff who told him that he was anxious because his family and ex-wife had been contacted by investigators. The plaintiff accepted that Superintendent McErlain was trying to help him when he told him that he ought not return to duty until he was feeling better. The plaintiff was, at that time, very unhappy that the PIC Inquiry seemed to be dragging on. Superintendent McErlain said in evidence: "After he left on sick leave, when I saw and spoke to Ben, he was not the same person as he was before. He was vocal, angry and upset about how PIC investigators treated him and his family. Ben felt he was being kept in the dark. At first, I was unaware of what the investigation was."
In his file note of the conversation with the plaintiff, dated 21 November 2006, Superintendent McErlain recorded: "Told him I have had no contact from anyone re his matter. Info from MM Kings Cross- PIC Inquiry prior to me taking over Command."
Although Superintendent McErlain could not confirm it to be the case, I am satisfied that it is likely that "MM" is Superintendent [Mark] Murdoch, who was told about the PIC Inquiry into the plaintiff by Mr Baxter in September 2005.
On 4 December 2006 the plaintiff consulted Dr Smith for the first time. In his report to Dr Taluja of the consultation Dr Smith noted the following history: "Ben [the plaintiff] reported that he has been off work for the last three months against a background of work-related stressors. Approximately 12 months ago Ben was referred to the Police Integrity Commission Unit and served papers requesting that he produce banking statements. The investigation extended to his former wife and his elderly parents. A hearing was formally held, the outcome of which remains outstanding. The impact on Ben has been significant and he has experienced significant anger and preoccupation. He was emphatic that he has done no wrong. He has been ruminating upon his previous work as a police officer which has involved a multiplicity of traumatic events."
At some stage, the plaintiff, at Dr Smith's request, prepared a list of traumatic events in which he had been involved over the years. It was Dr Smith's usual practice to make such a request; he had done so when Mr Lagopodis first consulted him in May 2006. In the list, which went for eight pages, the plaintiff not only described various incidents involving victims of fatal accidents or crimes, but also referred to the mistake in the result of the assessment in 2001 as well as the PIC investigation in 2006. That he did not identify the incident concerning the baby in this list does not mean that it was not significant. I accept the plaintiff's explanation that it was impossible to put down 30 years of police service in one document. Later, he provided a further document to Dr Smith which was entitled, "Extra Incidents I Have Remembered".
When the plaintiff was cross-examined about why he had not sought help earlier he said: "I knew I was having trouble and I knew I was being affected and I thought of those things and sometimes it would come back to me but I thought that things would get better. And so I didn't seek help thinking that things were going to get better. But eventually things didn't get better and I hit a brick wall."
The plaintiff continued to see Dr Smith about once a fortnight for about 15 minutes or half an hour. Dr Smith prescribed anti-depressants, including Effexor.
On 11 December 2006 Inspector Middleton from St George LAC rang the plaintiff to check on his welfare, offer assistance and update him on his claim. Inspector Middleton recorded that the plaintiff was "somewhat disgruntled, not at us but at the system". Although the plaintiff did not dispute that the conversation had occurred he had no recollection of Inspector Middleton offering him any assistance. On 4 January 2007 Inspector Middleton rang the plaintiff again to ask him how he was.
On 18 January 2007 Mr Kolkman received an internal police email that referred to difficulties that had arisen regarding the plaintiff's HOD claim because the plaintiff had refused to disclose anything regarding the PIC inquiry. The author of the email was concerned that the claim might be excluded by s 11A of the Workers Compensation Act 1987 (NSW) (which excludes claims relating to performance, discipline and appraisal) and explained that because of the lack of information the claims for medical treatment at St John of God Hospital could not be approved.
On 1 February 2007 Superintendent McErlain rang the plaintiff who said that he was "okay, still anxious". Superintendent McErlain told him that he would visit him the following week, although when he tried to contact him the following week he was unsuccessful.
On 15 February 2007 Superintendent McErlain rang the plaintiff to arrange a meeting. Although the plaintiff gave evidence that he suggested that the meeting take place at his home, I accept that the Superintendent's usual practice was to meet an officer at his or her home unless he or she had an objection to that location. Accordingly, it is likely that the meeting took place at Southgate Shopping Complex because the plaintiff suggested the location. Superintendent McErlain found the plaintiff to be apparently well physically but learned, while talking with him, that he was anxious, could not sleep and was preoccupied with the PIC inquiry which had being going on since early 2006. The plaintiff told Superintendent McErlain that he had lost any chance of reconciliation with Penny, his then wife. He also related the incident with his assessment in 2001 and indicated that he did not accept that it had been caused by an administrative error. The plaintiff expressed his annoyance at his doctor's bills not being paid and being embarrassed when the receptionist raised it in the waiting area within earshot of others. He gave Superintendent McErlain a medical certificate certifying his unfitness for work up to 30 March 2007. Superintendent McErlain recorded his conclusion in a file note of the meeting in the following terms: On face value BC [the plaintiff] appears legitimate in his anxiety after 33 years' service he feels let down by the system and the organisation. Stated a number of times he has done nothing wrong other than having a drink with a person he should not have as he was possibly involved in crime.
On 24 February 2007 the plaintiff, at the request of the HOD Unit, prepared a document in which he set out details in support of his application for HOD benefits. He related that he was subject to a PIC inquiry in the course of which his wife and elderly parents had been visited by PIC officers. He attended to give evidence but had not yet been released from his summons. He complained about the way in which the inquiry was being conducted and, in particular, that his parents and wife had been contacted and that he had not been informed of developments. He raised the "mistake" in his assessment. He also referred to a lengthy report he had prepared while at Internal Affairs regarding alleged corruption in the Office of the Director of Public Prosecutions in relation to a prosecution. As far as he knew the matter had not yet been investigated by the Attorney- General's Department, although he had made several follow up calls in the decade since his report. The plaintiff concluded the document for HOD as follows: As I think back about my career there are many more odd incidents which I think about that cause me stress and depression.
The plaintiff also referred to treatment received from Dr Taluja and ongoing treatment from Dr Smith. On 2 March 2007 Superintended McErlain endorsed the report as follows before forwarding it to the HOD Unit: "I have insufficient knowledge of the PIC Inquiry Sergeant Carangelo refers to in his report, nevertheless this issue is causing him stress and anxiety. Forwarded to HOD Unit for information."
The plaintiff continued to suffer with the uncertainty of not knowing how, or when, the PIC inquiry would end. His sleep was disturbed by nightmares. Distressing scenes and confronting experiences from past investigations intruded into his waking and sleeping hours. He continued to be depressed and anxious. He often thought of the baby who was so badly injured when he came to the scene that he could not be saved. The plaintiff explained in oral evidence: "Well it saddens me that some kids never had a chance in life and some do."
On 15 March 2007 he underwent his first period of treatment as a patient at St John of God Hospital in Burwood. He attended day sessions of the Anxiety and Depression Group, which met on Thursdays. On 20 March 2007 and 19 April 2007 Inspector Middleton rang the plaintiff to see if he needed any help. He offered the services of EAP or a chaplain but the plaintiff declined help.
On 30 March 2007 PIC wrote to Assistant Commissioner Cath Burn of the Professional Standards Command to inform her that PIC had concluded its investigation and recommended that consideration be given to the taking of disciplinary action against the plaintiff.
On 1 May 2007 Alison Moon, of Police Compensation and Insurance wrote to Superintendent McErlain and asked various questions relating to the plaintiff which were germane to his HOD claim. Superintendent McErlain reported as follows: "1 Sergeant Carangelo has been attached to the St George Local Area Command since 19 September 1999. Prior to entering upon sick leave he was performing duties as a General Duties Team Leader. 2 Sergeant Carangelo performed his duties satisfactorily. 3 No specific recorded work related event appeared to trigger his illness other than his reported PIC investigation. 4 Illness appeared to develop suddenly as no psychological symptoms observed by Commander. 5 Sergeant Carangelo was not subject to any internal NSW Police Force disciplinary proceedings at the time he reported off duty. 6 His work role had not changed prior to sick report. 7 As articulated in his report Sergeant Carangelo suspects he may have been cheated out of promotion as a result of an Assessment Centre error. I am unable to confirm this assertion. 8 There appears to be no formal counselling issued to Sergeant Carangelo for work-related neglect prior to entry on sick report. 9 I have spoken with Sergeant Carangelo since he entered upon sick leave. He appears withdrawn, visibly upset and anxious over the way he allegedly has been treated during the PIC investigation."
On 9 May 2007 the plaintiff told Superintendent McErlain, who called to inquire after his welfare, that he was still seeing his doctor and taking medication. Superintendent McErlain said: "If you need anything or want to speak to me anytime my phone is on 24/7." The plaintiff responded, "No".
On 16 May 2007 Superintendent McErlain wrote by email to Assistant Commissioner Burn about the plaintiff in the following terms: "Deputy Commissioner Collins has asked me to contact you regarding an officer at St George who is currently on LTS and has been since August 2006. Sergeant Benjamin Carangelo was apparently the subject of a PIC investigation prior to this and was summonsed to appear in closed hearings in July 06. He gave evidence and was not excused from his summons. He has had no further contact from PIC nor the NSWP regarding the issue. I feel he would come back to work if he was told of the status of the inquiry but unfortunately I cannot get any information to him because I am not privy to the investigation. Hope you can help."
On 21 May 2007 Superintendent McErlain rang the plaintiff to tell him that the PIC was no longer investigating the matter, but that it had been handed to Professional Standards in the NSW Police Force to determine whether any further action would be taken. The plaintiff told him that he was still taking medication and would send a current medical certificate.

Consideration of action under s 181D of the Police Act 1990 (NSW)

On 13 June 2007 Superintendent McErlain rang to tell the plaintiff that the PIC inquiry had concluded with the recommendation that he was to be served with a notice under s 181D of the Police Act. Superintendent McErlain told him that he would be on the Commissioner's Advisory Panel (CAP) which considered whether action under s 181D would be taken against the plaintiff. He also informed him that the Internal Review Panel (IRP) would be the next step, depending on what happened. He also told the plaintiff that he would let him know of any further developments.
Section 181D relevantly provided that the Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer's suitability to continue as a police officer, having regard to the police officer's competence, integrity, performance or conduct. Before making such an order the Commissioner was obliged to give the officer notice setting out the grounds on which the Commissioner lacked confidence in the officer's suitability to continue as a police officer and allow the officer at least 21 days to respond to the proposed action.
The plaintiff was shattered by this telephone call. His hopes of recovering sufficiently to returning to duty after the PIC inquiry had concluded were destroyed. On 14 June 2007 the plaintiff was advised by his Duty Officer that he should obtain some advice and assistance from the New South Wales Police Association (NSWPA). Someone from the NSWPA contacted him that day to explain the s 181D process. He was also reminded of the services of the EAP. On 15 June 2007 Rebecca Elwell from the Welfare Branch rang the plaintiff who told her that he was suffering increased anxiety as a result of the prospect of action under s 181D. He mentioned that he might feel better once such action had been concluded.
On 26 June 2007 Superintendent McErlain performed a Risk Assessment Screen and assessed the plaintiff's risk as being high. He noted his concerns about the plaintiff's performance in the workplace and his absences from duty, as well as the fact that the plaintiff was subject to "appealable" action, which included action under s 181D. He also noted that the plaintiff was on long term sick report, had been the subject of a PIC investigation and was then the subject of review by the CAP.
On 10 August 2007 Superintendent McErlain learned that the plaintiff's HOD claim had been declined and rang the plaintiff to let him know. The plaintiff refused his offer of help. They discussed the s 181D action, which had been referred to the CAP, together with a four-volume brief. The plaintiff told him that he would seek advice from the NSWPA. Superintendent McErlain wrote to the plaintiff to confirm that his claim had been declined and notify him of his rights of appeal. The letter also said: "As of 11th August 2007, your Annual Leave and Sick Leave entitlements will be exhausted. I have decided to grant you Special Sick Leave (SSL) up to and including the 7th September 2007, after which no further SSL can be approved."
Superintendent McErlain spoke to Ms Elwell to inform her that he had spoken with the plaintiff and granted him SSL. On 13 August 2007 Ms Elwell rang the plaintiff. Her report of the conversation to Superintendent McErlain was: "I spoke to Ben today he indicated he has not been sleeping too well and has ongoing anxiety from not knowing what is going on. He advised he is continuing to see Dr Smith (Psychiatrist) about every third week, the program he was attending at St John of God has finished and is taking the anti-depressant medication. He reported that he couldn't even think about RTW at this stage and feels he will be in a better position to think about this when there is an outcome to the investigation. He advised the last he heard is he is still on a summons and as far as he is aware there is no outcome to the investigation at this stage."
At that stage the plaintiff did not wish to apply for a medical discharge but still intended to return to work if and when he was able to do so.
In about September 2007 the plaintiff consulted solicitors with a view to challenging the rejection of his HOD claim in proceedings in the District Court. A statement dated 13 September 2007 was prepared, but not signed. I assume it was prepared in accordance with his instructions. In the statement the plaintiff referred to what he considered to be corruption by the DPP and a report which he had written on the topic. He mentioned the assessment in 2001 and the mistaken result. The statement also included a reference to his involvement in the Granville train disaster and "many traumatic incidences". The PIC investigation and the involvement of his family were also mentioned. The statement concluded as follows: "When I got out of court [PIC inquiry] I decompensate because I realised that PIC had spent an awful lot of money investigating me and not coming up with anything and I thought they would continue to try to get me particularly when the Commissioner had told me that I was not excused from my summons. PIC wanted to know when I was going out of Sydney. I went straight to Dr Taluja who . . referred me to Dr Selwyn Smith at St John of God Hospital, Burwood. I did a 12-week out-patient course there. I'm still being treated by Dr Smith. I have not returned to work since I gave evidence. . . . I will give you a list of traumatic incidences that had occurred to me during my service as I provided to Dr Selwyn Smith and discussed with him. I am now on antidepressant medication. . . My opinion that after the PIC hearing the straw that broke the camel's back from my long service in the NSW Police."
On 9 October 2007 Superintendent McErlain rang the plaintiff to tell him that his matter would be before the CAP on 16 October 2007 and that he would call him straight after the CAP had made a decision to let him know what had happened.
The IRP and CAP comprised the same people, who were high-ranking members of the NSW Police Force. The meetings were chaired by the Commander of the Professional Standards Command. The Local Area Commander of the officer in question (in the plaintiff's case, Superintendent McErlain) was also in attendance for so much of the meeting as related to the officer. The Panels considered the Commander's recommendations and either adopted or rejected them. If the Panel recommended a s 181D dismissal, the recommendation would be made to the Commissioner. If other action, such as management action or no further action, was recommended, the recommendation would be made by the Panel, sitting as the IRP, to the Commander.
On 16 October 2007 Superintendent McErlain rang the plaintiff to tell him that the CAP meeting had finished and the matter was finalised. He did not go into further detail because the findings and recommendation of CAP had to be ratified by the Commissioner or his delegate before they were final. By letter dated 19 October 2007 PIC wrote to Mr McIlwane to inform him that the plaintiff had been excused from further attendance at PIC and that the transcript of his evidence had been forwarded to the NSW Police Force for its consideration. Detective Inspector Murray Reynolds rang the plaintiff on 22 October 2007 and confirmed that the CAP had recommended that no further action be taken under s 181D.
On 4 December 2007 Acting Inspector Baird from St George LAC rang the plaintiff, who was then on long service leave. The plaintiff told him that he had received a medical certificate which covered his absence until the end of the year. Acting Inspector Baird recorded: "Seems bitter about the way his HOD is progressing and said he will fight it all the way. Offered the services of EAP etc. but declined."
The plaintiff did not recall this conversation or that he had been offered the services of EAP, although he accepted that it may have occurred in the terms recorded. He explained in evidence that, at that time, he felt so helpless and hopeless that he probably would have rejected a referral to EAP had it been offered.
On 12 December 2007 Ms Elwell rang the plaintiff and told him that the investigation was complete and there were no adverse findings against him. The plaintiff's reaction to this was that it was "too little, too late". He felt that his career had been ruined by an unreasonable inquiry that had gone on for far too long. He told Ms Elwell that Dr Smith was continuing to certify that he was unfit for work (notwithstanding the completion of the investigation) and that he had sought a review of the refusal of his HOD claim.
In 2007 or 2008, after the relationship with his wife Penny had broken down, the plaintiff formed a relationship with Carmen. He was still in that relationship at the time of the hearing.

Application for medical discharge: February 2008

On 26 February 2008 the plaintiff applied for a medical discharge and for permission to use SSL until his application was processed.
Dr Smith, in his report of 25 March 2008 to the plaintiff's then solicitors, Oates & Smith, opined that the plaintiff's employment as a police officer had substantially contributed to this psychiatric condition, that he was incapable of discharging his duties as a police officer and that he was totally incapacitated for work outside the police force.
On 18 December 2008 the Police Superannuation Advisory Committee certified the plaintiff to be incapable of discharging the duties of his office by reason of the infirmities of "chronic adjustment disorder with a depressed and anxious mood, currently in remission".
On 20 January 2009 the Commissioner's Delegate decided, pursuant to s10B(3)(a) of the Police Regulation (Superannuation) Act 1906 (NSW), that the plaintiff's infirmity of "chronic adjustment disorder with a depressed and anxious mood, currently in remission" was not caused by his being hurt on duty.
On 2 April 2009 the plaintiff applied to the Manager, Disputes and Appeals for the SAS Trustee Corporation for removal of the words "currently in remission" from his certificate of incapacity.
The plaintiff sought legal advice about his rights to challenge the HOD decision. His solicitors sent him a copy of the statement of claim (which had already been sent for filing) under cover of letter dated 6 April 2009 and asked that he advise them of any alterations or additions required concerning "events that are causative of your infirmity". They also said: "Further, when we first consulted with you, you advised us that you had given a list of traumatic incidents to Dr Smith. Would you kindly provide us with that list as a matter of urgency in order that they can be incorporated into the Statement of Claim."
I infer that the plaintiff provided the eight-page document that he had provided to Dr Smith to his solicitors.
The statement of claim challenging the HOD decision was filed in the District Court on 8 April 2009 (the District Court Appeal). In [4] of his statement of claim, the plaintiff alleged: "During the Plaintiff's service in the NSW Police Force from 1 November 1979 the Plaintiff attended many traumatic incidents which were causative of his infirmity."
The statement of claim also contained allegations concerning the mistaken results of the assessment in 2001 and the PIC inquiry.
On 14 October 2009 the Commissioner's Delegate removed the words "currently in remission" from the plaintiff's certificate of incapacity. Nonetheless, the finding that the infirmity was not caused by his being hurt on duty remained.
On 29 January 2010, the plaintiff filed an amended statement of claim in the District Court Appeal. The allegation that had been made in [4] of the original pleading was replaced by more detailed allegations which relating to specific periods of service and details of particular incidents alleged to have been traumatic and to have contributed to the plaintiff's infirmity. I infer that at least part of the basis for these allegations was derived from the document that the plaintiff had provided to Dr Smith at about the time he first consulted him in December 2006. The defendant relied on the circumstance that the death of the baby was neither referred to in the eight-page document nor in the amended statement of claim in the District Court Appeal. The plaintiff explained: "They'd [memories of traumatic incidents] come and go, yes. I probably made a mistake when I said all the time every second of the day, but they would come and go. And sometimes I remembered new things that are not in any of those statements. As you'd appreciate, 35 years in the cops you can't put them on a statement."
Dr Smith provided a report to the NSWPA regarding the plaintiff on 21 May 2010. He opined that the plaintiff was totally unfit for work outside the Police Force and would not obtain work in the open labour market due to his physical and psychological restrictions. He supported the plaintiff's application for an increase in pension under s 10(1A)(c) of the Police Regulation (Superannuation) Act.
On 7 July 2010 the NSWPA wrote on the plaintiff's behalf to the Police Superannuation Advisory Committee to seek an increase in the rate of his pension on the basis of "special risk". The NSWPA wrote: We believe that the Committee will form the view that Mr Carangelo is totally incapacitated for all work in the open market and, on that basis, we would request that consideration be given to a further increase pursuant to Section 10(1A)(C) of the Police Regulation (Superannuation) Act, 1906. Throughout his 35 year career Mr Carangelo worked in front line policing in general duties and has approximately 25 years' experience in Criminal Investigations. He has been in charge of many traumatic and stressful situations, including, but not limited to, armed robberies, dangerous car pursuits, attending fatal motor vehicle accidents, murders, suicides, violent domestics, hostage situations, overt confrontation, attending Silverwater Gaol to investigate prisoner deaths (e.g. hangings), attending the scene of deceased persons and decomposed bodies, including infants, and tolerated great stress during trials for such matters
On 26 August 2010 the plaintiff was interviewed by Dr Lawrence Terace in connection with his application for an increase in the pension. Dr Terace considered that the plaintiff was unable to undertake the duties of a police officer and that his prognosis was poor due to "mood disturbance and concentration impairment".
By letter dated 29 October 2010, the Trustees of the Police Superannuation Scheme informed the plaintiff that his pension was to be increased from 72.75% to 85% of his salary at the date of medical discharge on the basis that he was totally incapable of work outside the Police Force (s 10(1A)(b) of the Police Regulation (Superannuation) Act); his pension was to increase to 90% since he was hurt on duty because he was required to be exposed to risks to which members of the general workforce would not normally be required to be exposed (s 10(1A)(c) of the Police Regulation (Superannuation) Act); and that the pension increase was to be payable from 23 January 2009, being the date of pension commencement.
Mr Lagopodis has remained in contact with the plaintiff from the time they met until the time of the hearing. He summarised the change in the plaintiff during that period: "Knowing Ben for so many years and working alongside of him, I can say that he is a changed individual. He's very uptight, gets easily agitated and frustrated. I have seen Ben very heavily intoxicated on many occasions and has put on excessive weight, which is out of character with the Ben I used to know."
Mr Lagopodis said in oral evidence that every time he sees the plaintiff, the plaintiff tells him about the terrible scenes he has witnessed in his police service, as appears from the following exchange: "Q. How does it come that your talk is turning to these matters? A. Just in relation to the trauma and the experiences that we've had during our services. We've both had extensive service and years in the police. We've both shared our experiences and they are very very similar in nature. . . . Q. Is that [infanticide] something that figures often in these conversations? A. Yes, very much. Q. What do you mean very much? A. Generally in every conversation we have. Q. To the extent you are getting sick of it? A. I am, I'm very sick of it because it puts an enormous amount of stress on me because I've dealt with this over 22 years in frontline policing. It's something that you ‑ I've had nightmares over in my own experience and by bringing this up is just churning my experiences up in the matters that I've dealt with over the years as well. Q. Have you told him that? A. No, I haven't. Q. You have now? A. I have now."
The plaintiff commenced these proceedings by filing a statement of claim in June 2011.

Unavailability of witnesses

The defendant's solicitors have established that they have endeavoured to contact Detective Inspector Ajaka, Constable Green and Ms Elwell with a view to calling them as witnesses in these proceedings but those persons have been either unavailable or unwilling to speak with them. Mr Lorenzutta died on 8 December 2012. Detective Inspector Reynolds told the defendants solicitors on 28 May 2013 that he could not remember the plaintiff. In these circumstances no inference is available that the evidence of any of these witnesses would not have assisted the defendant's case.

The systems for addressing trauma experienced by police officers

The evidence as to the systems to address trauma experienced by police officers appeared in the evidence of individual police officers who gave evidence about their own experiences as well as in the documentary evidence as to the systems in place for helping such officers. These two categories of evidence will be considered in turn.

The documented response of the Police Force to providing assistance to officers exposed to trauma or who were exhibiting symptoms of a psychiatric reaction to such trauma

The evidence referred to below established both the defendant's recognition of the problem of stress suffered by police officers, as well as its attempts to ameliorate its effects and identify and treat affected officers throughout the relevant period. Numerous publications were tendered, many of which will not be referred to specifically. I regard the publications referred to below as the most significant.

Police on-the-job mandatory lecture on "Stress" in 1980

The paper of this lecture included the following: "One fault which appears to be more common among Police than most occupations is the attitude that we should not admit our fears and anxieties lest it be seen as a sign of weakness with subsequent loss of respect of our mates. … The symptoms of stress creep ever so slowly until they reach the stage where a complete cure takes considerable time but if supervisors learn how to identify the early symptoms, then there will no doubt be a drastic reduction in the number of sufferers."
The paper emphasised the benefits of physical exercise and yoga in dealing with stress.

Commissioner's Instructions 1990-1998

This document set out welfare and counselling services available to police officers including the Welfare Unit and the Psychology Unit and said that the services provided were "strictly confidential".

Police Service Weekly from 1990 onwards

Numerous articles from the Police Service Weekly (which was distributed each week to all serving police officers) dealt with matters such as aerobic exercise, burn-out and stress effects.

Research in 1991 into psychological screening of officers who may have suffered burn-out

Senior Sergeant Wikner, a psychologist in the NSW Police Force Psychology Unit, prepared a progress report dated 15 August 1991 entitled "Psychological Screening of Police Officers". He reported that testing was already being undertaken for applicants for the State Protection Group, undercover agents and part-time hostage negotiators. It was proposed that research be undertaken on officers who had taken sick leave due to nervous illness (or stress), who had been retired on medical grounds or whose responses to a survey had indicated that they might be "burnt- out". The evidence does not reveal further detail about the results of any such research.

1996 Occupational Rehabilitation Policy

In June 1996 the NSW Police Service published an Occupational Rehabilitation Policy which emphasised the importance of rehabilitation of injured officers.

The 1998 and 1999 Ombudsman Reports

In June 1999 the NSW Ombudsman reported to Parliament pursuant to s 31 of the Ombudsman Act 1974 (NSW) (which provides for special reports to be made to Parliament arising in connection with the discharge of the Ombudsman's functions). The 1999 Report followed a report issued in March 1998 and, in part, addressed the response of the Police Service to the 1998 Report. These reports are particularly useful since they provide evidence of the state of the Police Service at those times as well as contemporaneous indications of what was known and recommended at about the time the plaintiff asked to be transferred from Flemington LAC to St George LAC.

The 1998 Report

The 1998 Report identified in its section entitled "The Current System" the following means by which welfare and counselling services were provided to police officers: 1. The Welfare Unit; 2. The Psychology Unit; 3. Critical Incident Stress Debriefing Teams; and 4. Directed medical examinations and assessments.
The report documented that police officers could either approach the Welfare Unit for assistance or be referred there by their supervisors. The services of the Unit were described as "strictly confidential". Staff of the Welfare Unit attended emergencies and other potentially traumatic incidents to help the police involved. They also took part in Critical Incident Stress Debriefing Teams, which are addressed below.
The Psychology Unit was said to provide services to officers, including "trauma crisis counselling" (provided in connection with the Critical Incident Stress Debriefing Teams) and "general clinical services". Their services were also described as "strictly confidential".
A Critical Incident Stress Debriefing Team was said to comprise members of the Psychology Unit and peer support officers. Such teams "debriefed" officers involved in a critical incident. The functions of debriefings included "information gathering" as well as "normalising the reaction of involved officers; providing stress management information and enhancing the team structure". The Critical Incident Stress Debriefing Teams were required to conduct "debriefings" in certain nominated circumstances which relevantly included the following: An event where a police officer is fired on or threatened with a firearm Situations that entail prolonged rescue work The death of a person in custody Situations which would be considered by most people to be unusual and extremely traumatic
The involvement of a Critical Incident Stress Debriefing Teams was also said to be required to be "considered" in situations such as: Exposure to gruesome sights The death of children Extended involvement in an incident with potential danger to people
The Ombudsman noted in the 1998 Report that it was unclear who had responsibility for notifying critical incidents since there was no procedure or practice governing the notification. The Ombudsman also highlighted weaknesses in the system, including that participation was voluntary and that debriefings were not confidential as disclosure was authorised. The Ombudsman noted that medical examinations of police officers were usually directed in the context of a workers compensation claim or application for medical discharge and that the Commissioner had power to direct such examinations by the Police Medical Officer (PMO).
The 1998 Report concluded: ". . . the current policies and practices of the Police Service do not provide an adequate mechanism for the Police Service to obtain information about the well-being of its officers for management purposes. Good management requires the Service to respond to the needs of its officers and to protect the interests of the Police Service and the community at large."
The Ombudsman recommended that the Police Service take "immediate steps to ensure that Critical Incident Stress Debriefing Teams are always used following critical incidents and that the commanders of police involved in critical incidents are appropriately involved in this process." The Ombudsman also recommended that: "The Police Service should develop, as soon as possible, an improved system of policies and practices which will enable the Service to obtain appropriate information about the well-being of its officers for management purposes."

The 1999 Report

The Ombudsman was informed that the recommendation about Critical Incident Stress Debriefing Teams had been adopted and that procedures had been changed in line with the "Critical Incident Stress Management Proposal" prepared by Rozalinda Garbutt of the Police Psychology Unit dated 2 December 1998 which was attached to the report. The new procedures were implemented on 7 May 1998. After this time, commanders were accordingly required to be notified of any critical incident so that they could determine the appropriate response, and whether Critical Incident Stress Debriefing Teams ought be involved. The Local Area Commanders were, under the new procedures, responsible for monitoring the officers involved in such incidents.
The Ombudsman considered that her recommendation that the Police Service develop an improved system of policies and practices to obtain information about the well-being of its officers had not been implemented. She reiterated its importance. The report raised the issue of legal liability and said: "Interestingly, the concerns raised by this Office about issues of potential legal liability in this area were vividly illustrated in a recent decision of the District Court. A police officer engaged for a number of years in the 1980s in the investigation of child abuse cases claimed that the Police Service had failed in its duty of care to provide her with a safe system of work, resulting in her suffering post-traumatic stress disorder. The court found that the Police Service had been negligent and awarded almost $750,000 in damages to the officer."
I understand the decision referred to in the report to be the decision of Goldring DCJ, which was upheld on appeal: State of New South Wales v Seedsman [2000] NSWCA 119.

Document uploaded onto the intranet in August 2001 entitled "The Commander's Role in Helping to Maintain the Psychological Wellbeing of their Staff"

This document contained the following passage: "The Role of Local Area Commanders and Other Managers Local Area Commanders and other managers play a key role in helping to maintain the psychological wellbeing of their staff. When they have concerns about the welfare of one of their staff they should, depending on the level of their concern, utilise one of the many services available to them: . . . If the concern is minor, the officer should be advised of the Employee Assistance Provider (EAP) who can provide free psychological counselling for the officer and their immediate family, If there are concerns about an officer's fitness for their current duty, it is appropriate to seek a review by the Police Medical Officer (PMO). In some cases the PMO will seek an opinion from a Police Service psychologist or an independent psychiatrist. The PMO will provide feedback to, and liaise with managers so that staff may be appropriately and safely deployed, minimising the risk to the individual employee, their colleagues and the public. If there are fears that the officer is either suicidal or dangerous, their firearm must be removed from them and secured until the PMO recommends its return. In some circumstances, will be appropriate to immediately involve the services of the local Mental Health Crisis Team, a local hospital or doctor. . . . N.B. In the vast majority of cases, officers will recognise that they are experiencing difficulties and will usually co-operate with requests by their Commanders to participate in a formal medical evaluation. However, when an officer refuses, Commanders should be aware that Part 2, Division 1, Clause 11 of the Police Service Regulations, 2000, employees Commanders to direct an officer to undergo a medical assessment by the PMO."

Brochure prepared by the Health Services Unit of the NSW Police Service: "Some possible personal effects of the Police Integrity Commission on you and your family": November 2001

This brochure included the following advice: "If you are involved with the Police Integrity Commission (PIC) you will certainly have a lot on your mind. For most people this is a very difficult and worrying time which can place an added strain on you and your family. During this time confidential and non-judgmental assistance to you and your family is available through the Employee Assistance Program on 1300 361 008. Also, a police psychologist usually attends the public hearings daily to offer personal support to staff who are required to appear before the Commission. Sometimes just talking to someone who is familiar with the process can help."
The brochure listed expected reactions to a PIC inquiry, including: change in sleep pattern, worrying thoughts, inability to attach importance to anything other than PIC, fear, depression, anxiety, feeling isolated or withdrawn from other people and anger.

Research in 2001 and 2002 into psychological testing of officers who may have suffered burn-out

At some time prior to 21 May 2001 the Commissioner of Police sought advice on the extent to which police officers seeking transfer, promotions or secondments might undergo psychological treatment before appointment. The request appears to have arisen from a concern about police officers working in some areas suffering from "burn-out", and how this might be prevented. On 21 May 2001 a proposal was made that research be done to identify the main "burn out" areas with a view to finding out whether psychological screening or other techniques (including limited tenure, job rotation or "time out") might reduce "aberrant behaviour and coping difficulties".
By memorandum dated 17 February 2002 Dr Norris, Acting Senior Police Medical Officer, reported to the Director of Medical Services on psychological assessments by PMOs and referrals for independent psychological assessments. There was an analysis of the 288 officers seen by the PMOs in the six- month period from 1 August 2001 to 31 January 2002. Of these, seven officers were referred to independent specialists, including four to independent psychiatrists. The author noted that in a number of cases independent psychiatric referral was arranged through the Psychology section.

Frequently asked questions relating to the Psychology Services provided to police officers

This document, on the Police intranet, set out various questions and answers regarding the Psychology Services provided internally to police officers, including the following: "4. Are there any limits to confidentiality? Yes. If there is a concern for you own welfare (e.g. strong suicidal thoughts) or concerns for the welfare of another person, the psychologist may feel it is necessary to tell a third person, such as your GP, the PMO, or a family member. They may also need to tell your boss so that your duties may be rearranged to give you time to recover, or that your firearm can be temporarily removed. They would usually discuss this decision with you."

Stress Management and Employee Support: Mandatory Continuing Police Education Scheme: August 2002

The defendant tendered and relied upon a Package entitled "Stress Management and Employee Support". As referred to above, the plaintiff undertook this course as part of the Mandatory Continuing Police Education Scheme in 2003. The paper referred to the effects of stress on police officers reflected in studies that showed that police officers have a higher incidence of heart disease, hypertension and nervous breakdowns than the general population. The paper gave examples of traumatic events, including: sudden or violent deaths or horrifying circumstances, death or injury of a child, multiple casualties, major disaster and "a set of circumstances with which police identify". Burnout and cumulative stress was also considered. Another source of stress was identified as "lack of appreciation from others".
The paper said of "Police Response to Stress": "Studies conducted in the United States suggest police have higher mortality rates than the white male population for cancer, suicide and heart disease. The suggested reason for this is the higher levels of stress. Two most common patterns are: 1. Police find it difficult to admit that they have a problem and talk about the problem. 2. Police find it difficult to get and accept help. This is often coupled with a cynical attitude and because of this, officers often perceive supervisors or managers will assist because of an obligation to do so rather than because they care. Poor coping behaviours include: Not talking about stressors with loved ones; Emotional detachment from loved ones; Denying stress to colleagues and supervisors or managers; Coping with stress through using alcohol, drugs, gambling, promiscuity and other negative behaviours; Coping with stress through developing dysfunctional behaviours; and Not seeking assistance."

The evidence of individual police officers about their own experiences of official responses to trauma

Much of the evidence about the practices and culture in the NSW Police Force was not linked to specific times and was expressed in generalities. This is some indication that, as far as the officers themselves were concerned, the changes that were recommended and which appear in the literature surveyed above did not substantially alter the situation during the relevant period (up to 2007).

Identification and counselling of affected officers

According to Detective Sergeant Wood, at the time he joined the force, police officers were not encouraged to talk about their experiences if they were having difficulty coping with them. He agreed that a common response to such situations was for police officers to "go down to the pub and have a few drinks". Detective Sergeant Wood regarded it as a destructive strategy which masked, rather than addressed, the problem. He said that the approach of actively encouraging officers to go to EAP to seek help had been taken only in the last "10-15 years tops". He said: "Well the environment is just, you know, you don't show weakness, you deal with it. Everything is okay, just get on with it. Don't be soft."
Detective Sergeant Wood was unaware of the term "Critical Incident De-briefing Team" although he was aware (at an unspecified time) that there was a process of automatic debriefing. He did not know for how long it had been in place.
Mr Lagopodis' evidence was to a similar effect: "In my experience over 22 years it was very rare that you were ever debriefed. It was very very rare that you conducted any serious investigation or serious inquiry and anyone really cared to approach you and debrief you, ask you how you were going. You were told to get on with the job. You were considered as a weakling if you didn't and it would affect any chance that you had of promotion, any chance ‑ and you would be isolated if you were considered to be a weakling within the New South Wales Police."
His view was that the debriefing undertaken was undertaken by the Police to "safeguard themselves" (presumably against legal liability) rather than to help the officers concerned cope with the stress they were experiencing. His attitude would appear to correspond with the attitude described as "cynical" in the 2002 paper on Stress Management referred to above.
However, there were occasions when timely treatment was arranged by a Commanding Officer. For example, when Mr Lagopodis went off on sick report in 2000 or 2001 his Commander came to see him to find out why. Mr Lagopodis told his Commander that he was very upset at having seen the body of a child who had been dead for a long time. His Commander suggested that it appeared that he had gone on sick report because of that incident and recommended that he fill in a HOD form to that effect. The HOD section then referred him to a psychiatrist for treatment so that he would be in a position to return to work. He was referred to Dr Robert Strum, psychiatrist, who told him he had suffered a psychiatric injury. After about four weeks Mr Lagopodis returned to work. Mr Lagopodis regarded this as an appropriate response by the Police to the trauma he had suffered when he saw the dead child. However, he explained that he had experienced several events that had created stress and caused him to be away from work. Each absence was, according to Mr Lagopodis, "recorded as a different incident". He said that a referral to a psychiatrist "doesn't happen on every event".

Reporting by subordinate officers to commanding officers of a colleague's apparent stress

Detective Sergeant Wood said that if he had noticed that a colleague was affected by the stress of work he would never have contemplated going to that colleague's commanding officer to disclose his view because this would have amounted to "tattling". Mr Lagopodis regarded any such disclosure as inappropriate as it might harm the officer's career and promotional prospects.
It was put to Mr Lagopodis by Mr Menzies in cross-examination that he could, and should, have recommended to the plaintiff that he see a psychiatrist much earlier than September 2006, when he suggested that the plaintiff see Dr Smith. However, Mr Lagopodis said that it did not occur to him that that was what was needed because "He wasn't on sick report, he was fully operational."

Publications available to police officers concerning stress

Detective Sergeant Wood agreed that, for some considerable time, matters such as dealing with stress by exercise and seeking counselling rather than by self-medication with alcohol had been the subject of articles in the Police Weekly. However, he considered that the "practical reality" was that such publications did not effect any significant change in the culture.
Mr Lagopodis accepted that he received the Police Weekly. He described it as "a magazine that we received that was shoved into our pigeonholes and we used to take it home". He rarely read it. When Mr Menzies challenged him, he explained: "Because I had other things to do sir when I got it home, other than reading ‑ I was too busy at work and when I got home, the last thing I wanted to do was pick up police magazines and start reading more about what was going on with policing. I was quite aware of police protocol so I didn't have to read police magazines when I got home, when I could spend quality time with my family which was something that I wanted to do."

Internal investigations following referral by PIC

Inspector Pratt outlined the process whereby matters would be dealt with by the Police Force following a recommendation by PIC, some of which have been outlined above. He described the reason for the delay in processing the recommendation regarding the plaintiff in the following terms: "The year 2007 was by far the busiest for the IRP/CAP process, since I started in my role that year. At one stage there was a backlog of about 40 matters waiting for consideration by the IRP/CAP, and the NSWPF tried a number of strategies such as additional temporary employees and overtime for existing staff, to clear the backlog. These strategies did not rectify the problem, and eventually the work of preparing documents for the IRP/CAP, and the subsequent Notices and Orders was contracted out to an external legal firm. That year 217 notifications were considered by the IRP/CAP. There were 88 CAP recommendations to the Commissioner for s 181D removal, and 35 removals were effected. The lowest number of dismissals was 3 in 2011, and since 2003 the average has been about 15.8 removals per calendar year".
I include this evidence for completeness. It was not part of the plaintiff's case, as ultimately put, that any delay in finalising the internal investigation into the plaintiff was negligent.

Dr Smith: the plaintiff's treating psychiatrist

The plaintiff has continued to see Dr Smith since December 2006. Dr Smith diagnosed Chronic Adjustment Disorder with Depressed and Anxious Mood and prescribed Effexor, an anti-depressant.
In a report dated 15 June 2011 prepared for the purposes of these proceedings, Dr Smith opined that the plaintiff's diagnosis was as a result of being exposed to traumatic incidents in the course of his work as a police officer. Dr Smith referred to the linkage (which I do not understand to be disputed) between acute mental syndromes and traumatic events. He regarded the plaintiff's prognosis as poor. He referred to a number of screening tools which he opined could be used to test those deemed to be at risk. As I do not understand the plaintiff's case on this basis to be pursued, it is not necessary to address the efficacy of such tools further. Dr Smith concluded as follows: "In summary therefore it is my opinion that the failure of Mr Carangelo's employer to initially diagnose him with his psychiatric condition and arrange immediate treatment of a specialist kind materially contributed to the development of his present psychiatric condition. Ongoing exposure to further traumatic and distressing events in my opinion compounded the psychological symptomatologies he experienced. Constant exposure in the absence of such treatment and failure to move him away from the work environment in my opinion substantially contributed to his psychiatric disorder."
Dr Smith, in a report of 6 May 2013, opined that the plaintiff's susceptibility due to exposure to traumatic events caused him to "emotionally decompensate" because of the way he was treated by the PIC inquiry. He considered that the effects of this emotional decompensation were aggravated by his receiving "little support" from the NSW Police Force either prior to the PIC Inquiry or after it. In his most recent report of 17 April 2015 Dr Smith expressed his view as to the difference, if any, psychological support would have made to the plaintiff in the following terms: "As I have previously emphasised the PIC investigation in and of itself was not the substantial contributor to the development of his psychiatric disorder. It may have assisted Mr Carangelo to have been provided with some psychological support following his exposure to significant distressing events as well as the PIC inquiry."
In his report of 8 September 2014 Dr Smith opined that the plaintiff would require ongoing monthly psychiatric consultations at a cost of $225 per visit and ongoing medication at a cost of $110 per month.
In his report of 17 April 2015 Dr Smith addressed Dr Apler's criticism of screening techniques. Again, as I do not understand that plaintiff's case to be put on the basis that screening techniques ought to have been applied, I do not propose to address the differences in their opinions.

Dr Diamond: the plaintiff's medico-legal psychiatrist

Dr Diamond interviewed the plaintiff on 4 December 2012 and recounted the detailed history in his report of 15 December 2012. His opinion, in so far as it is germane to the case ultimately put on behalf of the plaintiff, was: "Although Mr Carangelo became severely ill and incapacitated in relation to those events related directly to the PIC Inquiry and the subsequent hardship that ensued, his illness was not caused by his appearance before PIC. It is clear to see retrospectively that Mr Carangelo developed psychiatric symptoms when he became overwhelmed in the workplace attempting to run the Detectives' Office at Flemington. In that environment he was repeatedly placed in positions where he felt conflicted and helpless. The organisation that he trusted and the organisation that he believed was there to protect public interests and to pursue criminals to conviction appeared to him to be compromised. In that environment he was often at odds with authority figures. His position was not supported nor was his communication acknowledge or recognised as coming from a distressed and symptomatic individual. He took matters into his own hands by requesting a transfer away from the detective's role to that of a General Duties Sergeant and team leader at a quieter station at Kogarah. He had hoped to be able to work closer to home, under less stress generally, and to be performing a role that he considered to be supervisory and less involved in frontline operational policing. The decision of a Detective Sergeant to move to a position of general duties, although not entirely uncommon, is often a signal that the individual is attempting to relieve stress-related illness by changing their work role. When assessing Mr Carangelo and when listening to the history he provided when comparing this with the verified facts that have occurred in his case, my understanding is that he was a significantly impaired and psychiatrically unwell individual by the time he became swept up in the PIC investigation. The effects of being subjected to that investigation, having his wife and parents drawn into it and having his self-respect, credibility and belief in an organisation destroyed, his psychiatric illness, that was already present, became overt, acutely symptomatic and permanently disabling."

Dr Alex Apler: the defendant's medico-legal psychiatrist

Dr Apler interviewed the plaintiff on 28 November 2012 at the request of the defendant's solicitors. He examined a substantial amount of documentation concerning the plaintiff as well as obtaining a detailed history from the plaintiff. He concluded that there was no contemporaneous evidence that the plaintiff's functioning as a police officer had been affected by the traumatic and upsetting events to which he had been exposed in the course of his duties. He was also impressed by the fact that the plaintiff was able to recount the details of distressing incidents to him without changing his demeanour or appearing to "relive" events as opposed to merely recalling them.
He accepted that the plaintiff had a strong emotional response to the PIC inquiry but considered that no diagnosis of Chronic Adjustment Disorder with Anxious and Depressed Mood could be made without an adequate understanding of the circumstances that gave rise to the inquiry and the manner of its conduct. He explained that, without such information, it was not possible to determine whether the plaintiff's emotional reaction to the inquiry was "excessive or inappropriate", as required for the diagnosis. Nonetheless, Dr Apler accepted that "a version of events exists that is capable of supporting the diagnosis".
Dr Apler's opinion as to the plaintiff's state at the time of the examination on 28 November 2012 was: "I consider that, whether or not Mr Carangelo had been affected by an Adjustment disorder after the PIC inquiry, there is no evidence of a psychiatric disorder at the present time. I note his satisfactory functioning, enjoying spending time with his partner, friends, children, grandchildren and his parents. He has a good appetite and he cooks meals when necessary; his current consumption of wine is not excessive. He described being less interested in walking, fixing his boat and going fishing, but he remains active and maintains other social activities; I do not consider these problems necessarily indicative of a psychiatric disorder though I accept there has been some change in his level and nature of activity since leaving work. I found no evidence of psychiatric disorder during the interview but noted his continued anger about the PIC investigation."
Nonetheless, Dr Apler accepted that it was possible that the plaintiff's condition was merely well controlled on medication and that he has not actually recovered from it. I note that the defendant abandoned, in the course of the hearing, the submission that the plaintiff was not compliant with medication. Dr Apler considered that the plaintiff was capable of helping with the running of his partner's restaurant.
Dr Apler disagreed with Dr Diamond's opinion that it was likely that the traumatic events to which the plaintiff had been exposed in the past contributed to the diagnosis (if it be accepted) of Chronic Adjustment Disorder with Anxious and Depressed Mood, on the basis of Dr Apler's assessment that there had been no evidence of the disorder prior to the PIC inquiry.
Dr Apler considered that screening of police officers such as the plaintiff after traumatic events was contraindicated because there was no recognisable early stage of adjustment disorder that could be reliably distinguished from a normal emotional response to such events. He opined that such a process would, for that reason, identify many false-positives since it would identify those officers who were still suffering from a self-limiting, normal emotional response to a traumatic event.
Dr Apler considered that, if the Police Force had been aware that the plaintiff was at risk of Adjustment Disorder or was suffering from that disorder at any time prior to 2006, it would have been appropriate to reduce the plaintiff's exposure to stressors that tend to cause and aggravate the disorder (and, in particular, exposure to death) and to treat the symptoms by providing counselling and, if prescribed, anti-depressant medication.
Dr Apler did not regard screening procedures as effective, having regard to: 1. The report of the Cochrane Collaboration in 2002, Psychological debriefing for preventing post-traumatic stress disorder (PTSD) Review (Cochrane PTSD 2002); 2. The report of the Cochrane Collaboration in 2005, Screening and case finding instruments for depression (Review) by Gilbody S, House A and Sheldon T (Cochrane Depression Review 2005); 3. Gilbody & others, "Should we screen for depression?" (2006) 332 BMJ 1027; and 4. The report of the Cochrane Collaboration in 2009, Multiple session early psychological interventions for the prevention of post-traumatic stress disorder (Review) by Roberts NP, Kitchiner NJ, Kenardy J and Bisson JI (Cochrane PTSD Review 2009).
The authors of Cochrane 2002 concluded: "There is no evidence that single session individual psychological debriefing is a useful treatment for the prevention of post-traumatic stress disorder after traumatic incidents. Compulsory debriefing of victims of trauma should cease."
The authors of the Cochrane Depression Review 2005 concluded that screening patients had little or no impact on the recognition, management or outcome of depression in primary care or in the general hospital and therefore ought not be undertaken because the minimal benefit was not worth the substantial cost. This conclusion was the subject of the article in the British Medical Journal referred to above.
The authors of the Cochrane PTSD Review 2009 investigated the efficacy of forms of intervention other than single-session individual consultations on the development of PTSD in individuals exposed to trauma. They found that there was no evidence that one mode of intervention suited everyone. There was some evidence that multiple interventions aimed at everyone who had been exposed to the same traumatic event made some people worse.

The results of the conclave of experts (Drs Smith, Diamond and Apler)

The experts met in conclave on 27 May 2014 and prepared a joint report dated 4 June 2014. Their respective opinions, in so far as they appear from the joint report, are summarised below.
Drs Smith and Diamond agreed that the plaintiff has an Adjustment Disorder with Depressed and Anxious Mood. Dr Apler opined that he had either no diagnosis or an Adjustment Disorder in remission. Drs Smith and Diamond considered that the plaintiff's condition was caused by exposure to traumatic events over a lengthy period of time; it was exacerbated, but not substantially caused, by the PIC inquiry. Dr Apler considered the PIC inquiry to be the cause of the plaintiff's condition. Drs Smith and Diamond considered that the plaintiff was unfit for work as a result of the diagnosed condition. Dr Apler did not consider him to have any remaining disability.
Drs Smith and Diamond opined that, had the plaintiff received support and treatment in 1999 before his transfer to St George LAC from Flemington, the risk of his suffering from Adjustment Disorder would have been materially reduced.
Dr Smith considered that the manner in which the PIC inquiry was conducted exacerbated the plaintiff's Adjustment Disorder. Dr Diamond agreed that the PIC inquiry was a substantial contributor to, but not the cause of, the plaintiff's condition. He said: "The effect on the plaintiff [of PIC] was substantial. He could not get advice during the inquiry and this was very traumatic. He was abandoned and unsupported. The PIC was the final straw. It was devastating for him to endure the prolonged period of uncertainty about the findings of the inquiry. He was further traumatised because of the threat of discharge from the police force on the basis of his reputation being compromised."
Both Drs Smith and Diamond agreed that the plaintiff should have received psychological assistance before, during and after the PIC inquiry and that he would have benefited from provision of a support person who understood the system. Dr Apler agreed that the plaintiff may have benefited from support during the PIC inquiry.
Dr Smith considered that the PIC inquiry "would not satisfy occupational health and safety standards" (an opinion which is of no present relevance given that the PIC inquiry was authorised by the PIC Act). Dr Diamond considered that the PIC inquiry took away the plaintiff's capacity to deal with pre-existing Chronic Adjustment Disorder. Dr Apler agreed that the PIC inquiry and subsequent s 181D investigation would have left the plaintiff "stressed, worried and angry".
According to Dr Smith the plaintiff continues to require monthly treatment. He considered that the plaintiff may feel better and the need for intensive treatment will diminish if the legal proceedings are resolved in his favour. Drs Diamond and Apler deferred to the views of Dr Smith, as the plaintiff's treating psychiatrist. Drs Diamond and Smith agreed that the plaintiff cannot work. Dr Apler considered that the plaintiff's current capacity for work was not affected by his psychiatric condition which, if it persisted, was controlled by medication.

Concurrent evidence of experts

The experts gave concurrent evidence at the hearing and, largely, reiterated the opinions they had expressed in their reports set out above. I have referred to their oral evidence only in so far as it affects the way the plaintiff's case was ultimately put, as summarised at the commencement of these reasons, or, in so far as it adds to, or illuminates, their written opinions.
Dr Apler's opinion that the plaintiff did not have a psychiatric condition before the PIC inquiry was based on the assumption that he was functioning normally, in that he could cope with his work environment and continue to perform his duties as a police officer until he gave evidence at PIC. Dr Apler did not consider that the provision of support to the plaintiff during the PIC inquiry would have made any significant difference to the plaintiff's condition. Dr Diamond's view was that: "I think the evidence is compelling that he was unwell long before the PIC hearing or notification of the hearing occurred and the evidence is that he became more severely unwell to the point of being overwhelmingly and overtly symptomatic after he was exposed to that trauma."
Dr Diamond opined that the provision of support (not necessarily from a psychiatrist) before, during and after the PIC inquiry would have given him the chance of a better outcome because it would have "given him an opportunity to at least identify what his distress was about".
Dr Diamond considered that regular sessions of treatment were beneficial in order to maintain a level of improvement as well as to protect against serious complications, such as suicide. Dr Apler opined that nine years' of treatment without improvement ought cause the treatment to be reviewed as "[c]learly something is going wrong".
Drs Diamond and Smith agreed that supervisors in an environment such as the Police Force tended to collude subconsciously in not identifying emotional or psychological impairment among their staff and may even be impaired themselves. Dr Diamond explained the importance of protective mechanisms, which enabled police officers such as the plaintiff to continue to function in that role, as follows: ". . . the reason why people are not stuck with overwhelming symptoms forever more after an experience like that is because they also mount their coping mechanisms and it's the coping mechanisms that keep any police officers functional although they carry illness. And the time when they become overtly unwell and overwhelmed is when the access to whatever those protected mechanisms were disappears and very often it's the support of the organisation. Once that is withdrawn, that leaves those police officers exposed, unprotected and emotionally overwhelmed, and I think that's an important feature in this case because that's in fact what did happen."
Dr Apler agreed that if a particular stressful situation resulted in a pronounced emotional reaction then similar situations over time would produce an increased sensitivity and, with it, an exaggerated response.
Dr Diamond considered the question of what might have been done by the Police Force at any given time to be difficult to answer because of the prevailing culture which constrained officers from revealing any mental health or psychiatric problem and made them deal with any such difficulties in a "very strong informal way". His view was that one had to identify key moments where an individual's choices or behaviours reached a high threshold, which would provide an opportunity to intervene and help. He identified the plaintiff's decision to leave the Detectives in 1999 as being a moment of sufficient significance to attract, and warrant, intervention because it was "such a clear signal that something was amiss". Dr Diamond considered that the officer could have been sent to the PMO and further treatment arranged, as well as, possibly, a period of leave. Since the late 1990s Dr Diamond has consulted with and treated police officers who have been referred to him by a PMO. I understood from his evidence that police officers were more prepared to divulge their concerns to him because he, as he put it "understands policing culture but ... is not part of the police".
Dr Diamond considered that intervention was called for to help the plaintiff deal with PIC inquiry. His view was that if such assistance had been offered in September 2005, the plaintiff would not have rejected it. He suggested that if a superior officer had spoken with the plaintiff and discussed the possibility of medical assistance from someone such as a general practitioner it would have helped him deal with PIC. However, Dr Diamond considered that the combined effect of PIC and the s 181D investigation was that: "There was no way he could then feel supported by an organisation that he perceived had betrayed him or had harmed him to this extent. So you can see the progression as to how he ended up in the position he was in."

The plaintiff

Mr Menzies submitted that I ought not accept the plaintiff's evidence in large measure because of his obvious interest in these proceedings and because of the cynical, jaded view of the Police Force he had developed over the years. Further he contended that his evidence that Inspector Lorenzutta told him to lie on the transfer form and that the plaintiff told him that he was not coping and that he could not deal with Silverwater gaol and the duties of a detective ought not be accepted because these matters were mentioned for the first time in oral evidence and could not be countered because Inspector Lorenzutta had died on 8 December 2012.
I found the plaintiff to be an honest witness. There were, however, several matters about which his recollection was absent or unreliable, including his having forgotten occasions when he was offered assistance by other police officers or welfare officers. I regard his lack of recollection of these matters as consistent with the deep distress he experienced as a result of the PIC inquiry and the ensuing investigation under s 181D and his consequential mistrust of the police hierarchy and of police officers generally, as distinct from those who were his closest friends.
I accept that the results of the Assessment Centre in 2001 were that the plaintiff had not met the standard. I am satisfied that the communication to him that he had passed was the result of an innocent mistake. His view that it was deliberate or that the results were somehow rigged against those of his vintage reflected, in my view, an attempt to safeguard his self-esteem rather than any bias towards the Police Force or paranoia that might adversely affect his credibility in other areas.
I am not satisfied that Inspector Lorenzutta told the plaintiff to lie on the form, although I accept that they both might have agreed that it would be better for the plaintiff's career to word the form in a way that did not reveal all of the reasons he wanted to be transferred, lest disclosure thwart his prospects of being promoted to the rank of Inspector. I accept the expanded version the plaintiff gave in evidence in chief of his conversations with Detective Inspector Lorenzutta. Although the version in the plaintiff's statement indicated that the main problem was workload, rather than mental stress as a result of Silverwater gaol and exposure to death, I am satisfied that the plaintiff raised all of these topics with Detective Inspector Lorenzutta as reasons for transfer.

Mr Lagopodis

Mr Lagopodis was a close friend and associate of the plaintiff. He had a degree of hostility towards the defendant because of his own experience. In 2000, even before he met the plaintiff, he had been off on sick report for a period of about four weeks because of trauma he had suffered when attending to a deceased child, as well as dealing with numerous matters involving paedophilia which he described as "horrendous". He mentioned one case where a father had brutalised and sexually assaulted ten of his children and had had five children to his own daughter. When it was put to him in cross-examination that he was disgruntled with the way he had been treated by the Police Force, Mr Lagopodis accepted that he had been very depressed by his experience. When Mr Menzies put that he had come to Court to advocate his friend's cause, he answered: "I provided a statement of what the events and conversation that I had with Mr Carangelo, and I've been subpoenaed to give that evidence and that's what I'm doing, to the best of my ability."
Although I accept that Mr Lagopodis was sympathetic to the plaintiff and supportive of his claim for damages, I do not consider his evidence to be unreliable as a consequence. I accept that he was trying to give accurate evidence and that his recollection was generally reliable. The principal significance of his evidence was to establish that, despite the brave front the plaintiff was putting on to his superior officers and to those of his work colleagues who were not also his friends, the plaintiff was suffering more than a normal emotional reaction to the trauma he was experiencing and was manifesting symptoms which indicated psychiatric injury.

Dr Smith

Mr Menzies submitted that Dr Smith was no more than an advocate for the plaintiff's cause and that he had lost all objectivity as an expert. I reject this submission. The position of a treating doctor is different from an independent expert in that the former is either obliged, or tends, to accept the patient's view of the world, as Dr Smith appeared to me to do in the present case. Further, Dr Smith's reports had been instrumental in obtaining for the plaintiff a substantial increase in his superannuation pension. My impression from Dr Smith's evidence was that he wanted me to understand the difficulties encountered by the plaintiff and how stoic he had been in endeavouring to surmount them. He had been privy during a six-year therapeutic relationship to many disclosures made by the plaintiff and was, understandably, sympathetic to his situation.
Nonetheless I found the evidence of Dr Smith of assistance and, within the context set out above, reliable. That it was not independent was merely a reflection of his role as the plaintiff's treating doctor.

Dr Diamond

Mr Menzies made the same submission in relation to Dr Diamond: namely, that he was an advocate for the plaintiff's cause rather than an independent witness. I reject this submission. I found Dr Diamond's careful answers to questions, particularly in the course of concurrent evidence, to be given without regard for their forensic consequences. That he expressed reservations about the benefits of counselling in the context of the police culture as he understood it to be and that he was unwilling to say that intervention would have given the plaintiff more than a chance of a better outcome are examples of this.

Dr Apler

The challenge that was made to Dr Apler's evidence was that he had based his opinion on the assumption that the plaintiff was functioning normally up until the PIC inquiry. It was evident from Dr Apler's oral evidence that this was the foundation of his view as to the significance of the PIC inquiry. I am satisfied that the plaintiff was affected by the traumatic incidents that he had witnessed and in which he had been involved and that, as time went on, he became more vulnerable to similar incidents. His repeated exposure to death and other trauma made him more susceptible to Adjustment Disorder as each year passed until finally, after he was examined by PIC, he was unable to cope with or conceal his distress.
The difference between my finding (which is based on the evidence adduced in the proceedings, much of which was not available to Dr Apler) and the assumption that underpinned Dr Apler's evidence means that I do not accept his opinion that the plaintiff was not suffering from Adjustment Disorder, or the nascent symptoms thereof, prior to the PIC inquiry. Nor do I accept Dr Apler's opinion that the plaintiff has recovered from the Adjustment Disorder. Rather, I consider that it is likely that its symptoms have been ameliorated by the medication that Dr Smith has prescribed.

The plaintiff's case on liability

The plaintiff's case, as ultimately put in final address, was as follows. 1. The Commissioner owed the plaintiff a non-delegable duty to take reasonable care to provide him with a safe system of work. 2. The defendant was vicariously liable for damage caused by breach of that duty. 3. In 1999, when the plaintiff told Inspector Lorenzutta that he was not coping and wanted to be transferred from Detectives to General Duties at St George LAC, the Commissioner ought to have realised that: 1. Such a request in those circumstances was a sign that something was amiss; 2. There was a real possibility that the plaintiff was suffering from a stress-related condition which could become entrenched if not appropriately treated and that it was necessary that the real reason for the request be ascertained by a qualified person outside the Command, such as the PMO; and 3. Reasonable care required that the plaintiff be directed to attend the PMO if he did not agree to do so voluntarily. 1. Had the plaintiff been assessed by the PMO, reasonable care would have led to his being referred for psychiatric assessment and treatment by an external psychiatrist. 2. It is probable that an external psychiatrist would have either diagnosed Adjustment Disorder or at least identified some diagnostic criteria of the condition and treated the plaintiff with psychological counselling and, if required, medication. 3. Had this occurred, he would have had a real chance of being in a better position to withstand the stress to which he was subjected by the PIC Inquiry and the s 181D procedure. 4. When Superintendent Murdoch learned that PIC was to investigate the plaintiff, reasonable care required that he, or his successor, Superintendent McErlain, inform the plaintiff of the impending PIC inquiry and that he should expect that a notice would be served on him. Such assurances as were appropriate would have been given to him and he would have been alerted to the support services available through the EAP. Because of the risks associated with such investigations, regular welfare checks should have been made of the plaintiff from September 2005 until the investigation was ultimately concluded in October 2007. 5. Had this occurred there would have been some prospect that the plaintiff would have been able to withstand the stress of the PIC investigation and the internal investigation and continue to work as a police officer until the age of 60 and would not have suffered from Adjustment Disorder.

The defendant's case on liability

The defendant's case was as follows. 1. Any injury the plaintiff suffered was solely the result of the PIC inquiry and the ensuing s 181D investigation. 2. The plaintiff's reaction to traumatic events experienced in the course of his police service was a normal human reaction of transient sadness. The stress he felt when he was required to put himself in danger in the course of his duties was also a normal human reaction with no long-lasting effects. 3. In so far as the plaintiff's experiences at Flemington police station had affected him, the effects had been remedied by his transfer to General Duties at the St George LAC where he was largely able to avoid contact with distressing incidents. All that would have been reasonably required of the defendant, in any event, was to have facilitated his transfer to General Duties, which occurred in any event. 4. If Inspector Lorenzutta had in fact instructed the plaintiff to lie on the transfer form, then this amounted to criminal conduct, or at least intentional wrongdoing, for which the defendant would not be liable: State of New South Wales v Lepore [2003] HCA 4; 212 CLR 511. This matter need not be addressed further since I do not accept that Inspector Lorenzutta told the plaintiff to lie on the transfer form. 5. In so far as the plaintiff continued to dwell on traumatic events such as the baby's death or the murder of the young woman, this was as a result of Dr Smith's encouragement that he dredge up such events. Moreover, the plaintiff's concentration on them for the purposes of the District Court Appeal and these proceedings was a symptom of his depressive illness which had been caused by the PIC inquiry. 6. Even if the plaintiff ought to have been referred for psychiatric treatment in 1999 when he first told Inspector Lorenzutta that he was not coping and wanted a transfer, he would either have refused to attend or, if directed to do so, he would have refused to divulge what was really troubling him because of his determination to put on a brave front. 7. Moreover, it is speculative whether any such treatment would have made any material difference to the plaintiff's ultimate mental state since the evidence of Drs Smith and Diamond does not put the prospect of a better outcome at higher than a chance. 8. Had Superintendent McErlain known of the PIC Inquiry in September 2005 he would, and possibly should, have contacted the plaintiff to offer support. Any such offer of support would have been rejected by the plaintiff or, if accepted, would not have made any difference. The real cause of the plaintiff's decompensation was the PIC Inquiry itself and the s 181D investigation, neither of which is compensable or gives rise to any liability. 9. If the defendant is found liable, the plaintiff's damages ought be substantially reduced by reason of contributory negligence in that he failed to inform his superiors of his mental problems, failed to take care of his own mental and emotional welfare and failed to heed instructions about the importance of treatment for stress or avail himself of any of the services provided by the defendant to officers in his position who were suffering mental stress as a result of performing their duties as police officers. 10. If the defendant is found liable, the plaintiff's damages ought be substantially reduced because of his pre-existing vulnerability to stressors, any one of which might have precipitated his Adjustment Disorder.
The defendant did not maintain its reliance on s 42 of the Civil Liability Act 2002 (NSW) (which outlines the applicable principles concerning the resources and responsibilities of public authorities such as the defendant) in light of the way the case was ultimately put on behalf of the plaintiff. It did not contend that it did not have the resources to direct the plaintiff to attend the PMO, or, if required, to refer him to a private psychiatrist. Nor did it submit that Superintendent McErlain would not have had the time to inform him of the PIC inquiry or periodically check on the plaintiff's welfare while the inquiry was continuing.

Liability: the scope of the duty and whether it was breached

The statutory framework in which the duty arose

When the plaintiff joined the Police Force, it was governed by the Police Regulation Act 1899 (NSW) (the 1899 Act). It provided, by s7A(1): "It is, and shall be deemed always to have been, the duty of a member of the police force to protect persons from injury or death and property from damage, whether the persons are, or the property is, endangered by criminal acts or otherwise."
All officers, including the plaintiff, were required to swear an oath or make an affirmation to see and cause the Queen's peace to be kept and preserved and to prevent, to the best of his or her power, all offences against same to the best of the officer's skill and knowledge. For certain limited purposes, the Public Service Board was deemed to be the employer of members of the Police Force.
The 1899 Act remained in force until it was repealed in 1990 by the Police Service Act 1990 (NSW) (now the Police Act 1990) (the 1990 Act). The 1990 Act established the Police Service, which comprised members who included the Commissioner and police officers employed under the Act. Its functions included the provision of "police services" for New South Wales, which were defined as including: "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way". The Police Force is under the ultimate control and management of the Commissioner of Police, subject to the direction of the Minister: s 8 of the 1990 Act.
The differences between the 1899 Act and the 1990 Act are not presently material. Both statutes created a hierarchical, disciplined force in which police officers were required to comply with lawful orders and discharge their lawful duties for the protection of others and of property.
Section 201 of the 1990 Act relevantly provided that a police officer who neglects or refuses to obey any lawful order or carry out any lawful duty as a police officer is guilty of an offence. Accordingly, the power of the Commissioner to control his or her police officers is significantly greater than in the orthodox employer/ employee relationship, where the employer's power to control the employee is regarded as the reason for the imposition of a duty on an employer. As Hayne J said in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [276]: "The common law imposes a duty on the employer because the employer is in a position to direct another to go in harm's way and to do so in circumstances over which that employer can exercise control."
It is relevant, when considering the scope of the duty owed by the defendant, to take into account the nature of the duties of police officers. In New South Wales v Fahy [2007] HCA 20; 232 CLR 486, the question arose whether the Police Service (for which the State was vicariously liable) was liable in negligence to a police officer who had suffered post-traumatic stress disorder as a result of assisting a victim who had been stabbed in an armed robbery. Gleeson CJ said at [4]: "The relevant form of safety is protection from the risk of psychiatric injury and, in particular, post-traumatic stress disorder. Having regard to the nature of the duties of a police officer, and to the nature of post-traumatic stress disorder, concepts of risk, and safety, may require closer analysis. The duties of police officers commonly expose them to danger, sometimes from people who deliberately seek to cause them harm. Individual responses to stressful situations vary greatly, and police officers are sometimes called upon to deal with situations that many ordinary citizens would find unbearably stressful."
The present case was conducted on the basis that, because the relationship was akin to the relationship between employer and employee, it was the responsibility of the Commissioner to take reasonable care to provide a safe system of work for police officers and, having regard to the non-delegable nature of the duty, to ensure that reasonable care was taken: Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 at 687- 688 per Mason J. The defendant is vicariously liable for a tort committed by the Commissioner when it arises from the performance of one of his statutory functions: s 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW). It was accepted that the defendant was vicariously liable for any tort committed by the Commissioner in the circumstances of the present case. I shall refer to the defendant when considering the liability of the Commissioner since, although the relevant duty is the Commissioner's, it is the defendant that is liable for its breach.
It was not suggested that the plaintiff ought not be exposed to stressful situations. He could hardly have performed his duties had he not been. Rather, the plaintiff submitted that the defendant's response was unreasonable in light of the foreseeable risk of psychiatric injury when his abnormal reaction to traumatic events went unnoticed and untreated.
It was common ground that, as the plaintiff began his service on 25 February 1974 and became a contributor to the Police Superannuation Fund, the Workers Compensation Act did not apply to him since he was not a "worker" within s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Part 2 of the Civil Liability Act applies as these proceedings were brought after that Act commenced: Cl 2 of Sch 1.
It was accepted that the defendant was obliged to take reasonable precautions against the risk of the plaintiff's suffering psychiatric injury since the risk was foreseeable and not insignificant and the defendant was obliged, having regard to the relationship between the Commissioner and the plaintiff, to take such precautions: s 5B(1) of the Civil Liability Act.

What reasonable care required in 1999 when the plaintiff applied for a transfer from the Detectives and whether the defendant was negligent

The timing of the conversations between the plaintiff and Detective Inspector Lorenzutta which are referred to above is not clear but they must have occurred at some time prior to September 1999. What reasonable care required must, accordingly, be judged by reference to what was known at that time and the circumstances of that time. However the question is not whether Detective Lorenzutta, as the Commissioner's agent, was negligent, but rather whether the Commissioner, when acting through Detective Lorenzutta, was negligent. Accordingly, all the knowledge available to the Commissioner about the plaintiff's service is relevant, as is the expertise contained within the literature and reports referred to above. So too are the resources of the Police Force, including the PMO and the PMO's ability to refer officers for outside assistance. In addition, the matters known to the plaintiff's Commanding Officer at Flemington must be taken into account. These matters include the suicides at Silverwater Gaol and the difficulties experienced by police officers when endeavouring to investigate matters that had occurred within the precincts of the gaol.
Taking all these matters into account I am satisfied that at the time the plaintiff requested a transfer to General Duties the defendant knew or ought to have known each of the matters set out below. 1. The plaintiff had been a serving police officer since 1974. 2. There was a foreseeable risk that repeated exposure to graphic scenes of natural disaster, accident, injury and death could cause psychological stress beyond a normal emotional response and, in some cases, psychological injury. 3. The prospects of burn-out and abnormal stress reactions increase with length of service. 4. The plaintiff had been exposed to numerous traumatic circumstances, including the Granville train disaster, the dead baby, the young woman whose body was found in bushland, the fire in Brighton-Le-Sands and the murder of the 16-year old Greek boy. On occasion, his life had been put at risk. 5. Although there was educational material available to police officers that addressed the issue of trauma creating stress and the Police Force conducted seminars on the issue, it was notorious that police officers tended to be reluctant to reveal that they were not coping and unwilling to seek assistance for stress-related matters because of a fear of exposing vulnerability and thereby jeopardising their chances of promotion. 6. Police officers were disinclined to reveal stress-related difficulties to psychologists employed by the Police Force because of the well-founded perception that such disclosures would not necessarily remain confidential. 7. Timely treatment of the symptoms of adjustment disorder or post-traumatic stress disorder increased the prospect of recovery and improvement. 8. Although there may be several reasons why a Detective might want to transfer to General Duties, one explanation was that the officer was finding it difficult to cope with the traumatic events to which Detectives were regularly exposed and was prepared to forego the status of being a Detective in return for a modicum of relief from these events. 9. The real reason the plaintiff wanted to transfer to General Duties was, as he revealed to Detective Inspector Lorenzutta, that he felt that he could no longer cope with the work of a Detective, including going to Silverwater Gaol, and that he hoped he would find it less onerous doing General Duties. 10. Flemington LAC was particularly challenging for police officers because of its responsibility for Silverwater Gaol and the requirement that they attend to cut down inmates who had committed suicide and investigate such matters without the genuine co-operation of either inmates or prison officers. 11. Lack of resources at Flemington LAC meant that potentially invidious decisions had to be made as to which of several serious crimes would be investigated to a level that would permit charges to be laid. Such decisions could cause concern and distress to investigating officers, who might be called upon to explain to victims why apparently criminal conduct went unpunished. 12. The Commanding Officer had the power to direct any police officer under his or her charge to attend the PMO for assessment and treatment and the police officer was obliged to comply with the order. 13. The PMO could refer a police officer to a psychiatrist in private practice for assessment and treatment. 14. A police officer might be more willing to reveal difficulties to a practitioner in private practice than to a psychologist employed by the Police in the Psychology Unit or the Health Unit.
What the defendant neither knew, nor could reasonably have been expected to know, was what the plaintiff took such pains to conceal except from his closest colleagues. Accordingly, what reasonable care required of the defendant is not to be judged as if the defendant knew or ought to have known of the plaintiff's prolonged emotional response to, and pre-occupation with, past traumatic incidents. Nonetheless, the defendant knew that the plaintiff had performed police duties which had involved such incidents and can be taken to have known of their nature. I respectfully adopt the observations of Keane JA in Hegarty v Queensland Ambulance Service [2007] QCA 366, in which the Queensland Ambulance Service successfully appealed against a judgment in favour of an ambulance officer who suffered a psychiatric disorder as a result of his work but whose conduct and outward demeanour, viewed objectively, did not reveal any unequivocal signs of this at the time treatment could have made a difference. Keane JA said: "[45] Issues did necessarily arise, however, as to the identification of a sufficient basis for the making of a suggestion by the defendant that the plaintiff seek psychological assessment and treatment. The resolution of this issue is fraught with difficulties peculiar to cases of psychiatric injury. In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risks in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer's intervention and the making of a decision to intervene. An employee may not welcome an intrusion by a supervisor which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee's performance of his or her duties at work. [46] Employees may well regard such an intrusion as an invasion of privacy. Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee, even one who is in a supervisory position. If an employee is known to be at risk of psychiatric injury, prospects of promotion may be adversely affected . . . A conclusion that an employer has acted unreasonably in failing to recommend psychological assessment and treatment cannot be made without recognising that the employer's decision must be made in a social, economic and legal context which includes these considerations. [47] . . . Further, "litigious hindsight" must not prevent or obscure recognition that there are good reasons, apart from expense to the employer, why the law's insistence that an employer must take reasonable care for the safety of employees at work does not extend to absolute and unremitting solicitude for an employee's mental health even in the most stressful of occupations. A statement of what reasonable care involves in a particular situation which does not recognise these considerations is a travesty of that standard."
Nonetheless, as set out above, the defendant knew, because of what the plaintiff revealed to Detective Inspector Lorenzutta, that the plaintiff was not coping with the work required of him as a Detective at Flemington and, in particular, the duties required to be performed at Silverwater Gaol. I regard this disclosure by the plaintiff as highly significant when determining what precautions the defendant was reasonably required to take against the risk of harm. The plaintiff's disclosure alerted Detective Inspector Lorenzutta (and, through him, the defendant) that the plaintiff's problems were not confined to workload but included psychological stress and inability to cope with traumatic incidents.
In the context of all the matters listed above that I have found the defendant either knew or ought to have known, I consider that a reasonable person in the position of the defendant, acting through Detective Inspector Lorenzutta, would have taken the precaution of referring the plaintiff to the PMO for assessment and treatment. I consider that the PMO, consistent with the requirements of reasonable care, would have referred the plaintiff to a psychiatrist in private practice. The burden of taking these precautions in respect of the plaintiff was the same in respect of any police officer whose conduct gave rise to a concern that the officer was not coping with trauma and whose response to stressful events went beyond the normal emotional reaction to such events. There was no suggestion that the resources of the Police Force were inadequate for this to occur or that it was not in accordance with what commonly occurred, or ought to have occurred, in such situations. The risk of harm of psychiatric injury or aggravation of pre-existing psychiatric injury was plainly not insignificant.
Accordingly, I am satisfied that the defendant's failure to refer the plaintiff for psychiatric assessment and treatment in 1999 when he applied for a transfer to General Duties was negligent.

What reasonable care required when the plaintiff was investigated by PIC

What, if any, response was required by the defendant can only be determined in light of the PIC Act, since it prohibited disclosure subject to certain narrowly defined exceptions. Section 54 of the PIC Act relevantly provided: "Disclosures prejudicing investigations (1) A person who is required: (a) by a notice under section 25 or 26 to produce a document or other thing, or (b) by a summons under section 38 to give evidence or to produce a document or other thing, must not disclose any information about the notice or summons that is likely to prejudice the investigation to which it relates. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. (2) Subsection (1) does not apply to a notice or summons unless it specifies that information about the notice or summons must not be disclosed. (3) A person does not contravene this section if: (a) the disclosure is made to an employee, agent or other person in order to obtain information to comply with the notice or summons and the employee, agent or other person is directed not to inform the person to whom the information relates about the matter, or (b) the disclosure is made to obtain legal advice or representation in relation to the notice of summons, or (c) the disclosure is made for the purposes of, or in the course of, legal proceedings, or (d) . . . . (4) A reference in this section to the disclosure of any information about a notice or summons includes a reference to: (a) a disclosure about the existence or nature of the notice or summons or of the investigation to which it relates, and (b) a disclosure of any information to a person from which the person could reasonably be expected to infer the existence or nature of the notice or summons or of the investigation to which it relates."
It was accepted by Superintendent Carey and by Superintendent McErlain that a PIC investigation was a particularly stressful time for a police officer. The requirement of secrecy imposed by s 54 would tend to increase the officer's anxiety. Moreover additional stress might be occasioned where, as here, the officer's family was also to be involved or investigated. Mr Baxter accepted that the reason he informed the Superintendent when an officer under his or her command was being investigated was, in part, so that the Superintendent could take steps to help the officer, whose welfare was neither the concern nor the responsibility of PIC.
Mr Menzies accepted that the failure of Superintendent Murdoch or Superintendent McErlain to speak to the plaintiff at the outset of the PIC inquiry was a "slip up" which should not have occurred. But he contended that the scope of the duty did not impose any obligation on the defendant to seek out the plaintiff and tell him of the services available to him within the Police Force when the plaintiff had already been made aware of them as part of his training and continuing education. I do not accept this submission. Indeed, the defendant's usual practice in such circumstances - to have the Commanding Officer approach the officer concerned - shows that the defendant appreciated that some action was called for which recognised the stress to which the officer would be subjected and endeavoured to alleviate it, within the confines of what could be disclosed and discussed consistently with the PIC Act.
Had the defendant been exercising reasonable care for the plaintiff, Superintendent Murdoch would have forewarned him of the impending PIC inquiry and advised the plaintiff to obtain some support (medical or otherwise) reminded him of the services provided by the EAP and provided him with some reassurance that many police officers who remained in the Police Force had been the subject of PIC inquiries. Had Superintendent McErlain been made aware of the PIC inquiry at the time he became the plaintiff's Commanding Officer in October 2005 (as he ought to have been in the handover from Superintendent Murdoch), he would have offered similar support to the plaintiff. These precautions were both reasonable and reasonably required. There was a not insignificant risk of harm in the nature of psychiatric illness if a police officer, particularly one who had some pre-existing psychiatric illness as a result of years of policing, felt isolated and unsupported at such a crucial time.
Accordingly, I am satisfied that the defendant's failure to forewarn the plaintiff of the impending PIC Inquiry and provide him with the support of his Commanding Officer, on the limited basis set out above, was negligent.

Causation

Section 5D of the Civil Liability Act provides: "General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

Factual causation: the negligence in December 1999

The first question is whether the defendant's failure to direct the plaintiff to attend the PMO for assessment in 1999 caused the particular harm. This is the "factual causation" referred to in s 5D(1)(a) of the Civil Liability Act and must, by s 5E, be established on the balance of probabilities. In order to answer the question it is necessary to address what would have been likely to happen had the plaintiff been directed to attend the PMO in 1999, and to take account of what the plaintiff himself would have done in that event: s 5D(3)(a) of the Civil Liability Act.
I am satisfied that, had the plaintiff been referred to the PMO in 1999, he would have at least have disclosed that he wanted to be transferred to General Duties because he was not coping with the exposure to suicides at Silverwater Goal and the excessive workload. After all, he had been prepared to tell Detective Lorenzutta as much when he asked for a transfer. Had reasonable care been taken the PMO would have referred the plaintiff to a private psychiatrist, such as Dr Diamond, for assessment and treatment.
I reject the defendant's submission that the plaintiff would not have divulged his continued anxiety about the various traumatic events which he persisted in recounting to his closest associates. I do not accept Mr Menzies' submission that any such consultation would have been futile because the plaintiff would not have been prepared to co-operate. These submissions do not, in my view, pay sufficient regard to the clinical skill of practitioners such as Dr Diamond in eliciting a relevant history. Dr Diamond's knowledge of the Police Force would have enabled him to ask questions to facilitate such disclosures. Moreover, the plaintiff had already been prepared to breach the unwritten code of not revealing weakness to his Commanding Officer when he divulged his distress at the hangings at Silverwater and his inability to cope with the workload. In these circumstances, I am satisfied that he would have co-operated with Dr Diamond (or another psychiatrist) and given a sufficient history of the events that troubled him and the difficulties he was having to enable him to be treated.
I accept the evidence of Drs Smith and Diamond that, had this occurred, the risk of his suffering Adjustment Disorder would have been materially reduced. Accordingly, the defendant's negligent failure to intervene deprived the plaintiff of the chance of a better outcome (of not suffering from Adjustment Disorder). If I could be satisfied that it was probable that, had the defendant taken the reasonable precautions that I have found were required to discharge its duty, the plaintiff would not have suffered Adjustment Disorder, the defendant would be liable for its negligence.
I am entitled to take into account all of the evidence in determining the question of causation and am not bound by conclusions of experts, or the expression of scientific opinion, the question of causation being ultimately a legal one: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [137] per Spigelman CJ. However, in the present case, it does not seem to me that there is other evidence that would enable me to put the prospect as high as a probability. I am not satisfied that, had the defendant done what was reasonably required in 1999, the plaintiff would not have suffered Adjustment Disorder or that such disorder would not have remained chronic. By the time of the hypothetical consultation, the plaintiff had been in the Police Force for almost 25 years. He had been subjected, in the ordinary course of his duties, first as a Constable and later as a Detective Sergeant, to numerous stressful events with which he had tried to come to terms in an informal way by working hard, putting on a brave front to his superiors, and divulging his distress only to a few close colleagues who had their own traumas which they, too, shared with each other, possibly to the detriment of all.
The relevant standard of proof is the balance of probabilities: s 5E of the Civil Liability Act. Loss of a chance of a better outcome, which falls short of a likelihood, is insufficient to impose liability: Tabet v Gett [2010] HCA 12; 240 CLR 537. The plaintiff has not discharged his onus. Accordingly, the plaintiff has failed to establish factual causation with respect to the defendant's negligence in 1999.
Mr Roberts submitted that if I were not satisfied of factual causation, s 5D(2) of the Civil Liability Act applied to extend liability to the present case, which he contended was "exceptional". The basis for this submission was not articulated.
The purpose and effect of s 5D(2) has not yet been established. In Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 the High Court said, at [57]: "It may be that s 5D(2) was enacted to deal with cases exemplified by the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 where plaintiffs suffering from mesothelioma had been exposed to asbestos in successive employments. Whether or how s 5D(2) would be engaged in such a case need not be decided now."
Fairchild v Glenhaven Funeral Services Ltd was referred to by French CJ in Amaca Pty Ltd v Booth [2011] HCA 53; 246 CLR 36 at [52] as a "modified concept of causation" which was developed because the strict application of the "but for" test of factual causation was said to give rise to injustice in cases where the science did not permit proof of causation on the orthodox basis. I do not regard the present case as falling within that special category, which may, in an appropriate case, be regarded as "exceptional" for the purposes of s 5D(2).
In Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 the majority (French CJ, Gummow, Crennan and Bell JJ) considered the circumstances in which s 5D(2) might operate but found that factual causation had been established in that case. Their Honours decided that the appellant had proved on the balance of probabilities that the exercise of reasonable care would have led to the removal of the chip that caused her fall before she slipped on it. Accordingly, there was no need to consider whether s 5D(2) would have been sufficient had factual causation not been established. The majority said at [29]: "The causation issue presented by the appellant's claim has nothing to do with concepts of material contribution to harm, material increase in risk of harm, or any of the difficulties discussed by the text writers in the context of the limitations of a "but for" analysis of factual causation. (Stapleton, "Reflections on Common Sense Causation in Australia", in Degeling, Edelman and Goudkamp (eds), Torts in Commercial Law, (2011) 331 at 338-342)."
Nor do the issues in cases referred to in the text cited in the passage above have anything to do with the present case. Here, the difficulty of proving causation arises from the difficulties in quantifying the effect of treatment for nascent Adjustment Disorder, the foundations for which had been laid over the more than two decades prior to the alleged negligence. Although the parameters of s 5D(2) are yet to be established, I am not persuaded that the present case ought be regarded as "exceptional" because the plaintiff cannot establish that the chance of a better outcome, if treatment had been provided, was more probable than not. Had Parliament intended to make provision for such a fundamental change, which could potentially affect a large number of cases, it can hardly be expected that it would have done so by reference to an exception, rather than a new rule.
I am not persuaded that responsibility for the plaintiff's Adjustment Disorder should be imposed on the defendant notwithstanding its negligent failure to refer the plaintiff to the PMO and a private psychiatrist in 1999.

Factual causation: the negligence in 2005 - 2006

In order to determine what, if any, harm was caused by the defendant's negligent failure to forewarn the plaintiff of the impending PIC inquiry before service of the notice in September 2005 or to support him through the inquiry and the subsequent action under s 181D, it is necessary to subtract the harm caused by the PIC inquiry itself and any harm occasioned by the subsequent action under s 181D. It was accepted that none of the harm caused by these inquiries was compensable. This concession was appropriate having regard to the principle articulated in Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [60] that the law would not ordinarily impose a duty of care on a public authority which Parliament has made responsible for conducting investigations and exercising powers in the public interest.
The evidence of the plaintiff and of Mr Lagopodis, as well as the evidence of the psychiatrists, established the devastating effect of the PIC inquiry and the manner in which it was conducted, on the plaintiff. He stood to lose all that being a police officer meant to him, including the status and the good opinion of his colleagues and superiors. Moreover, it rendered his marriage irretrievable. It also made him suspicious of the Police generally and of the authorities and led him to engage in conspiracy theories tinged with paranoia regarding his experience in 2001 at the Assessment Centre. That he was prohibited by statute, on threat of criminal liability (s 54 of the PIC Act), from disclosing to anyone the details of what was being alleged against him, was a further blow.
In these circumstances, I do not accept that the plaintiff suffered any material harm from the defendant's failure to forewarn him or offer support before or during the first year of the PIC inquiry. The failure was not, in my view, causative of his Adjustment Disorder, or any material aggravation of it. It was yet another blow, but not a material one. Moreover, although it is possible that the plaintiff might have felt less isolated had Superintendent Murdoch or Superintendent McErlain taken him aside to express support and remind him of the services available, he may well have rejected such advances on the grounds that they were a cynical attempt to go through the motions required rather than a genuine indication that the officers concerned cared about his welfare, or were in a position to safeguard it in any significant way. His reaction may well have been the same as it was when offers were made in 2007. The pervading sense of isolation which the plaintiff experienced was a result, in my view, of the processes of PIC itself, which required and enforced utmost confidentiality rather than the failure of his Commanding Officers to offer him timely support from the outset.
Accordingly, the plaintiff has failed to establish factual causation with respect to the defendant's negligence in 2005 and 2006. Nor do I regard the instant case as an "exceptional" one for the purposes of s 5D(2).

Factual causation: assuming breach in 1999 but no breach in 2005

Mr Roberts also put the plaintiff's cause on causation on an alternative basis and submitted that the defendant was liable because its negligence in 1999 compromised the plaintiff's psychological resilience such that, when he was investigated by PIC, he was unable to withstand the additional pressure of the inquiry. He submitted that, had the plaintiff seen the PMO in 1999 and been referred to Dr Diamond, he would have been in a more robust psychological state when served with the PIC notices. On that scenario he would have had a well-established and ongoing therapeutic relationship with a psychiatrist who could have provided sufficient support to enable him to withstand the loss of other protective mechanisms during the PIC inquiry. Mr Roberts relied on the circumstance that the plaintiff was, objectively, able to fulfil all police duties required of him from 1999 when he was transferred from Flemington to Kogarah and continued to work continuously for a year after he was first served with a notice by PIC.
The difficulty with this submission is that the evidence does not support it although it was the subject of some evidence by Dr Diamond. Moreover, it does not overcome the principal impediment to liability: the plaintiff cannot prove factual causation because, at best, the defendant's negligence in 1999 caused him to lose the chance of a better outcome. I am prepared to accept that the plaintiff would, had he had an ongoing therapeutic relationship with a psychiatrist in 2005 when the PIC inquiry began, have been in a better psychological position to deal with the PIC inquiry. But more is required to make the defendant liable.

Conclusion

In these circumstances the plaintiff has failed to establish that the defendant is liable.

Contributory negligence

Although the question of contributory negligence does not arise in light of my findings that the defendant is not liable, it is nevertheless necessary for me to record my findings.
The defendant submitted that there should be a substantial discount for contributory negligence, approaching 100%, on the basis that the plaintiff ignored his problems even though he was well aware of the causes of his distress and the treatment and avenues for assistance that were available to him, and that he refused help when it was offered.
Section 5R of the Civil Liability Act provides: "Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."
Section 5R(1) incorporates ss 5B and 5C into the determination of contributory negligence. The plaintiff's conduct must be judged by reference to the two points at which negligence against the defendant is alleged: 1999 when he requested the transfer and September 2005 when the PIC inquiry began.
As the plaintiff is to be treated as though he was an employee, different considerations apply to the determination of contributory negligence because of the nature of the employment relationship: Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 at [40]: McLean v Tedman [1984] HCA 60; 155 CLR 306 at 315. The risk of psychiatric harm was a foreseeable consequence of the plaintiff's exposure to traumatic events, which was an inevitable part of his performance of his duties as a police officer. The defendant recognised the risk by educating police officers about the risks and the availability of treatment and providing facilities for such treatment. It also educated police officers about the dangers of lack of insight into the risk and failing to disclose their distress to medical professionals within the Police Force and thereby depriving themselves of timely help.
In my view, a reasonable person in the plaintiff's position would have, at least by 1999 when his difficulties in coping with the mental stress of trauma were so great as to make him realise that he needed to transfer to General Duties, sought, as the plaintiff did, a transfer to duties which would be likely to be less traumatic. The plaintiff was understandably hopeful that this transfer, which amounted to an act of self-preservation, would make him feel better and restore his capacity to cope. In applying for, and going through with, the transfer, the plaintiff displayed insight into the causes of his distress and how such distress could be relieved.
Nonetheless I consider that a reasonable person in his position in 1999 would also have sought professional assistance. I do not accept that he ought reasonably to have sought such assistance from the Psychology Unit or the Welfare Unit of the Police Force, or even from the PMO, since he had well-founded concerns that his disclosures would not be kept confidential. However, I consider that he ought reasonably have consulted a doctor such as Dr Taluja, who could have referred him to a psychiatrist. This course would have preserved the confidentiality of his disclosures and tended to improve and safeguard his psychological health. I am satisfied that there should be a finding of some degree of contributory negligence to take account of the plaintiff's failure to seek professional help from his general practitioner or to mention to her the causes of his distress at any time prior to September 2006, immediately following his giving evidence at the PIC inquiry.
In the particular circumstances of the present case, the defendant's negligence - failure to direct that the plaintiff be assessed by the PMO for referral to a private psychiatrist - broadly correlates with the plaintiff's contributory negligence - failure to seek professional help for his psychological distress. However, the defendant's superior knowledge, expertise and control over the plaintiff result in the "causal potency" (to borrow the words used in Podrebersek v Australian Iron & Steel [1985] HCA 34; 59 ALJR 492 at 494) of the defendant's breach significantly outweighing that of the plaintiff's failure to take care for his own safety. I assess the plaintiff's contributory negligence at 10%.
I do not consider that any reduction ought be made for contributory negligence arising from the defendant's negligence in failing to offer support to the plaintiff in advance of and during the PIC inquiry. The plaintiff was bound not to disclose matters concerning the inquiry and, in these circumstances, cannot reasonably be expected to have approached Superintendent McErlain for support and assistance.

Damages

Notwithstanding my findings on liability I am obliged to make findings on damages. I do not propose to quantify the damages since such calculations would be hypothetical. However, my findings will be sufficient to enable such calculations to be performed if required. Damages are assessed on the basis of a hypothetical finding that the plaintiff would not have suffered Adjustment Disorder had he been referred to a psychiatrist in 1999 or had he received appropriate support from the defendant in 2005 and 2006.
Had the plaintiff not suffered Adjustment Disorder he would have been able to continue serving as a police officer until the age of 60. He would then have taken up work as a private inquiry agent, either on his own account or for an employer.

Allowance for vicissitudes

The defendant submitted that, if I accepted the plaintiff's medical evidence, a significant allowance for vicissitudes ought be made to take account of the plaintiff's pre-existing vulnerability to psychiatric illness that had developed prior to 1999 without negligence on its part. Mr Menzies submitted that, because of the plaintiff's susceptible mental state, his damages should be discounted for the chance that stressors which were not the result of its negligence would bring about Adjustment Disorder.
There is a measure of circularity in this submission. The reason the plaintiff was susceptible to developing psychiatric disorders such as Adjustment Disorder was that he had served as a police officer since he was about 23 years old. In the course of the performance of his duties he had been exposed to sights and experiences which, as Gleeson CJ said in New South Wales v Fahy at [4], many ordinary people would find "unbearably stressful". The scope and content of the defendant's duty required the defendant to take reasonable care to alleviate and ameliorate any abnormal response to such trauma.
Mr Menzies submitted that, if I accepted the opinions of Drs Smith and Diamond as to the plaintiff's susceptibility to psychiatric disorder immediately prior to the PIC inquiry, the plaintiff should be regarded as having an "egg shell skull" which rendered him vulnerable to the effects of any trauma as a result. I do not consider this description to be either accurate or fair, unless it means no more than that the plaintiff's years of service as a Detective made him more vulnerable than officers whose service had been shorter or who had not had such significant exposure to death. The defendant knew, or ought to have known (as I have found above), that the longer an officer had been exposed to trauma, the more likely he or she would suffer an abnormal response which could lead to permanent psychiatric harm. The stressors that were likely to bring about Adjustment Disorder in these circumstances were largely confined to police service. In these circumstances I do not consider it to be appropriate to discount the plaintiff's damages on this basis.

Non-economic loss

The plaintiff's enjoyment of life has been substantially affected by Adjustment Disorder. He is dogged by persistent images and memories of hideous scenes arising from years of service as a police officer. He is still haunted by the sight of the young woman whose body was so horrifically mutilated after her corpse had been abandoned in bushland. His gregarious nature has been compromised by short temper and the irritation brought about by the disorder. The joy he takes in time with his grandchildren is clouded, though not eclipsed, by thoughts of the baby boy who was killed by his own mother.
Nonetheless he is in a happy and enduring relationship with a woman who has been with him in dark hours. Although his retirement is not what it might have been but for the Adjustment Disorder, he spends time with his children and grandchildren and enjoys cooking and fishing and getting together with his close friends from the Police Force.
His dedication to his role as a police officer went far beyond the financial remuneration. For him, it was a substantial loss that psychiatric illness required him to stop serving as a police officer when he was 56, when he had not planned to retire until he turned 60.
I assess his damages under s 16 of the Civil Liability Act as 35% of a most extreme case, being an amount of $200,000.

Economic loss

The plaintiff accepted that he would not have been promoted to the rank of Inspector and that he would, in any event, have retired on 21 December 2010 at the age of 60. His past economic loss to age 60 was agreed at $109,400. For reasons that follow I am not satisfied that, but for the injury, the plaintiff would have worked beyond the age of 65.
The distinction between past (post- 60 but pre-judgment) and future (post- judgment and pre-65) loss of earnings is determined by the somewhat arbitrary date of judgment. As to future economic loss I am obliged by s 13(1) of the Civil Liability Act to determine the plaintiff's most likely future circumstances but for the injury. Although s 13 does not in terms apply to past loss, a similar exercise must be undertaken under general law principles.
The plaintiff said that he had been offered work as an investigator for a private insurance company but could not accept the offer because of his mental state. He also gave evidence in re-examination that he wanted to start a private inquiry agency, had made preliminary enquiries and was confident that it was something that he could have done, using the skills he had acquired as a detective.
It may be accepted that it was not uncommon for police officers who retired between 55 and 60 to continue to work in other occupations thereafter, even if their retirement was on medical grounds. Mr Khalifeh, for example, was medically discharged with an injury to his right knee in 2007 but has worked full-time ever since as a self- employed truck driver and indeed worked part-time in that role when he was a serving police officer.
The plaintiff's superannuation benefits would not have been reduced by any extra income he earned after his retirement as a police officer. Nonetheless the amount of such benefits would, in my view, have largely removed any incentive for the plaintiff to work more than a few hours a week. There is no evidence of how much the plaintiff would have been likely to earn as a private investigator or, indeed, how many hours a week he would have been prepared to work in that role. But for the defendant's concessions that it was appropriate that a buffer be awarded to compensate the plaintiff for the loss of his earning capacity and that Average Weekly Earnings (AWE) was a reasonable guide to how it should be assessed, it might have been difficult to come to a view as to the appropriate assumptions or percentage possibility as required by s 13.
In light of the evidence referred to above and the defendant's concession, I consider that the most likely future circumstances would have been that, but for the injury, the plaintiff would have worked for about a day a week as a private investigator and that he would have earned, in that role, 20% of AWE until the age of 65. I am not persuaded that he would have worked thereafter at all.
On this basis his past loss (to which must be added the agreed figure of $109,400 referred to above) is a weekly loss in the order of $1,500 gross per week ($1,140 net per week) from 22 December 2010 to the date of judgment. His future loss is a weekly loss in the same order from the date of judgment to 22 December 2015. To express the calculations in this way gives an unwarranted impression of precision. The lump sum for this head of damage is, in substance, a buffer designed to quantify the plaintiff's loss in circumstances where the evidence does not permit precise calculations to be made: State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [64]-[87].
On this basis I assess his damages for past loss as $163,400, being the rounded sum of $109,400 (for loss of income as a police officer) and a further $54,000 by way of a buffer for past loss of post-retirement income. I assess future economic loss of post-retirement income on the same basis. Accordingly I assess the plaintiff's future economic loss, taking into account vicissitudes of 15%, in a rounded amount of $25,000.

Out of pocket expenses

Past out of pocket expenses are agreed at $39,657.35. The cost of Effexor is $110 per month. The cost of a consultation with a consultant psychiatrist is in the order of $225 per visit. I consider it to be appropriate to allow for monthly consultations. Accordingly, the weekly cost of medications and medical treatment is in the order of $85. The plaintiff has a life expectancy of 20 years. The relevant multiplier is 666.4 (at the rate of 5%). I assess damages for future out of pocket expenses, after discount for vicissitudes of 15% at $50,000.

Orders

I make the following orders: 1. Judgment for the defendant. 2. Subject to an application for a different order being made in writing to my Associate within seven days of the date of this order, order the plaintiff to pay the defendant's costs of the proceedings.

Amendments 03 July 2015 - par 296 - figures for past loss amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2015

Police Integrity Commission Act 1996(NSW)

Police Regulation Act 1899(NSW)

Police Service Act 1990(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (58 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (16)

Cited By (4)