Psychiatric and psychological evidence
98 Before commencing a summarised review of the evidence of the psychiatrists and psychologists, it is of importance to observe that they all acknowledge that the plaintiff's duties in the FSG placed him in a high-risk area for psychological injury such as depression or PTSD. It was common ground that the plaintiff has suffered significant psychological injuries. Although I have not attempted to summarise the histories provided by the plaintiff to the psychiatrists and psychologists, I have taken them into account in reaching my conclusions in this case.
99 The plaintiff's treating psychiatrist is Dr Anthony Durrell. Dr Harvey referred the plaintiff to Dr Durrell on 1 November 2007. This was the first occasion that the plaintiff had been referred to a psychiatrist for treatment. Dr Durrell's reports of 6 March 2009 and 6 November 2009 are found in ex B v 8.
100 Dr Durrell gave evidence during the hearing. He has seen the plaintiff on nearly forty occasions.
101 Dr Durrell was of the opinion that the plaintiff has "work caused psychiatric injuries in the form of Post Traumatic Stress Disorder and secondary Major Depressive Disorder (MDD)" (ex B v 8 p 22). The PTSD, he opined, results from the plaintiff's "repeated, direct and close exposure to psychologically traumatic events. These past traumatic work events in the NSW Police Service in a cumulative sense, overwhelm the memory and emotional processes resulting in brain dysfunction which manifest as symptoms and signs of mental illness". He reported that Mr Doherty's PTSD is "not mild but is more accurately rated as moderate to severe." The secondary depression, he said, is at times very severe.
102 Dr Durrell considered that the plaintiff's history in crime scene work "reveals an onset of mild PTSD in the early 1990's". The plaintiff had experienced levels of fluctuating partial remission for several years without identification or treatment of his PTSD. Dr Durrell reported that (ex B v 8 p 146):
"The continued exposure to work place traumas in the setting of untreated mild PTSD resulted in progression of this psychiatric injury to more moderate levels over the ensuing years. Furthermore, the undiagnosed and untreated PTSD, in the 2-3 years preceding his medical retirement in 2005 escalated to more severe levels of magnitude."
103 During his oral evidence, Dr Durrell said, that exposing someone with mild PTSD "puts him at grave risk of acceleration of the disorder by re-exposure and this is in fact my understanding of how Mr Doherty's disorder has progressed" (T 349 L 29-31).
104 When asked by Mr Doherty if there was any way to prevent that from happening, Dr Durrell replied (T 349 L 34-39):
" Certainly the earlier involvement of a psychiatrist, and as I understand it I am the first psychiatrist Mr Doherty has really had an opportunity to form a therapeutic relationship with, that would have been essential, I would have felt, for a proper management diagnosis. But removing Mr Doherty from crime scene work would have been a very sensible and I would think obvious way of reducing his risk of re-exposure."
105 Dr Durrell referred to the murder-suicide scene at Oak Flats which the plaintiff had attended on Anzac Day 2005 as the "last straw". By the time of this "last straw" traumatic workplace experience, Dr Durrell's view was that the plaintiff's "PTSD and secondary depression were already well established, for at least 2-3 years, at a chronic and entrenched level on the severe and (8-9/10) of a decimal rating scale" (ex B v 8 p 147). Dr Durrell was of the view that prior to this time treatment would have made some sort of difference as "the response to treatment gets progressively more difficult the longer this man is being re-exposed to traumas as his disorder is progressing" (T 350 L 8-9).
106 Dr Durrell recounted that the plaintiff had trialled a variety of medication over the years which included Cipramil and Aurorix. He had prescribed Zoloft, up to a higher dose, without a lot of relief. More recently Cymbalta and Seroquel had been trialled. Dr Durrell said that his treatment had been effective in containing the plaintiff's symptoms. He was "holding the line" but there would be "no cure" for his patient.
107 The plaintiff's principal witness of the genesis of the plaintiff's condition and on liability was Professor Alexander McFarlane. Professor McFarlane interviewed the plaintiff on 3 April 2008. Professor McFarlane's reports, dated 10 September 2008, 25 September 2009 and 28 September 2009, are found in ex B v 8. He gave oral evidence during the hearing. Professor McFarlane's diagnosis was that the plaintiff "using DSM-IV criteria, suffered from a post traumatic stress disorder and major depressive disorder." The DSM-IV criteria require an individual to be exposed to an event which provokes feelings of fear, helplessness and horror. Professor McFarlane's view was that during the plaintiff's career, he had been exposed "to a number of such incidents which have left him with traumatic memory structures." The most traumatic events were the Valevski, O'Hearn and Arkell murders and the identification of his cousin's body. Professor McFarlane observed that the plaintiff had developed distressing and intrusive recollections of the major traumatic events which were manifested by nightmares in the immediate aftermath and by spontaneous and distressing recollections of these crime scenes during his waking hours. The plaintiff had actively attempted to shut out his thoughts and feelings associated with these events by engaging in a range of behavioural avoidance.
108 The "Diagnostic and Statistical Manual of Mental Disorders DSM-IV 4th ed Washington DC, 1994" as published by the American Psychiatric Association was referred to by the psychiatrists as "DSM-IV". The diagnostic criteria for PTSD include (ex 12):
"A. The person has been exposed to a traumatic event in which both of the following were present:
(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.
(2) the person's response involved intense fear, helplessness, or horror.
B. The traumatic event is persistently re-experienced in one (or more) of the following ways:
(1) recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions.
(2) recurrent distressing dreams of the event.
(3) acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated).
(4) intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.
(5) physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event."
109 I do not propose to recite criteria C, D and F. It is of importance, however, to record that criteria E is as follows:
"Duration of the disturbance (symptoms in Criteria B, C and D) is more than 1 month."
110 Both Dr Durrell and Professor McFarlane were of the opinion that the plaintiff was suffering from PTSD and a major depressive disorder which satisfied the DSM-IV criteria.
111 The major depressive disorder was, in Professor McFarlane's opinion, manifested by "pervasive disturbance with mood lasting more than two weeks." The question also arose as to whether the plaintiff had suffered from an acute stress disorder, particular following the Valevski murders. Professor McFarlane opined that "his degree of hyper arousal and sense of detachment during this time, combined with his intense nightmares may have been indicative of him being frankly symptomatic in the immediate aftermath of this event". Professor McFarlane noted, "the importance of this observation is that it highlights how his distress was not identified or systems in the workplace, which should have been put in place to identify individuals at such risk."
112 Professor McFarlane spoke of a process of "kindling" and "sensitisation" which was, he said, the mechanism by which repeated exposures led to the onset of PTSD and depression. He explained that the more traumatic events that an individual was exposed to, the greater the risk was of that person developing PTSD or depression.
113 He expressed the view that when Dr Harvey diagnosed depression and prescribed Cipramil in 2003 the plaintiff should have been withheld from crime scenes because "his exposures prior to 2003 played a very significant role in the onset of his condition and the probability of him getting a full response to treatment would potentially be disrupted by him being further exposed" (T 260 L 20-23). The critical issue for the plaintiff was attendance at crime scenes which re-activated his traumatic memories and kept those memories alive, which then drove the disordered arousal and mood disturbance that underpinned his condition. He opined that, if the plaintiff had been removed from crime scene investigation work in mid-2003 and provided with appropriate treatment, he would still be working full-time. There was a period after which the plaintiff could have been put back into crime scene investigation work, Professor McFarlane said, but "you are beholden to supervise them on a regular basis because they do have a greater probability than another individual of becoming unwell in that environment" (T 261 L 1-3).
114 A critical component of PTSD, Professor McFarlane testified, is "that people get a conditioned stress response to certain qualities or reminders or characteristics of crime scenes. And as with any form of learning, the more frequent that learning is reinforced, the stronger that link becomes and the more difficult it is to extinguish or unlearn that association" (T 261 L 32-36).
115 When the plaintiff returned to crime scene work, the risk was, Professor McFarlane said, that his learned association was further strengthened "and when it reaches a certain level, it is difficult to extinguish that learning." Professor McFarlane was of the view that the plaintiff reached that level after his period of absence from work in 2004. The declaration by Dr Li of the plaintiff being fit for full operational duties in November 2004 was, he said, inappropriate as the plaintiff had been previously sent back on one occasion to the FSG and had become unwell. According to Professor McFarlane, had the plaintiff been removed from the FSG in November 2004, his outcome would have been different and he would still have the capacity for employment, probably within the police force. Professor McFarlane expressed the opinion that by returning him to crime scene investigation work in November 2004, the degree of contribution to his PTSD and major depression was substantial. The plaintiff was now significantly disabled as a consequence of his disorder and was likely to remain in much the same state for the foreseeable future.
116 Dr Lisa Brown and Professor Christopher Tennant gave evidence in the defendant's case. Dr Brown, a psychiatrist, interviewed the plaintiff on 15 July 2008 at the request of the defendant's solicitors. Dr Brown's two reports are found in ex 10. It was Dr Brown's opinion in a report dated 21 July 2008 that the plaintiff had developed "a mild chronic post traumatic stress disorder condition, arising as a result of cumulative exposure to various workplace accident and crime scenes, as part of his employment as a police officer." Dr Brown reported (ex 10 t 1.1 p 15):
"Although Mr Doherty described a number of particularly distressing incidents having become the focus of his intrusive nightmares and flashbacks, including the deaths of children and the identification of a close family friend's body, it has been considered more likely that totality of his cumulative exposure over the years of his work as a forensic investigator was the factor responsible for the development and maintenance of his Post Traumatic Stress complaints."
117 Dr Brown's view was that the plaintiff's symptom profile from around the year 2000 onwards was consistent with his having developed a PTSD type condition. Dr Brown wrote that he would meet criteria for the stressor A criterion for the DSM-IV diagnosis of PTSD, given his multiple exposures to various crime and accident scenes. She rated his PTSD "as being of mild severity." Dr Brown opined that the plaintiff had undergone appropriate treatment and a partial remission of symptoms had occurred. He was likely to undergo gradual but significant further improvements over several years.
118 During her oral testimony, Dr Brown said that when she assessed the plaintiff in July 2008 she had limited documentation that provided contemporaneous records of the timing of the onset of his symptoms. Having subsequently reviewed other records, she was now of the opinion that, rather than having developed PTSD during 2000-2003, the plaintiff developed a depressive disorder around 2003. He had developed PTSD, possibly around May 2004, at which time the medical and psychological counselling records first indicated that he complained of flashbacks.